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





eed to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Letellier v. France, judgment of 26 June 1991, Series A No. 207, § 51; see also Panchenko v. Russia, No. 45100/98, § 102, 8 February 2005; Goral v. Poland, No. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81).
148. Another ground for the applicant's detention was his presumed membership of an organised criminal group. The Court accepts that in cases concerning organised crime the risk that a detainee if released might put pressure on witnesses or might otherwise obstruct the proceedings is often particularly high. These factors can justify a relatively longer period of detention. However, they do not give the authorities unlimited power to extend this preventive measure (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 justification for the applicant's detention for a period of more than five years. The domestic courts failed 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 or 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.
149. Further, the domestic courts gauged the applicant's potential to reoffend by reference to his unemployment. This finding was disputed by the applicant, who maintained that he had permanent employment. It is not necessary for the Court to determine the applicant's employment situation. Even assuming that he was unemployed, it cannot be concluded from this fact alone that he was liable to commit new offences (see Pshevecherskiy v. Russia, No. 28957/02, § 68, 24 May 2007). In any event, the mere absence of permanent employment could not serve as justification for more than five years' detention pending trial.
150. No other grounds have been relied on by the domestic courts. The Government referred in their observations to the applicant's previous criminal record and absence of permanent place of residence. The Court reiterates that it is not its task to assume the role 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). Those arguments were advanced for the first time in the proceedings before the Court and the domestic courts never mentioned them in their decisions.
151. The Court also finds it peculiar that during the period from 6 April 2004 to 28 January 2006, when the app



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