Постановление Европейского суда по правам человека от 12.05.2010 «Дело Ходжаев (Khodzhayev) против России» [англ.]

ccepts that Article 108 § 11 of the CCP provided the applicant with an opportunity to appeal against the initial decision to place him in custody, that is, the decision of 30 November 2007. However, the Government offered no explanation whatsoever for the fact that the decision of 28 December 2007 did not extend the term of the applicant's detention but authorised the preventive measure de novo despite the fact that the decision of 30 November 2007 had never been quashed and the prevention measure applied to the applicant had not been varied. The Court observes that the domestic law remains silent on possible avenues of appeal against a second consecutive decision to place in custody and considers that in such circumstances the applicant could not be required to have appealed against the decision of 28 December 2007.
125. In any event, assuming that the applicant did indeed fail to exhaust available domestic remedies regarding the decisions of 30 November and 28 December 2007, the Court observes that it is not disputed between the parties that the applicant spent more than ten months in detention pending extradition proceedings. It considers that new issues affecting the lawfulness of the detention might have arisen during that period and that, accordingly, by virtue of Article 5 § 4 he was entitled to apply to a "court" having jurisdiction to decide "speedily" whether or not his deprivation of liberty had become "unlawful" in the light of new factors which emerged subsequently to the decision on his initial placement in custody (see Ismoilov and Others v. Russia, No. 2947/06, § 146, 24 April 2008).
126. The Government merely stated that the applicant could have applied to a court or a prosecutor for review of the lawfulness of his detention, without referring to specific provisions of domestic law. In this connection the Court reiterates that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Selmouni v. France [GC], No. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), No. 57220/00, § 15, ECHR 2002-VIII). The Court further reiterates that the domestic remedies must be "effective" in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see {Kudla} v. Poland [GC], No. 30210/96, § 158, ECHR-XI).
127. In any event, leaving aside the issue whether the Government have shown which particular type of complaint to a prosecutor or a court could have offered preventive or compensatory redress for alleged violations of Article 5 of the Convention, the Court emphasises that it has already found on numerous occasions that the provisions of Articles 108 and 109 of the CCP did not allow those detained with a view to extradition to initiate proceedings for examination of the lawfulness of the detention in the absence of a prosecutor's request for an extension of the custodial measure (see Nasrulloyev v. Russia, No. 656/06, § 88, 11 October 2007, Ismoilov and Others, cited above, § 151, and Muminov, cited above, § 114). Moreover, the Court doubts that the provisions of Chapter 16 of the CCP for the possibility for "parties to criminal proceedings" to challenge decisions taken in the course of a preliminary investigation before a prosecutor (Article 124 of the CCP) or a court (Article 125 of the CCP) could have been applicable in the applicant's case since there is no indication that he was a party to criminal proceedings within the meaning given to that phrase by the Russian courts (see Muminov, cited above, § 115).
128. In these circumstances, the Court is not satisfied that the provisions of domestic

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