Постановление Европейского суда по правам человека от 21.10.2010 «Дело Гафоров (Gaforov) против России» [англ.]

se.
146. Article 5 of the Convention reads, in so far as relevant, as follows:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
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(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
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4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

A. Submissions by the parties

1. The Government

147. The Government argued that the applicant had not exhausted the domestic remedies in respect of his complaints under Article 5. In particular, he had failed to challenge the detention orders of 7 August and 16 September 2008 on appeal or by way of supervisory review pursuant to Articles 108 § 11 and 109 § 8 of the CCrP, despite the fact that he had been advised of the time-limits and procedures for doing so. The applicant had likewise failed to appeal against the refusal of 27 January 2009 to examine his release request and had failed to rectify the shortcomings indicated in that decision. Bearing in mind that, pursuant to Article 466 of the CCrP, a prosecutor was to petition a court to remand the applicant in custody, it was also open to the applicant to complain about the inactivity of the prosecutors under Articles 124 and 125 of the CCrP. Whilst the City Court had, indeed, disregarded the applicant's request for release filed on 20 April 2009, the applicant had not complained about it in his appeal statement. Furthermore, the applicant had failed to appeal by way of supervisory review against the Supreme Court's failure to examine his written request for release lodged on 8 June 2009. Moreover, the applicant could have complained to the courts about his detention under Article 17 of the Custody Act, or challenged the acts or omissions of the administration of the remand centre under Chapter 25 of the CCP.
148. In the alternative, the Government argued that the latest decision concerning the applicant's detention had been issued on 16 September 2008, and that the applicant had therefore failed to comply with the six-month requirement in respect of his complaints under Article 5 § 1.
149. The Government further submitted that the domestic authorities had been obliged to hold the applicant in custody because the Strasbourg Court had applied Rule 39 and indicated to them to suspend his extradition. Referring to the Chahal case (see Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V), they stressed that paragraph 1 (f) of Article 5 of the Convention provided for a level of protection different from paragraph 1 (a) - (e), requiring only that extradition proceedings be pending. Hence, it was immaterial for that provision whether there existed sufficient grounds for holding the person in custody. Accordingly, the applicant's detention from 5 August 2008 onwards had been "lawful" within the meaning of the above provision.
150. They further claimed that the applicable domestic provisions were sufficiently clear and foreseeable and permitted the applicant to estimate the likely length of his detention. In this respect they referred to Articles 108 and 109 of the CCrP, the Constitutional Court Ruling of 4 April 2006 and the Supreme Court Ruling of 29 October 2009, which had, in their opinion, given a comprehensive interpretation of the application of those provisions to extradition proceedings. Consequently, the lack of time-limits in the detention orders of 7 August and 16 S



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