CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 10 mars 2009

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font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s645ABF3E { font-family:Arial; font-size:8pt; letter-spacing:-0.1pt; vertical-align:super; color:#0069d6 } .sB3E56D84 { margin-top:12pt; margin-left:28.35pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }     GRAND CHAMBER             CASE OF BYKOV v. RUSSIA   (Application no. 4378/02)                     JUDGMENT       STRASBOURG   10 March 2009   This judgment is final but may be subject to editorial revision. In the case of Bykov v. Russia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jean-Paul Costa, President,   Christos Rozakis,   Nicolas Bratza,   Peer Lorenzen,   Françoise Tulkens,   Josep Casadevall,   Ireneu Cabral Barreto,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Ljiljana Mijović,   Dean Spielmann,   David Thór Björgvinsson,   George Nicolaou,   Mirjana Lazarova Trajkovska,   Nona Tsotsoria, judges, and Michael O'Boyle, Deputy Registrar , Having deliberated in private on 18 June 2008 and on 21 January 2009, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 4378/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Anatoliy Petrovich Bykov (“the applicant”), on 21 December 2001. 2.     The applicant was represented by Mr D. Krauss, Professor of Law at Humboldt University, Berlin, and by Mr J.-C. Pastille and Mr G. Padva, lawyers practising in Riga and Moscow respectively. The Russian Government (“the Government”) were initially represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin. 3.     The applicant complained under Article 6 § 1 and Article 8 of the Convention about the covert recording made at his home and its use as evidence in the ensuing criminal proceedings against him. He also alleged that his pre-trial detention was excessively long and not justified for the purposes of Article 5 § 3 of the Convention. 4.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). On 7 September 2006 it was declared partly admissible by a Chamber of that Section composed of the following judges: Christos Rozakis, Loukis Loucaides, Françoise Tulkens, Nina Vajić, Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, and also of Søren Nielsen, Section Registrar. On 22 November 2007 a Chamber of that Section, composed of the following judges: Christos Rozakis, Loukis Loucaides, Nina Vajić, Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann, and also of Søren Nielsen, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 6.     The applicant and the Government each filed written observations on the merits. 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 18 June 2008 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Ms   V. Milinchuk,   Agent , Ms   I. Mayke , Ms   Y. Tsimbalova, Mr   A. Zazulskiy,   Advisers ; (b)     for the applicant Mr   D. Krauss, Mr   J.-C. Pastille,   Counsel , Mr   G. Padva , Ms   J. Kvjatkovska,   Advisers.   The applicant was also present. The Court heard addresses by Mr Krauss and Ms Milinchuk, as well as the answers by Mr Pastille and Ms Milinchuk to questions put to the parties. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1960 and lives in Krasnoyarsk. 9.     From 1997 to 1999 the applicant was chairman of the board of the Krasnoyarsk Aluminium Plant. At the time of his arrest in October 2000 he was a major shareholder and an executive of a corporation called OAO Krasenergomash-Holding and a founder of a number of affiliated firms. He was also a deputy of the Krasnoyarsk Regional Parliamentary Assembly. A.     Covert operation 10.     In September 2000 the applicant allegedly ordered V., a member of his entourage, to kill S., the applicant's former business associate. V. did not comply with the order, but on 18 September 2000 he reported the applicant to the Federal Security Service of the Russian Federation (“the FSB”). On the following day V. handed in the gun which he had allegedly received from the applicant. 11.     On 21 September 2000 the Prosecutor of the Severo-Zapadnyy District of Moscow opened a criminal investigation in respect of the applicant on suspicion of conspiracy to murder. 12.     On 26 and 27 September 2000 the FSB and the police decided to conduct a covert operation to obtain evidence of the applicant's intention to murder S. 13.     On 29 September 2000 the police staged the discovery of two dead men at S.'s home. They officially announced in the media that one of those killed had been identified as S. The other man was his business partner, I. 14.     On 3 October 2000 V., acting on the police's instructions, came to see the applicant at his estate. He carried a hidden radio-transmitting device while a police officer outside received and recorded the transmission. He was received by the applicant in a “guest house”, a part of the estate connected to his personal residence. In accordance with the instructions, V. engaged the applicant in conversation by telling him that he had carried out the assassination. As proof of his accomplishment he handed the applicant several objects taken from S. and I.: a certified copy of a mining project feasibility study marked with a special chemical agent, two watches belonging to S. and I. and 20,000 United States dollars (USD) in cash. At the end of the conversation V. took the cash, as suggested by the applicant. The police obtained a sixteen-minute recording of the dialogue between V. and the applicant. 15.     On 4 October 2000 the applicant's estate was searched. Several watches were seized, including those belonging to S. and I. A chemical analysis was conducted and revealed the presence on the applicant's hands of the chemical agent which had been used to mark the feasibility study. The applicant was arrested. 16.     On 27 February 2001 the applicant complained to the Prosecutor of the Severo-Zapadnyy District of Moscow that his prosecution had been unlawful because it involved numerous procedural violations of his rights, including the unauthorised intrusion into his home and the use of the radio-transmitting device. On 2 March 2001 the prosecutor dismissed his complaint, having found, in particular, that the applicant had let V. into his house voluntarily and that therefore there had been no intrusion. It was also found that no judicial authorisation had been required for the use of the radio-transmitting device because in accordance with the Operational-Search Activities Act, it was only required for the interception of communications transmitted by means of wire channels or mail services, none of which had been employed in the covert operation at issue. B.     Pre-trial detention 17.     Following the applicant's arrest on 4 October 2000, on 6   October 2000 the Deputy Prosecutor of the Severo-Zapadnyy District of Moscow ordered his detention during the investigation, having found that it was “in accordance with the law” and necessary in view of the gravity of the charge and the risk that the applicant might influence witnesses. Further extensions were ordered by the competent prosecutor on 17 November 2000 (until 21   December 2000) and on 15 December 2000 (until 21 March 2001). The reasons for the applicant's continued detention were the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. The applicant appealed against each of these decisions to a court. 18.     On 26 January 2001 the Lefortovskiy District Court of Moscow examined the applicant's appeal against his continued detention on remand and confirmed the lawfulness of his detention. The court referred to the gravity of the charge and noted that this measure had been applied in accordance with the law. The applicant lodged a further appeal, which was also dismissed by the Moscow City Court. 19.     In view of the forthcoming expiry of the term of the applicant's detention, its further extension was ordered by the competent prosecutor, first on 15 March 2001, until 4 April 2001, and then on 21 March 2001, until 4 June 2001, still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. The applicant challenged the extensions before the court. 20.     On 11 April 2001 the Lefortovskiy District Court of Moscow declared that the applicant's detention until 4 June 2001 was lawful and necessary on account of the gravity of the charge. The applicant lodged an appeal with the Moscow City Court, which was dismissed on 15 May 2001. The appeal court considered the applicant's detention lawful and necessary “until the bill of indictment had been submitted or until the applicant's immunity had been confirmed”. 21.     On 22 May 2001 the Deputy Prosecutor General extended the applicant's detention on remand until 4 September 2001, still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. 22.     On 27 August 2001 the case was referred to the Tushinskiy District Court of Moscow. On 7 September 2001 the court scheduled the hearing for 26   September 2001 and authorised the applicant's further detention without indicating any reasons or the length of the extension. On 3 October 2001 the Moscow City Court examined and dismissed an appeal by the applicant, upholding his continued detention without elaborating on the reasons. 23.     On 21 December 2001 the Meshchanskiy District Court of Moscow scheduled the hearing for 4 January 2002 and authorised the applicant's further detention, citing no reasons. The court did not indicate the length of the prospective detention. It again reviewed the lawfulness of the applicant's detention on 4 January 2002 but found that it was still necessary owing to the gravity of the charges and the “circumstances of the case”. An appeal by the applicant to the Moscow City Court was dismissed on 15   January 2002. 24.     Further applications by the applicant for release were examined on 23   January, 6 March, 11 March and 23 April 2002. As before, the Meshchanskiy District Court of Moscow refused his release, citing the gravity of the charge and the risk of his evading trial and influencing the witnesses. The applicant was released on 19 June 2002 following his conviction (see paragraph 45 below). C.     Criminal investigation and trial 25.     On 3 October 2000, immediately after visiting the applicant in the “guest house”, V. was questioned by the investigators. He reported on the contents of his conversation with the applicant and submitted that he had handed him the gun, the watches and the feasibility study. He was subsequently questioned on 12 October, 9 November, 8 December and 18   December 2000. 26.     The applicant was questioned as a suspect for the first time on 4   October 2000. From October to December 2000 he was questioned at least seven times. 27.     On 10 October 2000 the applicant and V. were questioned in a confrontation with each other. The applicant's legal counsel were present at the confrontation. The statements made by the applicant on that occasion were subsequently summarised in the indictment, of which the relevant part reads as follows: “At the confrontation between A.P. Bykov and [V.] on 10 October 2000 Bykov altered, in part, certain substantive details of his previous statements, as follows. [He] claims that he has been acquainted with [V.] for a long time, about 7 years; they have normal relations; the last time he saw him was on 3 October 2000, and before that they had been in contact about two years previously. He has never given any orders or instructions to [V.], including any concerning [S.]. When [V.] came to see him on 3   October 2000 he began to tell him off for coming to him. When he asked [V.] who had told him to kill [S.] he replied that nobody had, he had just wanted to prove to himself that he could do it. He began to comfort [V.], saying that he could help with his father; [he] did not suggest that [V.] flee the town [or] the country, and did not promise to help him financially. He did not instruct [V.] on what to do if [V.] was arrested; he asked him what was going to happen if he was arrested; [V.] said that he would tell how it all happened and would confess to having committed the crime, [and the applicant] approved of that. Concerning K., Bykov stated that this was his partner who lived and worked in Switzerland; he admitted de facto that he had spoken to him on the phone at the beginning of August ... but had given him no directions about [V.]” 28.     On 13 October 2000 the applicant was charged with conspiracy to murder. Subsequently the charges were extended to include conspiracy to acquire, possess and handle firearms. 29.     On 8 December 2000 two appointed linguistic experts examined the recording of the applicant's conversation with V. of 3 October 2000 and answered the following questions put to them: “1.     Is it possible to establish, on the basis of the text of the conversation submitted for examination, the nature of relations between Bykov and [V.], the extent of their closeness, sympathy for each other, subordination; how is it expressed? 2.     Was Bykov's verbal reaction to [V.]'s statement about the 'murder' of [S.] natural assuming he had ordered the murder of [S.]? 3.     Are there any verbal signs indicating that Bykov expressed mistrust about [V.]'s information? 4.     Is it possible to assess Bykov's verbal style as unequivocally aiming at closing the topic, ending the conversation? 5.     Are there any identifiable stylistic, verbal signs of fear (caution) on Bykov's part in relation to [V.]?” 30 .     In respect of the above questions the experts found: –     on question 1, that the applicant and V. had known each other for a long time and had rather close and generally sympathetic relations; that V. had shown subordination to the applicant; that the applicant had played an instructive role in the conversation; –     on question 2, that the applicant's reaction to V.'s information about the accomplished murder was natural and that he had insistently questioned V. on the technical details of its execution; –     on question 3, that the applicant had shown no sign of mistrusting V.'s confession to the murder; –     on question 4, that the applicant had not shown any clear signs of wishing to end or to avoid the conversation; –     on question 5, that the applicant had not shown any fear of V.; on the contrary, V. appeared to be afraid of the applicant. 31.     On 11 January 2001 the investigation was completed and the applicant was allowed access to the case file. 32.     On 27 August 2001 the case was referred to the Tushinskiy District Court of Moscow. 33.     On 22 October 2001 the Tushinskiy District Court declined jurisdiction in favour of the Meshchanskiy District Court of Moscow, having established that the venue of the attempted murder lay within that court's territorial jurisdiction. 34.     On 16 December 2001 V. made a written statement certified by the Russian consulate in the Republic of Cyprus repudiating his statements against the applicant. He submitted that he had made those statements under pressure from S. Two deputies of the State Duma, D. and Y.S., were present at the consulate to witness the repudiation. On the same day they recorded an interview with V. in which he explained that S. had persuaded him to make false statements against the applicant. 35.     On 4 February 2002 the Meshchanskiy District Court of Moscow began examining the charges against the applicant. The applicant pleaded not guilty. At the trial he challenged the admissibility of the recording of his conversation with V. and of all other evidence obtained through the covert operation. He alleged that the police interference had been unlawful and that he had been induced into self-incrimination. Furthermore, he claimed that the recording had involved unauthorised intrusion into his home. He contested the interpretation of the recording by the experts and alleged that nothing in his dialogue with V. disclosed prior knowledge of a murder conspiracy. 36.     During the trial the court dismissed the applicant's objection to the covert operation and admitted as lawfully obtained evidence the recording with its transcript, the linguistic expert report, V.'s statements, and the evidence showing that the applicant had accepted the feasibility study and the watches from V. It dismissed the argument that there had been an unauthorised intrusion into the applicant's premises, having found, firstly, that the applicant had expressed no objection to V.'s visit and, secondly, that their meeting had taken place in the “guest house”, which was intended for business meetings and therefore did not encroach on the applicant's privacy. The court refused to admit as evidence the official records of the search at the applicant's estate because the officers who had conducted the search on 4 October 2000 had not been covered by the authorisation. 37.     The following persons were examined in the oral proceedings before the court: S. explained his relations with the applicant and their conflict of interests in the aluminium industry. He confirmed that he had participated in the covert operation; he also confirmed that in 2001 V. had told him that he had been paid off to withdraw his statements against the applicant. Twenty-five witnesses answered questions concerning the business links of the applicant, V. and S. with the aluminium plant and other businesses in Krasnoyarsk; the relations and connections between them; the existence of the conflict of interests between the applicant and S.; the events of 3   October 2000, namely the arrival of V. at the “guest house”, his conversation with the applicant and the handing of the documents and the watches to the applicant; and the circumstances surrounding V.'s attempted withdrawal of his statements against the applicant. Seven experts were examined: a technical expert gave explanations about the recording of data received by way of a radio-transmitting device; a sound expert explained how a transcript of the recording of the applicant's conversation with V. had been produced; two expert linguists submitted that they had used both the tape and the recording transcript in their examination; an expert psychologist answered questions concerning his findings (evidence subsequently excluded as obtained unlawfully – see paragraph 43 below); and two corroborative experts upheld the conclusions of the expert linguists and the sound experts. Seven attesting witnesses answered questions concerning their participation in various investigative measures: the receipt of the gun handed in by V., the copying of the video and audio tapes, the treatment of the material exhibits with a chemical agent, the “discovery of the corpses” in the operative experiment, and the house search. Four investigation officers were examined: an FSB officer submitted that on 18 September 2000 V. had written a statement in his presence that the applicant had ordered him to kill S., and had handed in the gun; he also explained how the operative experiment had been carried out; two officers of the prosecutor's office and one officer of the Interior Ministry also described the operative experiment and explained how the copies of the recording of the applicant's conversation with V. had been made. 38.     On 15 May 2002 during the court hearing the prosecutor requested to read out the records of the questioning of five witnesses not present at the hearing. The statements made by V. during the pre-trial investigation were among them. 39.     The applicant's counsel said that he had no objections. The court decided to grant the request, having noted that “the court took exhaustive measures to call these witnesses to the court hearing and found that ... V.'s whereabouts could not be established and he could not be called to the courtroom even though a number of operational search measures were taken by the FSB and an enquiry was made to the National Central Bureau of Interpol by the Ministry of the Interior ...”. These statements were admitted as evidence. 40.     The court also examined evidence relating to V.'s attempted withdrawal of his statements against the applicant. It established that during the investigation V. had already complained that pressure had been exerted on him to repudiate his statements against the applicant. It also established that the witness D., who was present at the consulate when V. had repudiated his statements, was a close friend of the applicant. The other witness, Y.S., had arrived at the consulate late and did not see the document before it was certified. 41.     It was also noted that both the applicant and V. had undergone a psychiatric examination during the investigation and both had been found fit to participate in the criminal proceedings. 42.     Other evidence examined by the court included: expert reports produced by chemical, ballistics, linguistic, sound and technical experts; written reports on the operative experiment; V.'s written statement of 18   September 2000; a certified description of the gun handed in by V.; and records of the applicant's confrontation with V. on 20 October 2000. 43 .     The applicant challenged a number of items of evidence, claiming that they had been obtained unlawfully. The court excluded some of them, in particular the expert report by a psychologist who had examined the recording of the applicant's conversation with V. and the police report on the search carried out on 4 October 2000. The attempt to challenge the audio tape containing the recording of the applicant's conversation with V., and the copies of the tape, was not successful and they were admitted as lawfully obtained evidence. 44.     On 19 June 2002 the Meshchanskiy District Court of Moscow gave judgment, finding the applicant guilty of conspiracy to murder and conspiracy to acquire, possess and handle firearms. The finding of guilt was based on the following evidence: the initial statement by V. that the applicant had ordered him to kill S.; the gun V. had handed in; the statements V. had made in front of the applicant when they had been confronted during the questioning on 10 October 2000; numerous witness statements confirming the existence of a conflict between the applicant and S.; and the physical evidence obtained through the covert operation, namely the watches and the feasibility study. Although the recording of the applicant's conversation with V. was played at the hearing, its contents did not feature among the evidence or as part of the court's reasoning. In so far as the record was mentioned in the judgment, the court relied solely on the conclusions of the linguistic experts (see paragraph 30 above) and on several reports confirming that the tape had not been tampered with. 45 .     The court sentenced the applicant to six and a half years' imprisonment and, having deducted the time already spent in pre-trial detention, conditionally released him on five years' probation. 46.     The applicant appealed against the judgment, challenging, inter alia , the admissibility of the evidence obtained through the covert operation and the court's interpretation of the physical evidence and the witnesses' testimonies. 47.     On 1 October 2002 the Moscow City Court upheld the applicant's conviction and dismissed his appeal, including the arguments relating to the admissibility of evidence. 48.     On 22 June 2004 the Supreme Court of the Russian Federation examined the applicant's case in supervisory proceedings. It modified the judgment of 19 June 2002 and the appeal decision of 1 October 2002, redefining the legal classification of one of the offences committed by the applicant. It found the applicant guilty of “incitement to commit a crime involving a murder”, and not “conspiracy to murder”. The rest of the judgment, including the sentence, remained unchanged. II.     RELEVANT DOMESTIC LAW A.     Pre-trial detention 49.     Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (CCrP). 50.     “Preventive measures” or “measures of restraint” included an undertaking not to leave a town or region, personal security, bail and detention on remand (Article 89). A decision to detain someone on remand could be taken by a prosecutor or a court (Articles 11, 89 and 96). 1.     Grounds for detention on remand 51.     When deciding whether to remand an accused in custody, the competent authority was required to consider whether there were “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89). It also had to take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91). 52.     Before 14 March 2001, detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence committed. 2.     Time-limits for detention on remand 53.     The CCrP provided for a distinction between two types of detention on remand: the first being “during the investigation”, that is, while a competent agency – the police or a prosecutor's office – was investigating the case, and the second being “before the court” (or “during the judicial proceedings”), at the judicial stage. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different. 54.     From the date the prosecutor referred the case to the trial court, the defendant's detention was classified as “before the court” (or “during the judicial proceedings”). 55.     Before 14 March 2001 the CCrP did not set any time-limit for detention “during the judicial proceedings”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. B.     Operative experiments 56.     The Operational-Search Activities Act of 12 August 1995 (no.   144 ‑ FZ) provides, in so far as relevant, as follows: Section 6: Operational-search activities “In carrying out investigations the following measures may be taken: ... 9.     supervision of postal, telegraphic and other communications; 10.     telephone interception; 11.     collection of data from technical channels of communication; ... 14.     operative experiments. ... Operational-search activities involving supervision of postal, telegraphic and other communications, telephone interception through [telecommunication companies], and the collection of data from technical channels of communication are to be carried out by technical means by the Federal Security Service and the agencies of the Interior Ministry in accordance with decisions and agreements signed between the agencies involved. ...” Section 8: Conditions governing the performance of operational-search activities “Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning: 1.     the appearance that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory; 2.     persons conspiring to commit, or committing, or having committed an offence whose investigation is mandatory; ... Operative experiments may only be conducted for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons preparing, committing or having committed it. ...” Section 9: Grounds and procedure for judicial authorisation of operational-search activities involving interference with the constitutional rights of individuals “The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused. ... The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons. ...” Section 11: Use of information obtained through operational-search activities “Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...” C.     Evidence in criminal proceedings 57.     Article 69 of the CCrP provided as follows: “... Evidence obtained in breach of the law shall be considered to have no legal force and cannot be relied on as grounds for criminal charges.” The 2001 Code of Criminal Procedure of the Russian Federation, which replaced the CCrP of the Russian Soviet Federative Socialist Republic from 1 July 2002, provides as follows, in so far as relevant: Article 75: Inadmissible evidence “1.     Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings]. ...” Article 235 “... 5.     If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial. ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 58.     The applicant complained that his pre-trial detention had been excessively long and that it had been successively extended without any indication of relevant and sufficient reasons. He relied on Article 5 § 3 of the Convention, which provides as follows: “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.” 59.     The Government submitted that the applicant's detention had not been excessively long and argued that the investigation of his case had taken time because of its complexity and scale. They also claimed that, given his personality, there had been an obvious risk that the applicant might evade prosecution, influence witnesses and obstruct the course of justice, which justified his continued detention. 60.     The applicant maintained his complaint, claiming that the grounds given for his detention and its repeated extension had been unsupported by any reasoning or factual information. 61.     According to the Court's settled case-law, the presumption under Article 5 is in favour of release. As established in Neumeister v. Austria (27   June 1968, § 4, Series A no. 8), 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 conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable. 62.     Continued detention therefore can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI). 63.     The responsibility falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned demand of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. 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, Weinsztal v. Poland, no. 43748/98, § 50, 30 May 2006, and McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006 ‑ X). 64.     The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (see, among other authorities, Letellier v.   France , 26 June 1991, § 35, Series A no. 207, and Yağcı and Sargın v.   Turkey , 8 June 1995, § 50, Series A no. 319-A). In this connection, the Court reiterates that the burden of proof in these matters should not be reversed by making it incumbent on the detained person to demonstrate the existence of reasons warranting his release (see Ilijkov v. Bulgaria , no.   33977/96, § 85, 26 July 2001). 65.     Turning to the instant case, the Court observes that the applicant spent one year, eight months and 15 days in detention before and during his trial. In this period the courts examined the applicant's application for release at least ten times, each time refusing it on the grounds of the gravity of the charges and the likelihood of his fleeing, obstructing the course of justice and exerting pressure on witnesses. However, the judicial decisions did not go any further than listing these grounds, omitting to substantiate them with relevant and sufficient reasons. The Court also notes that with the passing of time the courts' reasoning did not evolve to reflect the developing situation and to verify whether these grounds remained valid at the advanced stage of the proceedings. Moreover, from 7 September 2001 the decisions extending the applicant's detention no longer indicated any time-limits, thus implying that he would remain in detention until the end of the trial. 66.     As regards the Government's argument that the circumstances of the case and the applicant's personality were self-evident for the purpose of justifying his pre-trial detention, the Court does not consider that this in itself absolved the courts from the obligation to set out reasons for coming to this conclusion, in particular in the decisions taken at later stages. It reiterates that where circumstances that could have warranted a person's detention may have existed but were not mentioned in the domestic decisions it is not the Court's task to establish them and to take the place of the national authorities which ruled on the applicant's detention (see Panchenko v. Russia , no. 45100/98, §§ 99 and 105, 8 February 2005, and Ilijkov , cited above, § 86). 67.     The Court therefore finds that the authorities failed to adduce relevant and sufficient reasons to justify extending the applicant's detention pending trial to one year, eight months and 15 days. 68 .     There has therefore been a violation of Article 5 § 3 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 69.     The applicant complained that the covert operation had involved an unlawful intrusion into his home and that the interception and recording of his conversation with V. had interfered with his private life. He alleged a violation of Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 70.     The Government maintained that the covert operation, and in particular the interception and recording of the applicant's conversation with V., had been conducted in accordance with the Operational-Search Activities Act. They claimed that it constituted an “operative experiment” within the meaning of the Act. They further argued that no judicial authorisation had been required for the purposes of the present case because pursuant to section 8 of the Act, it was only required for the interception of communications transmitted by means of wire channels or mail services, none of which had been employed in the covert operation at issue. They also denied that there had been an intrusion into the applicant's home since the “guest house” could not be considered his home, and in any case he had let V. in voluntarily. They further claimed that in the circumstances of the case the covert operation had been indispensable because without the interception of the applicant's conversation with V. it would have been impossible to verify the suspicion that he had committed a serious crime. They contended that the measures taken to investigate the crime had been proportionate to the seriousness of the offence in question. 71.     The applicant maintained, on the contrary, that the covert operation had involved an unlawful and unjustified interference with his right to respect for his private life and home. He claimed that there had been an unlawful intrusion into his home and contested the Government's argument that he had not objected to V.'s entry because his consent had not extended to accepting a police agent on his premises. He also claimed that the recording of his conversation with V. had interfered with his privacy and had therefore required prior judicial authorisation. 72.     The Court notes that it is not in dispute that the measures carried out by the police in the conduct of the covert operation amounted to an interference with the applicant's