Постановление Европейского суда по правам человека от 17.06.2010 «Дело Колесник (Kolesnik) против России» [англ.]

on of Article 5 § 1 of the Convention

79. It is common ground between the parties that the first applicant was detained between 19 August 2007 and 12 August 2008 with a view to extradition to Turkmenistan. Therefore, the provisions of Article 5 § 1 (f) apply. The parties dispute whether the detention was lawful.
80. The Court observes that the provision in question does not require that the detention of a person against whom action is being taken with a view to extradition be reasonably considered necessary, for example to prevent that person's committing an offence or absconding. In this connection, Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c): all that is required under sub-paragraph (f) is that "action is being taken with a view to deportation or extradition". It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see {Conka} v. Belgium, No. 51564/99, § 38, ECHR 2002-I, and Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996-V).
81. However, it falls to the Court to examine whether the applicant's detention was "lawful" for the purposes of Article 5 § 1 (f), with particular reference to the safeguards provided by the national system. Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, which is to protect the individual from arbitrariness (see Amuur v. France, 25 June 1996, § 50, Reports 1996-III). Since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Benham v. the United Kingdom, 10 June 1996, §§ 40 and 41, Reports 1996-III).
82. Turning to the circumstances of the present case, the Court notes that the Government, relying on the interpretation of the Constitutional Court, argued that the first applicant's detention pending extradition was governed by the provisions of the Code of Criminal Procedure. Indeed, the first applicant was brought before a judge within forty-eight hours of her arrest. On 24 August 2007 the Dorogomilovskiy District Court of Moscow authorised her detention pending extradition procedure. However, the Court notes, first, that no time-limit was fixed by that decision and, second, that upon the expiry of the maximum initial detention period of two months, no extension was granted by the court. According to the provisions governing the general terms of detention (Article 108 of the Code of Criminal Procedure), the time-limit for detention pending investigation is fixed at two months. A judge may extend that period up to six months. Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences. Thus, assuming that the decision of the Dorogomilovskiy District Court had served as a lawful basis for the first applicant's initial detention, it ceased to be lawful after the lapse of the two-month period, that is on 19 October 2007.
83. Moreover, the Court notes that the first applicant appealed against her continued detention, and on 11 January 2008 the Lyublinskiy District Court of Moscow found in her favour, having concluded that her detention beyond 19 October 2007 was unlawful. However, this decision did not lead to the first applicant's release. Instead, it was quashed on appeal by the Moscow City Court on 28 February 2008, which stated that the time-limits provided in the Code of



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