ed by a judge if the person was charged with serious or particularly serious criminal offences. However, upon the expiry of the maximum initial detention period of two months (Article 109 § 1 of the CCP), no extension was granted by a court in the present case. The applicant was detained pending extradition from 31 October 2007 until 23 April 2010 that is for almost two and half years based on the last court order of 30 January 2008. During that period no requests for extension of his detention were lodged. Thus, the national system failed to protect the applicant from arbitrary detention, and his detention cannot be considered "lawful" for the purposes of Article 5 § 1 of the Convention.
99. In view of the above, the Court finds that the applicant's detention during the period in question was unlawful and arbitrary, in violation of Article 5 § 1.
b) Article 5 § 4 of the Convention
100. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, De Wilde, Ooms and Versyp v. Belgium, § 76, 18 June 1971, 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 the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, mutatis mutandis, Stoichkov v. Bulgaria, No. 9808/02, § 66 in fine, 24 March 2005, and Vachev v. Bulgaria, No. 42987/98, § 71, ECHR 2004-VIII (extracts)). 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, mutatis mutandis, {Conka}, cited above, §§ 46 and 55).
101. The Court is not persuaded by the Government's argument that the applicant had obtained judicial review of his detention by complaining on 17 November 2008 that his detention was unlawful and he was unable to obtain judicial review (see paragraph 25 above). The applicant sought to argue before the courts that his detention had ceased to be lawful after the expiry of the time-limit established by Article 109 of the Code of Criminal Procedure. By virtue of Article 5 § 4 he was entitled to apply to a "court" having jurisdiction to decide "speedily" whether or not his deprivation of liberty had become "unlawful" in the light of new factors which emerged subsequently to the decision on their initial placement in custody (see, mutadis mutandis, Weeks v. the United Kingdom, 2 March 1987, §§ 55 - 59, Series A No. 114).
102. The applicant's complaint concerning the review of his detention was rejected by the domestic courts as incompatible with Article 125 of the CCP which provided, in principle, for judicial review of complaints about alleged infringements of rights and freedoms which would presumably include the constitutional right to liberty. That provision conferred standing to bring such a complaint solely on "parties to criminal proceedings". The Russian courts consistently refused to recognise the applicant's position as a party to criminal proceedings on the ground that there was no criminal case against him in Russia (see paragraphs 26 and 30 above).
103. The Court notes that in their observations the Government did not suggest any avenues for the judicial examination of the applicant's requests for the review of his detention.
104. Finally, the Court also notes that the applicant's situation is similar to that of the applicants in the cases of Nasrulloyev (see Nasrulloyev, ci
> 1 2 3 ... 13 14 15 16 ... 17
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
