РЕШЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ЖАЛОБЕ АЛЕКСЕЯ МАКАРОВА. ЧАСТЬ 2.
2. The Court's assessment
(a) General principles
41. 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).
42. 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)).
43. 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
44. 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.
45. 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.
46. 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.
47. 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).
48. 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).
49. 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.
50. 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.
51. 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.
52. 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).
53. 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.
54. 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.
55. 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)).
56. 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”.
57. There has accordingly been a violation of Article 5 § 3 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
58. 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
59. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage sustained as a result of detention without sufficient reasons.
60. 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.
61. 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
62. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.
C. Default interest
63. 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
1. Declares the complaint concerning the excessive length of the applicant's detention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 3 of the Convention;
3. 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;
4. 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
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