Особенности судебного перевода, посредством выявления особенностей перевода решений Европейского суда по правам человека

v. Russia, no. 28617/03, § 35, 4 December 2008; and Trepashkin v. Russia (no. 2) (dec.), no. 14248/05, 22 January 2009). Most of the cases cited above concerned remand prison no. 77/1, whereas at least one application concerned the conditions in remand prison no. 99/1, where the applicant in the present case was detained (Vlasov v. Russia, no. 78146/01, §§ 53 et seq.,

12 June 2008). The Court observes in this respect that both remand prisons (nos. 77/1 and 99/1) belong to the same detention centre commonly known as “Matrosskaya Tishina”. Furthermore, in a number of Russian cases the Court has examined complaints about conditions in the walking yards of various remand prisons (see, for example, Moiseyev v. Russia, no. 62936/00, § 125, 9 October 2008, Trepashkin v. Russia (no. 2), cited above, Mamedova v. Russia, no. 7064/05, § 43, 1 June 2006; Khudoyorov v. Russia, no. 6847/02, § 67, ECHR 2005-X (extracts); and Kokoshkina v. Russia, no. 2052/08, § 56, 28 May 2009).

108. The Court is mindful that those other cases do not concern exactly the same remand prison, the same cells, or the same time-period. Therefore, they cannot be a decisive element in the Court's analysis in casu. However, they create a certain factual context which adds credibility to the applicant's description of the conditions of detention in remand prison IZ-99/1 in 2003-2005. The Court further notes that the applicant complained about the conditions of his detention to the Moscow courts, but received no meaningful answer to his complaints (see paragraph 75 above). In such circumstances, and given the consistency of the applicant's submissions, the Court deems it possible to shift the burden of proof to the Government.

109. The Court notes that the Government, in order to rebut the applicant's account, produced photos of the cells and reports by prison officials. In the Court's opinion the photos are not very persuasive - either they are incapable of refuting the applicant's account, or they were taken after the completion of the renovation works and, therefore, do not necessarily reflect the situation existing at the relevant time. This is true in so far as the conditions in cells no. 501, 503 or 506 are concerned, where the applicant was detained before his transferral on 18 June 2005 to newly refurbished cell no. 610.

110. Likewise, the reports by the prison officials were drafted several years after the end of the period under consideration (2003-2005). It appears that those reports were not based on any exact measurements or inspections conducted at the relevant time, or any other source material. The Court would reiterate that on several previous occasions it has declined to accept the validity of similar certificates on the ground that they could not be viewed as sufficiently reliable given the lapse of time involved and the absence of any supporting documentary evidence (see Kokoshkina, cited above, § 60; Sudarkov v. Russia, no. 3130/03, § 43, 10 July 2008; Belashev

v. Russia, no. 28617/03, § 52, 13 November 2007; and Zakharkin, cited above, § 124). Their evidentiary value is therefore relatively low. In other words, the applicant's account of the sanitary conditions in the cells is not refuted by any reliable reports of examinations contemporary with the situation complained of.

111. In such circumstances the Court is prepared to conclude that the Government failed in its duty to refute the applicant's account of thesanitary and hygienic conditions in the cells. It follows that for over a year and a half the applicant was detained in cells with poor ventilation, that the applicant, as well as his co-detainees, did not have sufficient privacy in using the toilet facilities (at least until 18 June 2005, when the applicant was transferred to cell no. 610, where conditions were admittedly better). As to the system for temperature control, the Court cannot share the applicant's view that a temperature of 18 C (the minimum temperature in the cell) was clearly unacceptable, although it can be admitted that the cell was occasionally too hot in the summer.

112. These conclusions do not, however, automatically lead to a finding of a violation of the applicant's rights under Article 3 of the Convention. First, the Court observes that the applicant shared the cells with two or a maximum of three other people. This means that the sanitary and hygienic conditions in those cells were not as bad as where the number of people detained together in the same cell was significantly higher.

113. Second, it follows from the documents submitted by the Government that the applicant was able to make use of extra services provided in the remand prison for a fee, namely to exercise in a fitness room. From the documents submitted by the Government it follows that the applicant used that opportunity regularly, and the applicant did not seem to contest that information. Thus, he was not confined to his cell 23 hours out of 24, as was the case for many other prisoners in Russia, who only enjoyed a forty-minute walk or so in a small walking yard (cf. with the case of Andreyevskiy, cited above, § 86). The Court reiterates in this respect that, in the context of conditions of detention in correctional colonies, the Court, while assessing the sufficiency of personal space in the dormitory, takes into account the greater freedom of movement enjoyed by detainees (as compared to the remand prisons) (see Solovyev v. Russia (dec.), no. 76114/01, 27 September 2007; Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004; and Valaљinas v. Lithuania, no. 44558/98, §§ 103 and 107, ECHR 2001-VIII).

114. It is worth noting that the applicant was also able to receive food and medicine from his relatives, in addition to the free meals distributed in the prison, and to take a shower on request, i.e. more often than once a week as provided by the general regime (cf. with Nedayborshch v. Russia, no. 42255/04, § 32, 1 July 2010, or Skachkov v. Russia, no. 25432/05, § 54, 7 October 2010). Those extra services were most probably not available to most detainees, but this was not the applicant's case, and the Court cannot disregard this factor.

115. Finally, the Court notes that during the period under consideration the applicant did not have any serious health problems or grave medical incidents which could have been exacerbated by poor ventilation, inadequate hygiene, etc.

116. In conclusion the Court notes that the conditions of the applicant's detention during the period under consideration were indeed very uncomfortable, but not so harsh as to reach the threshold of severity required to bring the situation within the ambit of Article 3 of the Convention. It follows that Article 3 was not breached on account of that period.

(a) Conditions in remand prison IZ-77/1 (8 August 2005 - 9 October 2005)

117. The Court notes that on 8 August 2005 the applicant was transferred back to remand prison IZ-77/1, where he was placed in cell no. 144. It appears that conditions in that remand prison were much worse than those in remand prison no. IZ-99/1. Thus, in cell no. 144 the applicant had slightly over 4 square metres of personal space and was detained with thirteen other people. In practice, the personal space available to each detainee in that cell was even less than 4 metres, if one considers the space occupied by the furniture, toilet, and other equipment listed by the Government in their submissions.

118. Furthermore, as follows from the documents submitted by the Government, during that period the applicant ceased to visit the fitness room, probably because remand prison no. IZ-77/1 did not have one. There is no information on whether the applicant was able to use a shower cabinet on request, as in prison no. IZ-99/1. Since the applicant was awaiting examination of his appeal during this period, he was not taken to the court as often as previously, and, consequently, was confined to his cell most of the time. The applicant also complained of deplorable sanitary and hygienic conditions in cell no. 144. That assertion was not rebutted by the Government convincingly, with reference to reliable source materials or reports contemporary with the situation complained of (see the Court's analysis above, concerning the conditions of detention during the previous period). The applicant was detained in such conditions for two months. The Court concludes that conditions of his detention during that period were much worse than those in remand prison no. IZ-77/1 and amounted to “inhuman and degrading treatment” within the meaning of Article 3 of the Convention. There was thus a violation of that provision in respect of the last period of the applicant's detention pending trial.

(a) Conclusions

119. To recapitulate the above findings, the Court concludes that the conditions of the applicant's detention from the moment of his arrest on 25 October 2003 until his transferral to remand prison no. IZ-77/1 on 8 August 2005 were not incompatible with Article 3 of the Convention. In contrast, between 8 August 2005 and 9 October 2005 the applicant was detained in conditions which amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS IN THE COURTROOM

120. The applicant complained that during the court hearings he was placed in a metal cage and was exposed in this manner to the public and the media. He referred in this respect to Article 3 of the Convention, cited above.

121. The Government claimed that such arrangement in the court room had been justified by security considerations.

122. The applicant maintained that there had been no proper reason to conduct the trial with the applicant placed inside a cage. He had been accused of economic crimes and had no previous criminal record or any history of violence. The decision to try the applicant whilst caged had humiliated him in his own eyes, and had been perceived by the public as a humiliation. The applicant had been brought in the courtroom handcuffed, and had always been guarded by armed men.

123. The Court notes that the practice of placing a criminal defendant in a sort of a “special compartment” in a court room existed and probably continues to exist in several European countries (Armenia, Moldova, Finland). In some countries (such as Spain, Italy, France or Germany) the accused are sometimes placed in a glass cage during the hearing. Such a practice has occasionally been examined in the context of the guarantee of the presumption of innocence under Article 6 § 2 of the Convention (see Auguste v. France, no. 11837/85, Commission Report of 7 June 1990, D.R. 69, p. 104; see also Meerbrey v. Germany, no. 37998/97, Commission decision of 12 January 1998). In recent years the Court has begun to examine the practice also from the standpoint of Article 3 of the Convention. Thus, in the case of Sarban v. Moldova (no. 3456/05, § 90, 4 October 2005) the applicant was brought to court in handcuffs and held in a cage during the hearings, even though he was under guard and was wearing a surgical collar (see, a contrario, the case of Potapov v. Russia ((dec.), no. 14934/03, 1 August 2006). A violation of Article 3 of the Convention was found in a case where the applicant was unjustifiably handcuffed during public hearings (see Gorodnichev v. Russia, no. 52058/99, §§ 105-109, 25 May 2007). Handcuffing of the applicant gave rise to a violation of Article 3 of the Convention in a situation where no serious risks to security could be proved to exist (see Henaf v. France, no. 65436/01, §§ 51 and 56, ECHR 2003-XI; Istratii and Others v. Moldova, nos. 8721/05, 8705/05 and 8742/05, §§ 57 and 58, 27 March 2007).

124. Lastly, in the recent case of Ramishvili and Kokhreidze v. Georgia, (no. 1704/06, §§ 98 et seq., 27 January 2009) the Court, in a very similar factual context, decided as follows:

“...The public watched the applicants [in the courtroom] in ... a metal cage.... Heavily armed guards wearing black hood-like masks were always present ... the hearing was broadcast live .... Such a harsh and hostile appearance of judicial proceedings could lead an average observer to believe that `extremely dangerous criminals' were on trial. Apart from undermining the principle of the presumption of innocence, the disputed treatment in the court room humiliated the applicants .... The Court also accepts the applicants' assertion that the special forces in the courthouse aroused in them feelings of fear, anguish and inferiority ....

The Court notes that, against the applicants' status as public figures, the lack of earlier convictions and their orderly behaviour during the criminal proceedings, the Government have failed to provide any justification for their being placed in a caged dock during the public hearings and the use of `special forces' in the courthouse. Nothing in the case file suggests that there was the slightest risk that the applicants, well-known and apparently quite harmless persons, might abscond or resort to violence during their transfer to the courthouse or at the hearings .....”

This approach was recently confirmed by the Court in the case of Ashot Harutyunyan v. Armenia (no. 34334/04, §§ 126 et seq., 15 June 2010) where the applicant had been kept in a metal cage during the entire proceedings before the Court of Appeal, and where the Court found a violation of Article 3 of the Convention on that account.

125. In the Court's opinion, most of the decisive elements in the Georgian and Armenian cases referred to above were present in the case at hand. Thus, the applicant was accused of non-violent crimes, he had no criminal record, and there was no evidence that he was predisposed to violence. The Government's reference to certain “security risks” was too vague and was not supported by any specific fact. It appears that “the metal cage in the ... courtroom was a permanent installation which served as a dock and that the applicant's placement in it was not necessitated by any real risk of his absconding or resorting to violence but by the simple fact that it was the seat where he, as a defendant in a criminal case, was meant to be seated” (see Ashot Harutyunyan v. Armenia, cited above,

§ 127). Furthermore, the applicant's own safety or the safety of the co- accused was not at stake. Finally, the applicant's trial was covered by almost all major national and international mass media, so the applicant was permanently exposed to the public at large in such a setting. As in Ashot Harutyunyan the Court concludes that “such a harsh appearance of judicial proceedings could lead an average observer to believe that an extremely dangerous criminal was on trial. Furthermore, [the Court] agrees with the applicant that such a form of public exposure humiliated him in his own eyes, if not in those of the public, and aroused in him feelings of inferiority” (§ 128).

126. In sum, the security arrangements in the courtroom, given their cumulative effect, were, in the circumstances, excessive and could have been reasonably perceived by the applicant and the public as humiliating.

There was, therefore, a violation of Article 3 of the Convention in that the treatment was degrading within the meaning of this provision.

III. ALLEGED VIOLATION OF ARTICLE 5 § 1 (b) OF THE CONVENTION

127. Under Article 5 of the Convention the applicant complained that his apprehension in Novosibirsk on 25 October 2003 was contrary to Article 5 § 1 (b) of the Convention, which provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ”

A. The Government's observations

128. The Government indicated in their observations that the applicant had been summoned to the General Prosecutor's office on 24 October 2003. They maintained that the applicant had failed to appear before the investigator without good reason. As a result, the investigator had decided that the applicant should be brought to him for questioning by 5 p.m. However, the applicant had not been at his usual place of residence. As chief executive of his company, the applicant had been capable of organising his working time in such a way as to arrive in time for questioning. Moreover, an aircraft was always at his disposal. His absence from Moscow for business reasons was not an adequate excuse for his failure to attend the General Prosecutor's Office for questioning.

129. The Government further argued that the applicant had not been “arrested” but merely “conveyed” before the investigator, or “subjected to attachment”, or enforced attendance (privod), since Russian law did not provide for the “arrest” (arest) of witnesses. The Government concluded that this measure fell outside the scope of Article 5 of the Convention. The Government denied that the applicant had been brought to Moscow by FSB officers.

130. The Government also noted that on 27 January 2004 the Basmanniy District Court had confirmed the lawfulness of the decision of the investigator to subject the applicant to enforced attendance.

B. The applicant's observations

131. In the applicant's words, being seized at gunpoint at an airport and forcibly returned to Moscow clearly amounted to a deprivation of liberty. If this deprivation was not for a purpose recognised by Article 5 § 1 then there had been an infringement of that Article.

132. The applicant insisted that he had been arrested by FSB officers. The Government's assertion that the FSB had not played any part in arresting him had been contradicted by the ruling of investigator B., which had been sent to the Deputy Director of the FSB, Mr Z., for enforcement. Moreover, at the hearing of 25 October 2003 Mr L., the State prosecutor, had explicitly stated that the ruling had been enforced by FSB officers.

133. Further, it was incorrect to assert that the applicant had been repeatedly summoned and had failed to attend for questioning. He had been summoned once, on 4 July 2003, when he had attended as requested and answered questions. Thereafter he had consistently stated that he would not leave Russia and that he was prepared to answer the GPO's questions. After being questioned in July 2003, the next time that he was summoned for questioning was on Friday 24 October 2003. However, the applicant had left Moscow on Tuesday 21 October 2003 on a highly publicised tour of the Russian regions. On the day the applicant was summoned he had been in a meeting with the Governor of Nizhny Novgorod Region and representatives of President Putin's administration. Staff at the applicant's offices noted on the summons for questioning, issued on 24 October 2003, that the applicant would not be back in Moscow until Tuesday 28 October 2003. A fax to the same effect was also sent by his office to the investigator. By supplying that information the applicant had clearly established legitimate reasons for being unable to appear on the dates requested. In the applicant's view, it was apparent that summoning someone to appear in Moscow at short notice when it was known that he was attending a governmental meeting elsewhere in the country was absurd, and not a bona fide attempt to obtain assistance from a witness. He was not assigned to residence and was perfectly entitled to travel anywhere in the country on business.

C. The Court's assessment

134. The Government claimed in their observations that the applicant had not been “arrested” but merely “subjected to attachment”. However, this distinction is irrelevant, since, for the purposes of the Convention, he was deprived of his liberty: the “attachment” lasted many hours, excluded any possibility for the applicant to leave, and served the purpose of bringing him for questioning. In Convention terms he was thus deprived of liberty in order “to secure the fulfilment of an obligation prescribed by law”. That situation thus falls to be examined under Article 5 § 1 (b).

135. This deprivation of liberty must be “lawful”. “Lawful” means essentially compliant with domestic law (see Nowicka v. Poland, no. 30218/96, § 58, 3 December 2002). The Court observes that a Russian court found the apprehension lawful: the law permits a witness who fails to turn up for no good reason to be seized, and the court rejected the reason provided by the applicant, namely a business trip. That conclusion is not unreasonable. The Court accepts that domestic authorities have a certain margin of appreciation in assessing such matters. The Court thus concludes that the applicant's apprehension had a basis in the Russian law.

136. At the same time, the Court reiterates that Article 5 § 1 requires in addition that any deprivation of must respect the guarantees provided by Article 5, and to protect individuals from arbitrariness. An arrest will only be acceptable in the Convention terms if “the obligation prescribed by law” cannot be fulfilled by milder means (see McVeigh and Others v. the United Kingdom, nos. 8022/77, 8025/77, and 8027/77, Commission's report of 18 March 1981, Decisions and Reports (DR) 25, p. 15). Or, to paraphrase the case of Vasileva v. Denmark, there must be a balance between the public interest in complying with the obligation, and the private interest in staying free (no. 52792/99, § 37, 25 September 2003).

137. The Court accepts that where a witness fails to turn up for questioning for no good reason, he may be brought to the investigator or to the court by force. However, the decision-making process in such matters, where the person's liberty is at stake, should not be overly formalistic, and should take into account all relevant circumstances of the case. Thus, the same reason (a business trip, an illness, a family event, etc.) may be a valid excuse in one context and not in another.

138. The Court finds it established that the applicant was informed about the summons and had 21 hours to return to Moscow, but did not do so. Formally speaking, he missed the questioning, so there was an unfulfilled obligation incumbent on the applicant (see Nowicka v. Poland, cited above,

§ 60). But the Court is not persuaded that this was a sufficient reason for bringing him forcibly to Moscow on the following morning, and for doing so in the manner chosen.

139. First, it is hard to see why the investigator could not wait. By 25 October 2003 the investigation had lasted for several months. The investigator had previously interviewed the applicant, and he would have returned to Moscow in three days. The applicant's previous behaviour did not give rise to any legitimate fear that he would evade questioning on his return. Finally, in case of urgency, the investigator could have asked his Siberian colleagues to interview the applicant on the spot or sent a member of the investigation team there.

140. Secondly, the manner in which the apprehension occurred was unusual. The applicant was arrested like a dangerous criminal rather than a simple witness: an entire police operation involving a group of armedofficers was mounted within a very short time, the applicant was traced to Novosibirsk and arrested on the airfield in the early morning. The Court reiterates in this respect that an arrest must not be punitive (see Vasileva, cited above, § 36).

141. Finally, the timing of the events is worth attention. No sooner had the investigator interviewed the applicant as a witness than he charged him and lodged a 9-page application with the Basmanniy District Court of Moscow requesting the applicant's detention. Such speed suggests that in fact the investigator had been prepared for such a development and wanted the applicant as a defendant, not a witness.

142. The Court reiterates in this respect that an arrest may be unlawful if its outer purpose differs from the real one (see Bozano v. France, 18 December 1986, Series A no. 111, § 60). In the present case, if the applicant had been arrested as a suspect in Novosibirsk, he would have been taken to a local court. Instead, as a witness he was forced to return to Moscow where the General Prosecutor's Office could then be assured that he would be tried in the Basmanniy District Court for the purpose of the detention proceedings. The circumstances of the applicant's arrest show that, albeit formally, he was apprehended as a witness, and despite complying with the letter of the national law, the investigator's real intent was to charge the applicant as a defendant and, thus, to change the venue of the eventual detention proceedings to a more convenient one.

143. In sum, the Court concludes that the applicant's apprehension in Novosibirsk on 25 October 2003 was contrary to Article 5 § 1 (b) of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION

144. The applicant further complained that his detention pending investigation and trial (i.e. between 25 October 2003 and 31 May 2005) had not been imposed or extended by the courts in accordance with a procedure prescribed by law as required by Article 5 § 1 (c) of the Convention. This provision reads:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save 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. The Government's observations

145. The Government maintained that the domestic courts had not breached the domestic law when ordering or extending the applicant's pre- trial detention. As regards the initial detention order (that of 25 October 2003), and the subsequent extensions, it is true that they did not specify the time-period for the detention. However, under Article 109, section 1 of the CCrP pre-trial detention is imposed for a period of up to two months. The law also specified the maximum duration of any extension thereof. The fact that the courts had not indicated the periods of detention did not mean that the applicant had been subjected to an unlimited deprivation of liberty.

146. Furthermore, Article 241, section 2, point 1 of the CCrP allowed the court to conduct proceedings behind closed doors. The prosecutor requested to close proceedings, explaining that some of the materials of the case had to remain secret, that some of the applicant's accomplices were still at large and that they might put pressure on the participants in the trial and thus impede the proceedings. Having discussed the request with the parties the court decided to grant it, in order to protect the rights of the defendant. As from 15 January 2004 the detention hearings were open to the public and since then the course of the proceedings has been widely publicised.

147. As regards the decision of 20 May 2004, the Government indicated that, under the Code of Criminal Procedure, after having received the case from the prosecution, the court had to decide on the measure of restraint to be applied to the accused person during the trial. The Code did not stipulate that the accused or his lawyer had to be present at that stage of the proceedings. On 20 May 2004 the court decided to extend the applicant's detention. That decision was based on the information available from the case file. In addition, the applicant and his defence lawyers had not asked the court to modify or lift the measure of restraint. The Government insisted that the court did not apply the measure of restraint or extend it, but merely decided that it should remain the same.

148. The Government indicated that on 8 June 2004, as a result of the preliminary hearing, the court had made several orders. Among other things, the court decided that there were no grounds to modify the measure of restraint applied to the applicant. Again, this was not a formal extension of the applicant's detention but a mere confirmation of the decision taken earlier. At the hearing of 8 June 2004 the defence did not make an application for release.

149. As to the decision of the Constitutional Court of 8 April 2004 (no. 132-O), the Government indicated that it had been published in the Rossiyskaya Gazeta (the official daily newspaper) only on 9 June 2004. Therefore, the constitutional interpretation of the relevant provisions of the

CCrP became publicly available only after the detention orders by the Meshchanskiy District Court had been delivered.

150. The Government claimed that on 20 May and 8 June 2004 the Meshchanskiy District Court had not imposed or extended the measure of restraint but simply decided that it should have been maintained for a further six months.

151. The Government claimed that on 16 May 2004 the Meshchanskiy District Court had examined the applicant's application for release, but had refused to reconsider the earlier decisions of the Basmanniy District Court, in order not to act as a court of appeal vis-а-vis the latter court.

B. The applicant's observations

152. The applicant maintained that the first detention order (that of 25 October 2003) had been contrary to the domestic law in a number of respects. It had been issued following a hearing that, for no valid reason, had been conducted in camera. The detention order had not specified the period of detention or explained why it was impossible to impose a less severe measure of restraint. Further, the appeal against the detention order had also been unlawfully heard in camera. The second detention order of 23 December 2003 had been deficient for the same reasons.

153. The detention order of 20 May 2004 had been imposed on the initiative of the court and had therefore been contrary to the law. The court's jurisdiction to order detention arose only when an appropriate request had been made by the investigating officer or prosecutor. Furthermore, contrary to rulings of the Constitutional Court of Russia, the authorities had not secured the applicant's presence at the hearing of 20 May 2004. The order had not contained any reasons for his detention. Nor had the detention order of 8 June 2004 contained any reasons.

C. The Court's assessment

154. The main grievance of the applicant in respect of the first two detention orders (of 25 October 2003, confirmed on 11 November 2003 by the court of appeal, and of 23 December 2003) concerns the fact that the hearings in which those orders were imposed were held in private. The Court reiterates its findings in the case of the applicant's co-defendant, Mr Lebedev (Lebedev v. Russia, no. 4493/04, 25 October 2007) where, in reply to a similar complaint by the applicant, the Court ruled as follows:

“82. As regards the fact that the detention hearing of 3 July 2003 was held in private, the Court observes that there is no basis in its case-law to support the applicant's claim that hearings on the lawfulness of pre-trial detention should always be public (see Reinprecht v. Austria, no. 67175/01, 15 November 2005, where the Court examined this issue under Article 5 § 4). The Court sees no reasons to departfrom its case-law in this respect, and concludes that this aspect of the detention proceedings per se does not raise an issue under Article 5 § 3 either.”

155. That being said, the Court notes that it was a requirement of Russian law that the hearings (including the detention hearings) should be in principle public, with exceptions provided by Article 241 of the CCrP, referred to by the Government. In other words, the question of the public nature of the detention proceedings in the case at hand is raised in connection with the “lawfulness” requirement of Article 5 § 1 of the Convention, and not the “procedural fairness” requirement inherently contained in Articles 5 §§ 3 and 4 thereof (see Lebedev v. Russia, cited above, §§ 75 et seq.). In particular, in needs to be established whether the “procedure prescribed by law” allowed the court to hear the detention hearing in private.

156. In many cases the Court has reiterated that the logic of the system of safeguards established by the Convention sets limits on the scope of the review by the Court of the internal “lawfulness” (see Kemmache v. France (no. 3), 24 November 1994, Series A no. 296-C, § 37). Not each and every disregard of the domestic formalities automatically entails a breach of the Convention under Article 5 § 1 - the core task of the Court is to detect manifest cases of arbitrariness (see Jeиius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III). A period of detention will in principle be “lawful” if it is carried out pursuant to a court order (see, among recent authorities, the case of Matyush v. Russia, no. 14850/03, § 68, 9 December 2008), provided that the trial court “had acted within its jurisdiction ... [and] had power to make an appropriate order” (see Korchuganova v. Russia, no. 75039/01, § 62, 8 June 2006).

157. In order to define the standard of assessment of the domestic lawfulness the Court proposed to distinguish between “ex facie invalid” detention orders and other potentially flawed orders, sometimes referring to a comparable distinction existing under English law (cf. Benham, Benham

v. the United Kingdom, 10 June 1996, §§ 43-46, Reports of Judgments and Decisions 1996-III; and Lloyd and Others v. the United Kingdom, nos. 29798/96 and others, §§ 102, 105 et seq., 1 March 2005). Only such breaches of the domestic procedural and material law which amount to a “gross or obvious irregularity” in the exceptional sense indicated by the case-law should attract the Court's attention. The notion of “gross or obvious irregularity” does not lend itself to a precise definition: depending on the circumstances it may include excess of jurisdiction (Marturana v. Italy, no. 63154/00, § 78, 4 March 2008), failure to hear the detainee (Khudoyorov, cited above, § 129, Tбm v. Slovakia, no. 50213/99, §§ 58-59, 22 June 2004), failure to give reasons for the detention (Staљaitis v. Lithuania, no. 47679/99, § 67, 21 March 2002), bad faith on the part of the authorities, etc. (see the recapitulation of the applicable principles in the case of Mooren v. Germany [GC], no. 11364/03, §§ 72 et seq., ECHR 2009-...).

158. Turning to the present case the Court notes that the courts at two instances decided to close the proceedings in order to protect the applicant's own interests. The applicant consistently objected to the closure; in other words, his perception of his interests was quite different from the view of the domestic courts on that point. The Court fails to understand what “interests” the courts sought to protect by excluding the public from the proceedings. The applicant was not a minor or a rape victim; he did not fear publicity, but, on the contrary, sought it. The decision of the domestic courts to hold the proceedings in private was therefore dubious at best, and the courts failed to interpret the relevant legislation correctly.

159. Nevertheless, this did not necessarily make the detention proceedings “unlawful” within the meaning of Article 5 § 1 of the Convention. The Court reiterates that the Convention itself does not require detention proceedings to be public (see the Reinprecht and Lebedev cases, cited above). The standards under Article 5 §§ 3 and 4 cannot automatically be extrapolated to Article 5 § 1: Article 5 paragraph 1 and its paragraphs 3 and 4 are separate provisions and the non-observance of the latter does not necessarily entail also non-observance of the former (compare, for instance, Winterwerp v. the Netherlands, 24 October 1979, § 53, Series A no. 33, and Douiyeb v. the Netherlands [GC], no. 31464/96, § 57, 4 August 1999). The Court cannot overlook the fact that the Convention case-law itself does not include the requirement of a public hearing in the list of “core” procedural guarantees inherent to the notion of “fairness” in the specific context of detention proceedings. By analogy, even if the domestic courts erred in their interpretation of the domestic law and held the proceedings in camera for no good reason, this did not amount to a “gross or obvious irregularity” invalidating the proceedings. It follows that the exclusion of the public from the detention hearings of 25 October and 23 December 2003, and from the appeal hearing of 11 November 2003 did not amount to a breach of Article 5 § 1 of the Convention.

160. The next issue raised by the applicant was the allegedly insufficient reasoning of the three detention orders under examination and the court's failure to indicate the periods for which the detention was imposed and prolonged. The Court reiterates in this respect that both the Convention and the domestic law require that the reasons for detention should be given and other preventive measures should be considered by a court deciding on whether a criminal suspect should be detained or released. The absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time is incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1 (see Staљaitis

v. Lithuania, cited above), especially when coupled with the failure of the court to indicate a time-limit for the detention, directly or by reference to theapplicable provisions of the domestic law (see Nakhmanovich v. Russia, no. 55669/00, § 71, 2 March 2006).

161. The Court observes that the detention orders under examination contained some reasoning. Even if that reasoning was flawed or, in the applicant's opinion, insufficient, those orders cannot be characterised by any standard as “arbitrary” (see Moskovets v. Russia, no. 14370/03, § 59, 23 April 2009). The sufficiency and relevance of the reasons relied on by the domestic courts will be discussed below from the standpoint of Article 5 § 3 of the Convention, but this does not deprive the detention orders of their “lawful” character under Article 5 § 1 of the Convention.

162. The Court finally observes that no time-limits for the applicant's detention were set out in the court's detention orders of 25 October and 23 December 2003. Furthermore, those decisions did not refer explicitly to Article 109, section 1 of the CCrP, which fixes the maximum duration of the pre-trial detention and any extension thereof. That omission is regrettable. However, in the circumstance it did not amount to a “gross or obvious irregularity”, especially given that the applicant was well- represented and the maximum duration of a detention order could have been easily ascertained from the law, which was accessible to the applicant.

163. In sum, the Court concludes that the applicant's detention imposed on 25 October 2003, and extended on 23 December 2003 and 19 March 2004, was lawful, and was imposed in accordance with a procedure prescribed by law. There was no violation of Article 5 § 1 of the Convention on that account.

164. As regards the applicant's detention after 20 May 2004, the Court notes that, unlike the first three detention orders, the detention order of 20 May 2004 did not contain any reasoning at all. In principle, depending on the type of detention involved and other relevant factors, the absence of reasoning in a detention order may give rise to a violation of Article 5 § 1 of the Convention (see Nakhmanovich v. Russia, cited above; see also Belevitskiy v. Russia, no. 72967/01, § 91, 1 March 2007; and Bakhmutskiy v. Russia, no. 36932/02, §§ 111 et seq., 25 June 2009; cf. with Liu v. Russia, no. 42086/05, § 81, 6 December 2007).

165. That being said, the Court notes that the applicant's complaint under Article 5 § 1 overlaps to a large extent with his complaint under Article 5 § 3 about the authorities' failure to adduce relevant and sufficient reasons justifying the extensions of his detention pending criminal proceedings. The Court reiterates that Article 5 § 1 (c) is mostly concerned with the existence of a lawful basis for a detention within criminal proceedings, whereas Article 5 § 3 deals with the possible justification for such detention. The Court deems is more appropriate to deal with this complaint under Article 5 § 3 of the Convention. In so far as the applicant complained that the detention proceedings in his case were incompatible with the procedural requirements of the domestic law, the Court will addressthose complaints under Article 5 § 4 of the Convention, which guarantees the right to judicial review of the lawfulness of the detention.

V. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

166. The applicant complained that his detention was not justified and had thus exceeded the “reasonable time” requirement of Article 5 § 3 of the Convention. This provision reads:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. The Government's observations

167. The Government submitted that the applicant's pre-trial detention, ordered by the judge on 25 October 2003, had been warranted by his status as the head of Yukos. In that capacity he was able to influence witnesses and other participants in the proceedings and to destroy or conceal evidence, and thus hinder the normal course of the trial or continue his criminal activities. In the subsequent detention orders the courts relied on various reasons which warranted the applicant's detention and supported them with relevant facts. The Government indicated when and on what grounds the applicant's detention pending investigation and trial had been extended. In total it had lasted one year, six months and twenty-one days. Having regard to the amount of materials in the case (434 volumes) the applicant's detention had not exceeded the “reasonable time” requirement of Article 5 § 3 of the Convention.

168. As to alternative measures of restraint, the Government admitted that on 25 October 2003 the applicant's lawyer had asked the court to release the applicant on bail, without, however, indicating its amount. The Basmanniy District Court found that there was no reason to apply that measure of restraint. In the proceedings of 22 December 2003 the defence lawyers did not propose bail.

169. The fact that the applicant's co-defendant, Mr Kraynov, had been released pending trial was, in the Government's opinion, irrelevant. The courts had to assess each individual case separately; having examined the personal situation of Mr Kraynov and the charges against him (which had been less serious than those in respect of the applicant), the court had assessed the risks accordingly and decided to release him.

170. In so far as the use of Ms Artyukhova's note in the detention proceedings was concerned, the Government made the following comments. They confirmed that the documents seized from Ms Artyukhova. in the remand prison after the meeting with her had been added to the case file and referred to by the court as proof of the applicant's intention to exert pressure on witnesses. However, Ms Artyukhova had breached the law and was not therefore covered by the lawyer-client privilege. In the Government's words, the applicant's “written directives” had been de facto aimed at distorting testimonies and other evidence, which could not be regarded as a part of the defence's normal function.

171. The Government referred to Article 34 of the Pre-trial Detention Act which provided that prison officials had a right to search the applicant's lawyer. In the Government's words, the administration of the remand prison had had sufficient reasons to believe that Ms Artyukhova and the applicant's another lawyer, Mr Schmidt (who had been searched on 11 March 2004), were carrying “materials which contained information which could have obstructed the establishment of truth in the criminal case or facilitated criminal acts”. The notes seized by the prison officials from Ms Artyukhova and Mr Schmidt, in the Government's words, were therefore “prohibited goods” within the meaning of Article 34 of the Pre- trial Detention Act.

172. The Government confirmed that a convoy officer was always placed near the applicant in the courtroom. Such a practice was authorised by virtue of the directions issued by the Ministry of Justice. The role of the convoy officer was to observe the applicant, to prevent the applicant from contacting other persons or taking and giving them letters, notes, and other objects. During the breaks in the hearing the applicant was allowed to speak to his lawyers; however, the convoy officer was always present nearby. The applicable rules did not establish any minimal distance between the defendant and the convoy officer in the courtroom.

B. The applicant's observations

173. The applicant submitted that as from the first detention order of 25 October 2003, the reasons put forward for refusing him bail did not meet the “relevant and sufficient” standard of Article 5 § 3. In particular, the detention orders did not address the following submissions by the applicant: that there had been no evidence that he had any reason to abscond; that he had not absconded when his colleagues had been arrested and detained and his offices had been searched; that he had publicly declared that he would face the prosecution and answer questions rather than be forced into exile; that the State had failed to meet the requirement under both domestic and Convention law to explain why less severe measures of restraint were inopportune.

174. The continued detention of the applicant after the preliminary investigation had closed on 25 November 2003 (when the alleged risk of the applicant interfering with witnesses had necessarily abated), was also contrary to Article 5 § 3.

175. As to the second detention order (that of 23 December 2003), the court had failed to meet its statutory obligation to review the necessity for detention when the pre-trial stage of the proceedings had been concluded. It had also failed to address the defence's strong arguments that bail would be appropriate. The applicant's co-accused, Mr Kraynov, had remained at large, and the applicant considered that he should not have been treated differently. The applicant had offered to abide by strict conditions of house arrest, yet the court had failed to consider such a possibility at all in its judgment.

176. As to the admission of Ms Artyukhova's note, the applicant submitted as follows. In his words, the Government claimed that the note indicated that she was to carry out actions which were intended to falsify evidence. However, the applicant, referring to the text of the note, considered that such an interpretation was arbitrary. The note recorded the steps that would reasonably be expected to be undertaken by a lawyer in preparing the case and identifying the issues on which she had to work in the performance of her professional obligations.

177. The applicant alleged that the search of Ms Artyukhova had been unlawful and a blatant violation of the lawyer-client privilege. The record of the search of Ms Artyukhova indicated that the search had been conducted under section 34 of the Pre-trial Detention Act. In accordance with that section, a search could only be conducted if there were sufficient grounds for suspecting individuals of attempting to smuggle in prohibited items, substances or food. It was claimed in the report following Ms Artyukhova's search that the duty officer had seen “the lawyer and the defendant repeatedly passing to each other notepads with some notes, making notes therein from time to time”. There had thus been no legal grounds for conducting the search of Ms Artyukhova because there had been no indication in the report that the officer had witnessed any attempt to pass any prohibited items, substances or food.

178. At the hearing the prosecutor had alleged that the note had been written by the applicant. Thus, at the hearing on 22 December 2003 the prosecutor had argued: “new information has been obtained that Mr Khodorkovskiy passed a note via the lawyer Ms Artyukhova in which he instructs those of his accomplices at liberty to influence witnesses who have made incriminating statements against him”. However, the handwritten note had not been written by the applicant, contrary to the assertions of the prosecutor, as had been conclusively proved by the independent evidence of three handwriting experts.

179. As to the detention orders of 20 May and 8 June 2004, the applicant noted that they did not contain any reasons at all and were thus contrary to Article 5 § 3 of the Convention.

180. On 1 November 2004 the Meshchanskiy District Court ordered that the applicant should be detained for a further three months. In its ruling the court appeared to place very considerable reliance upon the earlier decisions to refuse bail, despite its continuing duty to review the appropriateness of pre-trial detention. There was once again a formalistic recital of matters which the court was said to have considered. Once again there was no reasoned analysis of why it was impossible to apply a less severe measure of restraint. In particular, there was no consideration of the fact that the danger of absconding necessarily receded as the period of detention was extended, of the fact that the trial was under way, and that it was not sufficient to rely on a reasonable suspicion against the applicant. In the next decision the Meshchanskiy Court ordered that the applicant should be detained for a further three months, reciting stereotypical reasoning and failing to address the applicant's arguments.