kabobo.ru Постановление Страсбург, 12 марта 2009 года
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125. In its decision of 5 February 2007 the Sovetskiy District Court for the first time relied on the information provided by the Tomsk Regional FSB Department and concluded that the applicant was planning to abscond, urging his relatives to sell property and buy foreign currency (see paragraphs 20 - 22 above). In every subsequent detention order the judicial authorities relied heavily on the applicant's potential to abscond, given the information provided by the FSB. The Court understands the authorities' concerns the first time they received the relevant information. It acknowledges that in view of the gravity of the accusations against the applicant and the seriousness of the information submitted by the FSB officials, the judicial authorities could justifiably have considered that an initial risk of the applicant's absconding had been established.

126. The Court, however, cannot overlook the fact that the information from the FSB officials was not supported by any evidence (copies of sale-purchase contracts, State certificates showing change of ownership, bank records confirming the purchase of currency, and so on). The Court accepts that the extension of the applicant's detention may initially have been warranted for a short period to provide the prosecution authorities with time to verify the information presented by the FSB officials and to adduce evidence in support. However, with the passage of time the mere availability of the information, without any evidence to support its veracity, inevitably became less and less relevant, particularly so when the applicant persistently disputed his ability to abscond, alleging that no property had been sold or foreign currency bought and referring to his age, poor health, lack of a valid passport for travel or medical insurance and the fact that he had no relatives and did not own property outside the Tomsk Region to confirm that there was no danger of his absconding (see, by contrast, W. v. Switzerland, 26 January 1993, § 33, Series A No. 254-A).

127. In this connection, the Court considers that the domestic authorities were under an obligation to analyse the applicant's personal situation in greater detail and to give specific reasons, supported by evidentiary findings, for holding him in custody (see, for similar reasoning, Musuc v. Moldova, No. 42440/06, § 45, 6 November 2007). The Court does not find that the domestic courts executed that obligation in the present case. It is a matter of serious concern for the Court that the domestic authorities applied a selective and inconsistent approach to the assessment of the parties' arguments pertaining to the grounds for the applicant's detention. While deeming the applicant's arguments to be subjective and giving no heed to relevant facts which mitigated the risk of his absconding, the courts accepted the information from the FSB officials uncritically, without questioning its credibility.

128. The Court further reiterates that the judicial authorities also cited the fact that the applicant had several places of residence in the Tomsk Region in support of their finding that he was liable to abscond. In this respect, the Court reiterates that 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). The Court further observes that the authorities did not indicate any other circumstance to suggest that, if released, the applicant would abscond. Even though, as the Government submitted, other facts that could have warranted the authorities' conclusion about his potential to abscond may have existed, they were not mentioned in the detention orders and it is not the Court's task to establish such facts and take the place of the national authorities who ruled on the issue of detention (see Korchuganova v. Russia, No. 75039/01, § 72, 8 June 2006). The Court therefore finds that the existence of such a risk was not established.

(ii) The danger of perverting the course of justice

129. As to the domestic courts' findings that the applicant was liable to pervert the course of justice, the Court notes that at the initial stages of the investigation the risk that an accused person may pervert the course of justice could justify keeping him or her in custody. However, after the evidence has been collected, that ground becomes irrelevant (see Mamedova v. Russia, No. 7064/05, § 79, 1 June 2006). The Court observes that the domestic courts linked the applicant's liability to obstruct justice to his status as the mayor of Tomsk and the fact that a number of witnesses in the criminal case were his former subordinates working for the Tomsk mayor's office. The domestic courts also mentioned the threats that the applicant's relatives and confidants allegedly made against victims and witnesses.

130. In this connection, the Court is mindful that the applicant's employment status was a relevant factor for the domestic courts' findings that there was a risk of tampering with witnesses. At the same time, it does not lose sight of the fact that the applicant was suspended from his position as mayor of Tomsk immediately after his arrest and that his release would not have led to his being reinstated in that position. Therefore, the Court entertains doubts as to the validity of that argument to justify the applicant's continued detention. Furthermore, the Court reiterates that for the domestic courts to demonstrate that a substantial risk of collusion existed and continued to exist during the entire period of the applicant's detention, it did not suffice merely to refer to his official authority. They should have analysed other pertinent factors, such as the advancement of the investigation or judicial proceedings, the applicant's personality, his behaviour before and after the arrest and any other specific indications justifying the fear that he might abuse his regained liberty by carrying out acts aimed at falsification or destruction of evidence or manipulation of witnesses (see W., cited above, § 36, Series A No. 254-A).

131. In this respect, the Court observes that it was not until 3 December 2007 that the Tomsk Regional Court for the first time supported its conclusion of the risk of collusion by making reference to the alleged attempts to tamper with witnesses committed by the applicant's relatives. In particular, the Regional Court held that the case file contained information pertaining to the applicant's alleged attempts to influence a victim, Mr L., and a witness, Mr B. (see paragraph 33 above). The Court notes in the first place that it is unable to assess the reliability and relevance of the information which gave rise to that finding of the Regional Court as the Government did not submit copies of the respective documents enclosed in the criminal case file. As to the text of the decision of 3 December 2007, apart from a bald reference to the threats which the applicant's relatives and confidants allegedly made against the witnesses, the Regional Court did not mention any specific facts warranting the applicant's detention on that ground.

132. However, more fundamentally, the Court finds it striking that relying on certain information, the domestic court did not provide the applicant with an opportunity to challenge it, for example, by having those witnesses examined (see, for comparison, Becciev v. Moldova, No. 9190/03, §§ 73 - 76, 4 October 2005), or at least by serving him with copies of their complaints or statements. It appears, and the Government did not argue otherwise, that the applicant was not even notified of the nature and content of the submissions lodged by the prosecution authorities to corroborate their assertion of witness manipulation. Moreover, the Court finds it peculiar that being informed of the intimidation, harassment or threats of retaliation against witnesses, the prosecution authorities did not institute criminal proceedings or at least open a preliminary inquiry into those allegations. The Court observes, and the parties did not dispute that fact, that the domestic authorities did not take any actions against either the applicant or his relatives and confidents, that they were never subject to any form of investigation and were not even questioned about the alleged attempts to manipulate witnesses. The Court is therefore not convinced that the domestic authorities' findings of the applicant's liability to pervert the course of justice had sufficient basis in fact.

133. Furthermore, the Court notes that the pre-trial investigation in respect of the applicant was completed at the end of August 2007 (see paragraph 30 above). He remained in custody for an additional eighteen months during which the proceedings were pending before the trial court. It thus appears that the domestic authorities had sufficient time to take statements from witnesses in a manner which could have excluded any doubt as to their veracity and would have eliminated the necessity to continue the applicant's deprivation of liberty on that ground (see, for similar reasoning, Solovyev v. Russia, No. 2708/02, § 115, 24 May 2007). The Court therefore considers that, having failed to act diligently, the national authorities were not entitled to regard the circumstances of the case as justification for using the risk of collusion as a further ground for the applicant's detention.

(iii) The danger of reoffending and the preservation of public order

134. In a number of the detention orders the domestic courts cited the likelihood that the applicant would reoffend as an additional ground justifying his continued detention. In this connection, the Court observes that the judicial authorities did not mention any specific facts supporting their finding that there existed a risk of the applicant's reoffending. Furthermore, the Court does not share the national authorities' opinion that in a situation when all charges against the applicant, save for one, were brought against him in respect of his actions as the mayor of Tomsk and he was suspended from that position, there was a real danger of the applicant committing new offences.

135. In their submissions to the Court, the Government relied on another ground which, in their opinion, necessitated the applicant's detention. In particular, they emphasised the need to protect public order from the disturbance which could have been caused by the release of the applicant. Although that ground was never relied on by the domestic courts, the Court nevertheless considers it necessary to address the Government's argument.

136. The Court has already held on a number of occasions that, by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time. In exceptional circumstances this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises the notion of disturbance to public order caused by an offence. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused's release would actually disturb public order. In addition detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence (see Letellier, cited above, § 51).

137. In the present case these conditions were not satisfied. Apart from the fact that Russian law does not list the notion of disturbance to public order among permissible grounds for detention of accused persons, the Court notes that the Government relied on the alleged danger to public order from a purely abstract point of view, relying solely on the gravity of the offences allegedly committed by the applicant. They did not provide any evidence or indicate any instance which could show that the applicant's release could have posed an actual danger to public order.

(iv) Alternative measures of restraint

138. The Court further emphasises 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 the trial (see Sulaoja v. Estonia, No. 55939/00, § 64, 15 February 2005, and {Jablonski} v. Poland, No. 33492/96, § 83, 21 December 2000). During the entire period under consideration the authorities did not consider the possibility of ensuring the applicant's attendance by the use of other "preventive measures" - such as a written undertaking or bail - which are expressly provided for by Russian law to secure the proper conduct of criminal proceedings. In this connection, the Court does not lose sight of the fact that the applicant offered a guarantee by the Archbishop of Tomsk Region to ensure his release. However, that guarantee was rejected without due consideration (see paragraph 33 above). Furthermore, the Court finds it particularly striking that the applicant was kept in custody for nine months, from September 2007 to June 2008, for the sole purpose of studying the case file. However, at no point did either the Regional Court or the Supreme Court, which examined the issue of the lawfulness of the applicant's detention during that period, consider having recourse to such alternative measures or, at the very minimum, seek to explain in their decisions why such alternatives would not have ensured that the trial would follow its proper course.

139. The Court does not lose sight of the Government's argument about the applicant's financial resources, implying that bail could not secure his attendance. Although the Court has already noted that the domestic courts did not consider bail and that it would not substitute for the domestic authorities in their task of identifying and considering factors justifying the applicant's detention (see paragraph 128 above), the Court nevertheless considers it worth noting that bail may only be required as long as reasons justifying detention prevail. When such reasons do prevail, the amount of the bail must be "assessed principally in relation to the person concerned, his assets... in other words to the degree of confidence that is possible that the prospect of loss of security in the event of his non-appearance at a trial will act as a sufficient deterrent to dispel any wish on his part to abscond" (see Neumeister v. Austria, 27 June 1968, p. 40, § 48, Series A No. 8).

(v) Conclusion

140. In sum, the Court finds that the domestic authorities' decisions were not based on an analysis of all the pertinent facts. They took no notice of the arguments in favour of the applicant's release pending trial.

141. Having regard to the above, the Court considers that by failing to refer to concrete relevant facts or consider alternative "preventive measures", the authorities extended the applicant's detention on grounds which cannot be regarded as "sufficient". They thus failed to justify the applicant's continued deprivation of liberty for a period of over two years. It is hence not necessary to examine whether the proceedings against the applicant were conducted with due diligence during that period as such a lengthy period cannot in the circumstances be regarded as "reasonable" within the meaning of Article 5 § 3 (see Pekov v. Bulgaria, No. 50358/99, § 85, 30 March 2006).

142. There has therefore been a violation of Article 5 § 3 of the Convention.


III. Other alleged violations of the Convention
143. The applicant further complained under Articles 2 and 5 of the Convention that the conditions of his detention posed a serious threat to his life and that his detention was unlawful.

144. Having regard to all the material in its possession, and in so far as these complaints fall within the Court's competence ratione materiae, it finds that the evidence discloses no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.


IV. Application of Article 41 of the Convention
145. 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
146. The applicant claimed 8,000 euros (EUR) in respect of non-pecuniary damage.

147. The Government asserted that the applicant's claims should be dismissed. In the Government's opinion, a finding of a violation of the applicant's rights would constitute sufficient and just satisfaction.

148. The Court notes that it has found several violations in the present case. In these circumstances, the Court considers that the applicant's suffering and frustration, caused by inhuman conditions of his detention and the fact that he has spent a long period in custody without relevant and sufficient grounds, cannot be compensated for by a mere finding of a violation. Making its assessment on equitable bases, it awards the applicant the sum claimed in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
149. The applicant did not seek reimbursement of costs and expenses and this is not a matter which the Court is required to examine on its own motion (see {Motiere} v. France, No. 39615/98, § 26, 5 December 2000).
C. Default interest
150. 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 conditions of the applicant's detention in the Tomsk town temporary detention facility and an alleged violation of the applicant's right to trial within a reasonable time or release pending trial admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 5 § 3 of the Convention;

4. 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 8,000 (eight thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the 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.


Done in English, and notified in writing on 12 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Christos ROZAKIS

President


{Soren} NIELSEN

Registrar
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