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ПОСТАНОВЛЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ПРАВАМ ЧЕЛОВЕКА ОТ 02.03.2006 ДЕЛО ДОЛГОВА (DOLGOVA) ПРОТИВ РОССИИ [АНГЛ.]

По состоянию на 23 января 2008 года

                    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).
   --------------------------------
       <*> 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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