CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 juin 2011

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text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s299839C6 { width:212.77pt; display:inline-block } .s115C6F62 { width:5.64pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FIRST SECTION           CASE OF MIMINOSHVILI v. RUSSIA   (Application no. 20197/03)               JUDGMENT     STRASBOURG   28 June 2011     FINAL   28/09/2011     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Miminoshvili v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Peer Lorenzen,   Khanlar Hajiyev,   George Nicolaou,   Julia Laffranque,   Linos-Alexandre Sicilianos, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 7 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20197/03) 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 Tengiz Valerianovich Miminoshvili (“the applicant”), on 30 May 2003. 2.     The applicant was represented by Ms Liptser and Mr Karpinskiy, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that his pre-trial detention had been unlawful and unjustified, that detention proceedings in his case had been unnecessarily long, and that his trial had been unfair. 4.     On 13 November 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (former Article 29 § 3, now Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1960 and lives in Moscow. A.     Institution of criminal proceedings against the applicant 6.     In 2000 Mr D., a businessman from Moscow informed the police that since 1996 he and his two business partners had been paying a monthly fee to a local gang for “protection”. Mr D. gave the police audio records of his telephone conversations with the gangsters, which he had secretly made when the “fee” had become too burdensome for him. The police set up an undercover operation. Police agents secretly observed the meetings between the three businessmen and the gangsters and recorded their conversations. At the last meeting, which took place on 25   September 2000, the businessmen handed to the emissaries of the gang the money they had earlier received from the police. After the receipt of the money the two emissaries of the gang were arrested and the money (which had been previously marked by the police) was seized from them. One of the alleged gangsters was Mr M., the applicant’s brother. 7.     On 9 April 2001 the applicant was charged with large-scale extortion as part of an organised criminal group (Article 163 § 3 (a) and (b) of the Criminal Code of the Russian Federation). However, because his whereabouts were unknown, on 18 April 2001 the case against the applicant was separated from the case of other members of the group. On 22 May 2001 the applicant was put on a wanted list. B.     The applicant’s arrest and detention pending investigation 8.     On 1 June 2001 the Moscow City Prosecutor issued a detention warrant in respect of the applicant. It referred to the gravity of the charges and the risk of his absconding, as well as to the fact that the applicant was on the wanted list. The detention warrant did not specify the period of detention. 9.     On 7 April 2002 the applicant was arrested at his house in the Moscow Region. On the same date he was detained. 10.     On 6 June 2002 the Moscow City Prosecutor authorised the extension of the applicant’s detention until 9 August 2002. The detention warrant referred to the gravity of the charges and the risk of the applicant absconding, re-offending or interfering with the investigation. There is no information on whether the applicant appealed against that decision. 11.     On 1 August 2002 the Babushkinskiy District Court of Moscow considered the detention request lodged by the prosecution. The defence argued that there were no grounds for continued detention since the applicant had no criminal record, permanently resided in Moscow, and had not tried to flee from the investigation – at the time when he had been on the wanted list he had been living in his summer house in the Moscow Region with his minor children and had not been aware of the proceedings against him. The defence also contended that the charges against the applicant were unfounded and noted long periods of inactivity on the part of the investigation authorities during previous detention periods. 12.     The court rejected those arguments and extended the applicant’s detention until 7 October 2002. The court held that the applicant had been accused of grave crimes and that he had to take part in several investigative activities. The court also found that the applicant would flee from justice given that he had previously been on the wanted list, and had been arrested in the Moscow Region. There is no information on whether the applicant appealed against that decision. 13.     On 2 October 2002 the District Court extended the applicant’s detention until 9 December 2002 holding that there were no grounds to amend or revoke the preventive measure, given the gravity of the charges and the risk of his absconding. There is no information on whether the applicant appealed against the decision. C.     Transferral of the case to the court; first remittal to the prosecutor 14.     On 28 November 2002 the investigation was completed and the case file was sent to the Nikulinskiy District Court (hereinafter – the District Court). 15.     On 11 December 2002 the District Court scheduled a preparatory hearing. In its decision to hold a preparatory hearing it also ordered that the applicant’s detention should remain unchanged. The court neither specified the time-limit for his detention nor gave the reasons for such decision. 16.     On 24 December 2002 the preparatory hearing was held. The defence filed a request for release stating that the decision ordering the applicant’s detention pending investigation had expired and that he was therefore being unlawfully detained. They also noted that the decision of 11   December 2002 did not contain any reasoning. The District Court rejected the request referring to the gravity of the charges and to the fact that the court had not yet assessed the evidence. As to the subject matter of the accusations against the applicant, the District Court remitted the case to the prosecution because the bill of indictment had been issued improperly and was not ready for examination at the trial. The prosecution was given five days to modify the bill of indictment. The ruling of the District Court referred to Article 236 § 1 (2) of the Russian Code of Criminal Procedure (CCrP) (“Types of decision which can be taken at the preparatory hearing”), Article 237 § 1 (1) (“Returning the case to the prosecutor”), and Article 255 §   3 (“Deciding on the measure of restraint [during the trial proceedings]”). 17.     The prosecution appealed against the part of this decision concerning the remittal. The defence appealed against the refusal to release the applicant. The appeals were lodged on 26 and 30 December 2002 respectively. 18.     According to the Government, the applicant’s statement of appeal against the detention order of 24 December 2002 was received by the District Court on 15   January 2003. On 28 January 2003 the applicant was handed a copy of the appeal by the prosecution. The case was received by the Moscow City Court on 13 February 2003. The appeal hearing was scheduled for 5 March 2003. However, since the applicant’s lawyers failed to produce powers of attorney, the appeal hearing was adjourned until 13   March 2003. 19.     On 13 March 2003 the Moscow City Court allowed the prosecution’s appeal and referred the applicant’s case back to the District Court for a preparatory hearing. The appeal of the defence was dismissed for the same reasons as given by the District Court in its decision of 24   December 2002. The City Court’s decision also referred to the provision in the CCrP establishing a default six-month detention period after the referral of a case to the trial court. D.     Second remittal to the prosecutor 20.     On 21 April 2003 the second preparatory hearing was held. The defence filed a new application for release. In addition to the arguments mentioned earlier they referred to the unreasonable period of detention and the lack of special diligence during the proceedings. The District Court once again ordered the case to be remitted to the prosecutor and rejected the request for release, relying on the same arguments as in the previous decision, namely the gravity of the charges and the need to carry out additional investigative activities. The ruling contained references to Articles 236 § 2 (1) and 237 § 1 (1) of the CCrP. Both prosecution and defence appealed. 21.     On 5 June 2003 the Moscow City Court returned the case to the District Court for another preparatory hearing. It also upheld the decision of the District Court regarding the applicant’s detention. E.     The applicant’s detention after the preliminary hearing 22.     On 2 July 2003 the District Court scheduled a preliminary hearing, and held that the applicant should stay in custody. It does not appear that the court indicated in its ruling any time-limit for the applicant’s further detention. 23.     On an unspecified date the defence appealed against the ruling of 2   July 2003. 24.     On 9 July 2003 the court held a preliminary hearing and scheduled a hearing on the merits. The District Court rejected the applicant’s request for release and confirmed that the applicant should remain detained pending trial, without, however, indicating any time-limit for the detention. 25.     On 18   July 2003 the defence lodged an appeal against the decision of 9   July 2003. They claimed that the six-month time-limit for detention pending trial had expired on 28   May 2002 and that the applicant was therefore being detained unlawfully. 26.     On 21 July 2003 the applicant’s detention pending trial was extended for three months because judgment on the merits had not yet been delivered. The District Court referred to the gravity of the charges and to the fact that the court had not yet assessed the evidence. The defence appealed. The statement of appeal against the decision of 21 July 2003 was dated 30 July 2003, although it is unclear whether it was introduced on that date. 27.     On 3 September 2003 the Moscow City Court dismissed appeals against the decisions of 2, 9 and 21 July 2003 holding that the findings of the District Court had been correct. 28.     According to the applicant, on 7 October 2003 his detention was extended for three more months, with the same reasoning as before. In support of his assertion the applicant submitted a copy of the ruling of the Nikulinskiy District Court of Moscow of that date, signed by Judge K. The defence appealed against that ruling; the applicant submitted a copy of the statement of appeal with the District Court’s stamp on it confirming the date of introduction (16 October 2003) and the incoming mail number (no.   4547). The applicant claimed that the appeal court had never considered the complaint. The Government claimed that on 7 October 2003 the applicant’s detention had not been extended, and that the applicant’s detention was still covered by the detention order of 21   July 2003. 29.     On 21 October 2003 the District Court adopted the judgment in the applicant’s case. F.     Mr M.’s trial 30.     The applicant’s case was initiated jointly with the cases of other members of the organised criminal group, including the applicant’s brother, Mr M. They were all accused of large-scale extortion. Owing to the failure to find the applicant, his case was separated from the case of the other members of the group. 31.     On 27 December 2002 the Nikulinskiy District Court convicted Mr   M. of large-scale extortion as part of an organised criminal group (Article 163 § 3 (a) and (b) of the Criminal Code of the Russian Federation). The District Court was sitting as a panel of three judges comprising a professional judge (Ms K., the president), and two lay judges. 32.     The judgment of 27 December 2002 started with the finding that Mr   M. had committed extortion in concert with “unidentified persons”.   In relating the facts of the case the court once mentioned the applicant’s name. Specifically, on page 5 of the judgment the court held that an unidentified member of the gang had mentioned in a telephone conversation with one of the victims that “[the applicant] was unhappy that the victims had not transferred the money to [Mr M.] at his first request”. 33.     The applicant’s name was also mentioned in the part of the judgment summarising the witness statements. In particular, on page 6 of the judgment in connection with the testimony of Mr M., who denied his or his brother’s involvement in the criminal group. The District Court, however, found that Mr M.’s testimony was refuted by the incriminating evidence, namely witness statements. Some of the witnesses, as well as confirming the role of Mr M. in the gang, mentioned that the applicant had been an important person in the gang and participated in negotiations as a person of authority (page 7). They further mentioned that the applicant had told the victims that “they had to pay him in order not to pay other persons he had talked to” (page 7), that the money was collected from the businessmen for the applicant (page 8), that “[the applicant] had been introduced [to them] as a leader of the criminal group” (page 8), and that the victims “had paid mobile telephone bills for [the applicant]” (page 8). The District Court also examined information on the telephone communications of Mr M. and the applicant and referred to them in its judgments (without, however, indicating their importance for the conviction). G.     The applicant’s trial 34.     The applicant’s case was heard by Judge K. of the Nikulinskiy District Court (the same judge who had earlier presided over the trial in the case of Mr M.). The first hearing on the merits took place on 29 September 2003. 35.     The applicant pleaded not guilty. He did not deny that he knew the victims and that he had had some dealings with them. Namely, he confirmed that he had met with them several times between 1996 and 1999. However, he denied that his involvement in their business had been of a criminal character. He also denied having received from the victims or from Mr M. any criminal payments. He further denied the participation of Mr M., his brother, in any criminal activity. 36.     At the following hearings the court heard testimony of two witnesses for the defence, R. and K., who both denied any involvement of the applicant or Mr   M. in the crimes. They testified that the money had been paid by the victims to Mr M. as a rental fee for storage space on premises owned by the applicant. 37.     The victims (Mr D. and his two partners), on the contrary, testified that in 1996 they had met with the applicant who had offered them criminal “protection” from other gangs and fixed a monthly fee for it. At one of the meetings with the applicant another gangster had threatened the victims with beatings. In the following years the victims had been paying the money to the gang, generally not to the applicant directly but to other gangsters, in particular to Mr M. However, the victims had understood that the money had been destined for the applicant. The victims had had several other meetings with the applicant in different places where the amount of the monthly fee had been discussed. Other members of the gang had always referred to the applicant as a person of authority. Throughout that period the applicant had been personally involved in the negotiations with other gangs. 38.     The court also examined audio records secretly made by one of the victims and later by the police during the surveillance operation. Although the applicant was not identified as one of the speakers on those audio records, other gangsters had often referred to somebody named Tengiz (which is the applicant’s first name) who had supposedly been a person of authority within the gang. The applicant claimed that they had probably meant another person also named Tengiz. 39.     The District Court also examined other evidence. Witness V. confirmed that several meetings between the applicant and the victims had taken place. Witness Ya., an accountant for the victims, confirmed that one of the alleged members of the applicant’s gang had been formally employed by the victims and had been receiving a salary, without, however, doing any actual work. She did not know about any official business transactions or rental agreements between the applicant and the victims. The prosecution also produced the applicant’s and other members of the gang’s telephone bills which had been paid by the victims, and some other circumstantial evidence. 40.     During the court proceedings in the applicant’s case the defence requested that Mr M. be summoned. He explained to the courts that Mr M.’s testimony was important. The applicant claimed that according to the victims the money obtained from them had been passed to him by Mr M. and that the examination of the latter “could shed light on these events”. The defence also alleged that without proving the fact that the money had been passed to the applicant he could not be found guilty and that Mr M. had to be summoned as all the witnesses referred to him in their testimony. The trial court rejected the request holding that the court had not yet assessed all the evidence. 41.     Some time later the defence requested the admission in evidence of Mr M.’s written statement obtained by one of the defence lawyers who had visited Mr M. in prison and had interviewed him. In those statements Mr   M. had denied his and his brother’s (the applicant) involvement in the gang. The court refused on the ground that the written statement of Mr M. had not been “duly certified” and it was unclear whether that statement had indeed been taken from Mr M. 42.     The defence also requested leave to examine the victims of the impugned extortion for a second time, owing to inconsistencies in their earlier submissions. The request was not granted. 43.     At some point in the proceedings the defence challenged the judge claiming that she was not impartial. They contended that the same judge had earlier found the applicant’s brother guilty in a case closely connected with the applicant’s case. Moreover, the defence noted that the trial judge was the same judge who had earlier remitted the case to the prosecutor and might therefore have been prejudiced in this case. However, the judge refused to withdraw. On several later occasions the defence objected to questions put by the judge to the applicant, claiming that those questions were favourable to the prosecution. 44.       It took the trial court eight hearings to examine the evidence produced by the parties. The hearings took place on 29 and 30 September, and on 1, 2, 7, 14 and 15 October 2003. The last hearing on the merits was held on 16   October 2003. On that day the court heard the last witness, examined certain written materials in the case file and examined the requests of the defence. The judge, having decided that the examination of evidence was over, invited the parties to proceed with their final submissions. The defence objected to ending the examination of the evidence without summoning Mr M. The objection was rejected. The defence then requested an adjournment for at least one day to prepare their final submissions. The judge ordered a twenty-minute break and then proceeded to the final submissions. These were made after a thirty-minute break. All three lawyers for the applicant were able to make oral submissions, in addition to their written submissions which they had handed to the court. 45.     On 21 October 2003 the District Court found the applicant guilty of extortion and sentenced him to seven years’ imprisonment and confiscation of criminally obtained assets. In the opening paragraphs of the judgment the District Court found that the applicant and his brother, Mr M., who had earlier been convicted by the same court on 27 December 2002, as well as several other unidentified people, were members of an organised criminal group created to extort large sums of money from local businessmen. Between 1996 and 1998 the applicant had met with those businessmen on several occasions. He had offered them protection from other gangs in exchange for a monthly fee. The money had usually been passed from the victims to the applicant through other members of the group, including the applicant’s brother, Mr M. In addition, the victims had been required to pay an unidentified member of the gang’s telephone bills and later those of the applicant himself. The judgment contained a detailed account of all payments which had passed through Mr M. to the applicant and of the amounts of the telephone bills paid by the victims. It also described several episodes when unidentified members of the gang had claimed additional payments on the applicant’s behalf. 46.     The court further analysed the testimony of witnesses R. and K. examined at the request of the defence. The judge noted that although both R. and K. had referred to the existence of a rental agreement between the victims and the applicant, it had allegedly been concluded in the name of a firm which had ceased to exist by that time and had never been signed by the applicant. Furthermore, the court did not have a copy of that agreement and other evidence in the case file contradicted the submissions of R. and K. Lastly, in a telephone conversation between one of the victims and a member of the gang, the latter had instructed the former to tell the police that the payments had been made within a rental agreement. As a result, the judge dismissed the testimony of R. and K. as unreliable. 47.     The applicant’s lawyers appealed. In particular, they drew the court’s attention to the fact that at the trial the victims had acknowledged that they had been giving the money not to the applicant but to other persons. The applicant’s lawyers insisted that the trial court’s failure to summon and question Mr M. made the trial unfair. 48.     On 17 March 2004 the Moscow City Court examined the appeal by the defence. It amended the judgment of the District Court because of changes in the Russian Criminal Law. The confiscation order in respect of criminally obtained assets was thus quashed. However, the remainder of the judgment of 21 October 2003 was upheld. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Pre-trial detention 49.     After arrest the suspect can be placed in custody “pending investigation”. Article 108   §§   1, 3-6 of the new CCrP (of 2001, in force since 1 July 2002) requires a judicial decision by a district court on a reasoned request for detention by a prosecutor, supported by appropriate evidence, before a defendant can be detained or his or her detention extended. Detention “pending investigation” should not exceed eighteen   months (Article 109 §§ 1-3). The period of detention “pending investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9). 50.     From the time the prosecutor sends the case to the trial court, the defendant’s detention is “pending trial”. Upon receipt of the case file the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 228 § 3 and 231 § 2 (6) of the CCrP). 51.     The period of detention “pending trial” is calculated up to the date on which the judgment is given. It 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 of the CCrP). 52.     The trial judge can return the case to the prosecutor to remedy the defects impeding the trial (Article 236 § 1 (2) of the CCrP), for instance if the judge has identified serious deficiencies in the bill of indictment (Article 237 § 1 (1) of the CCrP) or a copy of it was not served on the accused. The judge must require that the prosecutor comply within five days (Article 237 § 2) and must also decide on a preventive measure in respect of the accused (Article 237 § 3). 53.     By Federal Law no. 226-FZ of 2   December 2008, Article 237 was amended to the effect that, if appropriate, the judge could extend the term of detention with due regard to the time-limits set forth in Article 109 of the CCrP. 54.     Pursuant to Article 376 of the CCrP, the court of appeal has to set the date, time and place of an appeal hearing and inform the parties accordingly. The parties should be informed no less than fourteen days in advance of the date of the appeal hearing. The court has to decide whether or not the detainee should be brought to the court of appeal in person. That Article also regulates the arrangements governing a detainee’s appearance in appeal proceedings in person and his or her appearance via video-link. 55.     For further details concerning Russian legislation on pre-trial detention, detention pending trial and remittal of the case to the prosecution for correcting defects of the bill of indictment, see the cases of Lebedev v.   Russia (no.   4493/04, §§ 33 et seq., 25   October 2007) and Shteyn (Stein) v.   Russia (no. 23691/06, §§ 56 et seq., 18 June 2009). B.     Res judicata in criminal proceedings 56.     Article 90 of the CCrP provides that “factual circumstances established in a court judgment ... which have acquired legal force, should be accepted by a court ... without additional verification. However, such a court judgment cannot predetermine the question of guilt of those persons who had not participated in [those] proceedings”. C.     Withdrawal of a judge 57.     Articles 61 – 63 of the CCrP describe situations in which a judge cannot sit on the bench in a particular case. The judge must withdraw if he is an injured party in that criminal case, if he has already participated in that criminal case in a different capacity (for example, as a representative of a party, as a witness, etc.), if he is a relative of any participant in the criminal proceedings, or “if there are other circumstances which give reason to believe that [the judge] is personally, directly or indirectly, interested in the outcome of the criminal case”. The judge whose impartiality is in doubt must withdraw of his own motion (Article 62 § 1); alternatively, a party to the proceedings may challenge a judge on those grounds (Article 62 §   2). Article 63 of the CCrP provides that the same judge cannot sit on the bench in the trial court and later in the court of appeal or in the supervisory review court in the same case. The same judge who sat on the bench during the first trial cannot remain in the composition if the case is remitted for re-trial. However, there are no rules governing the participation of the same judge in different, yet related, criminal cases. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 58.     The applicant complained that he had been unlawfully detained after his case had been transmitted to the trial court in November 2002. He also contended that the decision of 11 December 2002 had contained no grounds for his continued detention and was thus unlawful. Under the same provision the applicant complained that after the expiry of the six-month period for his detention (following his committal for trial in November 2002) he had been detained in custody without any lawful basis. Article 5 § 1 (c) of the Convention reads as follows: “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.     Admissibility 59.     The Government did not forward any formal objections to the admissibility of this complaint. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 60.     The Government contested that the applicant’s rights under Article   5   § 1 of the Convention had been breached. They claimed that the legal basis for the applicant’s detention from 28 November 2002 had been the fact that his case was transferred to the District Court for examination on the merits. The Government referred in this connection to Article 255 of the Code of Criminal Procedure (CCrP) of 2001, which provides that the trial judge must decide upon measures of restraint during the trial and has the power to extend detention for six months during the trial. That period can be further extended, each time for a period of three months. 61.     As regards the applicant’s detention between the remittal of the case from the District Court to the prosecution (24 December 2002) and the quashing of this decision by the court of appeal (13 March 2003), the Government contended that this period should be regarded as a period “pending trial”, since the decision to remit the case to the prosecution was not final. The same applied to the period between 21 April and 5   June 2003. 62.     The applicant, referring to the cases of Khudoyorov v. Russia (no.   6847/02, § 149, ECHR 2005 ‑ X (extracts)) and Ignatov v. Russia (no.   27193/02, § 80, 24 May 2007), claimed that the mere fact that the applicant’s case had been transferred from the prosecution to the trial court was not sufficient to make it “lawful”. The detention order of 2   October 2002 had expired on 9 December 2002, and, until the time when the trial court had extended the detention on 11 December 2002, the applicant’s detention had therefore had no lawful ground. Such reading of the law was confirmed by the Constitutional Court of Russia in its ruling no.   4-P of 22   March 2005 (cited in the case of Lebedev , referred to above). 63.     The applicant also argued that the detention order of 11 December 2002 could not be considered as a lawful detention order either, since it had not been supported by any reasoning.   Further, the six-month period for detention pending trial had ended on 25 May 2003; therefore, the period of detention after that date and until the next detention order (that of 21   July 2003) had also been unlawful. 2.     The Court’s assessment (a)     General principles 64.     The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention 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. 65.     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 to the present case i.     The period between 9 and 24 December 2002 66.     The Court observes that from 7   April   2002 the applicant was in pre-trial detention. The last detention order issued during the investigation expired on 9   December   2002, after the case had been transmitted to the District Court, but before the next detention order was issued (on 11   December   2002). 67.     The Court notes that the existence of a “gap” between the last extension of the detention ordered at the investigation stage and the first extension ordered by the trial court is a well-known problem of Russian criminal procedure frequently dealt with in the Court’s case-law. In a number of cases against Russia the Court has found a violation of Article 5 § 1 on that account (see Nakhmanovich v.   Russia , no.   55669/00, §§   67-68, 2   March 2006; Korchuganova v. Russia , no.   75039/01, §   57, 8 June 2006; Khudoyorov , cited above, §§   146-148; and Lebedev , cited above, §§ 55 et seq.). The Government has not put forward any argument capable of persuading the Court to depart from its well-established case-law in this area. The Government’s reference to Article 255 of the CCrP is irrelevant, since this provision describes the powers of the judge to extend detention for the time of the trial and for up to six months after that, but does not define the status of the accused during the period when old detention order (imposed during the pre-trial investigation) has expired and the new one has not yet been imposed. Therefore, in so far as the period between 9 and 11   December 2002 is concerned, the applicant’s detention had no lawful basis. 68.     The Court further observes that the detention order of 11 December 2002 (which, according to the Government, served as a lawful basis for the applicant’s detention for the next six months) did not contain any reasoning and did not refer to any time-limit. As in many previous Russian cases, the applicant’s detention for an indefinite period of time (which was only limited by the maximum duration of such detention, provided for in the CCrP) was ordered by a simple phrase that the measure of restraint (detention) “should remain unchanged” (compare the case of Ignatov , cited above, § 78; see also Nakhmanovich , cited above, §§ 70-71, and Stašaitis v.   Lithuania , no.   47679/99, §   67, 21 March 2002). Here again the Court does not see any reason to depart from its previous case-law and considers that the detention order of 11 December 2002 was, by its form, arbitrary, and thus contrary to Article 5 §   1 (c) (see, in addition to the cases mentioned above, Avdeyev and Veryayev v. Russia , no.   2737/04, §§ 45-47, 9 July 2009; Bakhmutskiy v. Russia , no.   36932/02, §§   112-114, 25 June 2009; Gubkin v.   Russia , no.   36941/02, §§ 112-114, 23   April 2009; Shukhardin , cited above, §§   65-70; Ignatov , cited above, §§   79-81; and Solovyev v. Russia , no.   2708/02, §§   97-98, 24 May 2007). ii.     The period between 24 December 2002 and 28 May 2003 69.     The Court observes that in the ruling of 24 December 2002 the District Court held, with reference to the gravity of the charges against the applicant, that the measure of restraint should remain the same. In the Court’s opinion, it was not a very strong reason for further extending the applicant’s detention (for more details, see the Court’s analysis under Article 5 § 3 of the Convention below). Nevertheless, it was some sort of justification, and therefore from that moment on the applicant’s detention ceased to be “arbitrary”. Further, the Court observes that the applicant’s detention was ordered by a competent court (see Article 237 § 3 of the CCrP). 70.     That being said, the status of the applicant’s detention during the subsequent period remains unclear. The Court reiterates its findings in the case of Shteyn (Stein) (§§ 91 et seq.), cited above. In that case it was impossible for the Court to define whether the detention after the remittal of the case from the trial court to the prosecutor was, in domestic terms, “pending trial” or “pending investigation”. The Court concluded that the absence of sufficiently precise rules concerning the legal grounds for detention following the return of the case to the prosecutor, combined with the authorities’ failure to refer to applicable legal norms when extending the detention, seriously affected the “lawfulness” of the applicant’s detention. 71.     In the present case, when ordering that the applicant should remain in detention, the District Court relied on Article 255 of the CCrP, which governs detention “pending trial”. The Government also claimed in their observations that the applicant’s detention remained “pending trial” during the whole period after 24   December 2002. That assertion is open to doubt. In the case of Shteyn (cited above, § 16) the domestic courts regarded detention after the remittal of the case from the trial court to the prosecution as detention “pending investigation”, governed by Article 109 of the CCrP. Indeed, in the case of Shteyn the remittal of the case to the prosecution was upheld by the court of appeal, whereas in the present case it was overturned (see the decision of 13 March 2003). However, that difference is irrelevant. It is important for a detainee to know what the legal grounds for his detention are when the detention is imposed or extended, without waiting for the decision of the court of appeal. 72.     The Court considers that, at the relevant time, the law did not define whether detention in such situations should be governed by the rules of Articles 108-109 of the CCrP or Article 255 thereof. Not until 2008 was Article   237 amended to the effect that, if appropriate, the judge could extend the term of detention with due regard to the time-limits set forth in Article   109 of the Code.     Be that as it may, the ambiguity of the law in practical terms did not affect the applicant at that stage. The applicant’s detention at that stage exceeded neither the maximum eighteen months provided for detention “pending investigation” (see Article 109 of the CCrP), nor the maximum six months provided for detention “pending trial” (see Article 255 of the CCrP). As to the five-day period provided for by Article 237 § 2 of the CCrP, it appears that this time-limit only defined how much time the prosecution had to amend the bill of indictment, and did not concern matters of detention. 73.     In sum, given that the domestic courts in the present case acted within their jurisdiction, gave at least some reasons for the applicant’s detention, indicated what legal provisions governed the applicant’s detention and referred, albeit indirectly, to the maximum time-limit for that particular type of detention, the decision of 24 December 2002 corresponded to the minimum requirements of “lawfulness”. The applicant did not indicate any other deficiency in the detention order or detention proceedings of 24   December 2002 which would make his detention unlawful within the meaning of Article 5 § 1 of the Convention. 74.   The Court lastly notes that the decision of   21 April 2003 did not refer directly to Article 255 of the CCrP, which establishes the maximum time-limit for detention of the accused pending trial. That omission did not, however, make the District Court’s decision unlawful. The decision of 21   April 2003 was almost identical to the decision of 24 December 2002; therefore, the applicant could have understood that after the second remittal of the case to the prosecution he continued to be detained “pending trial”. iii.     The period between 28 May and 21 July 2003 75.     The Court notes that, according to the CCrP, the six-month period for detention pending trial starts running from the date when the case was received by the trial court, in the present case – from 28 November 2002. If the periods when the case was remitted to the prosecution are to be included in the overall duration of the applicant’s detention pending trial (which is the Government’s position), the original six-month period should have ended on 28 May 2003. The question is what the legal ground was for the applicant’s detention after that date. 76.     The Court observes that the original detention order authorising the applicant’s detention pending trial was taken on 11 December 2002. On 24   December 2002 and 21 April 2003 the District Court confirmed that the applicant should stay in detention. Furthermore, the court of appeal twice (on 13 March and 5   June 2003) upheld the decisions of the lower courts to maintain the applicant’s detention. Finally, on 2 and 9 July 2003 the District Court confirmed that the applicant should remain in detention, thus rejecting the application for release lodged by the defence. 77.     Although all those orders