Постановление Европейского суда по правам человека от 23.04.2009 «Дело Московец (Moskovets) против России» [англ.]

41, ECHR 2006-...; Jablonski v. Poland, No. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A No. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, No. 38822/97, § 66, ECHR 2003-I (extracts)).
76. It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, No. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, No. 33977/96, §§ 84 - 85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court's task to establish such facts and take the place of the national authorities who ruled on the applicant's detention. It is essentially on the basis of the reasons given in the domestic courts' decisions and of the true facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova, cited above, § 72; Ilijkov, cited above, § 86; and Labita, cited above, § 152).
(b) Application to the present case
(i) Period to be taken into consideration
77. The Court observes that Article 5 § 3 applies solely in the situation envisaged in Article 5 § 1 (c) with which it forms a whole. It ceases to apply on the day when the charge is determined, even if only by a court of first instance, as from that day on the person is detained "after conviction by a competent court" within the meaning of Article 5 § 1 (a) (see Solmaz v. Turkey, No. 27561/02, §§ 24 - 26, ECHR 2007-..., and B. v. Austria, 28 March 1990, §§ 36 - 39, Series A No. 175).
78. The applicant was arrested on 25 December 1999 on suspicion of several counts of murder and was held in custody until his conviction by the first-instance court on 30 April 2004. During part of that period, from 26 November 2001 to August 2002, he was concurrently serving his sentence after conviction in an unrelated criminal case (see paragraphs 20 - 22 above). The Court must verify which subparagraph of Article 5 § 1 was applicable during that period with a view to determining whether it should be taken into consideration for the purposes of Article 5 § 3.
79. The Court reiterates in this connection that the applicability of one ground listed in Article 5 § 1 does not necessarily preclude the applicability of another and detention may be justified under more than one sub-paragraph of that provision (see, among many others, Brand v. the Netherlands, No. 49902/99, § 58, 11 May 2004, and Johnson v. the United Kingdom, 24 October 1997, § 58, Reports 1997-VII). In particular, in the case of Eriksen v. Norway, the Court considered that the applicant's detention was justified under both sub-paragraphs (a) and (c) of Article 5 § 1 and found that Article 5 § 3 was applicable (see Eriksen v. Norway, 27 May 1997, § 92, Reports 1997-III).
80. In the present case, on 26 November 2001 the applicant was convicted in an unrelated criminal case and sentenced to a term of imprisonment which he completed in August



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