EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF DOLGOVA v. RUSSIA
(Application No. 11886/05)
JUDGMENT <*>
(Strasbourg, 2.III.2006)
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Dolgova v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 9 February 2006,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 11886/05) 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, Ms Valentina
Andreyevna Dolgova, on 23 March 2005.
2. The applicant, who had been granted legal aid, was
represented before the Court by Ms S. Dobrovolskaya, a lawyer
practising in Moscow. The Russian Government ("the Government")
were represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
4. On 8 June 2005 the Court decided to communicate the
application to the Government. Under the provisions of Article 29
з 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).
5. 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
6. The applicant was born in 1986 and lives in Moscow.
A. Events leading to the applicant's arrest and prosecution
1. The prosecution's case
7. The applicant was a member of the National Bolsheviks Party.
8. At 12.30 p.m. on 14 December 2004 forty Party members
effected an unauthorised entry into the reception area of the
Administration of the President of the Russian Federation (the
"President's Office"). Some of them pushed away the guards at the
entrance and occupied room No. 14 on the ground floor. They locked
themselves in, blocked the door with a heavy safe and let the
others enter through the window.
9. Until the police arrived, the Party members, including the
applicant, waved placards through the office window, threw out
leaflets and chanted slogans calling for the President's
resignation. They stayed in the office for approximately one hour.
2. The applicant's version
10. On 14 December 2004 the applicant came with her friends for
a walk in the city centre. Suddenly she found herself in the midst
of a dense crowd and she thought it best to go in the same
direction as everyone else. The crowd brought her into a certain
building which turned out to be the waiting area of the
President's Office. She felt weak and sat down on the floor. The
people around shouted and chanted but she could not understand
what was going on. Then the police arrived and took everyone in
custody.
3. Media reports
11. The media reported that on 14 December 2004 a group of
about forty members of the National Bolsheviks Party locked
themselves in an office on the ground floor of the President's
Office.
12. They asked for a meeting with the President, the deputy
head of the President's Office Mr Surkov, and the President's
economic advisor Mr Illarionov. They waved placards with "Putin,
resign!" ("Путин, уйди!") written on them through the window and
distributed leaflets with a printed address to the President that
listed ten aspects in which he failed to respect the Russian
Constitution, and a call for his resignation.
13. The intruders stayed in the office for one hour and a half
until the police broke through the door. They did not offer any
resistance to the authorities.
B. Investigation into the charges
14. On 15 December 2004 the Khamovnicheskiy District Court of
Moscow ordered the applicant's placement in custody on the ground
that she was suspected of a particularly serious criminal offence.
The applicant did not appeal against the arrest warrant.
15. On 21 December 2004 an investigator for particularly
important criminal cases of the prosecutor's office of the Central
Administrative District of Moscow charged the applicant with
violent overthrow of State power (Article 278 of the Criminal
Code) and intentional destruction and degradation of others'
property in public places (Articles 167 з 2 and 214).
16. Between 24 December 2004 and 4 February 2005 the applicant
did not participate in any investigative actions.
17. On 4 February 2005 the Zamoskvoretskiy District Court of
Moscow extended her detention on remand until 14 April 2005. The
court's entire reasoning read as follows:
"The court sees no reason to apply a more lenient preventive
measure to [the applicant]. She is charged with a criminal offence
under Article 278 of the Criminal Code which is classified as a
particularly serious one and requires a thorough, comprehensive
and objective investigation.
Notwithstanding the fact that [the applicant] has a permanent
registered place of residence in Moscow, has no criminal record,
is a student, has positive references and suffers from frail
health, the court, taking into account the nature and factual
basis of the imputed offences, gravity of the charges, her
character and other circumstances described in the investigator's
decision, considers that there are sufficient indications to
believe that, once released, [the applicant] would abscond or
otherwise interfere with the proceedings."
18. On 3 March 2005 the Moscow City Court upheld, on an appeal
by the applicant, the remand decision of 4 February 2005, finding
that it had been lawful, "sufficiently reasoned and justified".
19. On 21 February 2005 the applicant's charge was amended to
that of participation in mass disorders, an offence under Article
212 з 2 of the Criminal Code.
20. On 11 April 2005 the Zamoskvoretskiy District Court granted
the prosecution's request for a further extension of the
applicant's detention until 14 August 2005, relying on the
following reasons:
"At present there are no reasons to vary the preventive measure
applied to [the applicant]... Although [the applicant] has a
permanent registered place of residence in Moscow, having regard
to the gravity of the charge against her, the fact that the charge
is well-founded, the circumstances of the crime, there is no
guarantee that the [applicant] would not default on the
investigator's and court's summons if released from custody."
C. Trial
21. On 7 June 2005 the investigation was completed and thirty-
nine persons, including the applicant, were committed for trial
before the Tverskoy District Court of Moscow.
22. On 20 June 2005 the trial court scheduled the preparatory
hearing for 30 June 2005. It extended the detention on remand of
all the defendants, noting that "the grounds on which the
preventive measure [had been] previously imposed, still
persist[ed]" and that "the case-file gave sufficient reasons to
believe that, once released, the defendants would flee or
interfere with the trial".
23. On 30 June 2005 the court fixed the opening of the trial
for 8 July 2005. It rejected the defendants' requests for release,
citing the gravity of charges against them and the risk of their
absconding or obstructing justice.
24. On 10 August 2005 the Tverskoy District Court rejected the
applications for release filed by many defendants, including the
applicant, although she had produced a personal surety from Mr M.
Rotmistrov, a member of the lower chamber of the Russian
Parliament. The court held:
"The court takes into account the defence's argument that
individual approach to each defendant's situation is essential
when deciding on the preventive measure.
Examining the grounds on which... the court ordered and
extended detention on remand in respect of all defendants without
exception... the court notes that these grounds still persist
today. Therefore, having regard to the state of health, family
situation, age, profession and character of all defendants, and to
the personal sureties offered by private individuals and appended
to the case file, the court concludes that, if released, each of
the applicants can abscond or obstruct justice in some other
way...
In the court's view, in these circumstances, having regard to
the gravity of the charges, there are no grounds for varying or
revoking the preventive measure in respect of any defendant..."
25. On 8 December 2005 the Tverskoy District Court found the
applicant and her co-defendants guilty as charged and gave her a
suspended sentence of three years' imprisonment. It appears that
the applicant did not lodge an appeal against the conviction.
II. Relevant domestic law
26. 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, "the Code").
27. "Preventive measures" or "measures of restraint" (меры
пресечения) include an undertaking not to leave a town or region,
personal surety, bail and detention on remand (Article 98). If
necessary, the suspect or accused may be asked to give an
undertaking to appear (обязательство о явке) (Article 112).
28. 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, re-offend 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).
29. Detention on remand 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 з 1).
30. After arrest the suspect is placed in custody "pending the
investigation". The maximum permitted period of detention "pending
the investigation" is two months but it can be extended for up to
eighteen months in "exceptional circumstances" (Article 109 зз 1 -
3). The period of detention "pending the investigation" is
calculated to the day when the prosecutor sent the case to the
trial court (Article 109 з 9).
31. 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 term 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 зз 2 and 3).
THE LAW
I. Alleged violation of Article 5 of the Convention
32. The applicant complained under Article 5 з 1 (c) of the
Convention that her arrest had not been based on a reasonable
suspicion of her involvement in the crime.
Under Article 5 з 3, she complained about a violation of her
right to trial within a reasonable time 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
33. As regards the applicant's complaint about insufficient
grounds for her arrest, the Court observes that she did not appeal
against the arrest warrant (see paragraph 14 above).
It follows that this complaint must be rejected under Article
35 зз 1 and 4 of the Convention for non-exhaustion of domestic
remedies.
34. As regards the applicant's complaint about a violation of
her right to trial within a reasonable time or to release pending
trial, the Court considers that it is not manifestly ill-founded
within the meaning of Article 35 з 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. Arguments by the parties
35. The Government submitted that the decisions to remand the
applicant in custody had been lawful and justified because there
had existed risks of her absconding, colliding and re-offending.
Thus, she had made contradictory statement about her membership in
the National Bolsheviks Party and about the purposes of their
entry into the reception area of the President's Office. She had
been charged with serious and particularly serious criminal
offences and could therefore re-offend, if she remained at
liberty. These charges had required a thorough, comprehensive and
objective investigation. However, if released, the applicant had
been able to exert pressure on witnesses or to adjust her position
in line with those of her co-defendants, thereby interfering with
the establishment of the truth. In addition, there had been
sufficient evidence to believe that the applicant had been a
member of the Party whose dissolution had been ordered by the
Moscow Regional Court on 29 June 2005 on account of extremist
activities of its members. During the investigation, unidentified
NBP members had threatened on the phone the investigator and the
judge who had remanded the defendants in custody, with physical
violence. Those calls had originated in Poland. The applicant had
been able to abscond because she had had close relatives outside
Russia and because her mother had been a foreign national. Her
counsel had not offered any guarantees that she would appear
during the investigation or at trial. The Government considered
that there had been no violation of Article 5 з 3 of the
Convention because the applicant's pre-trial detention had been
founded on "relevant and sufficient" reasons.
36. The applicant firstly exposed the Government's submissions
as factually untrue. She had never been a member of the National
Bolsheviks Party and the evidence relied upon by the Government
had not formed part of the case-file. Moreover, the Regional
Court's judgment dissolving the Party had been quashed on appeal
by the Supreme Court, on 16 August 2005. The applicant's mother
had been a Russian national having a registered place of residence
in Moscow; a copy of her passport and residence stamp were
produced. Threatening phone calls had been made on behalf of her
co-defendant and had been of no relevance to her situation.
Finally, contrary to the Government's allegation, her counsel had
provided the trial court with a Russian MP's personal surety.
37. As regards compliance with Article 5 з 3 of the Convention,
the applicant considered that the domestic courts had not had
"relevant and sufficient" reasons to hold her in custody for such
a long period. Pre-trial detention was the most restrictive
preventive measure which should not have been applied in her case
because she had had a permanent place of residence in Moscow,
positive work references, no criminal record, she had been a
student and a Russian MP had personally vouched for her
attendance. The domestic courts had been fully aware of these
circumstances and there had been no public interest in extending
her detention. She could not interfere with trial because all the
evidence had been gathered and submitted to the trial court.
2. The Court's assessment
38. The applicant was taken in custody on 14 December 2004. On
8 December 2005 the trial court convicted her of a criminal
offence. The period to be taken into consideration lasted almost
twelve months.
39. Although the applicant disputed her participation in any
criminal activity, the Court observes that she was apprehended in
the premises in which the impugned offences had been allegedly
committed. It accepts therefore that her detention could have
initially been warranted by a reasonable suspicion of her
involvement in the commission of these offences.
40. 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, but 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, зз 152 and 153, ECHR 2000-IV).
41. As to the grounds for the continued detention, the domestic
courts consistently relied on the gravity of the charges as the
main factor for the assessment of the applicant's potential to
abscond or obstruct the course of justice. However, the Court has
repeatedly held that, although the severity of the sentence faced
is a relevant element in the assessment of the risk of absconding
or re-offending, the need to continue the deprivation of liberty
cannot be assessed from a purely abstract point of view, taking
into consideration only the gravity 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, з 51; also see Panchenko v. Russia, No.
45100/98, з 102, 8 February 2005; Goral v. Poland, No. 38654/97, з
68, 30 October 2003; Ilijkov v. Bulgaria, No. 33977/96, з 81, 26
July 2001).
42. This is particularly true in cases, such as the present
one, where the characterisation in law of the facts - and thus the
sentence faced by the applicant - was determined by the
prosecution without judicial review of the issue whether the
evidence that had been gathered supported a reasonable suspicion
that the applicant had committed the alleged offence attracting a
sentence of the relevant length (cf. Rokhlina v. Russia, No.
54071/00, з 66, 7 April 2005). Indeed, the initial charge of
violent overthrow of State power, which was a particularly serious
criminal offence in the domestic classification, had been accepted
by the District Court on 4 February 2005 without any inquiry,
although it was later amended to a lesser charge of participation
in mass disorders. Nevertheless, on 11 April 2005 the same court
stated in the extension order that the so amended charge was also
"well-founded", without citing any reasons for that finding.
43. The Court observes that the only other ground for the
applicant's continued detention was the domestic courts' finding
that there were no circumstances warranting her release. In their
petitions for release, however, the applicant and her counsel had
advanced specific arguments capable of casting doubt on the
lawfulness of, and justification for, her detention. They
submitted that she had had no criminal record and that there was
no danger of absconding because she had a permanent place of
residence in Moscow, studied at university, had positive work
references and suffered from frail health. Although the existence
of these facts was acknowledged in the domestic decisions and
their accuracy had not been disputed by anyone, the domestic
courts treated them as irrelevant, consistently holding that the
gravity of the charges carried a greater weight than the concrete
facts mitigating for the applicant's release (see paragraphs 17,
20 and 24 above). Thus, the District Court's decision of 11 April
2005 expressly indicated that the applicant had failed to show
that there had been no possibility of her absconding (see
paragraph 20 above).
44. The Court reiterates that continued detention can be
justified in a given case only if there are specific indications
of a genuine requirement of public interest which, notwithstanding
the presumption of innocence, outweighs the rule of respect for
individual liberty. Any system of mandatory detention on remand is
per se incompatible with Article 5 з 3 of the Convention (see
Rokhlina, cited above, з 67; Ilijkov, cited above, зз 84 - 85).
45. It is therefore incumbent on the domestic authorities to
establish and to demonstrate convincingly the existence of
concrete 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.
46. No other grounds have been invoked by the authorities to
justify the applicant's continued detention. The Government
submitted that the applicant was to remain in custody because she
was a member of a dissolved political party whose members had
threatened the investigator and the judge, because she could
change her depositions or influence her co-defendants and because
her mother was a foreign national. The documentary evidence
produced by the applicant, such as the copy of her mother's
Russian passport and the Supreme Court's judgment in the case
concerning dissolution of the National Bolsheviks Party, casts
doubt on the truthfulness of the Government's statements. In any
event, 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, з 74, 30 January 2003;
Labita v. Italy, cited above, з 152). Those specific allegations
were made for the first time in the proceedings before the Court
and the domestic courts never referred to those grounds in their
decisions.
47. The Court further emphasises that when deciding whether a
person should be released or detained, the authorities have an
obligation under Article 5 з 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 v.
Estonia, No. 55939/00, з 64 in fine, 15 February 2005; {Jablonski}
<*> v. Poland, No. 33492/96, з 83, 21 December 2000).
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
48. In the present case, during the entire period of the
applicant's detention on remand, the authorities did not consider
the possibility of ensuring her attendance by the use of other
"preventive measures" - such as bail or an undertaking to appear -
which are expressly provided for by Russian law to secure the
proper conduct of criminal proceedings (see paragraph 27 above).
In particular, on 10 August 2005 the trial court refused the
applicant's petition for release, although she had produced a
personal surety given not just by a private individual, but by a
member of the Russian Parliament. Moreover, at no point in the
proceedings did the domestic courts explain in their decisions why
alternatives to the deprivation of liberty would not have ensured
that the trial would follow its proper course. This failure is
made all the more inexplicable by the fact that the new Code of
Criminal Procedure expressly requires the domestic courts to
consider less restrictive "preventive measures" as an alternative
to custody (see paragraph 29 above).
49. Furthermore, the Court observes that the judicial decisions
extending the applicant's period of detention had no proper regard
to her individual circumstances. On 20 and 30 June and 10 August
2005 the trial court used the same summary formula to refuse
petitions for release and extend pre-trial detention of thirty-
nine persons, notwithstanding the defence's express request that
each detainee's situation be dealt with individually. In the
Court's view, this approach is incompatible, in itself, with the
guarantees enshrined in Article 5 з 3 of the Convention in so far
as it will permit the continued detention of a group of persons
without a case-by-case assessment of the grounds for detention or
compliance with the "reasonable-time" requirement in respect of
each individual member of the group.
50. Having regard to the above considerations, the Court finds
that by failing to address concrete facts or consider alternative
"preventive measures" and by relying essentially on the gravity of
the charges, the authorities prolonged the applicant's detention
on grounds which cannot be regarded as "relevant and sufficient".
The authorities thus failed to justify the applicant's detention
on remand during the period under consideration. In these
circumstances it is not necessary to examine whether the
proceedings were conducted with "special diligence".
There has been therefore a violation of Article 5 з 3 of the
Convention.
II. Alleged violation of Article 10 of the Convention
51. The applicant complained under Article 10 of the Convention
that the decision to institute criminal proceedings against her
had been triggered by her participation in a public assembly where
leaflets had been distributed.
52. The Court observes that the applicant did not appeal
against her conviction. It follows that this complaint must be
rejected under Article 35 зз 1 and 4 of the Convention for non-
exhaustion of domestic remedies.
III. Application of Article 41 of the Convention
53. 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. Pecuniary damage
54. The applicant assessed the pecuniary damage at 37,693
Russian roubles ("RUR") which represented her loss of earnings
during the detention period and the amounts spent on food parcels
while in the remand centre.
55. The Government pointed out that the decision to prefer
criminal charges against the applicant was not the subject of the
Court's review in the present case. There was therefore no
connection between the loss of earnings and food expenses and the
alleged violation.
56. The Court finds that there has been no causal link between
the violation found and the claimed pecuniary damage.
Consequently, it sees no reason to award the applicant any sum
under this head.
B. Non-pecuniary damage
57. The applicant claimed 500,000 euros ("EUR") in respect of
compensation for non-pecuniary damage.
58. The Government considered the amount excessive and
submitted that there was no causal link between the alleged
violation and the claimed non-pecuniary damage. In any event, a
finding of a violation would constitute sufficient just
satisfaction.
59. The Court considers that the applicant must have suffered
frustration, helplessness and a feeling of injustice as a
consequence of the domestic authorities' decision to keep her 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. Accordingly, making its
assessment on an equitable basis and having regard to the
applicant's vulnerable age, the Court awards her 5,000 euros, plus
any tax that may be chargeable on that amount.
C. Costs and expenses
60. The applicant claimed RUR 7,000 of legal fees in the
domestic proceedings and RUR 2,600 for the preparation of the
application to the Court. She also claimed EUR 25,000 in respect
of future expenses in the Strasbourg proceedings.
61. The Government responded that only actual, but not future,
expenses should be reimbursed.
62. The Court notes that the applicant was granted EUR 715 in
legal aid for her representation by Ms Dobrovolskaya. As the
applicant did not justify having incurred any actual expenses
exceeding that amount, the Court makes no award under this head.
D. 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
1. Declares unanimously the complaint concerning the excessive
length of the applicant's detention on remand admissible and the
remainder of the application inadmissible;
2. Holds by six votes to one that there has been a violation of
Article 5 з 3 of the Convention;
3. Holds by six votes to one
(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 з 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 unanimously the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 2 March 2006,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
In accordance with Article 45 з 2 of the Convention and Rule 74
з 2 of the Rules of Court, the dissenting opinion of Mr A. Kovler
is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE KOVLER
To my regret, I am unable to agree with the majority's finding
of a violation of Article 5 з 3 of the Convention. It is not the
Chamber's finding per se that troubles me, but rather the manner
in which it reached its conclusion.
I have little doubt that the case is admissible. Indeed, it
meets the admissibility criteria of Article 35 з 1. Equally, it
concerns pre-trial detention, a topic that the Court has examined,
albeit more carefully, in many previous Russian cases (see, for
example, Kalashnikov v. Russia, No. 47095/99, ECHR 2002-VI;
Smirnova v. Russia, Nos. 46133/99 and 48183/99, ECHR 2003-IX
(extracts); Panchenko v. Russia, No. 45100/98, 8 February 2005;
Rokhlina v. Russia, No. 54071/00, 7 April 2005; Romanov v. Russia,
No. 63993/00, 20 October 2005; and Khudoyorov v. Russia, No.
6847/02, ECHR 2005-... (extracts)).
When analysing the domestic legislation, this judgment, unlike,
for example, the above-mentioned Kalashnikov judgment, makes it
clear that Russian criminal procedure distinguishes detention
pending preliminary investigation from detention following the
preliminary investigation. This distinction is crucial for
understanding whether the length of pre-trial detention was
reasonable.
Some of the initial charges laid against the applicant (see
paragraph 15) were, to put it mildly, doubtful (for example,
"violent overthrow of State power" under Article 278 of the
Criminal Code). Nevertheless, most of the charges - "intentional
destruction of property" and "vandalism", later changed to
"rioting" -, and the gravity of the charges justified her
detention. One must not forget that the Strasbourg Court may not
overrule the national authorities" decision to detain a person.
What the Strasbourg Court may do, in my opinion, is to assess
whether the length of the detention was reasonable.
The applicant was detained "pending investigation" from 14
December 2004 to 7 June 2005, i.e. five months and 22 days,
whereas for such criminal cases Article 109 з 2 of the Code of
Criminal Procedure permits detention for two to six months. She
was detained "pending trial" from 7 June to 8 December 2005, i.e.
six months and one day, whereas Article 255 з 3 of the Code of
Criminal Procedure establishes a "basic" period of up to six
months.
The judgment lacks analysis of the "reasonableness" of those
periods in the light of the circumstances of this particular case.
The Court has exhaustively analysed its own case-law but has not
applied it to the case at hand. Yet "the issue of whether a period
of detention is reasonable cannot be assessed in abstracto.
Whether it is reasonable for an accused to remain in detention
must be assessed in each case according to its special features"
(see Labita v. Italy [GC], No. 26772/95, з 152, ECHR 2000-IV).
Having passed over the issue of whether the detention period
was reasonable, the Court rapidly turned to the question of the
cancellation or amendment of the detention. Overall, this case has
been marked by haste: the Court reached its judgment remarkably
quickly. This haste has had an adverse effect on the Court's
findings and has prevented me from joining the majority, although
my inclination was to detect signs of a violation of Article 5 з
3. The approach in such cases should not be a cavalier and
Bolshevik-style one - no pun intended - but festina lente: hurry
slowly.
I must make one more remark. Traditionally, the Court has
carefully avoided referring to facts that have not been submitted
by the parties. The instant judgment breaks this tradition and
refers - quite selectively - to certain unidentified "media
reports". However, the Court's wish to provide an account of the
facts which differs from those of the parties is understandable.
Finally, the non-pecuniary damages awarded are too high. They
are the same as in Kalashnikov, although the violations in the
Kalashnikov case were more numerous and more serious. Even the
applicant's young age is no excuse for such an approach.
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