Постановление Европейского суда по правам человека от 29.04.2010 «Дело Юрий Яковлев (Yuriy Yakovlev) против России» [англ.]

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 matters 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 were brought against him in respect of his actions as the first deputy director of the Fund from which he had resigned in August 2006, there was a real danger of the applicant committing new offences.
82. 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 the interests of society. Although that ground was never relied on by the domestic courts, the Court nevertheless considers it necessary to address the Government's argument.
83. 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 release of the accused 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).
84. 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 interests from a purely abstract point of view, relying solely on the gravity of the offences allegedly committed by the applicant and insisting on the particular vulnerability of the social group which had suffered damage from the applicant's criminal activities. 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 and collective detention orders
85. 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 in 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 to post bail and also listed sureties to secure his release. However, that guarantee was rejected without due consideration. Furthermore, the Court finds it particularly striking that the applicant was kept in custody for almost a year, from December 2007 to December 2008, for the sole purpose of studying the case file. However, at no point did either the Basmanniy District Court, the Moscow City Court or the Supreme Court, which examined the

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