CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 juillet 2009

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display:inline-block } .s188AFEEA { width:192.97pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION       CASE OF LAMAZHYK v. RUSSIA   (Application no. 20571/04)           JUDGMENT     STRASBOURG   30 July 2009   FINAL   30/10/2009   This judgment may be subject to editorial revision. In the case of Lamazhyk v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 7 July 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20571/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Orlan Kan-oolovich Lamazhyk (“the applicant”), on 12 April 2004. 2.     The applicant was represented by Mr S. Damdyn, a lawyer practising in the town of Kyzyl, Tyva Republic. The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that his detention on remand had been unlawful and excessively long, that the domestic courts had delayed examination of detention issues and that the criminal case against him had not been examined within a reasonable time. 4.     On 14 November 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5.     The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government’s objection, the Court dismissed it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1974 and lived until his arrest in the town of Kyzyl in the Tyva Republic of the Russian Federation. A.     Institution of criminal proceedings and the applicant’s arrest 7.     On 21 January 2000 criminal proceedings were instituted against the applicant on suspicion of several counts of aggravated robbery. On the following day he was arrested. Three days later, however, his release was authorised on condition that he did not leave his town of residence. 8.     On 3 March 2000 the head of the investigative unit of the Ministry of Internal Affairs of the Tyva Republic authorised the applicant’s arrest in a decision which, in so far as relevant, read: “On the night of 20-21 January 2000, at approximately midnight, [the applicant], who is unemployed, acting with mercenary intent for the purpose of stealing another’s property, in collusion with Mr O. and unidentified persons, arrived by car... at the village of Khalbus-Dash... [and], having unlawfully entered a house and used weapons, attacked Mr Kh. and Mr D. After beating the victims Mr Kh. and Mr D. and having tied their hands, [the applicant], Mr O. and unidentified individuals, issuing threats of murder, killed 14 [cows], placed their bodies in the cars and stole property, thus causing the victims Mr O., Mr Or. and Mr D. pecuniary damage in the amount of 78,430 roubles, and fled the crime scene. Having regard to the threat which the committed criminal offence poses to society and taking into account that [the applicant], if at liberty, may obstruct the establishment of the truth in the criminal case and may also abscond from the investigation and the court... [I] ORDER: 1. That a measure of restraint in the form of arrest should be applied to [the applicant], who is to be informed of this, against his signature on a copy of the present decision...” The decision bore the applicant’s signature under the last printed paragraph, confirming that the decision had been served on him on 17   May 2000. 9.     On 4 March 2000 the head of the investigative unit placed the applicant on the wanted persons list. The relevant part of the decision read: “On 3 March 2000 a decision charging [the applicant] with having committed a crime proscribed by Article 162 § 3 (b) of the Russian Criminal Code and a warrant for his arrest were issued, given the particular gravity and dangerous nature of the crime committed by him. On the same day [police officers] were authorised to bring [the applicant] to the pre-trial investigating authorities for the reading out of the charges and his questioning as an accused. However, the accused, [the applicant], was not found at his place of residence... [It] was established that he left for the Barun-Khemchinskiy District in the Tyva Republic. His exact location was not discovered.” 10.     On 6 March 2000 the applicant was arrested. On the following day the Kyzyl District Prosecutor authorised his detention on remand. B.     Extensions of detention by prosecution authorities 11.     On 9 June 2000 the acting Prosecutor of the Tyva Republic, by the same decision, extended the applicant’s and his co-defendant’s detention until 21 July 2000, relying on the particular gravity of the charges against them and the likelihood that they would pervert the course of justice and abscond if released. 12.     The applicant’s and his co-defendants’ detention was further extended on 13 July, 10   and 23 October 2000 until 21 October and 6   November 2000 and 21 January 2001 respectively, with reference to the same grounds as in the decision of 9 June 2000. C.     Trial proceedings and further detention on remand. 13 .     On 20 January 2001 the applicant was committed for trial before the Supreme Court of the Tyva Republic. According to the Government, the applicant’s detention from 21 January to 20 March 2001 was not covered by any legal order as the domestic authorities were not required to issue one under the legislation governing criminal procedure. D.     First round of additional investigation 14 .     On 15 February 2001 the Supreme Court of the Tyva Republic adjourned the examination of the criminal case because one of the applicant’s co-defendants had violated the conditions of his release on bail and had absconded. The case file was sent to the Prosecutor of the Tyva Republic. The Supreme Court also noted that the prosecution authorities were to “determine the issue of the application of a measure of restraint [in respect of the applicant and his co-defendants]”. 15 .     The Supreme Court of the Tyva Republic resumed proceedings on 5   March 2001 and fixed a hearing for 12 March 2001. That hearing was adjourned because the victims and a lawyer failed to appear. E.     Second transfer of the case for additional investigation 16 .     On 20 March 2001 the Supreme Court of the Tyva Republic returned the case file to the prosecution authorities with an order to correct certain serious procedural defects, noting that the defence rights had been violated. In the same decision the Supreme Court held that the measure of restraint applied to the co-defendants, including the applicant, should “remain unchanged” due to the gravity of the charges against them. 17.     On 13 June 2001 the Supreme Court of the Russian Federation, acting on appeals from the applicant’s co-defendants, upheld the decision of 20 March 2001, endorsing the reasons given by the lower court. 18.     On 20 July 2001 the acting Prosecutor of the Tyva Republic, relying on the gravity of the charges and the defendants’ liability to abscond, pervert the course of justice and re-offend, in a single decision, extended the applicant’s and his co-defendants’ detention until 20   August 2001. A further extension until 20 September 2001 was ordered by a deputy Prosecutor General of the Russian Federation, with reference to the same grounds. F.     Third round of additional investigation. Further extension of the applicant’s detention and trial proceedings 19.     On 14 September 2001 the prosecution authorities returned the case file to the Supreme Court of the Tyva Republic, which on 2 October 2001 remitted the case again for additional investigation, noting serious violations of the defence rights, which had not been remedied during the previous referral of the case file to the prosecution authorities. The Supreme Court also noted that the defendants should remain in custody, given the gravity of the charges against them. 20.     Having received the case file, on 11 October 2001 the first deputy prosecutor of the Tyva Republic extended the applicant’s and co-defendants’ detention until 11 November 2001, relying on the previously used grounds, namely the gravity of the charges and the defendants’ liability to abscond, reoffend and pervert the course of justice. 21 .     On 8 November 2001 the additional investigation ended and the Supreme Court of the Tyva Republic received the case file. It fixed the first hearing for 6 December 2001. As follows from copies of court minutes presented by the Government, the hearing of 6 December 2001, and the following hearings scheduled for 10   January and 12 March 2002, were adjourned because the presiding judge was involved in other unrelated proceedings. 22 .     In the meantime, the composition of the bench changed: a new presiding judge and lay assessor were assigned to the case. Between 12   March and 13 June 2002 the Supreme Court of the Tyva Republic fixed five hearings, of which three were adjourned because the co-defendants’ lawyers failed to appear, one hearing was rescheduled because the victims did not attend and one hearing was adjourned because it was necessary to serve a co-defendant with a copy of the indictment bill in a language he understood. G.     Decision of 13 June 2002 to refer the case for additional investigation 23 .     On 13 June 2002 the Supreme Court of the Tyva Republic, having found that the prosecution authorities had committed serious procedural violations at the indictment stage, referred the case back for additional investigation with an order to respect the rights of the defendants, including their right to the services of an interpreter, etc. The Supreme Court also stressed that the defendants should remain in detention. 24.     On 15 November 2002 the Supreme Court of the Russian Federation quashed the decision of 13 June 2002 in the part concerning the referral of the case for additional investigation and sent the case for examination on the merits by the Supreme Court of the Tyva Republic. At the same time the Supreme Court of the Russian Federation held that there were no grounds to change the measure of restraint applied to the defendants and that they should therefore remain in custody. New round of trial proceedings. Detention issues and conviction 25 .     After having received the case file on 4 February 2003, the Supreme Court of the Tyva Republic fixed the first hearing for 12 February 2003. That hearing was adjourned because the co-defendants’ counsel failed to appear. The subsequent two hearings, listed for 3 and 19 March 2003, were postponed for the same reason. 26.     On 24 March 2003 the Supreme Court of the Tyva Republic authorised an extension of the defendants’ detention for an additional three months, until 24 June 2003, holding as follows: “Taking into account the prosecutor’s arguments that [the defendants] are charged with a criminal offence which belongs to the category of particularly serious [offences], punishable by a maximum of 10 years’ imprisonment, [and] having regard to the particular complexity of the criminal case and [the fact] that the release from custody of the defendants, who pose an increased danger to society, may impede considerably a thorough, complete and objective examination of the circumstances of the case, the measure of restraint applied to the defendants should remain unchanged.” 27.     Of the three hearings scheduled between 26 March and 24 June 2003 by the Supreme Court of the Tyva Republic, two were adjourned because the co-defendants’ lawyers and the victims failed to appear and one hearing was postponed to provide counsel with additional time to study the materials of the case file. 28 .     On 24 June 2003 the Supreme Court of the Tyva Republic, using identical wording as that in the decision of 24 March 2003, extended the defendants’ detention until 24 September 2003. 29.     Between 24 June and 25 September 2003 the Supreme Court of the Tyva Republic fixed four hearings, of which two were adjourned because the defence counsel failed to appear or were on annual leave, one hearing was postponed because a co-defendant was ill and one was rescheduled due to a victim’s failure to attend. 30 .     On 25 September 2003 the Supreme Court of the Tyva Republic once again extended the defendants’ detention for an additional three months, until 24 December 2003, invoking the same grounds as in the previous two detention orders of 24 March and 24 June 2003. 31.     The applicant’s lawyer appealed against the detention order of 25   September 2003, arguing that the applicant’s detention from 24 to 25   September 2003 had not been covered by any legal order, in violation of the requirements of the Russian Code of Criminal Procedure and that the detention in general was excessively long. 32 .     On 4 December 2003 the Supreme Court of the Russian Federation upheld the detention order of 25 September 2003, noting that the applicant’s and his co-defendants’ detention had been regularly extended in compliance with the requirements of the Russian legislation on criminal procedure. It further stressed that in extending the defendants’ detention the Supreme Court of the Tyva Republic had correctly relied on the gravity of the charges. As regards the detention from 24 to 25 September 2003, the Supreme Court of the Russian Federation held that the detention had been lawful, since the prosecution authorities had submitted the application for the extension before 24 September 2003 and the Supreme Court of the Tyva Republic had merely scheduled the hearing for 25 September 2003. 33 .     In the meantime, the Supreme Court of the Tyva Republic listed nine hearings between 25 September and 4 December 2003. Of those hearings, two were adjourned because the victims failed to appear, three hearings were rescheduled because the co-defendants’ counsel were either involved in other proceedings or failed to appear, one hearing was postponed because the presiding judge was ill, one was postponed on the applicant’s lawyer’s request and two were cancelled because it was necessary to determine the issue of the defendants’ representation. 34 .     On 18 December 2003 the Supreme Court of the Tyva Republic, relying on the same grounds as in the detention orders issued in 2003, issued a collective decision in respect of all the defendants, extending their detention until 24 March 2004. Subsequent identically-worded detention orders were issued by the Supreme Court of the Tyva Republic on 19 March and 18 June 2004, extending the defendants’ detention until 24   June and 24   September 2004 respectively. The detention orders of 18   December 2003, 19 March and 18 June 2004 were amenable to appeal. Neither the applicant nor his lawyer made use of the appeal procedure. 35 .     Of the sixteen hearings scheduled between January and 25 August 2004, nine hearings were adjourned because either witnesses or co-defendants’ and victims’ counsel failed to appear, two were postponed because the applicant’s lawyer did not attend, two were rescheduled because the co-defendants’ counsel were involved in other proceedings and one was cancelled following a co-defendant’s request to consult a lawyer. 36.     On 25 August 2004 the Supreme Court of the Tyva Republic found the applicant guilty of aggravated robbery and aggravated theft of weapons and sentenced him to eight years’ and two months’ imprisonment. The applicant decided not to lodge an appeal. II.     RELEVANT DOMESTIC LAW Placement in custody and detention 37.     Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”). 1.     Preventive measures 38.     “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 89 of the old CCrP, Article 98 of the new CCrP). 2.     Authorities ordering detention 39 .     The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor, supported by appropriate evidence (Article 108 §§   1, 3-6). 3.     Grounds for remand in custody 40.     When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP). 41 .     Before 14 March 2001, remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years’ imprisonment, if they had previously defaulted, had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available. 4.     Time-limits for detention (a)     Two types of remand in custody 42.     The Codes make a distinction between two types of remand in custody: the first being “during investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “during judicial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different. (b)     Time-limits for detention “during investigation” 43 .     After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions, taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 44 .     The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article   97 of the old CCrP, Article 109 § 9 of the new CCrP). 45 .     Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months. 46.     Under the old CCrP, the trial court was entitled to refer the case back for “additional investigation” if it found procedural defects that could not be remedied at the trial. In such cases the defendant’s detention was again classified as “during investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “during investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month, starting from the date on which he or she received the case. Subsequent extensions could only be granted if the detention “during investigation” had not exceeded eighteen months (Article 97). (c)     Time-limits for detention “before the court”/”during judicial proceedings” 47.     From the date the prosecutor refers the case to the trial court, the defendant’s detention is classified as “before the court” (or “during judicial proceedings”). 48 .     Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant’s release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. 49 .     The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§   2 and 3). 5.     Proceedings to examine the lawfulness of detention (a)     Detention “during investigation” 50.     Under the old CCrP, the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances, if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee’s release (Article 220-1). An appeal to a higher court lay against the judge’s decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 96 below) (Article 331 in fine ). 51.     Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10). (b)     During judicial proceedings 52.     Upon receipt of the case file, the judge must determine, in particular, whether the defendant should be held in custody or released pending the trial hearings (Article 222 § 5 and Article 230 of the old CCrP, Article 228 (3) and Article 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). 53.     At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 54.     An appeal against such a decision lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 96 below). 6.     Time-limits for trial proceedings 55 .     Under the old CCrP, within fourteen days after receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to refer the case back for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing; or (3) to fix a trial date (Article 227). In the latter case, the trial proceedings must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article   233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing. 56.     The duration of the entire trial proceedings is not limited in time. 57.     Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this period could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP provides that the appeal court must start the examination of the appeal no later than one month after it is lodged (Article   374). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION 58.     The applicant complained under Article 5 § 1 (c) of the Convention that his detention had been unlawful. The relevant parts of Article 5 provide: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and 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...” A.     Submissions by the parties 59.     The Government, firstly, noted that the applicant had failed to exhaust domestic remedies as he had only appealed against the detention order of 25 September 2003. In the alternative, the Government submitted that the applicant’s detention had been regularly extended by the competent domestic authorities with reference to the gravity of the charges against him and other relevant grounds which had precluded the applicant’s release. 60.     The applicant maintained his complaints, arguing that his detention had been unlawful from the very beginning, when the domestic authorities had decided to revoke the written undertaking not to leave his town of residence and had remanded him in custody for no apparent reason. He further referred to certain periods in his detention which had not been covered by any legal order. In particular, he referred to the period from 21   January to 20 March 2001 and from 24 to 25 September 2003. The Court’s assessment Admissibility (a)     Six-month issue 61.     The Court observes at the outset that a part of the applicant’s complaint refers to a period of pre-trial detention which ended more than six months before he lodged the application with the Court on 12 April 2004. The most recent period of detention which the Court may examine commenced on 24 September 2003 when the three-month period of detention covered by the order of 24 June 2003 expired (see paragraph 28 above). On 25 September 2003 the Supreme Court of the Tyva Republic issued the subsequent decision, meant to cover the period of the applicant’s detention for an additional three months, starting from 24   September 2003 (see paragraph 30 above). The final decision concerning the lawfulness of that order was given on 4 December 2003, that is, within the six months preceding the lodging of the application (see paragraph 32 above). The Court therefore considers that the part of the applicant’s complaints concerning the alleged unlawfulness of his detention before 24 September 2003 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Salmanov v. Russia (dec.), no. 3522/04, 19 January 2006; Korchuganova v. Russia , no. 75039/01, §   44, 8 June 2006; Pavlík v. Slovakia , no. 74827/01, §   89, 30   January 2007; and Ignatov v. Russia , no. 27193/02, § 71, 24 May 2007). (b)     Exhaustion issue 62.     The Court further notes the Government’s submission, which was not contested by the applicant, that he had failed to appeal against the orders extending his detention after 24 December 2003 (see paragraph 34 above). 63.     In this connection, the Court reiterates that the applicant was represented, from the pre-trial stage of the proceedings, by counsel of his own choosing. No explanation has been offered for the counsel’s failure to lodge, or advise the applicant to lodge, a judicial appeal against the detention orders. The Court therefore considers that the part of the applicant’s complaint concerning the detention after 24 December 2003 must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention (see, mutatis mutandis, Belov v. Russia , no. 22053/02, §74, 3   July 2008, and Matyush v. Russia , no. 14850/03, § 63, 9   December 2008). (c)     Conclusion 64.     The Court finally observes that, having applied the six-month and exhaustion rules, it has competence to examine the applicant’s complaint related to the period of his detention from 24 September to 24 December 2003. The Court notes that that complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits (a)     General principles 65 .     The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion. 66.     The Court must moreover 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. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Ječius v. Lithuania , no. 34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland , no. 28358/95, §§ 50-52, ECHR 2000-III). (b)     Application of the general principles to the present case i.     The applicant’s detention from 24 to 25 September 2003 67.     The Court notes that on 24 June 2003 the Supreme Court of the Tyva Republic, relying on the gravity of the charges and the likelihood that the applicant would pervert the course of justice, extended his detention for an additional three months, until 24 September 2003. However, it was not until 25   September 2003 that the Supreme Court of the Tyva Republic authorised an extension of the applicant’s detention, noting that the extension was granted for three months, that is from 24 September to 24 December 2003. 68.     The Court has to ascertain whether the detention from 24 to 25   September was “lawful”. The Government maintained that the detention was lawful because it complied with the substantive and procedural provisions of the rules of criminal procedure. The applicant alleged that his detention from 24 September 2003, when the order of 23 June 2003 expired, to 25 September 2005, when the Supreme Court granted a further extension, was not covered by any detention order and had therefore been unlawful. 69.     The Court reiterates that for detention to be “lawful” within the meaning of Article 5 § 1, it has to conform to both the substantive and procedural rules of the domestic law (see paragraph 65 above). The authorised period of the applicant’s detention expired on 24   September 2003. It was only on the following day that the Supreme Court of the Tyva Republic issued the subsequent detention order. In this connection, the Court observes that neither the Government nor the Supreme Court of the Russian Federation, while examining an appeal against the detention order of 25 September 2003, pointed to any legal provision which permitted an accused to continue to be held once the authorised detention period had expired. The Russian Constitution and rules of criminal procedure vested the power to order or prolong detention on remand in courts (see paragraph 39 above). No exception to that rule were permitted or provided for, no matter how short the duration of the detention. 70.     The Court further observes that the Supreme Court’s decision of 25   September 2003 could not have constituted a “lawful” basis for the applicant’s detention in the preceding period (see Belov v. Russia , no. 22053/02, § 82, 3 July 2008, with further references). The decision authorised the applicant’s detention from 24 September to 24 December 2003, of which the period from 24 to 25 September 2003 was thus authorised retrospectively. The Court has already held in a number of cases that any ex post facto authorisation of detention is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see, for example, Khudoyorov v. Russia , no. 6847/02, § 142, ECHR 2005 ‑ X (extracts); Solovyev v. Russia , no. 2708/02, § 99, 24 May 2007, and Shukhardin v. Russia , no. 65734/01, § 69, 28 June 2007). The Court sees no reason to reach a different conclusion in the present case. It follows that the applicant’s detention, in so far as it had been authorised by the order of 25   September 2003 in respect of the preceding period, was not “lawful” under domestic law. 71 .     The Court thus concludes that from 24 to 25 September 2003 there was no formal decision authorising the applicant’s detention. The applicant was in a legal vacuum that was not covered by any domestic legal provision (see Shukhardin , cited above, § 85). In the absence of any decision that could have served as a “lawful” basis for the applicant’s detention in the impugned period, the Court finds that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention on remand from 24 to 25 September 2003. ii.     The applicant’s detention from 25 September to 24 December 2003 72.     The Court observes that the applicant’s detention during the period from 25 September to 24 December 2003 was authorised by the Supreme Court of the Tyva Republic on the grounds that the charges against him were serious and that he was liable to obstruct the course of justice. 73.     The Court reiterates that the trial court’s decision to maintain a custodial measure would not breach Article 5 § 1 provided that the trial court had acted within its jurisdiction, had power to make an appropriate order, and had given reasons for its decision to maintain the custodial measure, for which it had also set a time-limit (see Khudoyorov , cited above, §§ 152-153; Korchuganova v. Russia , no. 75039/01, § 62, 8 June 2006; and Pshevecherskiy v. Russia , no. 28957/02, §§ 41-46, 24 May 2007). 74.     The trial court acted within its jurisdiction in issuing the decision of 25 September 2003 and there is nothing to suggest that it was invalid or unlawful under domestic law in so far as it authorised the applicants’ detention for the subsequent period. It has not been claimed that that decision was otherwise incompatible with the requirements of Article 5 § 1, the question of the sufficiency and relevance of the grounds relied on being analysed below in the context of compliance with Article 5 § 3 of the Convention. 75.     Accordingly, the Court finds that there has been no violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention from 25 September to 24 December 2003. II.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 76.     The applicant complained that the length of his pre-trial detention was unreasonable, in breach of 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 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.” A.     Submissions by the parties 77.     The Government claimed that the applicant had failed to exhaust domestic remedies as the only appeal he had lodged was against the detention order of 25 September 2003. They further submitted that the length of the applicant’s detention on remand had not been excessive. The extensions of the detention had been necessary in the circumstances of the case, in particular taking into account the gravity of the charges against the applicant and the risk of his obstructing the examination of the case, if released. 78.     The applicant replied that the domestic courts had not provided any evidence to show that he had been genuinely liable to re-offend, abscond or pervert the course of justice. The only reason for his continued detention was the gravity of the charges against him. B.     The Court’s assessment 1.     Admissibility 79.     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 (see, among many other authorities, Selmouni v. France [GC], no.   25803/94, §   74, ECHR 1999-V). 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. 80.     Following his arrest on 6 March 2000 the applicant remained in pre-trial detention until his conviction on 25 August 2004. It is not disputed that he did not lodge any appeals against the prosecutors’ orders and the decisions of the Supreme Court of the Tyva Republic extending his detention until 24 September 2003. He did, however, challenge the later detention order of 25 September 2003 before the Supreme Court of the Russian Federation, which on 4 December 2003 held that the applicant’s detention had been lawfully extended at regular intervals. The Court thus considers that, although the applicant did not lodge appeals against the extension orders issued before September 2003, by lodging an appeal against the subsequent detention order of 25 September 2003 he gave an opportunity to the Supreme Court of the Russian Federation to consider whether his detention was compatible with his Convention right to trial within a reasonable time or release pending trial. Indeed,