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





ances could have warranted the applicant's release. The Court reiterates that any system of mandatory detention pending trial is incompatible per se with Article 5 § 3 of the Convention, it being incumbent on the domestic authorities to establish and demonstrate the existence of concrete facts outweighing the rule of respect for individual liberty (see Belevitskiy, cited above, § 102, with further references).
144. The given state of affairs was further aggravated by the fact that the domestic court issued collective detention orders without a case-by-case assessment of the grounds for detention in respect of each detainee - a practice that the Court has found to be incompatible, in itself, with Article 5 § 3 of the Convention (see Aleksey Makarov v. Russia, No. 3223/07, § 53, 12 June 2008; Shcheglyuk v. Russia, No. 7649/02, § 45, 14 December 2006; Korchuganova, cited above, § 76; and Dolgova v. Russia, No. 11886/05, § 49, 2 March 2006). By extending the applicant's detention by means of collective detention orders the domestic authorities had no proper regard to his individual circumstances.
145. Regard being had to the above circumstances, the Court finds that by failing to address the concrete facts of the applicant's individual situation, by failing to consider the possibility of applying an alternative preventive measure and by relying solely on the gravity of the charges, the authorities extended his detention on grounds which cannot be regarded as "sufficient". In those circumstances it is not necessary to examine whether the proceedings were conducted with "special diligence".
146. The Court finally observes that, notwithstanding the inordinate overall period of the applicant's detention, at no point in the proceedings did the domestic authorities consider whether the length of his detention had exceeded a "reasonable time" or whether there was any room for applying an alternative measures to ensure his appearance at trial.
147. There has therefore been a violation of Article 5 § 3 of the Convention.

IV. Alleged violation of Article 5 § 4 of the Convention

148. The applicant complained that he had been denied the right to an effective judicial review of his complaints against the remand orders of 1 July, 1 October and 31 December 2002, 31 March, 26 June, 25 September and 15 December 2003 and 19 February 2004, and his complaints against the decisions of 17 February, 21 June and 25 December 2003 and 2 February and 5 February 2004 refusing his release, in breach of Article 5 § 4 of the Convention. He further complained that he had not been permitted to take part in the appeal hearings. Article 5 § 4 reads as follows:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

A. Submissions by the parties

149. The Government submitted that the promptness of the examination of the applicant's appeals against the extension orders of 1 July and 1 October 2002 was undermined by rather time-consuming procedural preparation, including sending out copies of the appeals to all defendants and deciding on the necessity and possibility of escorting the applicant to the Supreme Court. The appeals against the extension orders of 31 December 2002 and 31 March, 26 June, 25 September and 15 December 2003 were examined within the time-limits established in the domestic law. As regards the examination of the appeals filed against the decisions of 17 February, 21 June and 25 December 2003 and 2 February and 5 February 2004 refusing the applicant's release, as well as the appeal against the extension order of 19 February 2004, the Government submitted that their belated examination by the Supreme Court on 1



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