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

C. The Court's assessment

181. The Court notes that the applicant's pre-trial detention lasted from 25 October 2003 until 31 May 2005, thus amounting to one year, seven months and six days. Given the complexity of the case and the pace of the proceedings, this period does not look unreasonable in itself. However, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. The Court has to examine how the domestic courts justified that period.

1. General principles

182. The Court reiterates that a person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see, as a classic authority, Wemhoff v. Germany, 27 June 1968, Series A no. 7, § 12; Yagci and Sargin v. Turkey, 8 June 1995, Series A no. 319-A, § 52).

183. Under Article 5 of the Convention the presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see, for instance, Castravet v. Moldova, no. 23393/05, § 30, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-...; Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, Series A no. 8, § 4).

184. The Convention case-law has developed four basic acceptable reasons for refusing bail (or any other measure of restraint not related to deprivation of liberty): the risk that the accused will fail to appear for trial (see Stцgmьller v. Austria, 10 November 1969, Series A no. 9, § 15); therisk that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff, cited above, § 14) or commit further offences (see Matznetter v. Austria, 10 November 1969, Series A no. 10, § 9) or cause public disorder (see Letellier v. France, 26 June 1991, Series A no. 207, § 51).

185. Further, the Court has reiterated that shifting the burden of proof to the detained person in matters of detention is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkovv. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions. Arguments for and against release must not be “general and abstract” (see Clooth v. Belgium, 12 December 1991, § 44, Series A no. 225), but contain references to the specific facts and the applicant's personal circumstances justifying his detention (see Panchenko v. Russia, no. 45100/98, § 107, 8 February 2005). Thus, the danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (see W. v. Switzerland, 26 January 1993, Series A no. 254-A, § 33, with further references).

186. The Court further stresses that the existence of a particular risk which may hinder the proper conduct of the proceedings (even if that risk was sufficiently established) does not necessarily mean that the suspect must be detained. The domestic authorities should consider having recourse to other, less intrusive preventive measures or, “at the very minimum, seek to explain in their decisions why such alternatives would not have ensured that the trial would follow its proper course” (see Mishketkul and Othersv. Russia, no. 36911/02, § 57, 24 May 2007; see also see Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005, and Jabіoсski v. Poland, no. 33492/96, § 83, 21 December 2000).

187. The Court finally reiterates that in order to assess the “relevance” and “sufficiency” of the reasons for preventive detention (i.e. detention under Article 5 § 1 (c)) it uses a dynamic approach. Thus, for example, as regards the suspect's presumed potential to interfere with the establishment of the truth, “with the passage of time this ground inevitably becomes lessand less relevant” (see Panchenko cited above, § 103; see also Mullerv. France, 17 March 1997, § 40, Reports 1997-II; and Debboub alias Husseini Ali v. France, no. 37786/97, § 44, 9 November 1999) and even disappears completely with the passing of time (see Letellier v. France, 26 June 1991, § 39, Series A no. 207).

2. Application to the present case

188. The Court observes that the applicant was arrested as a criminal suspect on 25 October 2003. In the first detention order the Basmanniy District Court referred to three particular risks the applicant's release might have posed, namely the risks that the applicant might abscond, interfere with the course of justice, and continue his criminal activity. The facts, referred to by the domestic courts as a proof that such risks existed, were the following: the applicant faced a long prison sentence, he had allegedly been involved in organised criminal activity for a long time, he was a very influential person, he had money abroad and a passport for foreign travel, his presumed accomplices had fled Russia, and the applicant still controlled companies where prospective witnesses continued to work. Furthermore, the court referred to the applicant's personality (without, however, explaining what particular features of the applicant's character increased the likelihood of him fleeing, exerting pressure on witnesses, etc).

189. The Court acknowledges that the logic of the District Court was not flawless (see, for example, the cases of Lind v. Russia, no. 25664/05, § 81, 6 December 2007, with further references, and Korshunov v. Russia, no. 38971/06, § 51, 25 October 2007, where the Court criticised the Russian courts for relying on broadly the same arguments as in the case at hand). However, the Court considers that in choosing a measure of restraint for the first time the courts may rely on relatively loose presumptions (such as the gravity of charges, the suspect's position in society, the nature of the impugned offences, etc.). Furthermore, the exceptional character of the case at hand, where the applicant was one of the richest persons in the country and, unofficially, a politically influential person, should not be disregarded. The Court is aware that the existence of a potential risk, for example, the risk of fleeing or re-offending, cannot be demonstrated with the same degree of certitude as the existence of a fact that has already occurred. This is a fortiori true at the beginning of a criminal investigation, when the prosecuting authorities have less information about the suspect, his connections, the circumstances of the case, etc. It explains why the Court's standard of review of the original detention order is usually quite relaxed (see in this respect the partial inadmissibility decision in the case of the applicant's co-defendant, Lebedev v. Russia, no. 4483/04, 25 November 2004; see also the Court's finding in the case concerning another Yukos top executive, Aleksanyan v. Russia, no. 46468/06, §§ 184-190, 22 December 2008; see also the case of Aleksandr Makarov v. Russia, no. 15217/07,

§ 125, 12 March 2009). Having applied this standard, the Court concludes that the District Court cannot be considered as having erred in its assessment of the evidence but, taking into account the cumulative effect of the elements before it, came to a reasonable conclusion as to the potential risks posed by the applicant.

190. As to the possible alternative measures of restraint, it is regrettable that the District Court did not develop this point further, and did not explain why it was impossible to apply bail, house arrest, etc. However, the Court is mindful that the Russian courts faced the applicant for the first time, and, admittedly, the prosecution had little time to prepare detailed submissions on this point, and in particular, to evaluate the applicant's assets and to define a reasonable amount of bail. In such circumstances the Court is ready to consider the brevity of the formula used by the Basmanniy District Court as an implicit rejection of all alternative preventive measures provided by the domestic legislation.

191. In sum, the Court is prepared to admit that the combination of the above arguments could justify the applicant's detention as a suspect in the criminal proceedings for some time. The question arises whether the arguments adduced by the courts were sufficient to justify the whole period of the applicant's detention in custody.

192. First, the Court observes that the two subsequent detention orders were justified by reference to broadly the same risks as the first one. However, the applicant's personal situation during that period had evolved: he had ceased to exercise managerial functions within the Yukos group and had submitted his travel passports to the investigator. Furthermore, by that time the pre-trial investigation was already over. The closure of the investigation excluded virtually any risk of tampering with material or documentary evidence, and significantly reduced the ability of the applicant to exert pressure on the witnesses, who had already been questioned by the prosecution (see Aleksanyan v. Russia, cited above, § 191). Nevertheless, the Court is prepared to assume that the risks of tampering with evidence existed for some time after the start of the proceedings, at least until the witnesses testified before the court. Furthermore, bearing in mind its subsidiary role in fact-finding, the Court accepts that the applicant remained a rich and influential person with international connections and property abroad, which would have made it relatively easy for him to live in another country.

193. That being said, the Court is struck by the fact that the detention order of 20 May 2004, as well as the decision of 8 June 2004 by which the detention order of 20 May 2004 was confirmed, were not supported by any reason at all. The Court reiterates that it is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Weinsztalv. Poland, no. 43748/98, § 50, 30 May 2006). As a matter of principle, the Court should not guess what the reasons behind a particular detention order could have been - those reasons should be set out in the detention order, especially at the moment when the case passes from the investigation to the trial stage. In the absence of any reasoning in the detention order of 20 May and in the decision of 8 June 2004 the Court concludes that those extensions of the applicant's detention were unjustified.

194. Second, the Court observes that at no point during the whole period of the applicant's detention did the District Court or City Court take the trouble to explain why it was impossible to apply bail or house arrest to the applicant, or to accept “personal sureties”.

195. There is no single standard of reasoning in those matters, and the Court is prepared to tolerate an implicit rejection of the alternative measures at the initial stages of the investigation. However, the time that had elapsed since the applicant's arrest should have given the authorities sufficient time to assess the existing options, to make practical arrangements for their implementation, if any, or to develop more detailed arguments as to why alternative measures would not work. Instead, the Russian courts simply stated that the applicant could not be released. The District Court' reference in the detention order of 19 March 2004 to the fact that Article 109 did not provide for personal sureties was irrelevant: Article 109 concerns extensions of pre-trial detention and it is thus natural that it does not mention other preventive measures. The reference to Article 109 only shows that the court did not seriously consider any preventive measures other than detention.

196. Further, the context of the case was not such as to make the applicant obviously “non-bailable”. The Court reiterates its findings in McKay v. the United Kingdom [GC], no. 543/03, § 46, ECHR 2006-X), where it held that “the Court's case-law has not yet had occasion to consider the very early stage of pre-trial detention [in the context of the `reasonable length' requirement of Article 5 § 3], presumably as, in the great majority of cases, the existence of suspicion provides a sufficient ground for detention and any unavailability of bail has not been seriously challengeable”. The Court acknowledges that in some circumstances, for example where the suspect allegedly belongs to a gang implicated in violent crimes, or, probably, in terrorist cases, the “unavailability of bail” can be self-evident (see, mutatis mutandis, the case of Galuashvili v. Georgia, no. 40008/04, §§ 6 et seq., 17 July 2008; see also Kusyk v. Poland, no. 7347/02, § 37, 24 October 2006, and Celejewski v. Poland, no. 17584/04, §§ 35-37, 4 May 2006), although even in such circumstances detention should not be automatic. However, this approach cannot be applied in casu. The applicant was accused of a number of non-violent crimes; he did not have any criminal record and he lived permanently with his family in Moscow, where he had his main business interests.

197. In sum, the domestic courts ought to have considered whether other, less intrusive, preventive measures could have been applied, and whether they were capable of reducing or removing completely the risks of fleeing, re-offending or obstructing justice. Their failure to do so seriously undermines the Government's contention that the applicant had to be detained throughout the whole period under consideration.

198. Third, the Court is struck by the unqualified reliance by the District Court in the second detention order on the note seized from the applicant's lawyer, Ms Artyukhova. The Court reiterates that respect for lawyer-client confidentiality is equally important in the context of both Article 6 §§ 1 and 3 (c) and Article 5 §§ 3 and 4 of the Convention (see the case of Castravet, cited above; see also, mutatis mutandis, Sakhnovskiy v. Russia [GC], no. 21272/03, § 97, 2 November 2010; see also the Court's findings under Article 8 in the case of Campbell v. the United Kingdom, 25 March 1992, § 48, Series A no. 233). Any interference with privileged material, and, a fortiori, the use of such material against the accused in the proceedings, either detention proceedings or at the main trial, should be exceptional, be justified by a pressing need and will always be subjected to the strictest scrutiny by this Court.

199. As transpires from the wording of the detention order of 23 December 2003 and from the report of the investigator on that incident (see paragraph 42. above), the note was written by Ms Artyukhova during Ms Artyukhova's interview with the applicant and concerned the applicant's criminal case. For any reasonable observer that note should have been a privileged material, at least a priori (see, mutatis mutandis, in the context of searches in lawyers' offices, the cases of Iliya Stefanov v. Bulgaria, no. 65755/01, § 41, 22 May 2008, and Niemietz v. Germany, 16 December 1992, § 37, Series A no. 251-B).

200. Any assumption to the contrary must have been based on some knowledge of the content of that note or of the applicant's conversation with Ms Artyukhova. However, the Government did not claim that the authorities had been aware of what had been discussed in the meeting room. Nor did the behaviour of the applicant and his lawyer during the meetings give rise to any reasonable suspicion of abuse of confidentiality. It is also doubtful whether the prison officials had the power under the domestic law to search the lawyer and in what circumstances. The Court reiterates that any limitations imposed on a criminal defendant in the remand prison, including those concerning his contacts with lawyers, should have a lawful basis and that the law should be sufficiently precise (see, mutatis mutandis, Nolan and K. v. Russia, no. 2512/04, §§ 98-99, 12 February 2009, with further references; see also the judgment of the Russian Constitutional Court of 2010 which makes the same point). The Government did not refer to any provision of Russian law prohibiting a lawyer from keeping notes during meetings with his client, or the client from dictating instructions tohis lawyer or studying materials prepared by the defence lawyer. Various provisions of the Pre-trial Detention Act concerning the perusal of the detainees “correspondence”, and the search of “visitors” carrying “prohibited objects” do not seem to apply to the meetings between the defendant and his lawyer.

201. The Court concludes that Ms Artyukhova's note was to all intents and purposes privileged material, that the authorities had no reasonable cause to believe that the lawyer-client privilege was being abused, and that the note was obtained from Ms Artyukhova deliberately and in an arbitrary fashion. Despite the fact that the seizure of the note constituted an encroachment on Ms Artyukhova's professional secrecy and on the applicant's right to effective legal assistance, the note was admitted in evidence and used by the court to substantiate the second detention order without any discussion as to its admissibility and reliability. Against this background, the question of whether the note objectively contained any unlawful instructions to the applicant's lawyers is not so important.

202. In conclusion the Court finds that in the present case the proceedings in which detention was extended were flawed in many respects: the Russian courts on two occasions failed to indicate reasons for the continued detention of the applicant, they relied on material obtained by way of a violation of the lawyer-client privilege, and never seriously considered other measures of restraint. In such circumstances the Court concludes that the applicant's continuous detention was not justified by compelling reasons outweighing the presumption of liberty. There was therefore a breach of Article 5 § 3 of the Convention on this account.

VI. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION ON ACCOUNT OF PROCEDURAL FLAWS IN THE DETENTION PROCEEDINGS

203. The applicant complained of various defects in the proceedings concerning his detention, namely the detention orders of 25 October 2003, 22-23 December 2003, 20 May, 8 and 16 June 2004. He referred to Article 5 §§ 3 and 4 in this respect. The Court considers that this complaint falls to be examined under paragraph 4 of Article 5 of the Convention, which provides:

“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. The Government's observations

204. The Government submitted that, since the applicant's detention had been ordered and extended in accordance with the domestic law, it had also been in compliance with the procedural requirements of Article 5 of the Convention. In particular, the courts had taken a lawful and justified decision to close the detention hearing to the public at the initial stages of the proceedings; during the trial the detention hearings were held openly.

205. The Government maintained that the defence had had sufficient time to read the case file and prepare for the detention hearing of 22 December 2003. They had learned of the hearing on 19 December 2003; in addition, they had had two hours during the hearing of 22 December 2003 to read the materials of the case file and speak to the applicant. As could be seen from the record of the hearing, the applicant's lawyers had been perfectly aware of all of the documents produced by the prosecution. On the second day of the hearing, on 23 December 2003, the defence had been given an extra one and a half hours to allow them to read additional documents produced by the prosecution. The Government listed fifteen documents which constituted a “major part” of the detention request lodged by the prosecution. According to the Government, the defence had been given access to those documents well in advance of the hearing. The fact that the defence was able to formulate an application for release at the hearing of 23 December 2003 shows that it was perfectly prepared for the hearing.

206. The Government further maintained that the applicant had not complained to the court that he did not have enough time to meet with his lawyers. One of his lawyers had complained in the appeal brief that the applicant was unable to meet the lawyers in the remand prison where he was detained. However, he had received such an opportunity in the courtroom. In general, during the period under consideration the applicant had 505 meetings with his lawyers, which lasted 906 hours in aggregate. He was meeting them almost on a daily basis, except for holidays. In addition, the applicant had 36 visits from his relatives which lasted 40 hours in aggregate. The head of the remand prison refused the applicant permission to meet his lawyers Ms M. and Mr Pr. because de facto they had not been involved in the applicant's legal representation before the first instance court or before the court of appeal.

207. As to the detention proceedings pending trial, the Government maintained as follows. Under the Code of Criminal Procedure, after having received the case from the prosecution, the court must 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 should be present at this stage of the proceedings. On 20 May 2004 the court had decided to extend the applicant's detention. That decision had been based on information available from the case file. In addition, neither the applicant nor his defence lawyers had asked the court to modify or lift the measure of restraint. The Government insisted that the court had not applied the measure of restraint or extended it, but merely decided that it should remain the same.

208. 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 had decided that there were no grounds to alter the measure of restraint applied to the applicant. This was not a formal extension of the applicant's detention, but a mere confirmation of the decision taken earlier. In addition, the applicant could always have lodged a complaint about that decision.

209. As to the absence of the applicant's lawyer, Ms Moskalenko, at the appeal hearings of 21 June and 29 July 2004, the Government confirmed that, indeed, neither she nor the applicant had been present. However, the applicant himself had failed to indicate in his appeal that he had wished to take part in the appeal proceedings in person, although the law (Article 372 part 2 of the CCrP) provided that such an explicit request was necessary. The same was true with regard to appeals lodged by Ms Moskalenko - she did not request in her appeals to be present at the hearing. Nevertheless, Ms Moskalenko was informed about the first appeal hearing by summons, sent to her by fax. The fax was received by one of the lawyers working in her office. On the day of the hearing the court of appeal received a letter from Ms Moskalenko's office, informing it that she was on a business trip to Strasbourg. Given that Ms Moskalenko did not lodge any written request for her personal presence at the appellate hearing, or for the adjournment of the appeal hearing, it was decided to hold it in her absence. As regards the appeal hearing of 29 July 2004, the Government indicated that Ms Moskalenko had been informed about it by telephone. The authorities had not been informed of the reasons which prevented Ms Moskalenko from attending the second hearing. At the same time, other lawyers for the applicant were present at that hearing, namely Ms Liptser, Ms Lvova and Mr Rivkin.

B. The applicant's observations

210. The applicant maintained his complaints that the detention hearings in his case had not complied with the minimum procedural requirements. More specifically, as regards the second detention order, the GPO's request to extend the term of detention had been filed with the court (though not served on the applicant's lawyers) on Tuesday, 16 December 2003; the applicant's lawyers had been told at the close of business on Friday, 19 December 2003, that there would be a hearing on Monday, 22 December 2003. The GPO request had run to over three hundred pages. Theapplicant's lawyers had not received a copy of the request until the second day of the bail hearing, that is, 23 December 2003.

211. The District Court had initially indicated that it wished to move the proceedings to the remand prison. The court had refused to hear the request in public. The court had refused the applicant's requests for a relatively short adjournment until 24 December 2003. Mr Padva, for the applicant, had explained that he had been unable to meet with his client and had not been given sufficient opportunity to review the prosecutor's request. Ms Moskalenko, also for the applicant, had explained that the necessity for an adjournment was even greater for her as she had only been retained that day. The applicant had himself addressed the court and asked for an adjournment so that he could consult with his lawyers and review the prosecution materials. The judge had refused to adjourn the hearing to 24 December 2003 and had granted only a two-hour adjournment. No reasoning had been given at all for that decision. The very short adjournment had not permitted the applicant to consult his lawyers in private; nor had it allowed sufficient time for his lawyers to review the prosecution material.

212. The applicant, contrary to the principle of equality of arms, had been unable to prepare written submissions in response to the very detailed and lengthy prosecution petition and documents. Thus, Ms Moskalenko's written submissions to the court had remained incomplete.

213. The applicant further noted that the Government had not challenged his claim that during the adjournment he had had to speak to his lawyers in the presence of guards and the district court personnel. These difficulties had been compounded by the fact that the applicant was incarcerated in an iron cage.

214. As to the hearing on 20 May 2004, the applicant submitted that it had not complied with domestic law and that the absence of his lawyers had inevitably meant that the proceedings were not adversarial. The applicant considered that Article 5 § 4 was applicable to the hearing on 20 May 2004, contrary to what the Government seemed to be suggesting. As to the appeal hearings on 21 June and 29 July, the applicant submitted that his lawyer's absence from them necessarily led to the conclusion that they were incompatible with the requirement of adversarial proceedings.

215. Moreover, he submitted that he had wished to be represented at the hearings by his lawyer. The Ruling of the Constitutional Court of Russia of 22 March 2005 held that the presence of a detainee at a hearing concerning his detention was required in all circumstances, irrespective of whether the court was imposing or extending the detention or confirming its lawfulness. On 21 June 2004 (the hearing of the appeal against the 20 May 2004 detention order), the applicant's lawyer, Ms Moskalenko, had been absent from the appeal hearing as she had been working in Strasbourg for two days. The court had been notified of that fact, but had nonetheless decided to proceed in her absence. The Government had submitted the notification from Ms Moskalenko's office informing the Court that Ms Moskalenko was in Strasbourg. The purported endorsement on the certificate to the effect that Ms Moskalenko did not have a lawyer-client agreement was incorrect. Further, the identity of the signatory to the endorsement was unclear and the identity had not been provided by the Government. The court had proceeded to hear the appeal filed by Ms Moskalenko in her absence and, in the absence of the applicant but in the presence of the prosecutor, who had advanced oral arguments. In such circumstances, the applicant submitted that the hearing had been incompatible with the requirement of adversarial proceedings and equality of arms.

216. On 19 July 2004 Ms Moskalenko had attended the Moscow City Court and provided proof of her authority to act. The Moscow City Court had adjourned the hearing of Ms Moskalenko's appeal against the detention order of 8 June 2004. The hearing had resumed on 29 July 2004 but had been heard in the absence of both the applicant and his lawyer, Ms Moskalenko, notwithstanding the fact that the court had been notified that Ms Moskalenko had been taken into hospital. The Moscow City Court had heard oral argument from the prosecutor. Accordingly, the applicant submitted that the hearing had been manifestly incompatible with the requirement of adversarial proceedings and equality of arms.

217. The applicant further maintained that the detention orders of 20 May and 8 June 2004 had not contained any reasoning. For the applicant, it was axiomatic that for there to be an effective appeal the accused had to know the reasons for the decision at first instance.

218. As to the court's decision of 16 June 2004, the applicant made the following submissions. The Meshchanskiy District Court had dismissed the applicant's application for release, stating that it had no jurisdiction under Article 255 of the CCrP to alter the decision of the Basmanny District Court that the applicant should be detained. However, Article 255 of the CCrP expressly permitted the trial court to select or modify the measure of restraint. Further, the Constitutional Court had made clear in its Decree of 22 March 2005 that the domestic courts had a continuing duty, throughout the pre-trial period, to determine the appropriate measure of restraint. Even if, contrary to the express provisions of the CCrP and the guidance of the Constitutional Court, there was a jurisdictional bar, such a limitation would be contrary to Article 5 § 1 (see Jecius v Lithuania, no. 34578/97, 31 July 2000, § 60-63). The applicant maintained his argument that the decision of 16 June 2004 was contrary to Article 5 of the Convention.

C. The Court's assessment

219. Article 5 § 4 has been consistently interpreted by the Court as providing certain minimal procedural guarantees to a detainee while thecourt decides on whether the preventive detention should be imposed, extended or cancelled. The outline of the case-law in this respect was made in the Lebedev case, cited above, §§ 75 et seq., which mostly concerned the same detention proceedings as those at the heart of the present case, so the Court will not repeat them.

1. Detention hearing of 25 October 2003

220. Insofar as the first of the two detention hearings is concerned, the applicant complained that it was held in camera. The Court reiterates that there is no basis in the Court's case-law to support the applicant's claim that hearings on the lawfulness of the pre-trial detention should be public (see Reinprecht v. Austria, no. 67175/01, 15 November 2005; see also Lebedev v. Russia, cited above, § 82). Therefore, this aspect of the detention proceedings does not raise any issue under the Convention.

221. The second grievance of the applicant in respect of that first detention hearing concerned the fact that the applicant's lawyer had had little time to prepare written observations. This situation might be regrettable, but it did not put the defence at a significant disadvantage vis-а- vis the prosecution (see, mutatis mutandis, Sanchez-Reisse v. Switzerland, cited above, § 51), because the defence was at least able to present their arguments orally. The nature of the first detention hearing is such that the time to examine the case file and prepare the arguments may be reduced to the very minimum, in order to allow the court to take the decision “speedily”, as Article 5 requires.

222. The applicant further suggested that the courts at two instances had failed to address his arguments militating in favour of his conditional release. In Nikolova v. Bulgaria [GC] (no. 31195/96, ECHR 1999-II) the Court concluded that the courts should not disregard arguments of the defence, insofar as they refer to “concrete facts ... capable of putting in doubt the existence of the conditions essential for the `lawfulness' ... of the deprivation of liberty”. On the other hand, the right to a reasoned decision is not absolute: this guarantee “cannot be understood as requiring a detailed answer to every argument” (Van de Hurk v. the Netherlands, 19 April 1994, Series A no. 288, § 61). In the Court's view, having in mind that the proceedings were at their earliest stage, the relative conciseness of the court's analysis of the circumstances of the case did not make its decisions unintelligible or arbitrary.

223. In sum, the Court concludes that the first detention hearing in the applicant's case was compatible with the minimal procedural requirements inherently contained in Articles 5 § 4 of the Convention.

2. Detention hearing of 22-23 December 2003

224. As regards the second detention hearing (22-23 December 2003), it was also held in private. The Court repeats that, by itself, this characteristic of the detention proceedings is not incompatible with the requirements of Article 5 of the Convention. Furthermore, the detention order of 23 December 2003 was confirmed on 15 January 2004 by the appeal court in a public hearing. Therefore, the Court does not detect any unfairness in respect of this aspect of the proceedings. Other aspects, however, require closer examination.

(a) Access to the prosecution file

225. The applicant claimed that the defence had obtained a full copy of the prosecution's request for detention (which was 300-page long) only on the second day of the hearing. The time allowed by the court (one hour) to examine it and additional documents filed by the prosecution in the course of the first day of the hearing was clearly unsufficient.

226. The Court reiterates that in Lamy v. Belgium the Court found a violation of Article 5 § 4 because the defence had no access to documents which would have enabled the applicant to challenge his detention (judgment of 30 March 1989, § 29, Series A, no. 151). In Garcia Alva

v. Germany (no. 23541/94, § 42, 13 February 2001), the Court held that “information which is essential for the assessment of the lawfulness of a detention should be made available in an appropriate manner to the suspect's lawyer”. In this context the duty of disclosure is not the same as under Article 6 of the Convention; however, the “essential” materials should be made available to the defence some time in advance.

227. The Government in the present case do not seem to contest the applicant's assertion that the file submitted by the prosecution for the detention hearing had run to over three hundred pages. Furthermore, they implicitly acknowledged that while the defence had learned about the prosecution request on 19 December 2003, on Friday, they did not see the file until the day of the hearing (Monday 22 December 2003). Since week- end meetings were not allowed in the remand prison, the defence lawyers could have consulted with their client only in the courtroom. Finally, it is uncontested that the prosecution submitted additional evidence on the second day of the hearing, and the defence obtained only a one-hour adjournment to study it.

228. The Court accepts, in line with the Government's argument, that the defence was aware of the content of some of the documents submitted by the prosecution, for example, of the applicant's own testimonies. Nevertheless, it is difficult for a lawyer to defend his client's interests where the former has only a vague idea of what could be in the materials relied on by the prosecution and submitted to the court. Furthermore, as transpiresfrom the Government's submissions, the file contained some other documents, not available to the defence earlier.

229. The Court is also mindful of the fact that the applicant was represented by a group of skilful lawyers, and that the hearing lasted two days. Most likely, at the end of the second day the defence learned about the main arguments forwarded by the prosecution and became aware of the content of the materials submitted by them. Furthermore, it is also conceivable that not all of the documents in the 300-pages long detention request were strictly relevant. However, in order to ascertain whether that was so the defence team had to work under tremendous time pressure. That time constraint cannot be explained by the urgency of the situation. Whereas in the original detention proceedings the Court was prepared to tolerate some haste (see above, the Court's analysis of the detention proceedings of 25 October 2003), it is not so where the subsequent detention orders are concerned, especially where, as in the case at hand, the preliminary investigation was closed and the case was ready to be transferred to the trial court.

(b) Conditions in which the applicant had to communicate with his lawyers

230. The applicant also complained that during the detention hearings the defence lawyers had been able to communicate with him only in presence of a convoy officer and through the bars of the cage. The Government did not dispute that assertion. They claimed that it was a part of a standard security arrangement taken in every trial pursuant to the instructions of the Ministry of Justice.

231. The Court observes that although the Russian law provided that prison officials should not be able to hear a conversation between a detainee and his lawyer during their meeting in prison, no similar provision existed insofar as the contacts between a defendant and his lawyer in the courtroom were concerned. At least, the Government did not point at any rules or instructions to that end. Quite the contrary, the rules referred to by the Government did not define a minimal distance between the defendant and the convoy officer, leaving it at the officer's discretion. The Court does not know about any specific security considerations which would justify a departure from the general rule of confidentiality of lawyer-client contacts. The Court considers that such a situation, where the conversation between the lawyer and his client in the courtroom can be overheard by a law- enforcement official, irrespective of the particulars of the case, can be an issue under the Convention in itself.

232. Effective legal assistance is inconceivable without respect for lawyer-client confidentiality, which “encourages open and honest communication” between them (see Castravet v. Moldova, no. 23393/05, § 49, 13 March 2007). Moreover, “an interference with the lawyer-client privilege ... does not necessarily require an actual interception or eavesdropping to have taken place. A genuine belief held on reasonable grounds that their discussion was being listened to might be sufficient, in the Court's view, to limit the effectiveness of the assistance which the lawyer could provide” (ibid, § 51). In the present case the applicant had every reason to believe that his conversation with the lawyers might be overheard. Such arrangements represented a serious obstacle for effective legal assistance during the detention proceedings.

(c) Effect of the appeal proceedings

233. Finally, the Court cannot disregard the fact that the detention order of 23 December 2003 was confirmed by the court of appeal at the hearing of 15 January 2004. By that date the defence were well informed about the content of the prosecutor's request for detention, and they had, most likely, met with their client in normal conditions. However, the Court considers that this did not cure the defects of the hearing before the Basmanniy District Court. In the Lebedev judgment the Court noted that the detention order tainted with procedural defects became effective immediately, and it took the appeal court twenty days to review it. Given that lapse of time, the Court refused to accept such a retroactive validation of the procedurally flawed detention order. The same logic applies here. In view of the delays involved (more than two weeks), the appeal hearing of 15 January 2004 was unable to cure the defects of the detention order of 23 December 2004, at least retrospectively.

(d) Conclusions

234. The Court notes that the detention hearing of 22-23 December 2003 was marked by the belated receipt of the detention request and by the defence lawyers' inability to communicate freely with their client. Taking those defects in conjunction, it placed the defence at a serious disadvantage vis-а-vis the prosecution. In such circumstances the Court concludes that the judicial review of the applicant's detention was not compatible with the minimal procedural requirements of Article 5 § 4 of the Convention.

3. Detention hearing of 20 May 2004

235. The Court notes that the detention hearing of 20 May 2004 was held without the attendance of either the applicant or his lawyers or the prosecution. The Court notes that by that time the Constitutional Court in its decision no. 132-O had already interpreted the relevant provisions of the CCrP as giving the accused a right to participate in a hearing where the question of his further detention might eventually be decided. That approach was later confirmed in the Constitutional Court's Ruling no. 4-P of 2005 (both authorities are cited in the “Relevant Domestic Law” part above). The Government claimed that on 20 May 2004 that interpretation had not been known to the Meshchanskiy District Court, since the decision of the Constitutional Court of 8 April was published only on 9 June 2004. However, this argument is irrelevant for the Court's analysis under Article 5 § 4. It is not so important when the position of the Constitutional Court of Russia on the matter became known to the authorities, since the situation under examination was in any event contrary to the requirement of Article 5 § 4 of the Convention. The Court notes that at the hearing of 20 May 2004 the District Court extended the applicant's detention for up to six months, in the first detention order after the receipt of the case-file by the court for the upcoming trial. In such circumstances the applicant should have been given an opportunity to plead his case, either personally, or at least through his lawyers, if not both. As transpires from the materials of the case the applicant was not given such an opportunity, for reasons which remain unknown. The Court concludes that there was a breach of Article 5 § 4 of the Convention on this account.

4. Detention hearing of 8 June 2004

236. It appears that at the hearing of 8 June 2004 the applicant and his lawyers were present and were capable of making submissions. The Court does not detect any other major procedural irregularity which would make this hearing “unfair” within the meaning of Article 5 § 4 of the Convention. The fact that the District Court gave no reasons at that hearing for its decision to keep the applicant in detention has been addressed under Article 5 § 3 above. The Court concludes that the hearing of 8 June 2004 was compatible with Article 5 § 4 of the Convention.

5. The application for release of 16 June 2004

237. At the hearing of 16 June 2004 the applicant lodged an application for release with the Meschanskiy District Court, but the court refused to consider it. The Meschanskiy District Court ruled that it was not competent to review the lawfulness of the detention ordered and extended by the Basmanniy District Court during the investigation and by the Meschanskiy District Court itself on 20 May and 8 June 2004.

238. The Court notes that, indeed, the District Court did not have the competence to review previous detention orders retroactively, as a court of appeal would do. However, nothing prevented the District Court from assessing the need for the applicant's continuing and future detention, since the reasons initially warranting detention might have ceased to exist, and the two previous detention orders contained no reasons at all.

239. The Court observes in this respect that no limitations on the right of review of the continued detention could be derived from the applicable law (see Article 255 of the CCrP, quoted in the “Relevant Domestic Law” above). The CCrP does not establish how often the trial court should returnto the issue of a defendant's pre-trial detention. In principle, the defence may lodge as many applications for release as it wishes.

240. The Convention only guarantees review of the detention “at reasonable intervals” (see, mutatis mutandis, Musiaі v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II). However, such intervals were not established in the domestic law, and the applicant therefore had no clear indication as to when it would be appropriate to lodge a new application for release. Under Russian law the court was entitled to impose detention for up to six months during the trial, but that provision cannot be reasonably construed as establishing a mandatory period of detention. To be detained under Article 5 § 1 (c) for such a long period of time without any possibility for review would be contrary to Article 5 § 4 of the Convention, especially in circumstances where, as in the present case, the two previous detention orders (of 20 May and 8 June 2004) were clearly deficient and did not contain any reason for the continuing detention.

241. The Court concludes that in such circumstances the Meschanskiy District Court ought to have considered the application for release of 16 June 2004, at least in so far as the need for the continuing detention was concerned. By failing to do so the District Court breached the applicant's right under Article 5 § 4 of the Convention.

6. Conclusions

242. The Court finds that the detention hearings of 25 October 2003 and 8 June 2004 were compatible with the minimum procedural guarantees required under Article 5 § 4 of the Convention. In so far as the hearings of 22-23 December 2003, 20 May and 16 June 2004 are concerned, the authorities failed to provide the applicant with an adequate review of the lawfulness of his detention. There was therefore a breach of Article 5 § 4 on that account.

VII. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION ON ACCOUNT OF DELAYS IN THE APPELLATE REVIEW OF THE DETENTION ORDERS

243. The applicant further complains that it took the Moscow City Court too long to hear his appeals against the original detention order (of 25 October 2003) and its two extensions (of 23 December 2003 and 19 March 2004). He referred to Article 5 § 4 of the Convention, cited above.

A. The parties' observations

244. In the Government's opinion, there were no unjustified delays in the examination of the applicant's appeals against the detention orders,given that his appeals had always been sent to the prosecution for comments. The applicant's appeals against the detention orders extending his detention pending trial had always been considered within less than one month of their receipt by the court, that is, within the time-limits stipulated in the domestic legislation. In four instances the appeals had been examined within ten to twenty days of their receipt by the appeal court; in two instances these delays had been longer, but that had been justified in the circumstances.

245. The applicant argued that, contrary to the requirements of domestic law, there had been a significant delay in the appeal hearings concerning the first, second and third detention orders. According to the applicant, consideration of the defence's appeals against the first three detention orders had lasted 17, 23 and 54 days respectively.

B. The Court's assessment

246. The Court reiterates that under Article 5 § 4 a detainee is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily. The Court has already addressed the problem of delays in the appellate review of the detention orders in a number of Russian cases, including the case of Lebedev, cited above (§ 95). When determining whether an application for release was decided “speedily” the Court applies the same approach as with the reasonable time guarantees of Articles 5 § 3 and 6 § 1: it must be determined in the light of the circumstances of the individual case. What is taken into account is the diligence shown by the authorities, the delay attributable to the applicant and any factors causing delay for which the State cannot be held responsible (cf. the cases of Rehbock v. Slovenia, no. 29462/95, §§ 82-88, ECHR 2000-XII); Jablonski v. Poland, no. 33492/96, §§ 91-94, 21 December 2000; and