Постановление Европейского суда по правам человека от 17.06.2010 «Дело Губин (Gubin) против России» [англ.]

r /> 67. Turning to the circumstances of the present case, the Court observes that on 3 November 2003 the Moscow City Court examined the applicant's appeal against the detention order of 8 October 2003. The prosecutor attended the hearing and made submissions to the court on the extension of the applicant's pre-trial detention. In such circumstances, the Court considers that it was incumbent on the domestic judicial authorities to adhere to the principle of equality of arms and to give the applicant the opportunity to appear, either in person or through some form of representation, at the same time as the prosecutor, so that he could reply to the latter's arguments. However, the appeal court failed to do this. As can be seen from the text of the court's decision of 3 November 2003, the appeal court proceeded with the hearing in the absence of the applicant and his counsel. It did not even verify whether the applicant and/or his counsel had been notified of the date and time of the hearing and, if they had not been, consider whether the appeal hearing should be adjourned to provide the applicant with an opportunity to be heard by the court.
68. Having regard to the above, the Court considers that on 3 November 2003 the domestic judicial authorities failed to carry out a review of the lawfulness of the applicant's detention in accordance with the requirements of Article 5 § 4 of the Convention. The proceedings in question were not adversarial and the principle of equality of arms between the parties was not respected. There has accordingly been a violation of Article 5 § 4 of the Convention.

III. Other alleged violations of the Convention

69. The applicant complained that he had been beaten up by police officers during his arrest, that he had been arrested in the absence of a reasonable suspicion that he had committed the criminal offence he was charged with and that he had not been provided with a lawyer on the same day; also that he had not been promptly informed of the reasons for his arrest or brought promptly before the prosecutor. As regards his pre-trial detention, the applicant complained that his counsel had not attended the hearing concerning the extension of his detention on 8 October 2003 and that he had been unable to appeal against the detention order of 14 August 2003. He further alleged that the investigator had presumed him guilty and had refused to examine certain witnesses for his defence, and that the criminal proceedings against him had been unfair and unreasonably long. He complained that his numerous complaints had received no response from the authorities; that the administration of remand prison No. 77/1 had destroyed some of his written complaints, and that an officer at remand prison No. 77/6 had forced him to stop complaining about the conditions of his detention. Lastly, he submitted that he had been detained in appalling conditions from 13 to 20 August 2003 and from 18 to 31 May 2005. The applicant relied on Articles 3, 5, 6 and 13 of the Convention.
70. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court's competence, it finds that there is 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

71. 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

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