Постановление Европейского суда по правам человека от 19.03.2009 «Дело Любименко (Lyubimenko) против России» [англ.]

(see Osuch v. Poland, No. 31246/02, § 26, 14 November 2006; and Celejewski v. Poland, No. 17584/04, §§ 37 - 38, 4 May 2006). Taking into account that the applicant was suspected of being an active member of an organised criminal group, the Court accepts that the authorities could justifiably consider that the risk of pressure on witnesses and jurors was initially present. However, the Court is not persuaded that that ground could in itself justify the entire five-year period of the applicant's detention. Indeed, the domestic courts referred to the risk of hampering the proceedings in a summary fashion without pointing to any aspect of the applicant's character or behaviour in support of their conclusion that he was likely to resort to intimidation. In the Court's view such a generally formulated risk may not serve as a justification for the applicant's detention for a period of more than five years. The domestic courts omitted to consider the fact that that ground inevitably became less and less relevant with the passage of time. The courts' reasoning did not evolve to reflect the developing situation and to verify whether at the advanced stage of the proceedings that ground retained its sufficiency. The Court is not therefore convinced that, throughout the entire period of the applicant's detention, compelling reasons existed for a fear that he would interfere with witnesses or jurors or otherwise hamper the examination of the case, and certainly not such as to outweigh the applicant's right to trial within a reasonable time or release pending trial.
74. The domestic courts also referred to the applicant's criminal record. Indeed, that factor was relevant in assessing the danger of reoffending. Such a danger, if convincingly established, may lead the judicial authorities to place and leave a suspect in detention in order to prevent any attempts to commit further offences. It is however necessary, among other conditions, that the danger be a plausible one and the measure appropriate, in the light of the circumstances of the case and in particular the past history and the personality of the person concerned (see Clooth v. Belgium, 12 December 1991, § 40, Series A No. 225). In the present case the domestic courts did not specify the offence for which the applicant had been previously convicted, nor did they examine its nature and degree of seriousness. Such a brief and unelaborated reference to previous criminal record cannot be regarded as sufficient to establish the risk of reoffending, especially in the absence of any assessment of the defendant's personality. In any event, even assuming that the authorities could justifiably consider that such a risk was initially present, the Court is not persuaded that that ground could in itself justify the entire five-year period of the applicant's detention (compare Pihlak v. Estonia, No. 73270/01, §§ 44 and 45, 21 June 2005).
75. No other grounds have been invoked by the domestic courts. The Government referred in their observations to the applicant's family situation, namely the fact of his being unmarried. The Court reiterates that it is not its task to assume the place of the national authorities who ruled on the applicant's detention or to supply its own analysis of facts arguing for or against detention (see Nikolov v. Bulgaria, No. 38884/97, § 74, 30 January 2003, and Labita, cited above, § 152). This argument was advanced for the first time in the proceedings before the Court and the domestic courts never mentioned it in their decisions.
76. The Court observes that all decisions extending the applicant's detention on remand were stereotypically worded and in summary form. They did not describe in detail the applicant's personality or individual circumstances. Although in one of the extension orders the Regional Court sated that it had taken into account "the defendants' chara



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