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

law secured the applicant's right to take proceedings by which the lawfulness of his detention would be examined by a court.
129. Accordingly, the Court concludes that the Government failed to show that the existence of the remedies invoked was sufficiently certain both in theory and in practice and, accordingly, that these remedies lack the requisite accessibility and effectiveness (see A. and E. Riis v. Norway, No. 9042/04, § 41, 31 May 2007, and Vernillo v. France, 20 February 1991, § 27, Series A No. 198). The Government's objection concerning non-exhaustion of domestic remedies must therefore be rejected.
130. It follows that throughout the term of the applicant's detention pending extradition he did not have at his disposal any procedure for a judicial review of its lawfulness. In such circumstances the Court does not need to consider separately the applicant's additional argument concerning lack of access to a lawyer during the first two weeks of his detention.
131. There has therefore been a violation of Article 5 § 4 of the Convention.
(b) Article 5 § 1 of the Convention
132. Article 5 enshrines a fundamental human right, namely, the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, § 76, Reports 1996-VI). The text of Article 5 makes it clear that the guarantees it contains apply to "everyone" (see A. and Others v. the United Kingdom [GC], No. 3455/05, § 162, ECHR 2009-...). Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see A. and Others, cited above, § 163).
133. It is common ground between the parties that the applicant was detained as a person "against whom action is being taken with a view to... extradition" and that his detention fell under Article 5 § 1 (f). The parties dispute, however, whether this detention was "lawful" within the meaning of Article 5 § 1 of the Convention,
134. Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see Erkalo v. the Netherlands, 2 September 1998, § 52, Reports 1998-VI, and Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998-VII).
135. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with (see Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III, {Jecius} v. Lithuania, No. 34578/97, § 68, ECHR 2000-IX, and Ladent v. Poland, No. 11036/03, § 47, ECHR 2008-... (extracts)).
136. Turning to the circumstances of the present case, the Court observes that the request for the applicant's extradition was accompanied by an arrest warrant issued by a Tajik investigator rather than by a decision of a Tajik court. The applicant's initial placement in custody was ordered, on 30 November 2007, by a Russian court pursuant to Article 108 of the CCP and the provisions of the Minsk Convention governing custodial measures.
137. The Court takes note of the Government's claim that the applicant's placement in custody was governed by Article 62 § 1 of the Minsk Convention and observes t

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