CONCURRIN G OPINION OF JUDGE KOVLER JOINED BY JUDGE MALINVERNI

I agree with the conclusions of the Court that the delay of thirty-five days in the examination of the appeal against the detention order of 1 December 2003 was unreasonably long and amounts to a violation of Article 5 § 4 of the Convention.

However, I am satisfied that the Court reduced the actual delay of seventy-two days, taking into account the fact that part of that delay was clearly imputable to the defence, because, as the Government insisted, the applicant and his lawyers had filed four sets of appeal submissions and two of them had been sent to the wrong address.

In another case ( Lebedev v. Russia, no. 4493/04, §§ 98 et seq., 25 October 2007) the Court held that delays of forty and sixty-seven days constituted a breach of Article 5 § 4 as far as the appeal proceedings were concerned. In the present case the Court is dealing with a “borderline” situation as the delay of thirty-five days in the examination of the appeal against the detention order could be regarded as not unreasonable. However, paragraph 11 of Article 108 of the Code of Criminal Procedure (CCP) of the Russian Federation provides that a judge of the appellate court ( кассационная инстанция or “cassation instance” in Russian) must give a decision on any complaint concerning detention orders within three days from the date of its receipt (see paragraph 101 of the judgment). Thus, the real problem here is the quality of the law applied because of the extremely short time-limits provided for by procedural law.

Perhaps the Court could have taken into account the argument submitted by the Government that the three-day time-limit set by the CCP for the examination of appeals against detention orders was not applicable in the present case since the Supreme Court had examined not only the lawfulness of the applicant ' s detention but also his other complaints (see paragraph 138 of the judgment). In this case Article 374 of the CCP provides that the overall length of the examination of the appeal may not exceed one month from the date when the case file is received by the cassation court. Once again, the problem of the realistic nature of time-limits provided for by national law arises ...

In any event, neither of the time-limits provided for by national law were complied with in the present case.