w of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see {Conka} v. Belgium, No. 51564/99, § 46 and 55, ECHR 2002-I).
130. The applicant was detained in Russia pursuant to an arrest warrant issued by a prosecutor's office in Uzbekistan. As the Court has found above, the applicant's detention was not authorised by a Russian court, in violation of the relevant domestic provisions. The Tyumen regional court and subsequently the Supreme Court did not examine the complaints concerning the lawfulness of the applicant's detention pending extradition (see paragraphs 44 and 48 above). Thus, the lawfulness of the applicant's detention during the period in question was not examined by any court, despite his appeals to that effect.
131. There has therefore been a violation of Article 5 § 4 of the Convention on account of the absence of judicial review of the applicant's detention pending extradition.
IV. Alleged violation of Article 13 of the Convention
132. The applicant alleged that he had had no effective remedies against the above violations. He referred to Article 13, which provides:
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
A. The parties' arguments
133. The Government contended that the applicant had had access to domestic courts in respect of his complaints about the risk of ill-treatment. He had appealed against the extradition order to the Tyumen regional court and subsequently to the Supreme Court. They contended that this remedy was effective and the absence of a desirable outcome of the applicant's appeals did not demonstrate its ineffectiveness.
134. The applicant reiterated his complaint.
B. The Court's assessment
1. Admissibility
135. The Court further notes that the applicant's complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
136. The Court notes that the scope of a State's obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment materialised and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there are substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the applicant's expulsion to the country of destination, and (ii) the provision of an effective possibility of suspending the enforcement of measures whose effects are potentially irreversible (or "a remedy with automatic suspensive effect" as it is phrased in Gebremedhin [Gaberamadhien] v. France, No. 25389/05, § 66 in fine, ECHR 2007-V, which concerned an asylum seeker wishing to enter the territory of France; see also Jabari v. Turkey, No. 40035/98, § 50, ECHR 2000-VIII; Shamayev and Others, cited above, § 460; Olaechea Cahuas v. Spain, No. 24668/03, § 35, ECHR 2006-X; and Salah Sheekh v. the Netherlands, No. 1948/04, § 154, ECHR 2007-I (extracts)).
137. Judicial review proceedings constitute, in principle, an effective remedy within the meaning of Articl
> 1 2 3 ... 17 18 19 20
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
