d an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. 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.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
167. The applicants contended that Kazbek Vakhayev's detention had been unlawful, since he was clearly not a vagrant, given that he was arrested at his home and had his passport with him.
168. The Government submitted that Kazbek Vakhayev had been detained as a person of no fixed residence. After his identity was established, he had been released. The Government also pointed out that the applicants had never lodged any complaints concerning Kazbek Vakhayev's detention before the domestic courts. They concluded that there had been no violation of Article 5 of the Convention in respect of Kazbek Vakhayev's detention.
169. Inasmuch as the Government may be understood to raise the plea of non-exhaustion with respect to the present complaint on account of the applicants' failure to challenge the lawfulness of Kazbek Vakhayev's detention before a court, the Court reiterates that, under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see K. and T. v. Finland [GC], No. 25702/94, § 145, ECHR 2001-VII, and N.C. v. Italy [GC], No. 24952/94, § 44, ECHR 2002-X). However, in their submissions prior to the Court's decision as to the admissibility of the present application the Government did not raise this argument. There are no exceptional circumstances which would have absolved the Government from the obligation to raise their preliminary objection before the adoption of that decision. Consequently, the Government are estopped from raising a preliminary objection of non-exhaustion of domestic remedies in this respect at the present stage of the proceedings.
170. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see {Cicek} v. Turkey, No. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).
171. The Court has found it established that Kazbek Vakhayev was apprehended by State servicemen on 1 August 2000 and has not been seen since. According to the detailed account of the circumstances provided by the applicants, he was apprehended at his home. This was not disputed by the Government, who provided no alternative account of the relevant circumstances. However, they submitted that he had been arrested on 1 August 2000 and detained until 11 August 2000 on the basis of Presidential Decree of
> 1 2 3 ... 16 17 18 ... 21 22 23
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
