Article 5 § 4 of the Convention, which reads as follows:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
A. Admissibility
47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
48. The applicant pointed out that, following the completion of the in-patient examination, he had returned to a remand centre in Moscow on 26 December 2003, four days before the hearing in the Tula Town Court. Admittedly, his transfer from the remand centre in Moscow to one in Tula had presented some difficulties; however, four days had easily been sufficient for the transfer, given that the distance between Moscow and Tula was just 500 kilometres. His previous counsel Mr S. had asked for an adjournment of the hearing, but the Town Court had instead approved a different representative, Mr L., whom the applicant had never seen before. He had not had an opportunity to talk to Mr L. before the hearing and instruct him accordingly. The Town Court, for its part, had not made available any facilities, such as for instance a video link, to ensure the applicant's effective participation in the hearing.
49. The Government submitted that the Town Court had decided to examine the question of the applicant's detention in his absence because at that time he had been referred for an in-patient psychiatric examination and he had not returned to the remand prison until 16 January 2004. However, his counsel had taken part in the hearing.
50. The Court reiterates that the proceedings which an arrested or detained person is entitled to bring by virtue of Article 5 § 4 for the review of the "lawfulness" of his or her deprivation of liberty must be adversarial and must always ensure equality of arms between the parties. The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Mamedova v. Russia, No. 7064/05, § 89, 1 June 2006; Reinprecht v. Austria, No. 67175/01, § 31, ECHR 2005-XII; and Kampanis v. Greece, 13 July 1995, § 47, Series A No. 318-B).
51. On the facts, the Court observes that on 30 December 2003 the prosecutor's application for an extension of the applicant's detention was examined. The hearing was attended by the prosecutor and Mr L., newly appointed to represent the applicant, whereas the applicant himself was in a remand prison in Moscow.
52. A detainee should, as a general rule, have a right to participate in a hearing at which his detention is discussed (see Lebedev, cited above, § 113). Moreover, in the present case the applicant's absence from the hearing concerning his detention was at variance with the requirements of the domestic law, in particular Article 109 § 13 of the Code of Criminal Procedure (see paragraph 33 above), which provided that the personal presence of the defendant was mandatory at extension hearings. The exception envisaged in that Article and relied upon by the appeal court and the Government, namely that the applicant had been admitted for an in-patient examination, had not been applicable in the instant case because the examination had already been completed by 26 December 2003, four days before the hearing took place. It appears therefore that the domestic courts did not exercise adequate care to establish the applicant's whereabouts and take appropriate measures for securing his personal participation at the hearing, as required by Article 109 § 13 of
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