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Постановление Европейского суда по правам человека от 30.07.2009 "Дело "Сорокин (Sorokin) против Российской Федерации" [рус., англ.]





ence to the contrary. There is no indication that the prosecutor relied on any documents which were not included in the criminal case file or that at any stage of the proceedings the applicant was denied access to the file. The Court is satisfied that the applicant was able to consult the documents in the criminal file and to comment on the prosecutor's requests for extension (see, by contrast, Nikolova, cited above, § 63, and Garcia Alva, cited above, §§ 40 to 43). Accordingly, he had an effective opportunity to challenge the reasons for his detention.
77. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Absence from the hearing of 22 December 2005

78. The Government submitted that the applicant had not been brought to the courtroom on 22 December 2005 because he had been in hospital and had been receiving anti-tuberculosis treatment. The hearing had been attended by his counsel, who had not objected to it being held in the applicant's absence.
79. The applicant disputed the Government's allegation that he had been in hospital. He submitted that he had never received any treatment for tuberculosis. In his opinion, the authorities had just forgotten to bring him to the hearing.
80. The Court reiterates that in the case of a person whose detention falls within the ambit of Article 5 § 1 (c), Article 5 § 4 requires that a hearing be held (see Trzaska v. Poland, No. 25792/94, § 74, 11 July 2000). The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995, § 47, Series A No. 318-B). As a general rule, a detainee should have a right to participate personally in a hearing where his detention is discussed. Possible exceptions from this rule are conceivable: the Court observes in this connection that in order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceedings take place. The detainee's personal presence is always required when the court has to assess his personality, the risk of his absconding or his predisposition to further offences, when the court changes the basis for the detention or when it extends the detention after a significant lapse of time (see Lebedev v. Russia, No. 4493/04, § 113, 25 October 2007).
81. In the present case, on 22 December 2005 the trial court extended the applicant's detention for three months. The hearing was attended by the prosecutor and counsel for the applicant, but not the applicant himself. The Court must examine whether the applicant's personal presence was required in the circumstances of the case.
82. The Court observes that the issues discussed during the hearing of 22 December 2005 concerned only the gravity of the charges against the defendants and the risk that they might interfere with the witnesses and jurors. That risk was formulated by the prosecutor and the court in general terms and its existence was inferred from the nature and gravity of the charges rather than based on the assessment of the applicant's character or personal situation. Given that the hearing did not involve any discussion of the applicant's personality, the Court is satisfied that counsel's presence was sufficient to ensure that the proceedings were adversarial and the principle of equality of arms was respected. Moreover, the same issues had been previously discussed on many occasions in the applicant's presence and the applicant had had an opportunity to describe his personal situation to the judge and advance arguments in favour of his release. There is no evidence that the applicant's circumstances had



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