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

vidual situations.
85. The Court has already found that the practice of issuing collective detention orders without a case-by-case assessment of the grounds for detention in respect of each detainee is 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.
86. The Court has frequently found a violation of Article 5 § 3 of the Convention in Russian cases where the domestic courts extended an applicant's detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing specific facts or considering alternative preventive measures (see Belevitskiy, cited above, §§ 99 et seq.; Khudobin v. Russia, No. 59696/00, §§ 103 et seq., ECHR 2006-... (extracts); Mamedova v. Russia, No. 7064/05, §§ 72 et seq., 1 June 2006; Dolgova, cited above, §§ 38 et seq.; Khudoyorov, cited above, §§ 172 et seq., ECHR 2005-X (extracts); Rokhlina, cited above, §§ 63 et seq.; Panchenko, cited above, §§ 91 et seq.; and Smirnova v. Russia, nos. 46133/99 and 48183/99, §§ 56 et seq., ECHR 2003-IX (extracts)).
87. Having regard to the above, the Court considers that by failing to address specific facts or consider alternative "preventive measures" and by relying essentially on the gravity of the charges, the authorities extended the applicant's detention on grounds which, although "relevant", cannot be regarded as "sufficient" to justify its more than four-year duration. In these circumstances it would not be necessary to examine under Article 5 § 3 of the Convention whether the proceedings were conducted with "special diligence".
88. There has therefore been a violation of Article 5 § 3 of the Convention.

III. Alleged violation of Article 6 § 1 of the Convention
on account of the composition of the trial court

89. The applicant complained under Article 6 § 1 of the Convention that the St Petersburg City Court which convicted him on 30 April 2004 had not been composed in accordance with the law and had no power to deal with his case after 1 January 2004. The relevant part of Article 6 § 1 reads as follows:
"In the determination of... any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal established by law."

A. Submissions by the parties

1. The Government

90. The Government submitted that in accordance with Section 7 of the Federal law on enactment of the new Code of Criminal Procedure until 1 January 2004 grave crimes were to be examined by a single professional judge or, if the accused so wished, - by one professional and two lay judges. Having studied the material of the case file the applicant submitted a request for examination of his case by one professional and two lay judges. The lay judges Ms D. and Mr S. who sat on the bench with Judge Kurguzov had been approved by the St Petersburg City Legislature on 18 September 2002, and later on 27 September 2002 the acting president of the St Petersburg City Court selected them from 102 lay judges to participate in the examination of cases by St Petersburg City Court. Therefore, the domestic law in that respect had been complied with (unlike the situation in the cases of Posokhov v. Russia, No. 63486/00, ECHR 2003-IV, and Fedotova v. Russia, No. 73225/01, 13 April 2006).
91. The Government further indicated that in accordance with Section 9 of the Lay Judges Act lay judges Ms D. and Mr S. had served in the City Court until the applicant's conviction on 30 April 2004.



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