BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF ALEKSEY MAKAROV v. RUSSIA
(Application
no. 3223/07)
JUDGMENT
STRASBOURG
12 June
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Aleksey Makarov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3223/07) 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 Aleksey Borisovich
Makarov (“the applicant”), on 15 January 2007.
- The
applicant was represented before the Court by Mr D. Agranovskiy,
a lawyer practising in the Moscow Region. The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, Representative of the Russian Federation
at the European Court of Human Rights.
- The
applicant alleged that his detention pending trial had been unlawful
and excessively long.
- On
14 February 2007 the Court decided to communicate the complaint about
the allegedly excessive length of detention to the Government. Under
the provisions of Article 29 § 3 of the Convention, it decided
to examine the merits of the application at the same time as its
admissibility. The President made a decision on priority treatment of
the application (Rule 41 of the Rules of Court).
- 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
- The
applicant was born in 1988 and lives in Moscow.
A. Background information
- The
applicant was a member of a public association, the National
Bolshevik Party. On 15 November 2005 the Supreme Court of the Russian
Federation ordered its dissolution. On 19 January 2006 the Federal
Registration Service of the Ministry of Justice refused an
application for registration of a political party by the same name.
Party members challenged the refusal before the Taganskiy District
Court of Moscow.
- On
13 April 2006 fifteen party members, including the applicant, came to
the Taganskiy District Court for a hearing concerning the refusal to
register the National Bolsheviks Party. The applicant alleged that
near the court building they had been attacked by a group of forty
people and had had to defend themselves. According to the Government,
the party members, including the applicant, had assaulted passers-by
with gas guns and rubber truncheons.
B. Criminal proceedings against the applicant
- On
11 July 2006 the applicant was arrested. The arresting officer
indicated in his report that the victims had identified the applicant
as one of the perpetrators of the assault.
- On
12 July 2006 he was charged with participation in mass disorders,
involving the use of gas guns, assault and battery, an offence under
Article 213 § 2 of the Criminal Code.
- On 13 July 2006 the Tverskoy District Court of Moscow
remanded the applicant in custody. It referred to the gravity of the
charge, “his role in the imputed offence”, his record of
administrative offences and his frequent absences from his registered
place of residence. It also found that his accomplices whose identity
had not been established were at large. The court concluded from that
that the applicant might abscond or reoffend.
- On
8 September 2006 the Tverskoy District Court extended the applicant's
detention until 16 November 2006. The court referred to the gravity
of the charge, the possibility of his absconding or reoffending and
the need for a further investigation. In particular, it was necessary
to perform a psychiatric examination on a co-accused.
- In
his appeal submission the applicant complained that the court's
conclusions were hypothetical and were not supported by relevant
facts. The applicant had permanent residence in Moscow, attended
university and had positive references. There was no risk of his
absconding or reoffending.
- On
4 December 2006 the Moscow City Court upheld the detention order on
appeal, finding that it had been lawful, sufficiently reasoned and
justified.
- On 15 November 2006 the Tverskoy District Court
ordered a further extension of the applicant's detention until 11
January 2007. At the hearing the applicant asked to be released on
bail or under the personal guarantee of a member of the Russian
Parliament. However, the court did not examine the possibility of a
more lenient preventive measure. The extension order read as follows:
“The court takes into account that [the applicant]
has no criminal record, lives with his parents at his registered
place of residence in Moscow, is successfully pursuing studies at [a
university in Moscow], and has positive references. However, as he is
charged with a serious criminal offence punishable by more than two
years' imprisonment, the court considers that he may abscond or
interfere with the investigation if released. The preventive measure
should accordingly be maintained.”
- On
25 December 2006 the Moscow City Court upheld the extension order on
appeal.
- On
11 January 2007 the Tverskoy District Court extended the applicant's
detention until 16 March 2007. The court found that the applicant
might abscond or hamper the investigation as he had been charged with
a serious criminal offence and had a record of administrative
offences. In reply to the applicant's request to be released on bail
or under the personal guarantee of a member of the Russian
Parliament, the court held that there was no reason to vary or cancel
the preventive measure.
- The
applicant appealed. He denied involvement in any criminal activity
and alleged that the criminal proceedings against him were
politically motivated and that he was being persecuted for his
membership of the National Bolshevik Party. Referring to Article 5 §
3 of the Convention, he complained that his detention was based on
the gravity of the charge against him and that the conclusions that
he might flee or impede the investigation were hypothetical and were
not supported by relevant facts. The District Court had disregarded
his arguments that he had positive references, that a member of
Parliament had vouched for his attendance and that he was ready to
post bail. As to his record of administrative offences,
administrative fines had been arbitrarily imposed on him for
attendance at peaceful assemblies organised by the National Bolshevik
Party. The parties did not inform the Court whether the appeal had
been examined.
- On
2 March 2007 six defendants, including the applicant, were committed
for trial.
- On
12 March 2007 the Taganskiy District Court of Moscow scheduled the
preliminary hearing for 20 March 2007 and held that all the
defendants should remain in custody.
- On
24 May 2007 the Taganskiy District Court remitted the case for a
further investigation.
- On 28 June 2007 the Tverskoy District Court extended
the applicant's detention until 6 August 2007 for the same reasons as
before. The court found that the positive references and the personal
guarantee of a member of Parliament produced by the applicant were
insufficient to warrant release. Given the gravity of the charge
against him and his record of administrative offences, he might
abscond or interfere with the proceedings in some other way. On 1
August 2007 the Moscow City Court upheld the extension order on
appeal.
- On
2 August 2007 the defendants were again committed for trial.
- On
8 August 2007 the Taganskiy District Court held a preliminary hearing
and ordered that all the defendants should remain in custody. It
found that the defendants had been charged with a serious offence
committed by an organised group some members of which had not yet
been identified, and concluded that they might abscond or intimidate
the victims and witnesses. It further noted that the defendants'
assurances that they had no intention of absconding were unconvincing
and held that there was no reason to apply a more lenient preventive
measure.
- In
September 2007 the applicant and his co-defendants lodged
applications for release with the Taganskiy District Court. On 12
September 2007 the Taganskiy District Court rejected their
applications. It noted that the defendants' arguments had already
been examined and rejected many times when extension orders had been
issued. It found that the grounds for the defendants' detention
mentioned in the extension orders were still pertinent and it was
still necessary to hold them in custody. The defendants had been
charged with a serious criminal offence committed by an organised
group, some members of which had not yet been identified. Given the
gravity of the charges against them, they might abscond, reoffend or
interfere with the establishment of the truth if released.
- On 26 December 2007 the Taganskiy District Court
extended the defendants' detention until 12 April 2008. It found that
the grounds for their detention mentioned in the previous extension
orders were still pertinent and a risk remained of their absconding,
reoffending or obstructing the justice. The court also noted that the
defendants' arguments about the absence of corpus delicti in
their actions and about the lack of evidence of their involvement in
the commission of the imputed offence were without substance because,
in extending the defendants' detention, the court could not make any
findings as to their guilt or innocence.
- It
appears that the criminal proceedings against the applicant are still
pending.
II. RELEVANT DOMESTIC LAW
- Since
1 July 2002 criminal law matters have been governed by the Code of
Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18
December 2001).
- “Preventive measures” or “measures
of restraint” (меры пресечения)
include an undertaking not to leave a town or region, personal
surety, bail and detention (Article 98). If necessary, the suspect or
accused may be asked to give an undertaking to appear (обязательство
о явке) (Article 112).
- When deciding on a preventive measure, the competent
authority is required to consider whether there are “sufficient
grounds to believe” that the accused would abscond during the
investigation or trial, reoffend or obstruct the establishment of the
truth (Article 97). 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 99).
- Detention may be ordered by a court if the charge
carries a sentence of at least two years' imprisonment, provided that
a less restrictive preventive measure cannot be applied (Article 108
§ 1).
- After arrest the suspect is placed in custody “during
the investigation”. The period of detention during the
investigation may be extended beyond six months only if the detainee
is charged with a serious or particularly serious criminal offence.
No extension beyond eighteen months is possible (Article 109 §§
1-3). The period of detention “during the investigation”
is calculated to the day when the prosecutor sends the case to the
trial court (Article 109 § 9).
- From
the date the prosecutor forwards the case to the trial court, the
defendant's detention is “before the court” (or “during
the trial”). The period of detention “during the trial”
is calculated to the date 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The applicant complained under Article 5 § 1 (c)
of the Convention that there had been no grounds to detain him and
that the domestic courts had not had due regard to the defence's
arguments. Under Article 5 § 3, he complained that his right to
trial within a reasonable time had been infringed and alleged that
detention orders had not been founded on sufficient reasons. The
relevant parts of Article 5 read 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;
...
3. 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. Release
may be conditioned by guarantees to appear for trial ...”
A. Admissibility
- As
regards the applicant's complaint that his detention was unlawful,
the Court notes that on 13 July 2006 the Tverskoy District Court of
Moscow remanded the applicant in custody because of the gravity of
the charges against him. The applicant's detention was subsequently
extended on several occasions by the domestic courts.
- The
domestic courts acted within their powers in making those decisions
and there is nothing to suggest that they were invalid or unlawful
under domestic law. The question whether the reasons for the
decisions were sufficient and relevant is analysed below in
connection with the issue of compliance with Article 5 § 3
(compare Khudoyorov v. Russia, no. 6847/02, §§
152 and 153, ECHR 2005 ... (extracts)).
- The
Court finds that the applicant's detention was compatible with the
requirements of Article 5 § 1 of the Convention. It follows that
this complaint must be rejected as manifestly ill-founded pursuant to
Article 35 §§ 3 and 4 of the Convention.
- As
regards the applicant's complaint that his right to trial within a
reasonable time or to release pending trial had been infringed, the
Court finds that it is not manifestly ill-founded within the meaning
of Article 35 § 3 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
- The
applicant considered that the domestic courts had not advanced
“relevant and sufficient” reasons to hold him in custody
for more than a year. The domestic authorities had continued to
extend his detention without demonstrating the existence of concrete
facts in support of their conclusion that he might abscond, interfere
with the investigation or reoffend. He denied involvement in any
criminal activity. The administrative fines had been arbitrarily
imposed on him for participation in peaceful assemblies. He lived
permanently with his parents and attended a university. He argued
that no proof of frequent absences from his place of residence had
been submitted to the courts.
- The
Government submitted that the decisions to remand the applicant in
custody had been lawful and justified. The domestic courts had taken
into account the gravity of the charge, the applicant's frequent
absences from his registered place of residence and his record of
administrative offences. The Government produced the applicant's
record of administrative offences, which included such offences as a
violation of the procedure for organising public assemblies and
refusing to comply with a lawful order of the police. The domestic
courts had also considered that his accomplices whose identity had
not been established were at large. Moreover, the applicant had not
attended his classes at the university. It followed from the above
facts that the applicant was not a law-abiding citizen and that there
was a risk of his absconding or reoffending. The applicant's positive
references, his willingness to post bail and the personal surety of a
member of Parliament had been insufficient to warrant release. The
Government therefore considered that the courts' decisions had been
founded on relevant facts. It was not the Court's role to assess
itself the facts which had led national courts to adopt one decision
rather than another. If it were otherwise, the Court would be acting
as a court of third or fourth instance, which would be to disregard
the limits imposed on its action (see Kemmache v. France (no. 3),
judgment of 24 November 1994, Series A no. 296 C,
§ 44).
2. The Court's assessment
(a) General principles
- The
Court reiterates that the persistence of reasonable suspicion that
the person arrested has committed an offence is a condition sine
qua non for the lawfulness of the continued detention. However
after a certain lapse of time it no longer suffices. In such cases,
the Court must establish whether the other grounds given by the
judicial authorities continued to justify the deprivation of liberty.
Where such grounds were “relevant” and “sufficient”,
the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct
of the proceedings (see Labita v. Italy [GC], no. 26772/95,
§§ 152 and 153, ECHR 2000-IV).
- The presumption is in favour of release. As the Court
has consistently held, the second limb of Article 5 § 3
does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until his conviction, the accused
must be presumed innocent, and the purpose of the provision under
consideration is essentially to require his provisional release once
his continuing detention ceases to be reasonable. A person charged
with an offence must always be released pending trial unless the
State can show that there are “relevant and sufficient”
reasons to justify the continued detention (see, among other
authorities, Castravet v. Moldova, no. 23393/05, §§ 30
and 32, 13 March 2007; McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006 ...; Jabłoński v.
Poland, no. 33492/96, § 83, 21 December 2000; and
Neumeister v. Austria, judgment of 27 June 1968, Series A
no. 8, § 4). Article 5 § 3 of the Convention
cannot be seen as authorising detention unconditionally provided that
it lasts no longer than a certain period. Justification for any
period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Shishkov v. Bulgaria,
no. 38822/97, § 66, ECHR 2003 I (extracts)).
- It
is incumbent on the domestic authorities to establish the existence
of specific facts relevant to the grounds for continued detention.
Shifting the burden of proof to the detained person in such matters
is tantamount to overturning the rule of Article 5 of the Convention,
a provision which makes detention an exceptional departure from the
right to liberty and one that is only permissible in exhaustively
enumerated and strictly defined cases (see Rokhlina v.
Russia, no. 54071/00, § 67, 7 April 2005, and
Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July
2001). The national judicial authorities must examine all the facts
arguing for or against the existence of a genuine requirement of
public interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for
individual liberty, and must set them out in their decisions
dismissing the applications for release. It is not the Court's task
to establish such facts and take the place of the national
authorities who ruled on the applicant's detention. It is essentially
on the basis of the reasons given in the domestic courts' decisions
and of the true facts mentioned by the applicant in his appeals that
the Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see
Korchuganova v. Russia, no. 75039/01, § 72,
8 June 2006; Ilijkov, cited above, § 86; and Labita,
cited above, § 152).
(b) Application to the present case
- The
applicant was arrested on 11 July 2006. He has been held in custody
ever since. The period to be taken into consideration has lasted one
year and eleven months.
- Although
the applicant denied having participated in any criminal activity,
the Court notes that the victims identified him as one of the
perpetrators of the assault. It accepts therefore that his detention
could have initially been warranted by a reasonable suspicion of his
involvement in the commission of a criminal offence. It remains to be
ascertained whether the judicial authorities gave “relevant”
and “sufficient” grounds to justify the applicant's
continued detention and whether they displayed “special
diligence” in the conduct of the proceedings.
- The
judicial authorities relied, in addition to the reasonable suspicion
against the applicant, on the risk of his absconding, reoffending or
obstructing the course of justice. In this respect they referred to
the gravity of the charge, his frequent absences from his registered
place of residence, his record of administrative offences, and the
fact that the imputed offence had been committed by an organised
group and that some of his accomplices had absconded.
- The
Court observes that the gravity of the charge was the main factor for
the assessment of the applicant's potential to abscond, reoffend or
obstruct the course of justice. Thus, in the extension order of
15 November 2006 the Tverskoy District Court found that the
gravity of the charge outweighed the specific facts militating in
favour of the applicant's release, such as his clean criminal record,
permanent residence in Moscow, ongoing studies at a university and
positive references (see paragraph 15 above). The courts assumed that
the gravity of the charge carried such a preponderant weight that no
other circumstances could have obtained the applicant's release. The
Court has repeatedly held that, although the severity of the sentence
faced is a relevant element in the assessment of the risk of an
accused absconding or reoffending, the need to continue the
deprivation of liberty cannot be assessed from a purely abstract
point of view, taking into consideration only the seriousness of the
offence. Nor can continuation of the detention be used to anticipate
a custodial sentence (see Letellier v. France, judgment of 26
June 1991, Series A no. 207, § 51; see also Panchenko
v. Russia, no. 45100/98, § 102, 8 February
2005; Goral v. Poland, no. 38654/97, § 68, 30
October 2003; and Ilijkov, cited above, § 81). This
is particularly relevant in the Russian legal system where the
characterisation in law of the facts – and thus the sentence
faced by the applicant – is determined by the prosecution
without judicial review of the issue whether the evidence that has
been obtained supports a reasonable suspicion that the applicant has
committed the alleged offence (see Govorushko v. Russia,
no. 42940/06, § 48, 25 October 2007). The
domestic courts explicitly refused to consider the state of evidence
against the applicant or verify the persistence of reasonable
suspicion of his involvement in the commission of the imputed offence
(see paragraph 26 above).
- Another
ground for the applicant's detention was the District Court's finding
that the applicant was frequently absent from his place of residence.
However, that finding was contradicted in a subsequent decision by
the same court, which indicated that the applicant lived permanently
with his parents at his registered place of residence (see paragraphs
11 and 15 above). The Court notes that whatever the District Court's
finding about the applicant's residence situation was, the court
invariably concluded that he should remain in custody. It shows that
the applicant's residence situation was not a decisive factor in the
assessment of the risk of absconding, which was primarily assessed by
reference to the gravity of the charge. In any event, the mere
absence of a fixed residence does not give rise to a danger of
absconding (see Pshevecherskiy v. Russia, no. 28957/02,
§ 68, 24 May 2007, and Sulaoja v. Estonia,
no. 55939/00, § 64, 15 February 2005).
- Further,
the domestic courts gauged the applicant's potential to abscond by
reference to the fact that his accomplices had gone into hiding. The
Court reiterates in this respect that the conduct of a co-accused
cannot be a factor in the assessment of the risk of the detainee's
absconding, since such assessment must be based on the personal
circumstances of the detainee (see Korshunov v. Russia,
no. 38971/06, § 51, 25 October 2007, and, mutatis
mutandis, Mamedova v. Russia, no. 7064/05, § 76,
1 June 2006). The domestic courts did not point to any aspects of the
applicant's character or behaviour that would justify their
conclusion that he presented a persistent risk of absconding.
- The domestic courts also referred to the fact that the
imputed offence had been committed by an organised group. The Court
accepts that in cases concerning organised crime, involving numerous
accused, the process of gathering and hearing evidence is often a
difficult task. Moreover, in such cases the risk that a detainee if
released might put pressure on witnesses or might otherwise obstruct
the proceedings is often particularly high. All these factors can
justify a relatively longer period of detention. However, they do not
give the authorities unlimited power to extend this preventive
measure (see Osuch v. Poland, no. 31246/02, § 26,
14 November 2006; and Celejewski v. Poland,
no. 17584/04, §§ 37-38, 4 May 2006). The fact that a
person is charged with acting in criminal conspiracy is not in itself
sufficient to justify long periods of detention, his personal
circumstances and behaviour must always be taken into account. There
is no indication in the present case that before his arrest the
applicant had made any attempts to intimidate witnesses or to
obstruct the course of the proceedings in any other way. In such
circumstances the Court has difficulty accepting that there was a
risk of interference with the administration of justice at the later
stages of the proceedings. Such risk was bound to gradually decrease
as the trial proceeded and the witnesses were interviewed (compare
Miszkurka v. Poland, no. 39437/03, § 51, 4 May
2006) The Court is not therefore persuaded that, throughout the
entire period of the applicant's detention, compelling reasons
existed for a fear that he would interfere with witnesses or
otherwise hamper the investigation of the case, and certainly not
such as to outweigh the applicant's right to trial within a
reasonable time or release pending trial.
- The
only other ground for the applicant's continued detention was his
record of administrative offences. The Court accepts that that factor
was relevant in assessing the danger of reoffending. Such a danger,
if convincingly established, may lead the judicial authorities to
place and leave a suspect in detention in order to prevent any
attempts to commit further offences. It is however necessary, among
other conditions, that the danger be a plausible one and the measure
appropriate, in the light of the circumstances of the case and in
particular the past history and the personality of the person
concerned (see Clooth v. Belgium, judgment of 12 December
1991, Series A no. 225, § 40). In the cases of
Clooth v. Belgium and Kolev v. Bulgaria (see below) the
Court found that the previous criminal record did not justify the
applicant's detention because the offences which had given rise to
the applicant's previous convictions were non-violent and were not
comparable, either in nature or degree of seriousness, to the charges
preferred against him in the contested proceedings (see
Clooth, cited above, § 40, and Kolev v. Bulgaria,
no. 50326/99, §§ 60-61, 28 April 2005). In
the present case the applicant's record included only minor
non-violent administrative offences and he had no criminal record.
The Court considers that the applicant's record of administrative
offences did not justify his continued detention.
- No
other grounds have been invoked by the domestic courts. The
Government submitted that the applicant had not attended his classes
at the university, which gave reasons to believe that he was not a
law-abiding citizen. It is not the Court's task to assume the place
of the national authorities who ruled on the applicant's detention
and to supply its own analysis of facts arguing for or against
detention (see Nikolov v. Bulgaria, no. 38884/97,
§ 74, 30 January 2003, and Labita, cited above,
§ 152). That circumstance was referred to for the first time in
the proceedings before the Court and the domestic courts never
mentioned it in their decisions. On the contrary, the courts
mentioned that the applicant's studies at the university were
successful but found that that fact was insufficient to warrant his
release, given the gravity of the charge (see paragraph 15 above).
- The
Court further observes that after the case had been submitted for
trial in March 2007 the trial court used the same summary formula to
refuse the petitions for release and extend the pre-trial detention
of six persons, without describing their personal situation in any
detail. The Court has already found that the practice of issuing
collective detention orders without a case-by-case assessment of the
grounds for detention in respect of each detainee was incompatible,
in itself, with Article 5 § 3 of the Convention (see
Shcheglyuk v. Russia, no. 7649/02, § 45,
14 December 2006; Korchuganova, cited above, §
76; and Dolgova v. Russia, no. 11886/05, § 49,
2 March 2006). By extending the applicant's detention by means of
collective detention orders the domestic authorities had no proper
regard to his individual circumstances.
- Finally,
the Court notes that when deciding whether a person should be
released or detained the authorities have an obligation under
Article 5 § 3 to consider alternative measures of
ensuring his or her appearance at trial. This Convention provision
proclaims not only the right to “trial within a reasonable time
or to release pending trial” but also lays down that “release
may be conditioned by guarantees to appear for trial” (see
Sulaoja, cited above, § 64 in fine, 15 February
2005, and Jabłoński, cited above, § 83). In the
present case the authorities never considered the possibility of
ensuring the applicant's attendance by the use of a more lenient
preventive measure, although he asked many times to be released on
bail and provided the domestic courts with the personal surety of a
member of Parliament.
- The
Court has frequently found a violation of Article 5 § 3 of the
Convention in Russian cases where the domestic courts extended an
applicant's detention relying essentially on the gravity of the
charges and using stereotyped formulae without addressing specific
facts or considering alternative preventive measures (see
Belevitskiy v. Russia, no. 72967/01, §§ 99
et seq., 1 March 2007; Khudobin v. Russia,
no. 59696/00, §§ 103 et seq., ECHR 2006 ...
(extracts); Mamedova v. Russia, cited above, §§ 72
et seq.; Dolgova v. Russia, cited above, §§ 38
et seq.; Khudoyorov v. Russia, cited above, §§ 172
et seq.; Rokhlina v. Russia, cited above, §§ 63
et seq.; Panchenko v. Russia, cited above, §§ 91
et seq.; and Smirnova v. Russia, nos. 46133/99
and 48183/99, §§ 56 et seq., ECHR 2003 IX
(extracts)).
- Having
regard to the above, the Court considers that by failing to address
specific facts or consider alternative “preventive measures”
and by relying essentially on the gravity of the charges, the
authorities extended the applicant's detention on grounds which,
although “relevant”, cannot be regarded as “sufficient”
to justify its duration. In these circumstances it would not be
necessary to examine whether the proceedings were conducted with
“special diligence”.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect of non-pecuniary
damage sustained as a result of detention without sufficient reasons.
- The
Government submitted that the applicant had claimed compensation for
non-pecuniary damage incurred through his criminal prosecution.
However, it was not the Court's task to assess the reasonableness of
the charges against him. They therefore considered that the
applicant's claim should be dismissed. In any event, the claim was
excessive.
- The
Court observes that it has found a violation of Article 5 § 3 of
the Convention in that the applicant's detention was not based on
sufficient grounds. It considers that the applicant must have
suffered frustration, helplessness and a feeling of injustice as a
consequence of the domestic authorities' decision to keep him in
custody without sufficient reasons. It finds that the applicant
suffered non-pecuniary damage which would not be adequately
compensated by the finding of a violation. The particular amount
claimed is, however, excessive. Making its assessment on an equitable
basis, the Court awards the applicant EUR 5,000 under this head,
plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the applicant's detention admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
