at least two years' imprisonment, provided that a less restrictive preventive measure cannot be applied. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide on the appeal within three days of its receipt.
18. Article 376 of the CCrP provides that the parties must be notified about the date, time and venue of the appeal hearing no later than fourteen days before it. The court shall decide whether the detainee should be summoned to the hearing.
19. On 22 January 2004 the Constitutional Court delivered decision No. 66-O on a complaint about the Supreme Court's refusal to permit a detainee to attend the appeal hearings on the issue of detention. It held:
"Article 376 of the Code of Criminal Procedure regulating the presence of a defendant remanded in custody before the appeal court... cannot be read as depriving the defendant held in custody... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms..."
THE LAW
I. Alleged violations of Article 5 § 4 of the Convention
20. The applicant complained that the appeal proceedings against the detention order of 23 July 2003 had not complied with the requirements of Article 5 § 4 of the Convention. In particular, his appeal against the detention order of 23 July 2003 was examined only on 14 August 2003 in his and his counsel's absence. Article 5 § 4 of the Convention 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
21. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Alleged unfairness of the proceedings concerning
review of the applicant's detention
22. The Government submitted that the applicant and his counsel had been duly informed of the appeal hearing by notification, sent to them on 4 August 2003.
23. The applicant argued that neither he nor his counsel had been informed of the date of the examination of their appeal. The Government failed to submit to the Court any evidence to prove that the notice of the hearing had in fact reached him and his counsel. Only in December 2006, while reading the materials of the criminal case, did his mother learn that the examination of the appeal had taken place on 14 August 2003.
24. The Court reiterates that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for review by a court of the procedural and substantive conditions which are essential for the "lawfulness", in the sense of Article 5 § 1, of his or her deprivation of liberty (see Brogan and Others v. the United Kingdom, 29 November 1988, § 65, Series A No. 154-B). Although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see Reinprecht v. Austria, No. 67175/01, § 31, ECHR 2005-..., with further references). The proceedings must be adversarial and must always ensure equality of arms between the parties. In the case of
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