Information Note on the Court’s case-law No. 175
June 2014
Shcherbina v. Russia - 41970/11
Judgment 26.6.2014 [Section I]
Article 5
Article 5-4
Speediness of review
Sixteen days’ delay in judicial review of lawfulness of order for detention pending extradition made by non-judicial authority: violation
Facts – On 28 February 2011 the applicant was detained in Russia pursuant to an order made by a prosecutor following a request for his extradition from the Kazakh authorities. On 30 March 2011 the applicant lodged an application for release with a court of first instance, which quashed the detention order sixteen days later, on 15 April 2011.
Law – Article 5 § 4: The case did not concern detention under Article 5 § 1 (c) but detention for the purposes of extradition governed by Article 5 § 1 (f). Consequently, the authorities did not have an obligation to bring the applicant promptly before a judge. However, the applicant had a right to “take proceedings” before the court and to actively seek his release under Article 5 § 4 of the Convention. Once an application for release had been lodged, judicial review of the lawfulness of detention had to follow speedily.
Nevertheless, the “speediness” requirement of Article 5 § 4 was not necessarily the same as the “promptness” requirement of Article 5 § 3. Thus where the original detention order was imposed by a court (that is, an independent and impartial judicial body in a procedure offering appropriate guarantees of due process), the Court had in a series of cases against Russia* been prepared to tolerate longer periods of review in the proceedings before the second-instance court. In such cases, a period of sixteen days might not raise an issue under Article 5 § 4**. However, unlike the position in those cases, the original detention order in the applicant’s case was made by a prosecutor, not by a judge or other judicial officer.
Furthermore, the decision-making process which had resulted in the detention order had not offered the guarantees of due process: the decision was taken in camera and without any involvement of the applicant. In addition, as established by the reviewing court, the prosecutor had acted ultra vires and had no powers to order the applicant’s detention.
In these circumstances, the standard of “speediness” of judicial review under Article 5 § 4 of the Convention came closer to the standard of “promptness” under Article 5 § 3. Therefore, the sixteen days’ delay in the judicial review of the detention order of 28 February 2011 was excessive.
Conclusion: violation (unanimously).
The Court also found a violation of Article 5 § 1 in conjunction with Article 5 § 5 of the Convention.
Article 41: EUR 6,500 in respect of non-pecuniary damage.
* Mamedova v. Russia, 7064/05, 1 June 2006, Information Note 87; Ignatov v. Russia, 27193/02, 24 May 2007; and Lamazhyk v. Russia, 20571/04, 30 July 2009.
** Yudayev v. Russia, 40258/03, 15 January 2009; and Khodorkovskiy v. Russia, 5829/04, 31 May 2011, Information Note 141.
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This summary by the Registry does not bind the Court.
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