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Case of Zhulin v. Russia - (18 Oct 2016)

Detention without a court order or other clear legal ground is incompatible with standard of “lawfulness”


Instant case originated in an application against the Russian Federation lodged with Court under Article 34 of the Convention for Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, (“the applicant”). Applicant complained that his initial detention had not been lawful because the detention order of 7 June 2005 had been issued more than forty-eight hours after his arrest on 5 June, and that he had been detained without a judicial order from 5 to 8 August 2005.

The Government acknowledged that from 5 to 8 August 2005, applicant was detained without a judicial decision. Court reiterates that detention without a court order or other clear legal ground is incompatible with the standard of “lawfulness”, enshrined in Article 5 § 1, since during the time of unauthorised detention an individual would be kept in a legal vacuum not covered by any domestic legal provision. Applicant’s detention between 5 and 8 August 2005 lacked a legal basis and was therefore “unlawful”. Consequently, there has been a breach of Article 5 § 1.

As per ARTICLE 5 § 4 OF THE CONVENTION, 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. Government acknowledged that the hearing on 25 January 2006 had been held in the absence of the applicant and his lawyer, that the decisions of 8 August and 23 September 2005 had not mentioned the applicant’s arguments relating to his unlawful detention from 5 to 8 August 2005 or contained a detailed analysis of his further detention, and that the appeals against the detention orders of 8 August 2005 and 30 January 2006 had not been examined “speedily”.

Applicant and his counsel were not informed of hearing on 25 January 2006 which deprived the applicant of possibility to be heard either in person or through his representative. Scope of the judicial review, as reflected in the decisions of 8 August and 23 September 2005, was manifestly insufficient in that the Russian courts did not address the applicant’s crucial argument about his unlawful detention in the immediately preceding period or give any reasons for extending the custodial measure. It took the Regional Court one and a half month to examine appeal against the detention order of 8 August 2005 and almost four months for the appeal against the order of 30 January 2006, neither period can be considered compatible with the “speediness” requirement of Article 5 § 4. Court held that there has been a violation of Articles 5 § 1, 5 § 4 of Convention on account of applicant’s unlawful detention from 5 to 8 August 2005.

Relevant : Article 5 § 4 of Convention for Protection of Human Rights and Fundamental Freedoms


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