CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 avril 2009

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margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sC53D6704 { width:205.01pt; display:inline-block } .s330E12DF { width:11.11pt; display:inline-block } .sE70BCCD1 { width:240.91pt; display:inline-block }     FIRST SECTION         CASE OF MOSKOVETS v. RUSSIA   (Application no. 14370/03)                 JUDGMENT       STRASBOURG   23 April 2009     FINAL   23/07/2009   This judgment may be subject to editorial revision In the case of Moskovets v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 2 April 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 14370/03) 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 Nikita Nikolayevich Moskovets (“the applicant”), on 2 April 2003. 2.     The applicant was represented by Ms T. Klykova, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and Mr A. Savenkov, former Representative and former acting Representative of the Russian Federation at the European Court of Human Rights respectively. 3.     On 18 June 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1977 and is currently serving a prison sentence. A.     The applicant’s arrest and alleged ill-treatment 5.     On 25 December 1999 the applicant was arrested on suspicion of several counts of aggravated murder and taken to a police station. The police officers allegedly intimidated the applicant and forced him to confess. The applicant’s representative was present when the applicant made his confession. 6.     On 26 December 1999 a medical examination was conducted on the applicant. The expert recorded a bruise on the left side of the applicant’s chest and three abrasions on the backs of his hands, which did not cause harm to the applicant’s health. The above injuries were caused in the period from one to three days prior to the examination. The applicant stated that on the night of 24 December 1999 he had tried to stop a fight, and that as a result he had scratched his hand and been punched in the chest. 7.     The applicant sought to have criminal proceedings instituted against the police officers, however his allegations were found to be unsubstantiated. B.     The applicant’s detention pending the investigation 8.     On 28 December 1999 the applicant was detained in custody. 9.     On 3 January 2000 the applicant was charged with murder under Article 105 of the Criminal Code. 10.     On 9 February, 27 March, 6 April and 19 December 2000 the applicant’s detention pending investigation was extended until 18 June, 25   June, 25 September 2000 and 25 February 2001 respectively. The extension orders referred to the particular gravity of the charges against the applicant, the fact that he had no permanent place of residence and that he had previously absconded, thus breaching the preventive measure applied to him in connection with another criminal case. 11.     On 23 February 2001 the investigation was completed, and the case file was submitted to the St. Petersburg City Court for trial. C.     Decision to remit the case for additional investigation and subsequent extensions of the applicant’s detention 12.     On 25 April 2001 the St. Petersburg City Court referred the case back to the prosecution authorities for additional investigation on account of serious breaches of procedure. The court held that the preventive measure applied to the applicant “should remain unchanged”. 13.     On 25 May, 18 June and 11 September 2001 the applicant’s detention pending investigation was extended until 24 June, 26 September 2001 and 26 March 2002 respectively, for the reasons set out above. 14.     On 25 December 2001 the additional investigation was completed and the case was resubmitted to St. Petersburg City Court for trial. D.     The applicant’s detention pending trial 15 .     On 8 January 2002 the St. Petersburg City Court accepted the case for trial and held that the preventive measure applied to the applicant “should remain unchanged”. 16.     Starting from 1 July 2002 the St. Petersburg City Court extended the applicant’s detention every three months. In particular, on 1 July 2002 it extended the applicant’s detention from 1 July 2002 until 1 October 2002; on 24 September 2002 from 30 September until 30 December 2002; on 15   December 2002 from 30 December 2002 until 30 March 2003; on 11   March 2003 from 30 March to 30 June 2003; on 13 May 2003 from 30   June to 30 September 2003; on 4 July 2003 from 30 September to 30   December 2003; on 28 November 2003 from 30 December 2003 until 30   March 2004, and on 26 February 2004 from 30 March 2004 until 20 June 2004. 17 .     The above extension orders concerned the applicant and five other co-defendants. All of the extension orders referred to the gravity of the charges against the applicant and his co-defendants and the risk of their absconding, without providing any further detail. The extension order of 28   November 2003 was more elaborate and, in so far as it concerned the applicant, read as follows: “[The applicant] is charged with particularly serious crimes, including several counts of aggravated murder, committed while under a written undertaking not to leave applied in the framework of another criminal case on the charges of, inter alia , several aggravated murders and other serious and particularly serious crimes ... Even after being detained in custody [the applicant] had committed a crime for which on 26   November 2001 he had been sentenced by St Petersburg Dzerzhinskiy (Tsentralniy) District Court to one year and six months’ imprisonment.” 18.     The applicant appealed to the Supreme Court of Russia against these extension orders. The extension orders of 1 July and 24 September 2002 were found to be unlawful, on 11 November and 2 December 2002 respectively, because in the first case neither the applicant nor his representative were given proper notice of the hearing and, as a consequence, were absent, and in the second case the hearing took place in the absence of the applicant’s representative. The remaining extension orders of 15 December 2002, 11 March, 13 May, 4 July and 28 November 2003, and 26 February 2004, were upheld on appeal by the Supreme Court on 27 March, 4 June, 11 August and 22 September 2003 and on 18 February and 11 May 2004 respectively. 19.     On 11 March 2003 the St Petersburg City Court ex post facto authorised the applicant’s detention from 1 July to 30 December 2002. E.     The applicant’s conviction in an unrelated criminal case 20 .     On 26 November 2001 the Dzerzhinskiy (Tsentralniy) District Court of St Petersburg convicted the applicant of stealing and destruction of official documents and attempted forgery of documents and sentenced him to two years’ imprisonment starting from 26 November 2001. The court further held that the applicant’s detention from 27 September 2000 to 19   July 2001 in the above case should be counted toward the applicant’s prison term. 21.     On 28 February 2002 the St Petersburg City Court commuted the applicant’s sentence to one year and six months’ imprisonment. 22 .     It appears that the applicant completed his sentence in August 2002. F.     The applicant’s trial 23.     Having studied the case file before the completion of the preliminary investigation, in November 2001 the applicant requested that his case be dealt with by one professional and two lay judges. 24.     On 8 January 2002 St Petersburg City Court scheduled the first hearing for 5 August 2002. 25.     On 5 August 2002, however, the proceedings were suspended in view of the necessity to search for Zh. – one of the applicant’s co-defendants. 26.     On 15 December 2002 the proceedings were resumed despite the failure to find Zh. Starting from that date the court was composed of a professional judge, Mr Kurguzov, and two lay judges, Ms D. and Mr S. Prior to that, on 27 September 2002 in accordance with Section 6 of the Lay Judges Act the acting president of the St Petersburg City Court selected 102   lay judges, including Ms D. and Mr S., to sit at the examination of the cases by the St Peterburg City Court; and on 11 November 2002 Judge Kurguzov, to whom the case had been assigned, drew lots between six unidentified lay judges (their names did not appear in the relevant decision) and determined that lay judges Ms D. and Mr S. should sit with him on the bench. 27.     The applicant challenged the composition of the bench. He alleged a breach of rules on the appointment of lay judges in that lay judges Ms D. and Mr S. had not been drawn by lot, contrary to the requirements of the Federal Law on Lay Judges of the Federal Courts of General Jurisdiction ( Федеральный Закон «О народных заседателях федеральных судов общей юрисдикции в Российской Федерации» , “the Lay Judges Act”). However, the applicant’s challenge was dismissed by the court. No breach of the rules governing the calling of lay judges was established. 28.     Of thirty-one hearings scheduled between 15 December 2002 and 19   April 2004 twenty-two were adjourned for various reasons: five due to the submission by the applicant of requests and the prosecution’s need to study the case file, three due to the failure of the guard unit to deliver the applicant and his co-defendants to the court, nine because the lawyers were either sick or absent, three due to the necessity to summon witnesses, and two on the court’s initiative, on the first occasion because the applicant’s co-defendants had agreed to testify at the forthcoming court hearing, and on the second because the applicant had refused to testify. 29.     On 19 April 2004 the applicant again challenged the composition of the bench, without success. 30.     On 30 April 2004 the St. Petersburg City Court convicted the applicant of aggravated murder, theft and fraud and sentenced him to life imprisonment. 31.     On 30 September 2004 the Supreme Court of Russia modified the qualification of the applicant’s crime and left the sentence unchanged. 32.     At the applicant’s request, on 24 April 2008 the Supreme Court of Russia by way of supervisory review modified the qualification of the charges against the applicant and left the sentence unchanged. II.     RELEVANT DOMESTIC LAW A.     Pre-trial detention and time-limits for trial 33.     For a summary of domestic law provisions on pre-trial detention and time-limits for trial see Khudoyorov v. Russia (no. 6847/02, §§ 76-96, ECHR 2005 ‑ X (extracts)). B.     Composition of courts in criminal proceedings 34 .     The Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”) provided that hearings in first-instance courts dealing with criminal cases were to be conducted, subject to certain exceptions, by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as professional judges (Article 15). 35.     The Code of Criminal Procedure of the Russian Federation (Law no.   174-FZ of 18 December 2001, “the new CCrP”) does not provide for participation of non-professional judges in administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the appointment of a trial hearing (Article 30 § 2 (3)). It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1). 36.     The Federal Law on enactment of the new CCrP (Law no. 177-FZ of 18   December 2001) provides as follows: Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction becomes ineffective as from 1   January 2004. Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, becomes effective as from 1 January 2004. Before that date serious crimes should be dealt with by a single professional judge or by one professional and two lay judges if an accused has made such a request prior to the appointment of a trial hearing. C.     Lay judges 1.     General rules on the procedure for the selection of lay judges 37.     On 10 January 2000, the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into effect. Under Section 1 § 2 of the Act, lay judges were persons authorised to sit in civil and criminal cases as non-professional judges. 38 .     Section 2 of the Act provided that lists of lay judges had to be compiled for every district court by local self-government bodies, such lists being subject to validation by the regional legislature. 39 .     Section 5 of the Act determined the procedure for the selection of lay judges for the examination of cases by district courts. It provided that the president of a district court had to draw at random from the list a certain number of lay judges to be called to the competent district court. The number of lay judges assigned to every professional judge had to be at least three times the number of persons needed for a hearing. 40 .     Section 6 of the Act provided that the selection of the lay judges for the examination of cases by regional (city) courts was carried out by the president of the relevant court in accordance with the rules set out by Section 5 of the Act on the basis of the general lists of lay judges of the district courts situated on the territory of the relevant region (city). It further provided that the selection of lay judges for examination of a particular case in a regional (city) court was carried out by the judge to whom the case in question had been assigned in accordance with the rules set out by Section   5 of the Act. 41.     In accordance with Section 9, lay judges were to be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case lasted. Lay judges could not be called more than once a year. 2.     Validation of the general lists of lay judges 42 .     On 18 September 2002 the St Petersburg City Legislature validated the general list of lay judges assigned to the Krasnogvardeyskiy District Court of St Petersburg. The addendum to the above regulation contained the general list of 514 lay judges. 3.     Regulation on appointment of lay judges 43 .     On 14 January 2000 the Presidium of the Supreme Court of Russia on the basis of Section 5 of the Lay Judges Act issued a regulation on the procedure for selection of lay judges. The regulation provided that the president of a district court should draw at random from the general list of lay judges 156 names for each judge. The lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned. D.     Reopening of the proceedings following a finding of a violation by the Court 44.     The new CCrP provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights ( Article 413 ). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION 45.     The applicant complained under Article 5 § 1 (c) of the Convention that his detention had not been lawful. The relevant parts of Article 5 read as follows: “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.     Submissions by the parties 46.     The Government submitted that the applicant’s detention from 1   July to 1 October 2002 had been lawful even though the relevant extension order had subsequently been quashed on appeal, on 11 November 2002. The detention was extended by the court having the power to do so and in full compliance with the time-limits set out in the domestic law. The quashing of the extension order in question was carried out on procedural grounds, and it did not affect the lawfulness of the applicant’s detention in the relevant period. In any event, the Government considered that the ruling of 11 November 2002 had affected the applicant’s status as a victim and made available to the applicant the possibility of claiming compensation in separate civil proceedings for the non-pecuniary damage caused by the unlawful deprivation of liberty, as provided by Articles 1070 and 1100 of the Civil Code. The Government further noted that on 24 September 2002 the applicant’s detention was extended until 30 December 2002. On 2   December 2002 the above extension order was quashed on appeal. This situation, however, had been subsequently rectified by the St Petersburg City Court which on 11 March 2003 authorised the applicant’s detention in the period from 1 July to 30 December 2002. As regards the subsequent detention orders, the Government submitted that they had been issued in full compliance with the procedure prescribed by domestic law. 47.     The applicant maintained his position in respect of the entire period of detention and submitted, in particular, that his detention in the period from 1 July to 2 December 2002 had been unlawful and that the relevant detention orders of 1 July and 24 September 2002 had been ex facie invalid. In particular, the extension of 1 July 2002 had been issued without either he or his representative being given proper notice of the hearing, and the extension order of 24 September 2002 without the lawyer being present at the hearing. He further submitted that his detention in the period from 2   December to 30 December 2002 had also been unlawful in the absence of any valid decision authorising his detention in the relevant period. B.     The Court’s assessment 1.     Admissibility 48.     The Court observes at the outset that a part of the applicant’s complaint concerning the lawfulness of all detention orders refers to a period of pre-trial detention which ended more than six months before he lodged the application with the Court on 2 April 2003. The most recent period of detention that the Court may examine commenced on 1 July 2002. The Court therefore considers that the part of the applicant’s complaint concerning the detention orders issued before 1 July 2002 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Vladimir Solovyev v. Russia , no. 2708/02, § 83, 24 May 2007). 49.     The Court notes the Government’s argument about the applicant’s having lost his status as a victim and his failure to exhaust domestic remedies in so far as his detention in the period from 1 July to 1 October 2002 is concerned. 50.     As regards the applicant’s victim status, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive the applicant of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France , 25   June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). In the present case, however, although the domestic courts acknowledged the unlawfulness of the applicant’s detention from 1 July to 1 October 2002 by quashing the extension order of 1   July 2002, by the time the quashing took place, on 11 November 2002, the applicant had already spent three months in detention as a result of the unlawful order, and no compensation was offered by the authorities in this respect. The Court therefore concludes that the applicant can still claim to be a “victim” within the meaning of Article   34 of the Convention. 51.     In so far as the argument about the applicant’s failure to apply for compensation is concerned, the Court reiterates that the right not to be deprived of one’s liberty “save in accordance with a procedure prescribed by law” is not the same as the right to receive compensation for detention. Paragraph 1 of Article 5 of the Convention covers the former and paragraph   5 of Article 5 the latter. The court invited to rule on an action for damages caused by unlawful detention examines the matter after the events and therefore does not have jurisdiction to order release if the detention is unlawful, as Article 5 § 4 requires it should (see Weeks v. the United Kingdom , 2 March 1987, § 61, Series A no. 114). A civil action for damages has accordingly no bearing on the question of exhaustion of domestic remedies in respect of the applicant’s complaint under Article 5 § 1 (see Belchev v. Bulgaria (dec.), no. 39270/98, 6 February 2003; Nakhmanovich v. Russia (dec.), no. 55669/00, 28 October 2004; and, most recently, Shcheglyuk v. Russia , no. 7649/02, § 34, 14 December 2006). The Government’s objection must therefore be dismissed. 52.     The Court notes, therefore, that the remainder of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits (a)     General principles 53.     The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Khudoyorov , cited above, § 124, and Fedotov v.   Russia , no. 5140/02, § 74, 25 October 2005). 54.     The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Ječius v. Lithuania , no. 34578/97, § 56, ECHR 2000-IX, and Baranowski v.   Poland , no. 28358/95, §§ 50-52, ECHR 2000-III). (b)     Application to the present case (i)     Applicant’s detention from 1 July to 2 December 2002 55.     The Court observes that on 1 July 2002 St Petersburg City Court extended the applicant’s detention until 1 October 2002. On 11 November 2002 the Supreme Court quashed the above decision, because neither the applicant nor his representative had been given proper notice of the hearing and had been absent as a result, and ordered a re-examination of his detention in respect of the above period. 56.     The Court further observes that on 24 September 2002 St Petersburg City Court extended the applicant’s detention from 30 September to 30   December 2002. On 2 December 2002, however, the Supreme Court quashed the above decision because the applicant’s representative was absent from the hearing and ordered a re-examination of his detention in respect of the above period. 57.     The issue to be determined is whether the applicant’s detention in the above periods was “lawful”, including whether it complied with “a procedure prescribed by law”. The Court reiterates that a period of detention will in principle be lawful if served pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily affect retrospectively the validity of the intervening period of detention. 58.     In the present case the Court will consider whether the detention order of 1   July 2002 constituted a lawful basis for the applicant’s detention until 1 October 2002, and whether the detention order of 24 September 2002 constituted a lawful basis for the applicant’s detention until its quashing on 2   December 2002. The mere fact that the orders were set aside on appeal did not in itself affect the lawfulness of the detention in the preceding periods (see Benham v. the United Kingdom , 10 June 1996, §§ 43 and 46, Reports 1996-III). 59.     It has not been alleged that on 1 July and 24 September 2002 the City Court acted in excess of its jurisdiction. Indeed, as a matter of domestic law, it had the authority to examine the issue of extension of the applicant’s detention and to grant further extensions, not exceeding three months. Furthermore, the Court finds that the applicant’s detention on the basis of the orders of 1 July and 24 September 2002 cannot be said to have been arbitrary as the court gave certain grounds justifying the continued detention on remand. The sufficiency and relevance of these grounds will be discussed below from the standpoint of Article 5 § 3 of the Convention. 60.     It has not therefore been established that, in issuing the detention orders of 1 July and 24 September 2002, the City Court acted in bad faith, or that it neglected to attempt to apply the relevant legislation correctly. The fact that certain flaws in the procedure were found on appeal does not in itself mean that the detention was unlawful (see Vladimir Solovyev v.   Russia , no. 2708/02, § 93, 24 May 2007, and Khudoyorov , cited above, §   132, with further references). 61.     In these circumstances, the Court finds that there was no violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention on remand from 1 July to 2 December 2002. (ii)     Applicant’s detention from 2 December to 30 December 2002 62.     The Court notes that on 2 December 2002 the Supreme Court, having quashed the City Court’s decision of 24 September 2002, ordered a re-examination of the applicant’s detention. On 15 December 2002, while the re-examination proceedings were still pending, the City Court extended the applicant’s detention on remand from 30 December 2002 to 30 March 2003. 63.     The Court further observes that on 11 March 2003 the St Petersburg City Court ex post facto authorised the applicant’s detention from 1 July to 30   December 2002. It follows, therefore, that for almost a month from 2   December to 30 December 2002 there was no valid decision authorising the applicant’s detention. 64.     The Court considers that the decision of the St Petersburg City Court of 11   March 2003 did not constitute a “lawful” basis for the applicant’s detention from 2 December to 30 December 2002. The Government did not indicate any domestic legal provision that permitted a decision to be taken authorising a period of detention retrospectively. Furthermore, the Court reiterates that any ex post facto authorisation of detention on remand is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see Khudoyorov , cited above, § 142; Vladimir Solovyev , cited above, § 99; and Shukhardin v. Russia , no. 65734/01, §   69, 28 June 2007). 65.     The Court therefore considers that there was a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention on remand from 2 December to 30 December 2002. (iii)     Applicant’s detention from 30 December 2002 to 30 April 2004 66.     The Court observes that in the period from 30 December 2002 to 30   April 2004 the applicant’s detention was extended by the St Petersburg City Court on six occasions. 67.     The Court reiterates that the trial court’s decision to maintain a custodial measure would not breach Article 5 § 1 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). 68.     In the present case the trial court acted within its powers in making the above decisions, and there is nothing to suggest that they were invalid or unlawful under domestic law. The question whether the reasons for the decisions were sufficient and relevant is analysed below in connection with the issue of compliance with Article 5 § 3. 69.     Accordingly, the Court finds that there has been no violation of Article   5 § 1 (c) of the Convention in respect of the detention orders issued in the period from 30 December 2002 to 30 April 2004. II.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 70.     The applicant complained under Article 5 § 3 of the Convention that the duration of his pre-trial detention had been in breach of the reasonable-time requirement. Article 5 § 3 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.” A.     Submissions by the parties 71.     The Government submitted that the period of the applicant’s detention had been reasonable, that it had been in accordance with the national legislation and had been based on relevant and sufficient grounds: the applicant was accused of having committed several grave crimes; he had no permanent residence and had previously breached another preventive measure. Besides, the applicant had committed a number of especially serious crimes in the period of application to him, within another criminal case, of restraint in the form of a written undertaking not to leave, and a number of crimes while he was in the pre-trial detention facility. In these circumstances the application of a more lenient preventive measure would have represented a real threat to others, as well as to the prompt administration of justice. 72.     The applicant submitted that his pre-trial detention had lasted four years, four months and five days from 25 December 1999 to 30 April 2004. He agreed that until 25 December 2001 his detention had been justified by the reasonable suspicion that he had committed several murders. However, with the lapse of time this ground became less relevant, and the domestic court should have put forward more weighty grounds justifying his continued detention. The applicant drew the Court’s attention to the fact that on 8 January 2002 St Petersburg City Court ordered that the preventive measure applied to the applicant should remain unchanged, without citing any particular reason for that decision. The subsequent extension orders referred solely to the gravity of the charges against the applicant and the risk of him absconding and also concerned five other co-defendants without regard to their individual situation. The applicant therefore concluded that his continued detention had not been based on relevant and sufficient grounds, and that the domestic court had failed to show particular diligence in deciding this matter. B.     The Court’s assessment 1.     Admissibility 73.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits (a)     General principles 74.     The Court reiterates that 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. However after a certain lapse of time it no longer suffices. In such cases the Court must 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 ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV). 75.     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 and 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 his provisional release once his continuing detention ceases to be reasonable (see, among other authorities, 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, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria , no. 38822/97, §   66, ECHR 2003-I (extracts)). 76.     It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters 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 Ilijkov v. 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 dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities who ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the true facts mentioned 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 of the Convention (see Korchuganova, cited above, § 72; Ilijkov, cited above, § 86; and Labita , cited above, § 152). (b)     Application to the present case (i)     Period to be taken into consideration 77.     The Court observes that Article 5 § 3 applies solely in the situation envisaged in Article 5 § 1 (c) with which it forms a whole. It ceases to apply on the day when the charge is determined, even if only by a court of first instance, as from that day on the person is detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a) (see Solmaz v.   Turkey , no. 27561/02, §§ 24-26, ECHR 2007-..., and B. v. Austria , 28   March 1990, §§ 36-39, Series A no. 175). 78.     The applicant was arrested on 25 December 1999 on suspicion of several counts of murder and was held in custody until his conviction by the first-instance court on 30 April 2004. During part of that period, from 26   November 2001 to August 2002, he was concurrently serving his sentence after conviction in an unrelated criminal case (see paragraphs 20-22 above). The Court must verify which subparagraph of Article 5 § 1 was applicable during that period with a view to determining whether it should be taken into consideration for the purposes of Article 5 § 3. 79 .     The Court reiterates in this connection that the applicability of one ground listed in Article 5 § 1 does not necessarily preclude the applicability of another and detention may be justified under more than one sub-paragraph of that provision (see, among many others, Brand v. the Netherlands , no. 49902/99, § 58, 11 May 2004, and Johnson v. the United Kingdom , 24 October 1997, § 58, Reports 1997-VII). In particular, in the case of Eriksen v. Norway , the Court considered that the applicant’s detention was justified under both sub-paragraphs (a) and (c) of Article   5   §   1 and found that Article 5 § 3 was applicable (see Eriksen v. Norway , 27   May 1997, § 92, Reports 1997-III). 80 .     In the present case, on 26 November 2001 the applicant was convicted in an unrelated criminal case and sentenced to a term of imprisonment which he completed in August 2002. During that period he was detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a). At the same time, he was held in custody in connection with another set of criminal proceedings for the purpose of bringing him before the competent legal authority on suspicion of several counts of murder, a situation envisaged in Article 5 § 1 (c). It accordingly follows that, from 26 November 2001 to August 2002, the applicant’s deprivation of liberty fell within the ambit of both sub-paragraphs (a) and (c) of Article   5   §   1. Taking into account that the applicant was detained on the basis of Article 5 § 1 (c), and notwithstanding the fact that his detention was also grounded on Article 5 § 1 (a), the Court considers that this period should be taken into consideration for the purposes of Article 5 § 3. Therefore, the applicant has been continuously detained pending trial on the charges of several counts of murder, since his arrest on 25 December 1999 until his conviction by the first-instance court on 30 April 2004. The period to be taken into consideration therefore lasted approximately four years and four months. (ii)     Reasonableness of the length of the period in issue 81.     It is not disputed by the parties that the applicant’s detention was initially warranted by a reasonable suspicion of his having committed several murders. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings. The inordinate length of the applicant’s detention is a matter of grave concern for the Court. In these circumstances, the Russian authorities should have put forward very weighty reasons for keeping the applicant in detention. 82.     The Court observes that after the case had been submitted for trial in December 2001, on 8 January 2002 the applicant’s detention was maintained with no reference to any grounds for continued detention. The City Court only noted that the preventive measure applied to the applicant “should remain unchanged” (see paragraph 15 above). Subsequently, in the period from 1 July 2002 to 30 April 2004 the court extended the applicant’s detention on eight occasions. Save for the extension order of 28 November 2003, which relied on very weighty and persuasive grounds for keeping the applicant in detention, the remaining seven extension orders referred solely to the gravity of the charges against the applicant and the risk of him absconding (see paragraph 17 above). 83.     The Court has repeatedly held that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of detention be used to anticipate a custodial sentence