Постановление Европейского суда по правам человека от 26.11.2009 "Дело "Назаров (Nazarov) против Российской Федерации" [рус., англ.]

ded speedily by a court and his release ordered if the detention is not lawful..."

A. Submissions by the parties

123. The Government submitted that the domestic courts had "speedily" examined the applicant's complaints concerning the lawfulness of his detention on remand and his counsel's appeals against the detention orders.
124. The applicant maintained his complaint.

B. The Court's assessment

1. Admissibility

125. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General principles
126. The Court reiterates that Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful. Although it does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to detainees the same guarantees on appeal as at first instance (see Navarra v. France, 23 November 1993, § 28, Series A No. 273-B; and Toth v. Austria, 12 December 1991, § 84, Series A No. 224). The requirement that a decision be given "speedily" is undeniably one such guarantee; while one year per level of jurisdiction may be a rough rule of thumb in Article 6 § 1 cases, Article 5 § 4, concerning issues of liberty, requires particular expedition (see Hutchison Reid v. the United Kingdom, No. 50272/99, § 79, ECHR 2003-IV). In that context, the Court also observes that there is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending because the defendant should benefit fully from the principle of the presumption of innocence (see {Ilowiecki} v. Poland, No. 27504/95, § 76, 4 October 2001).
(b) Application of the general principles to the present case
127. The Court observes that it took the regional court approximately a month to examine each of the applicant's counsel's appeals against the extension of his detention. The time taken to examine the appeals was never less than twenty-seven days. Moreover, on one occasion the delay in the examination of the appeal amounted to one month and seventeen days (see paragraphs 22 - 23, 29 - 31, 33, 36 and 40 above). There is nothing to suggest that the applicant caused these delays in the proceedings.
128. The Court therefore considers that the periods during which the regional court examined the appeals against the decisions on extensions cannot be considered compatible with the "speediness" requirement of Article 5 § 4, especially taking into account that their entire duration was attributable to the authorities (see, for example, Mamedova, cited above, § 96; Khudoyorov, cited above, §§ 198 and 203; and Rehbock v. Slovenia, No. 29462/95, §§ 85 - 86, ECHR 2000-XII, where review proceedings which lasted twenty-three days were found not to have been "speedy").
129. There has therefore been a violation of Article 5 § 4 of the Convention.

V. Application of Article 41 of the Convention

130. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Da

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