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

dicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A No. 12). A remedy must be made available during a person's detention to allow that person to obtain speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Talat Tepe v. Turkey, No. 31247/96, § 72, 21 December 2004).
166. The Government argued, without providing any further details, that the applicant had not challenged, by way of supervisory review, the detention orders of 7 August and 16 September 2008 and the failure of the Supreme Court to examine his written request for release lodged on 8 June 2009. In this connection the Court reiterates that, according to its constant practice, an application for supervisory review is not a remedy to be used for the purposes of Article 35 § 1 of the Convention (see Berdzenishvili v. Russia (dec.), No. 31697/03, 29 January 2004; Shulepov v. Russia, No. 15435/03, § 23, 26 June 2008; and, in the context of Article 5, Nazarov v. Russia, No. 13591/05, § 94, 26 November 2009). Given that the Government did not specify how the remedy referred to could have provided the applicant with adequate preventive or compensatory redress for the alleged breach of Article 5, the Court finds that they failed to substantiate their claim that it was effective (see, among other authorities, Kranz v. Poland, No. 6214/02, § 23, 17 February 2004; Skawinska v. Poland (dec.), No. 42096/98, 4 March 2003; and Nazarov, cited above, ibid.).
167. As regards the Government's submission concerning the applicant's failure to appeal against the refusal to examine his complaint of 21 January 2009, the Court is surprised that the Babushkinskiy District Court considered a complaint that was clearly termed as a request for release and contained explicit and numerous references to the Code of Criminal Procedure (see paragraph 58 above) to be a civil claim and invited the applicant to rectify shortcomings in order to lodge a civil action, which clearly had not been the applicant's intention. In any event, the Government failed to demonstrate how an appeal against that decision could have provided the applicant with a possibility to obtain judicial review of his detention or secured him adequate redress in respect of the alleged breach of Article 5. The same holds true for their argument that the applicant had failed to complain on appeal about the City Court's failure to examine his oral request for release in the extradition proceedings (see paragraph 38 above).
168. The Government further stated that the applicant could have complained to the courts about his detention under section 17 of the Custody Act, but they failed to elaborate on that assertion. In any event, the Court has already held that the Custody Act derives from the Code of Criminal Procedure and concerns persons suspected or accused of criminal offences in Russia, and there is no indication that this Act applied at the material time to persons detained pending extradition. Hence, the Court is not certain that the remedy suggested by the Government bore any relation to the breaches alleged (see Muminov, cited above, § 115).
169. The Government also argued that the applicant could have challenged unspecified acts or omissions of the authorities in charge of the remand centre under Chapter 25 of the CCP. Yet here again, they failed to specify which alleged acts or omissions of the remand centre the applicant was supposed to have challenged and under which provisions of that Chapter of the CCP, and with what redress such a complaint could have provided him.
170. In

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