Постановление Европейского суда по правам человека от 12.02.2009 «Дело Нолан (Nolan) и K. против России» [англ.]

6. That the applicant was not subject to any administrative or criminal detention procedure - the fact on which the Government heavily relied - is not relevant for the Court's assessment of whether or not there existed a de facto deprivation or restriction of his liberty. With regard to his concrete situation, the Court observes that during the overnight stay at Sheremetyevo Airport he was unable to leave of his own will the room in which he had been placed, because it was locked from the outside. Although he was permitted to use the toilet and bar the following morning, that could only be done under constant supervision by a border control officer. In fact, his departure only became possible on the following day when he bought a ticket to Estonia, by which time his overnight detention had already taken place. The applicant's submission that his liberty was restricted overnight is also corroborated by the requirements of the Border Crossing Guidelines, which mandated the border control to escort persons in the applicant's situation to "isolated premises" and place them "under guard" until such time as they had left Russian territory (see paragraph 46 above). Accordingly, the Court finds that the conditions of the applicant's overnight stay in the transit hall of Sheremetyevo Airport in Moscow were equivalent in practice, in view of the restrictions suffered, to a deprivation of liberty, for which the Russian authorities were responsible.

2. Compliance with Article 5 § 1

97. The applicant was refused leave to enter Russia and his detention at Sheremetyevo Airport was thus covered under Article 5 § 1 (f) of the Convention for the purpose of preventing his effecting an unauthorised entry into the country. The Court reiterates that it falls to it to examine whether the applicant's detention was "lawful" for the purposes of Article 5 § 1, with particular reference to the safeguards provided by the national system. Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, which is to protect the individual from arbitrariness (see Amuur, cited above, § 50).
98. The Court must therefore ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. In laying down that any deprivation of liberty must be effected "in accordance with a procedure prescribed by law", Article 5 § 1 does not merely refer back to domestic law; like the expressions "in accordance with the law" and "prescribed by law" in the second paragraphs of Articles 8 to 11, it also relates to the "quality of the law", requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. "Quality of law" in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Nasrulloyev v. Russia, No. 656/06, § 66, 11 October 2007; Khudoyorov v. Russia, No. 6847/02, § 125, ECHR 2005-X; {Jecius} v. Lithuania, No. 34578/97, § 56, ECHR 2000-IX; Baranowski v. Poland, No. 28358/95, §§ 50 - 52, ECHR 2000-III; and Amuur, cited above).
99. As the Government maintained that the applicant had not been "detained" within the meaning of Russian law, they did not refer to any domestic legal provisions which might have governed the deprivation of libert



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