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51. The applicant complained under Article <mask> of the Convention that the domestic courts had failed to justify the necessity for the application of the preventive measure of remand in custody and had refused his request for release on bail without any explanation. The Court considers that these complaints fall to be examined under Article 5 § 3 of the Convention, which provides as follows: | 8 |
44. The Government argued that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention in relation to his complaints under Article <mask> of the Convention. They maintained in this connection that he could have sought compensation under Article 141 of the Code of Criminal Procedure (Law no. 5271) for his allegedly unlawful detention. They further stated that it had been open to him to object to the decision rejecting his asylum request. | 8 |
36. The applicant alleged that Articles 2, 3, 7 and 13 had been violated in the course of the criminal proceedings. He further complained, invoking Article <mask> of the Convention, Article 2 of Protocol No. 4 and Article 4 of Protocol No. 7, that the criminal proceedings against him had not been terminated despite the ruling of 30 October 1998. He also invoked Article 3 of Protocol No.7 referring to the facts of the case. | 8 |
25. The applicant further complained under Article 6 § 1 of the Convention about the refusal of the Novgorod Regional Court to award him non‑pecuniary damages. The Court notes that the main thrust of the present application, as submitted by the applicant, rests under Article <mask> of the Convention which provision, it concluded, has been violated (see paragraph 24 above). Having regard to all the material in its possession, the Court finds that in the present case no issue arises under Article 6 of the Convention. It follows that this part of the application must be rejected as being manifestly ill‑founded, pursuant to Article 35 §§ 3 and 4 of the Convention. | 8 |
83. The applicant claimed LVL 10,000 (approximately EUR 15,000) in compensation for the anxiety she had suffered for almost four years, particularly on account of the threat of deportation she had faced throughout that time. Her arrest and detention in February 2001 had further aggravated her psychological state: moreover, her detention had constituted a serious infringement of Article <mask> of the Convention. Producing a medical certificate in support of her argument, the applicant asserted that her state of health had deteriorated as a result of the psychological trauma she had undergone in detention. | 8 |
40. The applicant’s complaint therefore falls to be examined under Article <mask> of the Convention alone. Having regard to the way in which the applicant phrased his complaint and the Court’s approach in comparable cases (see, for instance, Dörr v. Germany (dec.), no. 2894/08, 22 January 2013; and H.W. v. Germany, cited above, §§ 92-93), the Court will examine the present application under paragraph 1 of Article 5 alone which, in so far as relevant, reads as follows: | 8 |
183. The applicant complained under Articles 3 and 6 of the Convention that the criminal investigations conducted following her complaints had been ineffective. Moreover, she complained under Article <mask> of the Convention that she had been unlawfully deprived of her liberty while held at her grandparents’ house by her family. Lastly, she complained under Articles 9 and 14, taken in conjunction with Article 6 of the Convention, that she had been unlawfully deprived of her liberty and had not enjoyed an effective investigation in respect of that issue on account of her association with MISA. | 8 |
55. The applicant rejected the Government's interpretation of Article 287 (4) CCP. He argued that that Article did not meet the requirements of “quality of law” under Article <mask> of the Convention and that neither the prosecution nor the domestic courts had given any details capable of clarifying the application of that law. Finally, the applicant argued that decisions to re-open a criminal investigation could not be appealed. | 8 |
40. The applicant complained of a violation of Article <mask> of the Convention on account of the failure of the Supreme Court of Justice to deduct the time spent in detention pending trial from his prison term, as required by law. He claimed that he had not been informed of any subsequent decision in that regard until after reading the Government’s observations. | 8 |
53. The Government claimed that the applicant’s rights under Article <mask> of the Convention had not been violated. As to the placement of the applicant in a psychiatric hospital, the Government indicated that the procedure prescribed by law was duly followed by the authorities. The applicant’s placement was authorised by the judge at the request of the prosecutor and based on the medical report. The applicant’s interests were represented by the lawyer and his guardian was duly notified of the hearings. They also submitted that although Article 435 of the CCrP did not provide the exact type of the psychiatric institution the detained person can be transferred to, it was the court’s task on a case by case basis to specify a concrete type of the psychiatric institution suitable for an accused relying on the facts and the expert reports provided before it. | 8 |
140. The applicants, who were released before the paragraph 3 safeguard came into play, had the opportunity to, and did, bring the question of the lawfulness of their detention before the courts under section 469 of the Administration of Justice Act (see paragraph 17 above). Furthermore, they could have been granted compensation had an award been justified from the point of view of Article <mask> of the Convention. The relevant procedure was thus consistent with Article 5 § 5. | 8 |
76. The Government submitted that Article <mask> of the Convention was not applicable in the present case. They pointed out that, in accordance with the Court’s settled case-law (referring to Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281‑A; Villa v. Italy, no. 19675/06, §§ 41-43, 20 April 2010; and S.M. v. Italy (dec.), no. 18675/09, §§ 21-23, 8 October 2013), obligations resulting from preventive measures did not amount to deprivation of liberty within the meaning of Article 5 of the Convention, but merely to restrictions on liberty of movement. They submitted that the complaint was thus incompatible ratione materiae with the Convention. | 8 |
27. The applicant submitted that there had been no reasonable suspicion that he had committed the offences charged, and that any suspicion that might have been present initially had decreased with the passage of the almost a year he had spent in pre-trial detention. In conclusion, the applicant submitted that in his case there were no “specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweigh[ed] the rule of respect for individual liberty laid down in Article <mask> of the Convention” (Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI). | 8 |
293. The Government lastly argued that the disciplinary penalty in question had been imposed under Paragraphs 51 and 54 of the Disciplinary Regulations of the Armed Forces of Armenia approved by Government Decree no. 247 on 12 August 1996, as well as its Annex 5. When depositing its instrument of ratification, Armenia made a reservation under Article <mask> of the Convention in respect of these domestic provisions. The reservation complied with the requirements of Article 57 of the Convention. In particular, it was not of a general character and it contained a statement of the law concerned. In such circumstances, Article 5 of the Convention was not applicable to the applicant’s deprivation of liberty prior to his arrest on 24 April 2004. | 8 |
62. The applicant emphasised that both the Zyuzinskiy District Court and the Moscow City Court had failed to consider his arguments relating to Article <mask> of the Convention and that no time-limit for his detention had been stipulated in the expulsion order. With reference to the Court’s previous findings (in particular, in the case of Azimov, cited above, §§ 153‑54), he maintained that Russian law did not provide for a periodic review of the lawfulness of detention following a decision on administrative expulsion. | 8 |
48. The Government submitted that the applicant’s rights under Article <mask> of the Convention had not been breached. They submitted that the applicant had been detained on reasonable suspicion of having committed an offence and the domestic courts had duly examined the material submitted by the prosecuting authorities. They also noted that the transcripts of the court hearings addressed this issue. The Government further submitted that the domestic courts had dismissed the applicant’s request to be put under house arrest instead of being kept in detention by having regard to the circumstances of the case. | 8 |
58. The applicant submitted that his detention between 1 and 4 May 2005 had been contrary to the Constitution of Ukraine, which only permits detention without a court order for up to seventy-two hours in view of the urgent necessity to prevent or stop a crime from being committed, but which does not permit such detention in respect of an administrative offence. Therefore, his detention under Article 263 of the Code of Administrative Offences had been unconstitutional and thus contrary to Article <mask> of the Convention. In any event, the purpose of a person’s detention under Article 263 of the Code of Administrative Offences is to wait for the results of an examination of the seized substance, which is not among the exceptions to the right to liberty and security listed in Article 5 § 1 of the Convention. | 8 |
26. The Government argued that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. They maintained in this connection that he could have sought compensation under Article 141 of the new Code of Criminal Procedure (Law no. 5271) for his allegedly unlawful detention. In the alternative, he could have brought an administrative action for the annulment of the administrative act that he complained of, in accordance with Article 125 of the Constitution. The Government also argued that if the applicant had considered that there were no effective remedies in respect of his complaints under Article <mask> of the Convention, he should have lodged his application with the Court much earlier than 22 April 2010. They argued that the applicant had thus failed to comply with the six-month rule fixed by Article 35 § 1. | 8 |
62. The Government also submitted that the applicant had failed to make use of the available domestic remedies in respect of his complaint under Article 5 § 4 of the Convention about the non‑availability of judicial review of his house arrest. They argued that according to the Bulgarian Constitution international treaties, including the Convention, were part of domestic law and took priority over those provisions thereof which went against them. Increasingly often the Bulgarian courts relied on the Convention in deciding the cases before them. As an example the Government cited decision No. 1 of 1997 of the Assembly of the Criminal Divisions of the Supreme Court of Cassation, in which it had decided to refer a provision of the CCP to the Constitutional Court, considering that it was contrary to Article <mask> of the Convention. The applicant could have thus applied to a court, relying directly on the Convention. The court would have been obliged, by virtue of the Convention itself, to examine and rule on his application for release. Moreover, the applicant could have relied mutatis mutandis on Article 152a of the CCP, which provided for judicial review of pre‑trial detention. | 8 |
53. The Government maintained that the applicant had been detained in accordance with the decision of the prosecutor. They stressed that the prosecutor, pursuant to the reservation made by Ukraine in respect of Article <mask> of the Convention, could be considered “... another officer authorised by law to exercise judicial power...” (see paragraphs 46-47 above). In this capacity, the prosecutor who had authorised the applicant's detention had acted promptly in reviewing it. They further stressed that the public prosecutor's warrant for the applicant's arrest was subject to strict judicial control, which could be, and in fact had been, initiated by the applicant. The judicial control provided for in the Ukrainian legislation required complaints against detention orders to be considered urgently, and the courts had the power to decide on the detainee's release. The Government concluded, therefore, that the Ukrainian criminal procedure in force at the time of the applicant's arrest fully complied with the requirements of Article 5 § 3 of the Convention. They therefore concluded that there had been no infringement of Article 5 in this respect. | 8 |
77. The Government contested that argument. They submitted that the applicant’s detention had been in compliance with the requirements set forth in Article <mask> of the Convention. In particular, the applicant’s detention from 20 March to 10 April 2009 had been lawful and justified. Up until 20 March 2009 the applicant had been detained on the basis of a court order of 16 December 2008. After that date the basis for the applicant’s detention had been the judgment of 20 March 2009. As to the length of the pre-trial detention, the domestic courts had taken into account all the relevant circumstances when deciding to detain the applicant pending investigation and trial. The case against him had been complex. They further considered that by relying on the seriousness of the charges against the applicant and other relevant circumstances the domestic courts had rightfully justified their decisions to detain the applicant during the criminal proceedings against him. Lastly, they pointed out that the domestic judicial authorities had dealt with the case without undue delays. | 8 |
114. The Government observed that the liberties and detention judge of the Rouen tribunal de grande instance had ordered, on 29 August 2007, an extension of the detention for fifteen days, a decision that was upheld by the Rouen Court of Appeal on 30 August 2007. The ordinary courts had thus found that the applicants’ detention for the period in question was not excessive within the meaning of Article <mask> of the Convention. | 8 |
58. The applicant complained, under Article <mask> of the Convention, that he was arrested by a prosecutor and was not brought promptly before a judge. In addition, he complains that his detention was not extended every thirty days as required by the Code of Criminal Procedure and that he had no possibility of appealing against the interlocutory judgments extending his detention. | 8 |
27. The applicant complained that her involuntary hospitalisation in the Psychiatric Clinic of the North Estonia Medical Centre on 6 November 2006 had not been “lawful” and “in accordance with a procedure prescribed by law” and that she had not received a fair hearing before the Harju County Court when it decided on 8 November 2006 to admit her to the closed institution. She relied on paragraphs 1 and 4 of Article <mask> of the Convention, which read, in so far as relevant, as follows: | 8 |
59. The applicant further complained about inhuman and degrading conditions in several pre-trial detention facilities he had been kept in prior to his conviction. He also complained under Article <mask> of the Convention that his pre-trial detention throughout the period between 2001 and 2002 had been unlawful. He finally complained under Article 6 §§ 1, 2 and 3 (b), (c) and (d) that a hearing in the course of criminal proceedings against him had been unfair. | 8 |
79. The applicants whose relatives were arrested and taken away by the members of the security forces complained that the detention of Casım Çelik, Cemal Sevli, Yusuf Çelik, Mirhaç Çelik, Naci Şengül, Seddık Şengül, Reşit Sevli, Kemal İzci, Hayrullah Öztürk, Salih Şengül, Hurşit Taşkın, Abdullah İnan and Aşur Seçkin had given rise to multiple violations of Article <mask> of the Convention. | 8 |
23. The Government maintained that the applicant had not been deprived of his liberty within the meaning of Article <mask> of the Convention. In this connection, they submitted that he had been kept under surveillance in the Izmir Military Recruitment Office for the sole purpose of ensuring his transfer back to his army command and that he was not subjected to any proceedings or investigation until he was taken to his military unit. They further claimed that this administrative measure had been taken to prevent his escape, since he was a deserter, and that he had immediately been sent to his unit upon the completion of necessary procedures such as the provision of a vehicle, personnel, travel expenses and monetary matters concerning his transfer. Moreover, the Government claimed that the applicant had actually been in military service during that time. The Government admitted that the applicant had been held in custody between 7 and 11 March 2003 for the proper administration of military discipline. They submitted that he had been brought before a judge on the very day the Military Prosecutor filed an indictment. | 8 |
17. The applicants argued that the compensation awarded to them in respect of the breach of Article <mask> of the Convention had not been adequate and proportionate to the severity of the breaches of their rights. In support of this contention the applicants cited cases in which the Court had found breaches of Article 5 of the Convention and in which the awards had been considerably higher. In their view, as a result of the insufficient amount of compensation awarded by the Supreme Court of Justice, they still had victim status under Article 5 § 1 of the Convention. | 8 |
88. The Government further pointed out that Germany had not breached its positive obligation to protect the applicant from an alleged deprivation of liberty by private persons. It was already questionable whether Article <mask> of the Convention incorporated such a positive obligation at all. In any event, German law provided multiple instruments for an individual to be protected against interferences with his liberty. Firstly, confinement in a psychiatric hospital had to be ordered by a judge. Secondly, the competent health authorities had far-reaching supervisory powers in monitoring the execution of these court orders. Thirdly, section 34 of the Act on measures of aid and protection in cases of mental disorders (see paragraphs 59-60 above), which came into force on 9 July 1979, introduced a Board of Visitors to monitor the detention of persons ordered under the Act in psychiatric hospitals. It thereby created a further innovative mechanism of protection. Fourthly, a person who deprived another person of his liberty incurred a prison sentence of up to ten years under Article 239 of the Criminal Code (see paragraph 62 above). An individual who had been illegally deprived of his liberty also had the right to claim damages, including for non-pecuniary damage, under Articles 823 and 847 of the Civil Code (see paragraph 63 above). Furthermore, in accordance with section 30 of the Conduct of Trade Act (see paragraph 61 above), the running of a private clinic required a licence issued by the State. In the course of the examination of the application lodged by Dr Heines’s clinic for the issuing and extension of such a licence, the competent State authorities had verified that the clinic’s management was reliable and that it provided sufficient medical treatment for its patients. | 8 |
30. The applicant complained under Article 3 that he had been beaten and forced to plead guilty. He further complained, under Article <mask> of the Convention, of the unlawfulness and excessive length of his detention during the judicial proceedings. Relying on Article 5 of the Convention he alleged that he had been put into prison without being told of the charge against him. | 8 |
126. The Government’s position was that the applicants had failed to exhaust available remedies as regards this complaint in two respects. First, they had failed to bring a private-law claim concerning their complaint about the provision of information regarding their arrest and detention. The Government pointed out that the Divisional Court had held that the complaints should have been brought by way of a private-law action because they raised fact-sensitive issues inappropriate for judicial review proceedings. In light of the Divisional Court judgment, the applicants could undoubtedly have brought a civil damages claim in respect of their arrest and initial detention. The Government emphasised that the applicants did not argue that their detention was lawful under domestic law irrespective of compliance with Article <mask> of the Convention, such that the only appropriate remedy would be a declaration of incompatibility under the Human Rights Act (see paragraph 121 above). In so far as the applicants contended that they were unable to pursue a private-law claim from Pakistan and would not have been able to obtain legal funding, the Government pointed out that the applicants had pursued the judicial review claim and the case before this Court without difficulty. It was also relevant, the Government argued, that the applicants were not excluded in principle from obtaining legal aid and, in any case, refusal to grant legal aid would not have rendered the bringing of a private-law claim impractical. | 8 |
26. The Government submitted that the applicant’s closest living relative and heir, pursuant to the domestic law, was his father. Hence, Ms Zīmele could not be considered the applicant’s next of kin. Besides, Ms Zīmele had provided no evidence of the fact that the applicant’s father had no objections to her pursuing the application. Further, relying on the cases of Sanles and Sanles v. Spain ((dec.), no. 48335/99, 26 October 2000), and Biç and Others v. Turkey (no. 55955/00, 2 February 2006), the Government argued that rights under Article <mask> of the Convention were of an eminently personal and non‑transferable nature. They disputed the contention that Ms Zīmele could have been affected by the applicant’s detention in any way. Thus, the Government objected to her locus standi. | 8 |
28. The applicant complained that there was no reasonable suspicion for his arrest and detention. By a letter dated 7 July 2000, the applicant complained that he had been held in police custody for twelve days without being brought before a judge or other officer authorised by law to exercise judicial power. The applicant relied on Article <mask> of the Convention which, in so far as relevant, reads as follows: | 8 |
54. The applicant further complained under Article <mask> of the Convention that there had been no reasonable suspicion to justify his arrest, and under Article 6 of the Convention that the criminal proceedings against him had been unfair, in particular on account of his alleged entrapment by the police during a “test purchase” of drugs from him. In his letter of 13 March 2006 the applicant raised further complaints concerning the trial under Article 6 of the Convention, claiming that he had been refused legal assistance after his arrest, that he had not been promptly informed of the charges against him, and that he had not been able to question a number of witnesses. | 8 |
26. The Government declared in that context that they had taken note of the Court’s judgment in the case of Glien (cited above). In the light of the Court’s findings in that judgment, the Government accepted that until his transfer to Hamburg Prison in May 2013 the applicant, who had been detained in Lübeck Prison together with prisoners serving their sentence until then, had not been detained in a suitable institution for mental health patients. Therefore, his detention had not complied with Article <mask> of the Convention. Furthermore, in view of these conditions of detention, the applicant’s preventive detention during that period had to be classified as a penalty and had therefore been in breach of Article 7 of the Convention. | 8 |
67. The applicant complained that his arrest and detention in Ukraine were contrary to Article <mask> of the Convention since his criminal prosecution in Belarus was unlawful. Moreover, the applicant’s detention in Ukraine was not regulated by any law and he could not challenge it. The applicant further complained under Article 13 of the Convention about the absence of effective remedies in this respect. | 8 |
24. The applicants complained that their detention was unlawful under Article <mask> of the Convention. In particular, they claimed that by virtue of Article 108 § 1.1 of the CCrP, they should not have been placed in custody because the offences imputed to them had been committed within the sphere of their business activities. However, the national courts dismissed their argument under Article 108 1.1 of the CCrP without providing any reasons. The first applicant also complained about his excessively long and unreasonable pre-trial detention. The applicants invoked Article 5 of the Convention which provides as follows: | 8 |
121. The Government submitted that the applicants had not brought their complaints concerning their detention before the domestic courts. In particular, they claimed that the applicants could have brought an administrative recourse under Article 146 of the Constitution challenging the lawfulness of the decisions to detain and deport them, and/or a civil action for false imprisonment and assault, within the context of which they could have complained of a violation of their rights under Article 11 of the Constitution and Article <mask> of the Convention (see paragraphs 111 and 112 above). | 8 |
100. The Government considered that this complaint was incompatible ratione materiae with the provisions of Article 6 § 1 of the Convention as the proceedings had not entailed the determination of either a criminal charge or “civil rights and obligations”. In the Government's view, the forfeiture of bail could only be examined under Article <mask> of the Convention. The Government drew an analogy with tax disputes, maintaining that the forfeiture of bail required a similar assessment of a failure to perform certain legal obligations. The Government also referred to the Court's case-law of the Court under Article 5 § 4 of the Convention, arguing that Article 6 was not applicable to proceedings for the review of an application for release from detention. They cited the Commission's decision in Moudefo v. France (decision of 21 January 1987, no. 10868/84, Decisions and Reports 51, p. 62). | 8 |
68. The applicants complained under Article 6 § 1 of the Convention that the national courts by wrongly finding that their claim for damages had been lodged after the statutory limitation period had expired, had deprived them of the right of access to court because they had not examined their claim on the merits. They also invoked Article <mask> of the Convention in relation to the taking of their respective husband and father by uniformed persons in August 1991. They further complained that by dismissing their claim for damages the national court had violated their property rights under Article 1 of Protocol No. 1. | 8 |
19. The Government conceded that the applicant had been tried and convicted by a tribunal “not established by law”. Nevertheless, in their opinion, this fact alone was insufficient to raise an issue under Article <mask> of the Convention. The quashing of the applicant’s conviction by way of supervisory review had been of a temporary nature. Subsequently, the applicant had again been tried by a tribunal “established by law”, found guilty and sentenced to imprisonment. Even though the lawfulness of the applicant’s initial conviction had not been confirmed by the supervisory review court, it had been replaced by a new conviction. All the negative consequences, if any, resulting from the initial conviction had been removed, given that the term of imprisonment already served by the applicant had been set off against the new sentence. Accordingly, the applicant could no longer claim to be a victim of the alleged violation. The Government also pointed out that the applicant had not challenged before the supervisory review court the lawfulness of his detention from 13 September 2001 to 15 June 2005. In his complaint of 23 July 2004 he had alleged only that his conviction had been delivered by a tribunal not established by law. It was not until his application to the Court of 9 November 2005 that he raised that challenge for the first time. In the Government’s opinion, the applicant had thus failed to comply with the six‑month rule. | 8 |
129. The Government further argued that the applicant had not been “arrested” but merely “conveyed” before the investigator, or “subjected to attachment”, or enforced attendance (privod), since Russian law did not provide for the “arrest” (arest) of witnesses. The Government concluded that this measure fell outside the scope of Article <mask> of the Convention. The Government denied that the applicant had been brought to Moscow by FSB officers. | 8 |
12. The Government submitted that, having been acquitted, the applicant could exercise his “right to rehabilitation” under Article 133 of the Code of Criminal Procedure. The applicant’s acquittal automatically implied that the State had acknowledged a violation of the his rights set out in Article <mask> of the Convention. As to the redress, the Government stated that the applicant should have filed a civil claim for compensation with the domestic courts. | 8 |
62. The Government contested that argument. In their opinion, the supervisory review of the court decision of 25 April 2006 ordering the applicant’s release on bail had been necessary as a result of the lower court’s failure to take into account the risk of the applicant’s absconding. Furthermore, the applicant and his lawyers had been duly notified of the date and time of the supervisory-review hearing. Accordingly, the applicant’s remand in custody and his ensuing detention from 20 to 27 June 2006 had been in compliance with Article <mask> of the Convention. | 8 |
50. The applicant’s deprivation of liberty clearly did not fall under sub‑paragraphs (a), (d), (e) or (f) of paragraph 1 of Article <mask> of the Convention. Nor could it be said to fall under sub—paragraph (b): there was no evidence of non‑compliance with a lawful order of a court and the applicant’s detention could not have been to secure the fulfilment of an obligation prescribed by law because, at the time his arrest, there was no unfulfilled obligation on the applicant (see Vasileva v. Denmark, no. 52792/99, § 36, 25 September 2003). | 8 |
83. The applicant further complained under Article 5 § 4 of the Convention that in the second set of criminal proceedings he did not have access to his case file. He submitted that this limited to a great extent his opportunity to challenge the decisions extending his pre‑trial detention. The applicant underlined that it placed him at a significant disadvantage vis‑à‑vis the prosecutor, who had unlimited access to his case file. The relevant part of Article <mask> of the Convention provides as follows: | 8 |
16. The applicant complained under Articles 1, 6 and 7 of the Convention that the domestic courts had failed to respect the prohibition of reformatio in peius, a principle established by Article 326 of the former Code of Criminal Procedure, when deciding his appeal to his detriment. In his view, had he not appealed against the first judgment, he would have been released from prison by June 2004 pursuant to Law no. 4616. He also maintained that the additional term of imprisonment which had been imposed on him by the second judgment of the Istanbul State Security Court amounted to an unjustified deprivation of liberty and thus violated Article <mask> of the Convention. | 8 |
75. The Government submitted that the applicant could not claim to be a victim of a violation of Article <mask> of the Convention on account of his detention in excess of the maximum forty‑eight-hour period permitted by the domestic law prior to being brought before a judge, because the domestic courts had already acknowledged the violation of his right. The Government further pointed out that disciplinary proceedings had been instituted against the police officers, including the investigators and the deputy head of the Police Office, who had violated his right to liberty. In support of their argument, they submitted a letter dated 8 September 2010 from the Minister of Internal Affairs containing information that the disciplinary responsibility of the police officers had been established in respect of the applicant’s unlawful detention on 6 and 7 March 2010. | 8 |
47. The applicant lastly complained that he had been wrongly arrested and detained on 7 and 8 April 2009 and claimed that there had been a breach of Article <mask> of the Convention. However, the Court notes that this complaint was lodged more than six months after the alleged breach took place. Therefore, it must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. | 8 |
62. The Government submitted that the applicants’ remand in custody had been lawful and compatible with Article <mask> of the Convention. Both detention orders had been issued in accordance with the relevant provisions of the CCrP and had contained concrete grounds for remanding them in custody. The domestic courts had taken into account that both applicants had been suspected of having committed serious crimes punishable by more than two years’ imprisonment, had been unemployed and had had criminal records. As regards the first applicant, the Yelizovskiy District Court had noted in particular that he had been apprehended while driving a stolen car only three days after his release on parole following a conviction for a similar offence. As regards the second applicant, the Gus-Khrustalnyy Town Court had paid particular attention to the fact that he had been identified by the victim. The Government further indicated that the charges against both applicants had been brought within ten days of the detention orders being granted. Therefore, they had been remanded in custody in accordance with Articles 97, 99, 100 and 108 of the CCrP and Article 5 of the Convention. | 8 |
192. The Government pleaded that the first applicant had failed to exhaust domestic remedies with regard to the complaints under Article 5 §§ 1 and 4 and stated that it had been open to him to institute proceedings to determine the lawfulness of his arrest or detention. They claimed that he could have applied to the High Court to have a writ of habeas corpus issued. Alternatively, he could have challenged the lawfulness of his arrest during the course of the criminal proceedings against him by relying directly on Article <mask> of the Convention, which was part of the corpus of “TRNC” law. The Government further argued that when the first applicant had been brought before a judge on 21 December 2000, at which point he had been legally represented, he had asked to be released on bail, but had not directly challenged the lawfulness of his arrest or detention. | 8 |
35. The Government argue that to determine whether a deprivation of liberty is arbitrary for the purposes of Article <mask> of the Convention requires more than simply establishing that a time-limit under domestic law has been exceeded, in particular where it concerns confinement orders in which there is always a general public interest at stake given the reasons on which such orders are based. Having regard to the statutory required recommendations submitted in the domestic proceedings at issue, according to which the applicant still presented a danger of re-offending, the Government are of the opinion that the applicant’s detention cannot be regarded as arbitrary. | 8 |
128. The applicants disputed the Government’s submission that Amkhad Gekhayev and Zalina Mezhidova had been killed at the moment when the federal servicemen had strafed their car. They argued that their relatives could have been wounded rather than dead when taken out of the car and put into the military helicopter, and that therefore they had been detained in violation of Article <mask> of the Convention. In support of their argument that their relatives had still been alive after the incident of 27 October 2001 the applicants relied on the fact that the criminal proceedings into the incident had been instituted under Article 126 of the Russian Criminal Code, which concerned kidnapping, and that the death certificates issued by the Civil Registration Office of the Gudermes District in respect of Zalina Mezhidova and Amkhad Gekhayev indicated the dates of death as 1 and 27 November 2001 respectively. | 8 |
24. The applicant complained that his detention between 3 March and 27 April 2015 had not been lawful and/or based on a reasonable suspicion that he had committed a criminal offence or on relevant and sufficient reasons, as required by Article 5 §§ 1 and 3 of the Convention. Article <mask> of the Convention, in so far as relevant, reads as follows: | 8 |
167. The Government submitted that the first applicant's complaint under Article 5 § 5 of the Convention was to be rejected as being incompatible ratione personae with the Convention provisions, in so far as it concerned the lack of compensation to him for the alleged violations of his rights under paragraphs 2, 3 and 4 of Article <mask> of the Convention. They noted in this connection that the first applicant had claimed in substance to be a victim of a violation of paragraph 5 of Article 5 only in conjunction with its paragraph 1 (c), but not in respect of its other provisions. | 8 |
22. The Government submitted that the application should be rejected for failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They argued that the applicant had failed to invoke Article <mask> of the Convention before the domestic authorities and to challenge the decision to extend his custody period. The Government further maintained that the applicant could have sought compensation under Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained. | 8 |
42. The Government pointed out next that the applicant had not complained under Article <mask> of the Convention, and considered that it had been inappropriate for him to raise, with regard to his complaint under Article 8, an argument about unlawful detention (see paragraph 39 above). The Government also contended that in any event the detention had been lawful as the police had been authorised to detain persons suspected of having committed a criminal offence. | 8 |
69. The applicant complained under Article <mask> of the Convention that his arrest on 14 April 2001 had been unlawful because he had not been informed about the reasons for his arrest or the charges against him until 27 days later, when he had been questioned; he had not been familiarised with the arrest order; his statutory rights had not been explained to him; and no report on the arrest had been drawn up. He also complained that his pre-trial detention had been unlawful. Article 5, in so far as relevant, reads as follows: | 8 |
61. The Government submitted that the applicants had failed to invoke Article <mask> of the Convention before the domestic authorities or challenge the decision to extend their custody. The Court has already examined and rejected the Government’s preliminary objection in similar cases (see, for example, Öcalan v. Turkey [GC], no. 46221/99, §§ 66-71, ECHR 2005-...). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. It therefore finds that this part of the application is admissible. | 8 |
44. The applicant further argued that his preventive detention in Hamburg Prison, just as that in Lübeck Prison, equally violated Article <mask> of the Convention. He conceded that the conditions of detention in Hamburg Prison had been acceptable as he had been placed in a separate institution for persons in preventive detention and received comprehensive therapy. He contested, however, that his preventive detention was justified under sub‑paragraph (e) of Article 5 § 1 as that of a person “of unsound mind”. Even assuming that he suffered from a personality disorder, as wrongly diagnosed by expert B., he did not suffer from a mental disorder for the purposes of the Therapy Detention Act. He was even less a person “of unsound mind” suffering from a mental illness for the purposes of Article 5 § 1 (e). | 8 |
136. The applicant argued, firstly, that his detention with a view to extradition had been in breach of the requirement of lawfulness under Article <mask> of the Convention. Secondly, the applicant complained that the authorities had not displayed sufficient diligence in the conduct of the extradition proceedings. The Court will examine these complaints under Article 5 § 1. The relevant parts of this provision read as follows: | 8 |
19. The applicant complained that there had not been sufficient reasoning for remanding him in custody, and that the proceedings by which he sought to challenge his detention had not been in conformity with the guarantees provided under Article <mask> of the Convention. The Court shall examine these complaints under Article 5 §§ 3 and 4 of the Convention, which, in so far as relevant, read as follows: | 8 |
116. The Government submitted that although the applicant and her sister had argued in their appeal against the first-instance decision of the R. County Court that the applicant’s involuntary internment in the hospital had been unlawful within the meaning of Article <mask> of the Convention, they had subsequently failed to bring those complaints before the Constitutional Court. The Government considered that a constitutional complaint before the Constitutional Court was a remedy to be exhausted. In that respect the Government submitted case-law of the Constitutional Court concerning complaints of deprivation of liberty in the context of criminal proceedings and asylum which had been examined in the light of Article 5 of the Convention. Furthermore, the Government pointed out that neither the applicant nor her sister had raised during the domestic proceedings the issue of the applicant’s alleged inappropriate legal representation by the legal aid representative or any other shortcomings in the proceedings in respect of her internment in the hospital. | 8 |
151. The Government argued that, as in the applicants’ allegations in Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011) and Khodorkovskiy and Lebedev v. Russia (nos. 11082/06 and 13772/05, 25 July 2013), the applicant’s allegations in the present case were too wide and far-reaching. He did not complain of an isolated incident, but tried to demonstrate that the whole legal machinery of the respondent State had been misused ab initio, and that from beginning to end the authorities had been acting in bad faith and with blatant disregard for the Convention. In essence, the applicant tried to persuade the Court that everything in his case was contrary to the Convention, and that the criminal proceedings against him were therefore invalid. That allegation was a serious one, because it assailed the general presumption of good faith on the part of the public authorities and required particularly weighty evidence in support. None of the accusations against the applicant were political. He had not been an opposition leader or a public official. The acts which had been imputed to him were not related to his participation in political life, real or imaginary – he had been prosecuted for common criminal offences, such as tax evasion, fraud, and so on. The Government submitted that the restrictions imposed by the State in the present case pursuant to Article <mask> of the Convention had not been applied for any purpose other than one envisaged by that provision, and strictly for the proper investigation of serious criminal offences allegedly committed by the applicant. | 8 |
81. The applicants reiterated their argument that Abdulkasim Zaurbekov had been detained by representatives of the federal forces and argued that his detention had not satisfied any of the conditions set out in Article <mask> of the Convention, had had no basis in national law and had not been in accordance with a procedure established by law or been formally registered. | 8 |
21. The Government submitted that, having been acquitted, the applicant could exercise his “right to rehabilitation” under Article 133 of the Code of Criminal Procedure. The acknowledgment of the applicant’s “right to rehabilitation” in the acquittal automatically implied that the State had acknowledged a violation of the applicant’s right under Article <mask> of the Convention. As to the redress, the Government stated that the applicant should have filed a civil claim for compensation with the domestic courts. | 8 |
72. The applicants further maintained that their deprivation of liberty had not followed a procedure prescribed by law and had therefore not been “lawful” within the meaning of Article <mask> of the Convention. More specifically, referring to the preparatory notes on the Police Act, the applicants submitted that section 5(3) of the Act did not authorise administrative detention for a period exceeding six hours, unless the period was exceeded in connection with police actions involving the detention of a large number of individuals, when the time spent on transfer to the police station and registration and identification of detainees rendered it impossible, in practice, to observe the six-hour rule. In the present case, however, the first applicant had been the only one detained from a large group, and the second and third applicants had been detained together with three or four others from a large group; thus, their situation had not involved the detention of a considerable number of persons. Lastly, the applicants maintained that it would have been possible, in practice, to release them within the six-hour limit, as verified by the testimony of Chief Inspector P.J. (see paragraph 24 above). | 8 |
125. The applicant complained under Article <mask> of the Convention that a number of his complaints concerning his detention had either not been examined speedily by a court or had not been examined at all. In particular, he referred to his complaints lodged on 25 April 2001, between 13 July and 21 November 2001 and on 28 February 2002 and to his appeal against the decision of 12 July 2002. Article 5 § 4 reads as follows: | 8 |
61. The applicant's complaints which fall under paragraphs 3 and 4 of Article <mask> of the Convention, meanwhile, relate to certain alleged deficiencies of the relevant provisions of the CCP, in force at the relevant time, as construed by the competent authorities and as applied to the applicant, which gave rise to a continuing situation against which no effective remedies were available at the time. | 8 |
55. The applicant complained that the decision of 16 September 2002, by which he had been ordered to undergo compulsory medical treatment in a psychiatric hospital under guard, had been unlawful. He cited two grounds: firstly, that he had never suffered from a mental illness, and, secondly, that the decision had lost its force on account of legislative amendments. In this connection he relied on Article <mask> of the Convention, the relevant parts of which read as follows: | 8 |
39. The applicant complained, under Article 5 § 1 (c), that his detention pending trial had been unlawful, that the prosecutor’s order had not comprised the reasons for his detention, that there had been no reasonable suspicion of him having committed an offence, and that the facts under investigation had not fallen within the scope of the criminal law. He also contended that his detention from 7 January to 15 February 2000 had not had a legal basis. Lastly, under Article 5 § 3 he complained that after his arrest he had not been brought promptly before a judge and that his detention had been too long. Article <mask> of the Convention reads as follows, in so far as relevant: | 8 |
48. The applicant also complained under Article <mask> of the Convention that the decision to remand him in custody had not been justified. The Court notes that the detention order was issued on 26 July 2003, whereas the applicant lodged his application on 17 January 2005, that is more than six months later. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. | 8 |
81. The applicant complained that his detention during the investigation had contradicted Article <mask> of the Convention. He complained under Article 6 of the Convention that he had not had sufficient time to examine the case file before the trial, the legal aid lawyer had failed to provide him with effective legal representation, and the Supreme Court had considered his cassation appeal in private. The applicant complained under Article 6 §§ 1 and 2 and Articles 13 and 17 of the Convention that the case file had been falsified by the investigator, and that the courts had failed to assess the evidence properly and to establish the facts correctly; the civil claim within the criminal case had been determined wrongly. Relying on Article 14 of the Convention, the applicant contended that the domestic authorities had discriminated against him on the grounds of his nationality by failing to provide him with appropriate responses to his requests. Lastly, the applicant alleged that, contrary to Article 34 of the Convention, he had not been provided with copies of the materials of the case file that were necessary for him to exercise his right to apply to the Court. | 8 |
148. The Government submitted that the investigation had obtained no evidence that the applicant had been deprived of liberty by State agents in breach of Article <mask> of the Convention. They claimed that the fact that there were no records of the applicant's “arrest” and ensuing “detention”, and that there had been no judicial authorisation for such measures, indicated that he had been abducted. | 8 |
71. The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had not been based on a “reasonable suspicion” that he had committed a criminal offence. He also complained that his pre-trial detention had not been justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention. Article <mask> of the Convention, in so far as relevant, reads as follows: | 8 |
12. The applicant’s complaint under Article 5 is that he was subjected to an arbitrary and excessive deprivation of liberty. In determining whether Article <mask> of the Convention is applicable, the Court must apply the criteria set out in the Guzzardi v. Italy judgment[33]. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be the applicant’s specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is nevertheless one of degree or intensity, and not one of nature or substance[34]. Furthermore, an assessment of the nature of the preventive measures provided for by the 1956 Act must consider them “cumulatively and in combination”[35]. Finally, the Court has also held that the requirement to take account of the “type” and “manner of implementation” of the measure in question enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell[36]. | 8 |
60. The applicant complained under Article <mask> of the Convention. He submitted, in particular, that: (a) his detention between 15 November and 15 December 2014 had been unlawful as there had been no decision on detention for that period due to the failure of the domestic bodies to review his detention within the 30-day time-limit; in any event, detention could last six months at most without an indictment, but in his case it had lasted for more than two years without the indictment having entered into force; (b) the decisions extending his detention, which had lasted for more than two years, had been insufficiently reasoned. Notably, the courts had failed to really examine whether the reasons for his detention persisted but had rather copied the reasoning from one decision to another. | 8 |
79. The applicant complained under Article <mask> of the Convention that he had not been provided with an interpreter when he was taken into police custody on 15 August 2006. He further complained under Article 6 of the Convention that he had not had the assistance of an interpreter throughout the proceedings brought against him. The applicant maintained under Articles 6 and 13 of the Convention that neither the criminal proceedings brought against him nor the administrative proceedings before the Supreme Administrative Court had been concluded within a reasonable time. Relying on Article 8 of the Convention, the applicant contended that his remand in custody and his detention with a view to deportation constituted an unjustified interference with his right to respect for his private and family life. Finally, he submitted that the proceedings concerning the deportation order issued against him had been in violation of Article 1 of Protocol No. 7. | 8 |
32. The applicant added that the measure in issue did not have any legal basis either in Article 5 § 1 (a) of the Convention, since there was no causal link between the detention and the criminal conviction, or in Article 5 § 1 (e) of the Convention. In relation to sub-paragraph (a), he noted that Article <mask> of the Convention did not cover deprivation of liberty for purely preventive purposes, that is to say, to prevent potential dangers in future. In that connection, he explained that the initial judgment had not even envisaged an outpatient therapeutic measure to accompany the sentence. Regarding sub-paragraph (e), it was only applicable in the case of an actual mental disorder, the finding of an unfavourable prognosis being insufficient. | 8 |
66. The Government submitted that the custodial measure had been imposed and extended in compliance with the requirements of the Code of Criminal Procedure and Article <mask> of the Convention. Extensions of the custodial measure were justified not only by the gravity of the charges but also by other “essential and relevant factors”, such as the information on the applicant's participation in an extremist organisation and the risks of his reoffending, fleeing from justice or exerting pressure on witnesses. | 8 |
38. The Government argued that the applicant had not exhausted domestic remedies as regards her complaint under Article <mask> of the Convention. She should have challenged the allegedly unlawful escorting and arrest in accordance with the procedure set out in Chapter 25 of the Code of Civil Procedure. She could have also lodged a civil action for compensation under Article 1070 § 1 of the Civil Code (for a summary of the applicable domestic provisions, see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 60-82, 10 April 2018). The Government further submitted that the applicant had not exhausted domestic remedies as regards her complaints under Articles 6, 10 and 11 of the Convention about her conviction for making calls to participate in a public event, as she had not challenged her conviction by way of the “review procedure” under Article 30.12 of the CAO. | 8 |
75. The applicants complained that their relative Mr Kamil Mutayev had been unlawfully detained by State agents in violation of guarantees of Article <mask> of the Convention. They also argued that, contrary to Article 13 of the Convention, they had had no available domestic remedies against the violations claimed. Articles 5 and 13 of the Convention read, in so far as relevant: | 8 |
168. The Government submitted that Kazbek Vakhayev had been detained as a person of no fixed residence. After his identity was established, he had been released. The Government also pointed out that the applicants had never lodged any complaints concerning Kazbek Vakhayev's detention before the domestic courts. They concluded that there had been no violation of Article <mask> of the Convention in respect of Kazbek Vakhayev's detention. | 8 |
30. The applicant complained that his detention pending expulsion proceedings had been unlawful and unduly prolonged. The applicant furthermore complained that he had not had access to effective judicial review of his detention. He relied on Article 5 § 1 (f) and Article 5 § 4 of the Convention. The relevant parts of Article <mask> of the Convention read as follows: | 8 |
58. The applicants maintained that the fact that they had been placed in the transit zone following their respective arrests on 30 January 2003 and 3 February 2003 and then placed in Merksplas following the order of 14 February 2003 infringed Article <mask> of the Convention, since those measures had been applied in breach of the court decisions ordering their release, which had not been executed with the diligence, promptness and good faith which that provision required in guaranteeing strict judicial supervision of any deprivation of liberty. | 8 |
40. The Government submitted: “... the acceptance of deprivation of liberty to which no other citizens are subject is the result of a voluntary decision on the part of those who embrace a career in the armed forces and consequently accept the discipline it imposes ... It is quite clear that such situations are not covered by Article <mask> of the Convention as they result from the choice made by the applicant, who is free to avoid such legal consequences whenever he wishes simply by abandoning his military career, unlike a person who commits and is convicted of a criminal offence ...” The Government said in conclusion that the situation examined in the instant case did not come within the ambit of the cited Convention provision, even if the Spanish reservation was found not to be applicable to such cases. | 8 |
135. The Government argued, first, that Article <mask> of the Convention was not applicable to the instant case. They submitted that the Kėdainiai Home was an institution for providing social services and not forced treatment under a regime corresponding to that of a psychiatric institution. Whilst admitting that certain medical services continued to be provided in the Kėdainiai Home, the institution at issue was not primarily used for the purposes of hospitalisation or medical treatment. Having regard to the fact that the Kėdainiai Home had to take care of adults suffering from mental health problems, it followed that the limited restrictions on the applicant had corresponded to the nature of the facility and had been no more than normal requirements (Nielsen v. Denmark, 28 November 1988, § 72, Series A no. 144). | 8 |
63. The Government argued that the proceedings before the Osijek County Court concerning the applicant’s detention had been conducted in compliance with all the procedural guarantees under Article <mask> of the Convention. The applicant had had the opportunity to present all his arguments at the stage of proceedings before the investigating judge. The proceedings before the Osijek County Court had only been a continuation of these proceedings, since that court had decided the appeal lodged by the prosecution against a decision issued by the investigating judge. | 8 |
89. The Government submitted that the applicants’ rights under Article <mask> of the Convention had not been breached. They had been detained on reasonable suspicion of having committed an offence and the domestic courts had duly examined the material submitted by the prosecution authorities. In that connection, the judges had relied on the investigator’s decisions charging them, the prosecutor’s requests to remand them in custody and the investigator’s statements made at the court hearings concerning their detention pending trial. | 8 |
69. The applicant complained that in the proceedings brought for release under section 64 of the 1984 Act it was for the patient to satisfy the sheriff that he was no longer suffering from a mental disorder requiring his detention in hospital for medical treatment, arguing that under Article <mask> of the Convention it was for the State to justify the deprivation of liberty. | 8 |
64. The applicant further complained that during that period there were no clear legal rules concerning the conditions of his detention, the internal guidelines issued in 1990 and 1996 being unpublished instruction which could change any time and did not provide an adequate regulation of the prison regime. In his observations on the merits, submitted in 2002, the applicant argued that the above amounted to a violation of Article <mask> of the Convention. | 8 |
41. The Government submitted that this complaint should be rejected for failure to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. They argued in the first place that the applicants could have, pursuant to Article 128 of the Code of Criminal Procedure, challenged the length of their detention in police custody. Secondly, they maintained that the applicants had not invoked Article <mask> of the Convention at any stage before the domestic authorities. | 8 |
45. The applicant submitted that administrative detention, as a form of penalty, cannot be included among the grounds for detention permissible under Article 5 § 1 of the Convention, because the application of this procedure was condemned by Resolution 1304 (2002) of the Parliamentary Assembly of the Council of Europe. Furthermore, even though the lawfulness of detention within the meaning of Article <mask> of the Convention did not depend on the lawfulness of the conviction, nevertheless, had his case been examined in compliance with the guarantees of Article 6 of the Convention, he would not have been deprived of his liberty. As to Article 5 § 4 of the Convention, the applicant claimed, in addition to the reasons contained in his arguments concerning the issue of alleged non-exhaustion (see paragraphs 34-36 above), that he was not able to contest the decision of 7 April 2003 because a copy of this decision was given to him only at a later date, following his release from detention. | 8 |
134. The Government first submitted that Yusup Satabayev had been detained on 1 August 2000 under the Decree on Measures for the Prevention of Vagrancy and Mendicancy, placed in the detention facility of the Urus‑Martan VOVD and subsequently released. After the Court's decision as to the admissibility of the application they stated that after the discontinuation of the criminal proceedings against Yusup Satabayev on 27 July 2000, detention as the measure of restraint applied to him had been lifted. He had been released as soon as the relevant decision had reached remand prison IZ-20/2, that is, on 1 August 2000. However, on 4 August 2000 he had again been detained under the Decree on Measures for the Prevention of Vagrancy and Mendicancy since he had had no identification documents. His detention in the detention ward of the Urus-Martan VOVD had lasted for ten days until 14 August 2000, when he was released. The Government also pointed out that the applicant had never lodged any complaints concerning Yusup Satabayev's detention before the domestic courts. They concluded that there had been no violation of Article <mask> of the Convention in respect of Yusup Satabayev's detention. | 8 |
293. The Government also expressed the view that, apart from the applicant’s reference to her intensive political activity, she had failed to provide any evidence in substantiation of her allegation that she had been deprived of her liberty for purposes other than those prescribed by Article <mask> of the Convention. Lastly, the Government contended that the applicant’s detention had been determined solely by her behaviour in the course of the consideration of her case by the court, that it had pursued a legitimate aim and that it had complied with the requirements laid down in Article 5 § 1 (c) of the Convention. | 8 |
21. The applicant also complained under Article <mask> of the Convention about his pre-trial detention. Moreover, relying on Articles 13 and 17 of the Convention and Article 1 of Protocol No. 1, he complained that the order to return the seized goods to him had only been made at the end of lengthy proceedings – and in vain, since the Customs Authority had meanwhile sold them. | 8 |
145. The applicant complained under Article 5 § 1 (f) of the Convention that his detention had been unlawful in that it had not been extended after 16 November 2006 and the related court decisions mentioned no time-limits for it. He also stated that the applicable legal provisions lacked clarity and precision and thus did not satisfy the “quality of the law” requirements under Article <mask> of the Convention. He also submitted, under Article 5 § 4, that he had been deprived of the right to have the lawfulness of his detention reviewed by a court, referring to the courts' refusal to examine his complaints about detention and requests for release. | 8 |
67. The Government raised an objection of non-exhaustion of domestic remedies by the applicant. The Court reiterates that the decisive question in assessing the effectiveness of a remedy is whether the applicant could have raised that complaint in order to obtain direct and timely redress, and not merely an indirect protection of the rights guaranteed in Article <mask> of the Convention. The remedy can be either preventive or compensatory in nature (see, among other authorities, Koval v. Ukraine, no. 65550/01, § 94, 19 October 2006). Turning to the facts of the present case, the Court notes that the Government suggested that the applicant should have applied to a court with his complaint about unlawful arrest. They did not make reference to any legal norm providing for the possibility of bringing such a complaint before a court. Nor did the Government supply any example from domestic practice showing that it was possible for the applicant to bring such a complaint. In this connection the Court considers it necessary to point out that section 246 of the Russian Administrative Code prescribed another avenue of appeal. It required the applicant to lodge such a complaint with a prosecutor or a high-ranking police officer (see paragraph 28 above). The Court reiterates that the applicant raised the issue of his unlawful arrest before the Koptevo district prosecutor (see paragraph 15 above), thus making use of an avenue prescribed by domestic law. | 8 |
72. The applicant argued that the alleged violation of Article 5 § 4 of the Convention stemmed from the lack of a procedural possibility for judicial review of her house arrest. House arrest amounted to a deprivation of liberty within the meaning of Article <mask> of the Convention, and for this reason she should have had access to a habeas corpus procedure. | 8 |
34. The applicant made a number of complaints under Article <mask> of the Convention relating to his pre-trial detention. However, having regard to all the material in its possession, the Court finds that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention. The applicant failed to appeal against the relevant domestic court decisions. The fact that his lawyer raised the issue of the alleged unlawfulness and excessive length of the applicant’s pre-trial detention in the statement of appeal is of no relevance. The appeal court dealt with the determination of the criminal charges against the applicant and had no competence to rule on issues concerning his pre-trial detention. It follows that this part of the application must be rejected pursuant to Article 35 § 1 of the Convention. | 8 |
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