Постановление Европейского суда по правам человека от 23.04.2009 «Дело Губкин (Gubkin) против России» [англ.]

in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so..."

A. Submissions by the parties

103. The applicant argued that his detention had not been based on domestic law and that it had been arbitrary: namely, on 12 February 2002 the Rostov Regional Court held that the preventive measure imposed on the applicant should remain unchanged, without citing any specific reasons for such decision or determining any time-limits. From 1 July 2002 to 19 May 2004 the Regional Court extended the applicant's detention on the sole ground of the gravity of the charges against him, applying identical wording in eight consecutive decisions concerning five different persons. Besides, the Regional Court (comprising a presiding judge and two lay judges) had no power to extend his detention on 19 February 2004 since starting from 1 January 2004 the domestic law no longer provided for the participation of lay judges in the administration of justice in criminal matters.
104. The Government submitted that the Court should apply the six-month rule and examine only the lawfulness of the applicant's detention "during the trial". They further submitted on the merits that on 12 February 2002 the Rostov Regional Court, in compliance with Articles 222, 223, 230 and 239 of the old CCrP, ordered that the preventive measure chosen in respect of the applicant should remain unchanged. With the entry into force of the new CCrP the applicant's detention was extended regularly, that is, every three months. When extending the applicant's detention the domestic court bore in mind not only the gravity of the charges against the applicant, but also the risk of him influencing the witnesses and victims and thereby obstructing justice. With reference to the domestic law the Government further argued that the applicant's allegation about the unlawful composition of the Regional Court was unfounded. The Government concluded, therefore, that there had been no violation of the applicant's rights under Article 5 § 1 (c) of the Convention.

B. The Court's assessment

1. Admissibility

105. The Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with the matter within a period of six months from the date on which the final decision was taken. The Court further reiterates that the date of the "final decision" for the purpose of Article 35 § 1 of the Convention in connection with a period of pre-trial detention is the date on which the charge is determined by a court at first instance (see, among other authorities, Daktaras v. Lithuania (dec.), No. 42095/98, 11 January 2000, and Popov v. Russia, No. 26853/04, § 153, 13 July 2006). After that date the applicant's detention no longer falls within the ambit of Article 5 § 1 (c) of the Convention, but within the scope of Article 5 § 1 (a) of the Convention (see, most recently, Benediktov, cited above, § 43).
106. The Court observes, therefore, that the applicant's detention falling within the scope of Article 5 § 1 (c) consisted of four separate terms: (1) from 10 June 1998 when the applicant was arrested to his conviction under Article 228 § 1 of the Criminal Code on 10 January 1999; (2) from 24 March 1999 when the prosecution again brought against the applicant the charges under Articles 126 § 2, 139 § 1, and 163 § 3 of the Criminal Code until his conviction on 13 June 2000; (3) from 2 November 2000 when the applicant's conviction was quashed on appeal until his subsequent conviction on 14 May



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