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

s arbitrary and incompatible with the requirements of the Convention (here the applicant referred to Nakhmanovich v. Russia, No. 55669/00, §§ 70 - 71, 2 March 2006). From 17 to 31 May 2004 the applicant had once again remained in custody without judicial authorisation. Lastly, the applicant pointed out that on 9 October 2004 the initial six-month period of his detention "during the trial" had expired and from that date onwards his detention had been unlawful.
39. The Government submitted that at the time when the applicant's case had been under consideration the domestic courts had interpreted Article 255 of the Code of Criminal Procedure as permitting the detention of an accused without a court order for up to six months from the date of receipt of the case file by the trial court. Even though in 2005 the Constitutional Court had found that that practice was tainted with arbitrariness and therefore incompatible with the Constitution, at the material time such interpretation of Article 255 had been valid and endorsed by all Russian courts, including the Supreme Court. For that reason, the applicant's detention after the date on which the case file had been referred to the trial court (9 April 2004) was lawful in domestic terms. The decision of 13 May 2004 did not breach the requirements of legal certainty and the protection from arbitrariness because it had established that the prosecutor was to return the case within five days. After the case had been returned to the trial court on 17 May 2004, the applicant's detention had again been governed by the same interpretation of Article 255 of the Code of Criminal Procedure. Finally, the Government claimed that the return of a case to the prosecutor interrupted the running of the six-month period.
40. The Court reiterates that the expressions "lawful" and "in accordance with a procedure prescribed by law" in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the "lawfulness" of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see, among many other authorities, Khudoyorov v. Russia, No. 6847/02, § 124, ECHR 2005-X).
41. On the facts, the Court observes that on 10 April 2004, that is, one day after the trial court received the case file from the prosecutor, the period of the applicant's detention authorised by the decision of 13 February 2004 expired. However, no further decision on his detention was taken.
42. The Court has already found a violation of Article 5 § 1 of the Convention in many cases against Russia concerning the practice of holding defendants in custody solely on the strength of the fact that their case had been referred to the trial court. It held that the practice of keeping defendants in detention without judicial authorisation or clear rules governing their situation was incompatible with the principles of legal certainty and the protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see Isayev v. Russia, No. 20756/04, §§ 131 - 133, 22 October 2009; Yudayev v. Russia, No. 40258/03, §§ 59 - 61, 15 January 2009; Belov v. Russia, No. 22053/02, §§ 90 - 91, 3 July 2008; Lebedev v. Russia, No. 4493/04, §§ 55 - 58, 25 October 2007; Shukhardin v. Russia, No. 65734/01, §§ 84 - 85, 28 June 2007; Belevitskiy v. Russia, No. 72967/01, §§ 88 - 90, 1 March 2007; Korchuganova v. Russia, No. 75039/01, § 57, 8 June 2006; Nakhmanovich, cited above; and Khudoyorov, cited above, §§ 147 - 151).
43. The Court's findings in the above cases are applicable in the instant case and the Government did not advance an

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