Постановление Европейского суда по правам человека от 05.02.2009 «Дело Хайдаева и другие (Khaydayeva and others) против России» [англ.]

y them by 9 December 2004. Since she failed to do so, on 25 February 2005 the Moscow City Court returned the appeal statement without examination.

D. The Court's request for the case file

85. Despite the Court's specific requests to submit a copy of the file in the criminal case instituted into the abduction of the applicants' relatives, the Government did not provide any documents from the case file. They submitted a copy of the court decision delivered in respect of the third applicant's complaint concerning the inaction of the investigating authorities, copies of the first, fifth and seventh applicants' claims for damages and court decisions delivered in this respect. They stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of documents of a confidential nature and without the right to make copies.

II. Relevant domestic law

1. The Code of Criminal Procedure

86. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.
87. Article 125 of the new CCP lays down a judicial procedure for the examination of complaints. Orders of an investigator or prosecutor refusing to institute criminal proceedings or to terminate a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen's access to justice, may be appealed against to a local district court, which is empowered to check the lawfulness and grounds of the impugned decisions.
88. Article 161 of the new CCP prohibits the disclosure of information from the preliminary investigation file. Under part 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings or prejudice the investigation. Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited.

2. Legislation applicable to counter-terrorist operations

89. Federal Law No. 130-FZ of 25 July 1998 on the suppression of terrorism (Федеральный закон от 25 июля 1998 г. N 130-ФЗ "О борьбе с терроризмом") provides as follows:
Section 13. Legal regime in the zone of an anti-terrorist operation
"1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled:
... (2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification;
(3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation;..."

THE LAW

I. The Government's objection regarding
non-exhaustion of domestic remedies

90. The Government contended that the ap



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