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Постановление Европейского суда по правам человека от 18.06.2009 «Дело Штейн (Shteyn (Stein)) против России» [англ.]





cle 109 § 3 of the CCrP, as in force in 2005 and 2006, did indeed require that an extension request be approved by the Prosecutor General or his deputy (see paragraph 56 above). However, the Court accepts the Government's argument that the detention order of 30 November 2005 was based on Article 109 § 7 rather than its paragraph 3. The former required that an extension request be approved by a regional prosecutor, which was done in the present case (see paragraph 10 above). Thus, the Court is satisfied that the national law was complied with in that respect. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(c) Detention order of 13 February 2006
87. The applicant also complained that the detention order of 13 February 2006 indicated no time-limit for his continued detention. Even assuming that the applicant exhausted the domestic remedies (see paragraph 13 above), the Court notes that this complaint was first raised in substance only in 2008, and thus was submitted out of time. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention.
(d) Detention order of 2 June 2006
88. The Court observes that the main thrust of the applicant's argument under Article 5 § 1 (c) of the Convention related to the detention order of 2 June 2006. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Merits

89. The Court reiterates that the expressions "lawful" and "in accordance with a procedure prescribed by law" in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. It is in the first place for the national authorities, and notably the courts, to interpret domestic law, and in particular, rules of a procedural nature, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. However, since under Article 5 § 1 of the Convention failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Toshev v. Bulgaria, No. 56308/00, § 58, 10 August 2006). The words "in accordance with a procedure prescribed by law" in Article 5 § 1 do not merely refer back to domestic law; they also relate to the quality of this law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention (see Stafford v. the United Kingdom [GC], No. 46295/99, § 63, ECHR 2002-IV). Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness (see, among others, Dougoz v. Greece, No. 40907/98, § 55, ECHR 2001-II).
90. The applicant's argument is twofold: (i) the order of 2 June 2006 allegedly extended his detention beyond the eighteen months' limit in breach of Article 109 of the CCrP; (ii) the relevant request for extension had been lodged too late and had not been approved by the Prosecutor General or his deputy. The Court observes that by 2 June 2006 the applicant had already been kept in detention for seventeen months and twenty-three days. However, the Government contended that part of that period, namely from 23 January to 27 April 2006, was covered by Article 255 of the CCrP and did not count toward the time-limits in Article 109 of the CCrP. The Court cannot accept the



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