Постановление Европейского суда по правам человека от 30.07.2009 «Дело Ламажик (Lamazhyk) против России» [англ.]

In this connection the Court reiterates that, although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view. It must be examined with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding and reoffending or make it appear so slight that it cannot justify detention pending trial (see Letellier v. France, 26 June 1991, § 43, Series A No. 207; and Panchenko, cited above, § 106).
93. In the present case the domestic authorities did not cite any concrete facts warranting the applicant's detention on that ground. They did not indicate any circumstance to suggest that, if released, the applicant would abscond, re-offend or otherwise upset the course of the trial. Although the Court does not lose sight of the fact that in March 2000 the applicant allegedly violated the conditions of his release by leaving the town of his residence, and that there could have existed certain factors warranting the authorities' conclusion with regard to the applicant's potential to abscond, the domestic authorities never referred to or mentioned that fact in the detention orders and it is not the Court's task to take the place of the national authorities who ruled on the issue of detention (see Korchuganova v. Russia, No. 75039/01, § 72, 8 June 2006). The Court finds that the existence of such a risk was not established.
94. 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 to ensure his or her appearance at the trial (see Sulaoja, cited above, § 64, 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 by Russian law to secure the proper conduct of criminal proceedings, or, at the very minimum, seek to explain in their decisions why such alternatives would not have ensured that the trial would follow its proper course.
95. In sum, the Court finds that the domestic authorities' decisions were not based on an analysis of all the pertinent facts. They paid no regard to the arguments in favour of the applicant's release pending trial. It is also of particular concern to the Court that the Russian authorities persistently used a stereotyped summary formula to justify extending his detention. The Court also notes that the domestic authorities, using the same formula, simultaneously extended the detention of the applicant and his co-defendants. In the Court's view, this approach is incompatible, in itself, with the guarantees enshrined in Article 5 § 3 of the Convention in so far as it permits the continued detention of a group of persons without a case-by-case assessment of the grounds for detention or of compliance with the "reasonable-time" requirement in respect of each individual member of the group (see Dolgova v. Russia, No. 11886/05, § 49, 2 March 2006). The Court also finds it striking that during certain periods the applicant was detained without any formal decision authorising his detention (see, for example, paragraphs 13, 21 and 71 above).
96. Having regard to the above, the Court considers that by failing to address concrete relevant facts or consider alternative "preventive measures" and by relying essentially on the gravity of the charges, the authorities prolonged the applicant's detention until 24 December 2003 on grounds which cannot be regarded as "sufficient". They thus failed to justify the applicant's continued detention for almost three



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