Постановление Европейского суда по правам человека от 23.04.2009 «Дело Битиева и другие (Bitiyeva and others) против России» [англ.]

in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
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."
109. The applicants maintained their complaint.
110. In the Government's submission, the investigation had obtained no evidence to confirm that the applicants' relatives had been detained by State agents in breach of the guarantees set out in Article 5 of the Convention.

A. Admissibility

111. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

112. The Court has frequently emphasised the fundamental importance of the guarantees contained in Article 5 for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. In that context, it has repeatedly stressed that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrary detention. To minimise the risks of arbitrary detention, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty is amenable to independent judicial scrutiny and secures the accountability of the authorities for that measure. The unacknowledged detention of an individual is a complete negation of these guarantees and discloses a most grave violation of Article 5 (see, among other authorities, {Cakici}, cited above, § 104).
113. It has been established above that the applicants' relatives were apprehended on 27 March 2004 by State agents and were not seen until 9 April 2004, when their corpses were found. The Government produced no formal acknowledgement of or justification for the detention of the applicants' relatives during the period in question. The Court thus concludes that the applicants' eight relatives were victims of unacknowledged detention in complete disregard of the safeguards enshrined in Article 5, and that this constitutes a particularly grave violation of their right to liberty and security enshrined in Article 5 of the Convention.

VI. Alleged violation of Articles 6 § 1
and 8 of the Convention

114. The applicants complained that they were unable to claim damages in respect of their relatives' deaths before completion of the investigation and thus had no access to court, contrary to Article 6 § 1 of the Convention. The app



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