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

event exceeded the maximum period of 18 months authorised by Article 109 of the CCrP.
157. He further stated that the Prosecutor General's Office had concluded its extradition check on 30 December 2008, and that on 8 June 2009 that decision had become final and the extradition proceedings against him had been terminated. After that no action with a view to extraditing him had been taken, so his further detention was in breach of Article 5 § 1 (f). In the applicant's submission, the fact that he had challenged the extradition order before the courts did not necessitate his further detention or relieve the authorities from their obligation to authorise it in accordance with the law. In the same vein, nowhere did the Asylum Act contain a requirement for asylum seekers to be held in custody, and the Government's statement that the authorities had to hold him in custody because of the Strasbourg Court's application of Rule 39 was misconceived.
158. Relying on the Court's judgments in the cases of Ismoilov and Others and Nasrulloyev, the applicant argued that the Government's reference to Articles 108 and 109 of the CCrP was misconceived. In particular, it was obvious from the wording of those provisions that it was possible to challenge an extension of detention only if there was a decision to extend the detention. However, no such decisions had been taken in his case. Article 124 of the CCrP secured a possibility to complain to a prosecutor or an investigative body but did not provide for access to judicial review of detention, as required by Article 5 § 4 of the Convention. Article 125 of the CCrP contained an exclusive list of decisions a court could take in examining a complaint. However, there was no indication that a court could instruct an investigating authority to release the detainee. On the contrary, according to the Supreme Court Directive Decision of 10 February 2009, although a court examining a complaint under Article 125 could order a law enforcement official whose acts it considered unlawful to set matters right, it could not annul the decisions which it had qualified as unlawful.
159. As to Article 17 of the Custody Act, although that provision mentioned the detainee's right to challenge his detention before the courts, it did not lay down the relevant procedures. According to Supreme Court decision No. 2 (see Relevant Domestic Law above), the applicant could not complain about his detention under Chapter 25 of the Civil Code.
160. Lastly, the applicant argued that he had on several occasions attempted to obtain review of his detention but his attempts had not produced any meaningful results.

B. The Court's assessment

1. Admissibility

161. The Government submitted that the applicant had failed to exhaust domestic remedies and had not complied with the six-month requirement in respect of his complaints under Article 5 of the Convention.
162. The Court considers that issues of exhaustion of domestic remedies and compliance with the six-month rule are closely linked to the merits of the applicant's complaint under Article 5 of the Convention. Therefore, it finds it necessary to join the Government's objection to the merits of those complaints.
163. The Court further notes that the complaints under Article 5 §§ 1 and 4 are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It considers that they are not inadmissible on any other grounds and must therefore be declared admissible.

2. Merits

(a) Article 5 § 4 of the Convention
164. The Court will first examine the applicant's complaint under Article 5 § 4 of the Convention.
165. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to ju



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