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

the Government's submission, it was also open to the applicant to complain about the inaction of the prosecutors to other prosecutors or courts under Articles 124 and 125 of the CCrP, respectively.
171. In this connection the Court notes that it has already stated that Articles 124 and 125 of the CCrP conferred standing to complain about the alleged infringements of rights and freedoms within criminal proceedings solely on parties to those proceedings (see Ismoilov and Others and Muminov, both cited above, §§ 150, 115 and 127, respectively).
172. Moreover, as correctly stated by the applicant, Article 124 provides for the possibility to complain to an investigator or a prosecutor, but this does not secure him an opportunity to obtain "judicial review" of his detention, as required by Article 5 § 4. The Court also does not lose sight of the fact that in its decision No. 1 the Supreme Court explicitly excluded court-issued detention orders from the bulk of decisions amenable to judicial review under Article 125 of the CCrP (see paragraph 84 above). Against this background and in the absence of any examples of domestic court practice furnished by the Government demonstrating that persons in situations similar to that of the applicant could rely on Articles 124 and 125 of the CCrP to obtain judicial review of their detention, the Court is unable to consider the remedies suggested by the Government to be effective.
173. Lastly, referring to Articles 108 § 11 and 109 § 8 of the CCrP, the Government stated that it had been open to the applicant to appeal against the detention orders of 7 August and 16 September 2008 but he had failed to do so.
174. As regards the Government's reference to Article 109 of the CCrP, the Court emphasises that this provision does not entitle a detainee to initiate proceedings for examination of the lawfulness of his detention in the absence of a prosecutor's request for an extension of a custodial measure (see Nasrulloyev v. Russia, No. 656/06, § 88, 11 October 2007, and Ismoilov and Others, cited above, § 151). In this connection the Court cannot but observe that the applicant's attempt to obtain review of his detention with reference to Article 109 of the CCrP was met with a refusal to examine the issue by the Simonovskiy District Court, which body, for unspecified reasons, not only stated that the applicant had not grounded his complaint with any provisions of the CCrP, but also replied to the applicant's complaint by a letter, thereby preventing him from appealing against its refusal to examine the complaint through the normal channels (see paragraph 64 above).
175. As to Article 108 § 11 and assuming that it provided the applicant with an opportunity to appeal against the initial decision - that of 7 August 2008 - to place him in custody, the Government offered no explanation whatsoever for the fact that the decision of 16 September 2008 did not extend the term of the applicant's detention but authorised the preventive measure de novo, despite the fact that the previous detention order of 7 August 2008 had never been quashed and the preventive measure had not been varied. Bearing in mind that the domestic law appears to remain silent on possible avenues of appeal against a second consecutive decision to place in custody, the Court considers that the applicant could not be required to have appealed against the decision of 16 September 2008 (ibid).
176. In any event, as follows from the applicant's submissions to the Court, the thrust of his complaint under Article 5 § 4 is not the issue of his initial placement in custody but rather his inability to obtain judicial review of his detention after a certain lapse of time (see paragraph 154 above, and compare Ismoilov and Others, cited above, § 146). Given that the applicant spent more than twenty months in custody, new issues affecting the lawfulness of his det



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