Постановление Европейского суда по правам человека от 01.04.2010 «Дело Гултяева (Gultyayeva) против России» [англ.]

of 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 (see Rokhlina, cited above, § 67). It remains to be ascertained whether the domestic judiciary established and convincingly demonstrated the existence of concrete facts in support of their conclusions.
188. The Court observes that the domestic courts assessed the applicant's potential to abscond or influence the witnesses with reference to certain evidence in the applicant's case file (see paragraphs 16 and 25 above). However, at no point did the domestic courts disclose that evidence or mention any specific facts warranting the applicant's continued detention on that ground. The Court thus accepts the applicant's argument that the domestic courts did not give due consideration to the fact that she had resigned from her office of the Head of the Department of Justice three days after the criminal proceedings had been instituted and that therefore her ability to influence witnesses in a case concerning the embezzlement of budgetary assets in that public body had been at best questionable. The judiciary never specified why, notwithstanding the arguments put forward by the applicant in support of her requests for release, they considered the risk of her absconding or interference with the witnesses to exist and to be decisive. Moreover, the preliminary investigation in the present case had ended by 13 June 2000, but the applicant's detention on remand continued until 6 February 2001. The Court reiterates in this connection that whilst at the initial stages of the investigation the risk that an accused person might pervert the course of justice could justify keeping him or her in custody, after the evidence has been collected, that ground becomes less strong (see Mamedova v. Russia, cited above, § 79).
189. 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). It does not appear that during the period under consideration the domestic courts once considered the possibility of ensuring the applicant's attendance by the use of other "preventive measures" - such as a written undertaking not to leave a specified place or bail - which are expressly provided for by Russian law to secure the proper conduct of criminal proceedings, or, at the very least, that they sought to explain in their decisions why such alternatives would not have ensured that the trial would follow its proper course.
190. Having regard to the materials in its possession, the Court is not convinced that the domestic courts' decisions were based on an analysis of all the relevant facts. The Court agrees with the applicant that the authorities took no notice of the arguments in favour of her release pending trial, such as her age, her family commitments, the absence of any prior criminal record and the fact that she had an established place of residence in Yuzhno-Sakhalinsk. While extending the applicant's detention by means of identically or similarly worded detention orders the domestic authorities had no proper regard to her individual circumstances.
191. Overall, the Court considers that by failing to refer to specific relevant matters or to consider alternative "preventive measures" and by relying essentially on the gravity of the charges, the authorities extended the applicant's detention on grounds which cannot be regarded as "sufficient". They thus failed to justify the applicant's continued de



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