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Постановление Европейского суда по правам человека от 19.03.2009 «Дело Полонский (Polonskiy) против России» [англ.]





limb of Article 3 of the Convention. Therefore, the complaint should be declared admissible. However, having regard to its conclusion above under Article 3 of the Convention, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention.

III. Alleged violation of Article 5 § 3 of the Convention

128. The applicant complained of a violation of his right to trial within a reasonable time and alleged that detention orders had not been founded on sufficient reasons. He relied on Article 5 § 3 of the Convention which reads as follows:
"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

A. Admissibility

129. The Government submitted that the applicant had not appealed to the Supreme Court about the detention orders issued during the investigation. He had not therefore exhausted effective domestic remedies in respect of that period.
130. The applicant argued that an appeal to the Supreme Court was not an effective remedy. It did not provide reasonable prospects of success as there was an administrative practice of holding defendants charged with serious criminal offences in custody during the investigation and trial.
131. The Court reiterates that the purpose of the rule requiring domestic remedies to be exhausted is to afford the Contracting States the opportunity of preventing or putting right the alleged violations before those allegations are submitted to the Court. In the context of an alleged violation of Article 5 § 3 of the Convention, this rule requires that the applicant give the domestic authorities an opportunity to consider whether his right to trial within a reasonable time has been respected and whether there exist relevant and sufficient grounds continuing to justify the deprivation of liberty (see Shcheglyuk v. Russia, No. 7649/02, § 35, 14 December 2006).
132. The Court considers that a person alleging a violation of Article 5 § 3 of the Convention with respect to the length of his detention complains of a continuing situation which should be considered as a whole and not divided into separate periods in the manner suggested by the Government (see, mutatis mutandis, Solmaz v. Turkey, No. 27561/02, §§ 29 and 37, ECHR 2007-...). Following his placement in custody on 29 April 2003 the applicant continuously remained in detention. It is not disputed that he did not lodge appeals against the extension orders issued before 13 October 2004. He did, however, appeal to the Supreme Court against the subsequent extension orders, claiming, in particular, that his detention had exceeded a reasonable time. He thereby gave an opportunity to the Supreme Court to consider whether his detention was compatible with his Convention right to trial within a reasonable time or release pending trial. Indeed, the Supreme Court had to assess the necessity of further extensions in the light of the entire preceding period of detention, taking into account how much time had already been spent in custody. The Court concludes that the applicant has exhausted domestic remedies and rejects the Government's objection.
133. Having reached the conclusion that the applicant made use of available domestic remedies, the Court does not consider it necessary to resolve the question whether he was absolved from the obligation to exhaust those remedies due to an administrative practice of violations of Article 5 § 3 (see Aksoy v. Turkey, 18 December 1996, § 57, Reports of Judgments and Decisions 1996-VI). In any event, the applicant did not submit any evidence to allow the Court to make findings concerning the existence of such practice.
134. The Court further notes that this com



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