Постановление Европейского суда по правам человека от 17.06.2010 «Дело Колесник (Kolesnik) против России» [англ.]

Criminal Procedure did not apply to the first applicant. The City Court held that since the initial decision of the Dorogomilovskiy District Court provided no time-limits for detention, her complaint was to be dismissed (see paragraphs 47 - 48 above).
84. Next, on 19 February 2008 the Dorogomilovskiy District Court again ordered the first applicant's detention, without reference to the six months she had already spent in custody by that date. This decision, reviewed on appeal by the Moscow City Court on 19 March 2008, again contained no time-limits for the detention (see paragraphs 49 - 50 above).
85. Only on 17 July 2007, within the context of review of the decision to extradite the first applicant, the Supreme Court established a time-limit for the first applicant's detention of 8 August 2008 (see paragraph 33 above). The first applicant was released on 12 August 2008.
86. Thus, the Court finds that assuming that the first applicant's detention between 19 August and 19 October 2007 could be considered lawful under the provisions of the domestic law, it ceased to be so after the latter date. The subsequent decisions of the courts of 19 and 28 February and 17 July 2008 failed to refer to the relevant national legislation governing the detention, to indicate time-limits and to give sufficient reasons for the continued detention, all in breach of the provisions of Article 109 § 2 of the Code of Criminal Proceedings.
87. In such circumstances, the Court finds that the first applicant's detention pending extradition was not "lawful" for the purposes of Article 5 § 1 of the Convention. Accordingly, there has been a violation of this provision. The Court does not need to consider separately the applicant's additional arguments concerning the quality of the domestic law.

2. Alleged violation of Article 5 § 4 of the Convention

88. The Court has previously found that the provisions of the Russian Code of Criminal Procedure did not confer on persons awaiting extradition the right to a procedure to have the lawfulness of their detention examined by a court. Thus, the Court found that the provisions of Articles 108 and 109 of the Code, which cover the initial placement in custody and set specific time-limits, link the judicial review to the prosecutor's regular application for the extension of such detention. The Court has already found above that the first applicant's detention was not authorised in accordance with the relevant national law, and therefore she was unable to benefit from the provisions governing judicial review of the extensions (see Nasrulloyev v. Russia, No. 656/06, § 88, 11 October 2007; Ismoilov and Others v. Russia, No. 2947/06, § 153, 24 April 2008; and Ryabikin, cited above, § 139). As to the Government's reference to Article 125 of the Code of Criminal Procedure, the Court notes that the first applicant's complaint that her detention was unlawful was initially granted by the Lyublinskiy District Court. However, this decision did not lead to the first applicant's release and was quashed by the Moscow City Court, which decided that the first applicant had no standing under the Code of Criminal Procedure since no criminal charge has been pending against her in Russia (for similar conclusions, see Nasrulloyev, cited above, § 89, and Ryabikin, cited above, § 140).
89. It follows that the first applicant did not have at her disposal any procedure by which the lawfulness of her detention could have been examined by a court. Therefore, there has been a violation of Article 5 § 4 of the Convention.

III. Alleged violation of Article 6 § 2 of the Convention

90. The first applicant complained that the decisions of the Russian prosecutors and courts had violated the presumption of innocence in so far as they referred to her having committed crimes

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