Постановление Европейского суда по правам человека от 30.07.2009 «Дело Ламажик (Lamazhyk) против России» [англ.]

nsion, was not covered by any detention order and had therefore been unlawful.
69. The Court reiterates that for detention to be "lawful" within the meaning of Article 5 § 1, it has to conform to both the substantive and procedural rules of the domestic law (see paragraph 65 above). The authorised period of the applicant's detention expired on 24 September 2003. It was only on the following day that the Supreme Court of the Tyva Republic issued the subsequent detention order. In this connection, the Court observes that neither the Government nor the Supreme Court of the Russian Federation, while examining an appeal against the detention order of 25 September 2003, pointed to any legal provision which permitted an accused to continue to be held once the authorised detention period had expired. The Russian Constitution and rules of criminal procedure vested the power to order or prolong detention on remand in courts (see paragraph 39 above). No exception to that rule were permitted or provided for, no matter how short the duration of the detention.
70. The Court further observes that the Supreme Court's decision of 25 September 2003 could not have constituted a "lawful" basis for the applicant's detention in the preceding period (see Belov v. Russia, No. 22053/02, § 82, 3 July 2008, with further references). The decision authorised the applicant's detention from 24 September to 24 December 2003, of which the period from 24 to 25 September 2003 was thus authorised retrospectively. The Court has already held in a number of cases that any ex post facto authorisation of detention is incompatible with the "right to security of person" as it is necessarily tainted with arbitrariness (see, for example, Khudoyorov v. Russia, No. 6847/02, § 142, ECHR 2005-X (extracts); Solovyev v. Russia, No. 2708/02, § 99, 24 May 2007, and Shukhardin v. Russia, No. 65734/01, § 69, 28 June 2007). The Court sees no reason to reach a different conclusion in the present case. It follows that the applicant's detention, in so far as it had been authorised by the order of 25 September 2003 in respect of the preceding period, was not "lawful" under domestic law.
71. The Court thus concludes that from 24 to 25 September 2003 there was no formal decision authorising the applicant's detention. The applicant was in a legal vacuum that was not covered by any domestic legal provision (see Shukhardin, cited above, § 85). In the absence of any decision that could have served as a "lawful" basis for the applicant's detention in the impugned period, the Court finds that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant's detention on remand from 24 to 25 September 2003.
ii. The applicant's detention from 25 September to 24 December 2003
72. The Court observes that the applicant's detention during the period from 25 September to 24 December 2003 was authorised by the Supreme Court of the Tyva Republic on the grounds that the charges against him were serious and that he was liable to obstruct the course of justice.
73. The Court reiterates that the trial court's decision to maintain a custodial measure would not breach Article 5 § 1 provided that the trial court had acted within its jurisdiction, had power to make an appropriate order, and had given reasons for its decision to maintain the custodial measure, for which it had also set a time-limit (see Khudoyorov, cited above, §§ 152 - 153; Korchuganova v. Russia, No. 75039/01, § 62, 8 June 2006; and Pshevecherskiy v. Russia, No. 28957/02, §§ 41 - 46, 24 May 2007).
74. The trial court acted within its jurisdiction in issuing the decision of 25 September 2003 and there is nothing to suggest that it was invalid or unlawful under domestic law in so far as it authorised the applicants' detention for the subsequent period. It has not been claimed that that d



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