Постановление Европейского суда по правам человека от 22.12.2009 «Дело Макаренко (Makarenko) против России» [англ.]

the Convention. It further notes that they are not inadmissible on any other grounds and that they must therefore be declared admissible.

2. Merits

(a) Speediness of review
(i) General principles
118. The Court reiterates that Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful. Although it does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to detainees the same guarantees on appeal as at first instance (see Navarra v. France, 23 November 1993, § 28, Series A No. 273-B, and Toth v. Austria, 12 December 1991, § 84, Series A No. 224). The requirement that a decision be given "speedily" is undeniably one such guarantee and Article 5 § 4, concerning issues of liberty, requires particular expedition (see Hutchison Reid v. the United Kingdom, No. 50272/99, § 79, ECHR 2003-IV). In that context, the Court also observes that there is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because the defendant should benefit fully from the principle of the presumption of innocence (see {Ilowiecki} v. Poland, No. 27504/95, § 76, 4 October 2001).
(ii) Application of the general principles to the present case
119. The Court notes that it took the domestic courts approximately ninety-eight, forty-five, thirty-three and forty days to examine the applicant's various requests for release or his appeals against the detention orders (see paragraphs 36, 37, 38 - 39 and 40 above). Nothing suggests that the applicant caused delays in the examination of his request for release or appeals against the detention orders. The Court considers that these four periods cannot be considered compatible with the "speediness" requirement of Article 5 § 4, especially taking into account that their entire duration was attributable to the authorities (see, for example, Mamedova v. Russia, No. 7064/05, § 96, 1 June 2006; Khudoyorov, cited above, §§ 198 and 203; and Rehbock v. Slovenia, No. 29462/95, §§ 85 - 86, ECHR 2000-XII, where review proceedings which lasted twenty-three days were not "speedy").
120. There has therefore been a violation of Article 5 § 4 of the Convention.
(b) Appeal against the decision of 8 October 2003 and request for release lodged on 24 November 2003
(i) General principles
121. The Court observes that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in Convention terms, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Grauslys v. Lithuania, No. 36743/97, § 53, 10 October 2000). In order to satisfy the requirements of Article 5 § 4 of the Convention, a "review of the lawfulness of the applicant's detention" must comply with both the substantive and procedural rules of the national legislation and moreover be conducted in conformity with the aim of Article 5, namely to protect the individual against arbitrariness (see Keus v. the Netherlands, 25 October 1990, § 24, Series A No. 185-C).
(ii) Application of the general principles to the present case
122. The Court reiterates that on 18 November 2003 the Smolensk Regional Court disallowed



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