CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juillet 2012

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page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s299839C6 { width:212.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIRST SECTION             CASE OF GRISHIN v. RUSSIA   (Application no. 14807/08)             JUDGMENT     STRASBOURG   24 July 2012     FINAL   24/10/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Grishin v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 3 July 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 14807/08) 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 Mikhail Vladimirovich Grishin (“the applicant”), on 13 February 2008. 2.     The applicant, who had been granted legal aid, was represented by Mrs   V.Y.   Komissarova, a lawyer practising in Magadan. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that the length of his detention on remand, the appeal proceedings in respect of the first-instance court’s decisions extending his detention and the criminal proceedings against him was excessive, and that the conditions of his detention in the remand prison violated his rights under Article 3 of the Convention. 4.     On 23 October 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article   29   §   1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1969 and lives in the settlement of Sinegorye, Yagodninskiy District of the Magadan Region. 6.     In 1997 the applicant had his right leg amputated at thigh level after a gunshot wound. 7.     On 23 September 2002 the applicant was driving a car in the proximity of the settlement of Burkhala in the Yagodnindskiy District of the Magadan Region when it collided with another car. As it was later established in a final judgment of the Magadan Regional Court of 19 March 2009, as upheld on appeal by the Supreme Court of the Russian Federation on 23   July 2009, the applicant had attacked the driver and a passenger of the other car, who were husband and wife ‑ Mr   A.S. and Mrs   T.S. ‑ in the presence of passers-by. The applicant, armed with a pistol, had struck several blows with his fist and the pistol on different parts of the woman’s body while making verbal threats to kill her or to inflict bodily injuries. The woman had received several injuries to her head and her teeth and a brain concussion. The applicant had then struck multiple blows with his fist and the pistol on different parts of the man’s body and kicked him, making similar verbal threats. He had inflicted seven contused wounds on the man’s scalp and face, bruises on the face and the lumbar region, an eye contusion and a brain concussion. The applicant had then fired his pistol twice in the air and once on the ground near the man. Then the applicant had pushed his victims into the rear compartment of a car belonging to Mr   P., had locked them up and kept them there for a half an hour. He had then demanded money in the amount of 3,000 US dollars as compensation for the damage to his car, threatening them with reprisals. Mrs   T.S. had left in a car, which Mr   P. had been driving, in order to find the money, while the applicant had kept Mr   A.S. until he received the money from the latter’s wife. A.     Preliminary investigation 1.     Investigation proceedings 8.     On 24 September 2002 the Far Eastern Federal Circuit Investigation Department of the Investigation Committee at the Ministry of the Interior (“the Investigation Committee”) brought criminal proceedings against the applicant on suspicion of having committed aggravated robbery punishable under Article 162 § 2 of the Criminal Code (“the CC”) , and hooliganism punishable under Article 213 § 3 of the CC, described as a flagrant violation of public order demonstrating blatant disrespect for society, accompanied by the use of violence against citizens and threats of such violence, committed by a group of individuals according to a premeditated plan, with the use of arms (case no.   23334). 9.     On the same day the applicant was informed of his rights as a suspect and questioned in his lawyer’s presence. He gave a written undertaking to appear on summons before the investigating authority and court, and to immediately inform them of any change of his place of residence. On the same day he left Sinegorye, his place of residence, without informing the investigating authority, for Magadan situated more than 500 kilometres away. On the next day he was admitted to a hospital in Magadan. 10.     The Investigation Committee lodged an application for the applicant’s remand in custody before the Magadan Region Yagodninskiy District Court, arguing that the applicant could abscond from the investigating authority and court, threaten the victims and destroy the evidence since he had breached his undertaking to appear and had been evading the investigating authority for ten days; that he had threatened to kill the victims or to inflict bodily injuries on them; that he had not been working, had no family and had negative references from his place of residence; and that his previous prosecution had been terminated on non ‑ exonerating grounds. 11.     On 6 October 2002 the District Court examined the Investigation Committee’s application in the presence of a representative of the Prosecutor’s Office and the applicant’s lawyer who produced a medical certificate dated 4 October 2002 issued by the Magadan regional hospital stating that the applicant had been undergoing treatment in its cardiology department since 25   September 2002. The District Court observed that the applicant was suspected of having committed aggravated robbery and hooliganism. It further stated that the applicant had absconded from the investigating authority and that a summons for a hearing on 6 October 2002 had not been handed over to him because he had not been residing at the address indicated by him as his place of his residence. His parents who were residing at that address had not seen the applicant for a long time. However, since the applicant was currently undergoing in-patient treatment, the District Court considered that there had been a valid reason for his failure to appear before it, that he had currently no possibility to exert influence over victims and witnesses, and that the decision on whether or not to remand him in custody could not be taken in his absence. It was also noted that the applicant had not been tried by a court in the earlier criminal proceedings against him. The application was rejected. 12.     At an unspecified time on the same day the applicant left the hospital without permission. On the next day he was discharged from the hospital for having violated the applicable rules. 13.     On 10 October 2002 the applicant was hospitalised again, this time having been diagnosed with gastroenterocolitis, for which he underwent treatment in the infectious diseases department of the Magadan regional hospital. The treatment was completed on 20 October 2002. The applicant stayed in the hospital for further tests. 14.     On 23 October 2002 in report no. 131/K of the Magadan Regional Forensic Medical Bureau ordered by the Investigation Committee a commission of eight experts established on the basis of the applicant’s medical records that on 25 September 2002 he had come to the Magadan regional hospital on his own initiative without any doctor’s referral. The records drawn up by a hospital cardiologist who had examined the applicant were not complete and lacked essential information. There had been no medical ground for the applicant’s hospitalisation on 25 September 2002. He could have undergone outpatient treatment instead. Furthermore, the applicant’s stay in the hospital had been delayed for no good reason. As regards the applicant’s second hospitalisation on 10 October 2002, the experts concluded that by 17 October 2002 his state of health had normalised and he could have been discharged from hospital. The remaining faeces analysis did not require his stay in the hospital. The experts held that the applicant’s current state of health was compatible with participation in the investigative activities and detention in a remand prison, provided that he was supervised by a medical unit in the remand prison until the results of his further tests had been obtained. 15.     The Investigation Committee sent a summons to the applicant to appear on 28 October 2002 for questioning as a suspect. On that day his lawyer allegedly informed the investigator that the applicant was still at the hospital. 16.     On 4 November 2002 the applicant was discharged from hospital. On 11 November 2002 the police reported that he had not been found at any of his known addresses. On 14 November 2002 the Investigation Committee requested the police to establish the applicant’s whereabouts and to ensure that he would appear before the investigator on 18 November 2002. 17.     On 18 November 2002 the applicant was arrested as a suspect and placed in a temporary detention facility (“IVS”) at the Magadan police station. 18.     On 20 November 2002 the applicant was charged with aggravated robbery under Article 162 § 2 of the CC and aggravated hooliganism under Article   213 § 3 of the CC, and was detained on remand. 19.     On 26 November 2002 the investigating authority obtained a report following an expert ballistic examination in the applicant’s case. 20.     On 9 December 2002 new criminal proceedings (case no.   23385) were brought against the applicant on suspicion of having participated in October 2001 in a robbery with violence and use of arms by an organised group in respect of Mr   V.B., a director of a private gold-refining company. 21.     On 8 January 2003 the applicant was charged with aggravated robbery and aggravated hooliganism in case no. 23334 in respect of the crimes allegedly committed on 23 September 2002. 22.     On 31 January 2003 new criminal proceedings ‑ case no.   30401 (armed robbery) and case no.   30402 (armed hooliganism) ‑ were brought against the applicant. 23.     On 3 March 2003 all four proceedings against the applicant were joined in one case - no.   23334. 24.     On 13 May 2003 the applicant was charged with the following crimes allegedly committed in the period from April 2001 to September 2002 on the territory of the Yagodninskiy District of the Magadan Region: (i)     hooliganism on 17 April 2001 at the Sinegorye town hospital with use of arms and violence against citizens and threats of such violence, by an organised group according to a premeditated plan, and resistance to a person suppressing a breach of public order – under Article 213 § 3 of the CC; (ii)     hooliganism in July 2001 with use of arms and violence against Mr   Ye.G. and threats to use such violence, by an organised group, with damage to others’ property – under Article 213 § 3 of the CC; (iii)     creating in October 2001 and leading a stable armed gang – under Article   209   §   1 of the CC; (iv)     robbery in October 2001 of Mr   V.B., a director of a private gold ‑ refining company, with use of arms and violence dangerous to life and health and a threat to use such violence, by an organised group, with the aim of misappropriating others’ property of substantial value – under Article   162 § 3 of the CC; (v)     illegal storage and transportation of precious metals (industrial gold misappropriated from Mr   V.B.) of substantial value by an organised group – under Article 191 § 2 of the CC; (vi)     extortion (from Mr   V.B.) with the aim of receiving a right to property under the threat of the use of violence, repeatedly, by an organised group, from October 2001 to August 2002 – under Article 163 §   3 of the CC; (vii)     robbery of Mr   Ya.B. in October 2001 with use of arms and violence dangerous to life and health and the threat to use such violence, by a group of persons according to a premeditated plan, repeatedly, with illegal entry into a dwelling, with the aim of misappropriating others’ property of substantial value – under Article 162 § 3 of the CC; (viii)     in respect of the episode on 23 September 2002 ‑ hooliganism with the use of firearms and violence and threats to use such violence, by an organised group according to a premeditated plan – under Article 213 §   3 of the CC; and robbery-related assault with the use of arms and violence dangerous to life and health and the threat to use such violence, by an organised group according to a premeditated plan, repeatedly, with the aim of misappropriating others’ property – under Article 162 § 3 of the CC; and (ix)     illegal acquisition, storage, transfer, transportation and carrying of firearms, repeatedly, by an organised group – under Article 222 §   3 of the CC. 25.     Charges were also brought against three other alleged members of the gang. 26.     On 20 May 2003 the investigation was completed and on 23   May 2003 the defence received access to the case file. 27.     On 14   August 2003 the Magadan Town Court examined the investigator’s request to limit the time for the applicant’s examination of the case file. The investigator stated that the applicant had been clearly delaying the examination of the case file. Thus, on 30 May 2003 he had acquainted himself with only nine pages of the case file, on 4 June with seven pages, on 24   June five pages, on 4 July six pages, from 7 to 9 July twenty ‑ seven pages, of which nineteen pages were incorporation documents of a company which he himself had founded, on 14 and 29 July with eleven pages on each day, and one day to view a thirty-five-minute video recording. During the period from 23 May to 8   August 2003 his two lawyers had often failed to appear for examination of the case file without any valid excuse. The Town Court established that the applicant, who had been examining five to eleven pages during periods of two to three hours each time, and had often requested to postpone examination in order to go have a bath or meet a visitor, and his two lawyers, who had repeatedly failed to appear at the investigator’s requests, had been abusing their rights and deliberately delaying the examination of the case file and its transfer to court for trial, thus violating the victims’ rights. The court therefore fixed a time-limit until 5   September 2003 which it considered reasonable for the applicant’s and his lawyers’ examination of the remaining materials. That decision was upheld on 10   September 2003 by the Magadan Regional Court. 2.     The applicant’s detention on remand during the preliminary investigation (a)     Decision of 20 November 2002 28.     On 20 November 2002 the Magadan Town Court examined the investigator’s request to remand the applicant in custody. The investigator argued that the applicant was accused of having committed particularly grave crimes, that he was not working, had no family, was characterised negatively at his place of residence, was predisposed to commit crimes against individuals with the use of arms and violence, that he could abscond from investigation and justice, continue his criminal activities, and threaten victims and other participants in the criminal proceedings against him. The prosecutor fully endorsed the investigator’s arguments and added that the applicant had effectively been evading the investigating authority and that he had exerted influence over the victims in order to impel them to change their testimonies. The applicant and his two lawyers contended that he had not escaped from the investigating authority and that the reason for his failure to appear had been his hospitalisation. 29.     The Town Court established that the applicant who was accused of grave and very grave crimes had been characterised negatively at his place of residence as a person leading an antisocial way of life, abusing alcohol and not working. During the investigation he had breached his undertaking to appear on summons by leaving his place of residence without informing the competent authorities. Nor had he informed the investigating authority about his hospitalisation. Furthermore, after his discharge from hospital, between 7 and 10 October and after 5 November 2002, he had not appeared before the investigating authority. He was not residing at his known place of residence. The Town Court considered that the applicant was capable of fleeing from the investigation and the court and of obstructing the investigation, since the accusations against him involved violence and threats to the victims. 30.     The Town Court took into account the conclusions of the commission of medical forensic experts in report no. 131/K of 23   October 2002, according to which the applicant could participate in investigative activities and court hearings and could be placed in a remand prison. 31.     The court ordered the applicant’s remand in custody and the applicant was placed in remand prison IZ-49/1 in Magadan. 32.     On 11   December 2002 his appeal against the decision of 20   November 2002 was dismissed and the decision was upheld by the Magadan Regional Court which noted, inter alia , that the applicant was predisposed to consuming alcohol and committing unlawful acts, and that he had previously been subjected to administrative liability. (b)     Decision of 17 January 2003 33.     On 17 January 2003 the Town Court granted the Investigation Committee’s application for the extension of the applicant’s remand in custody until 24 March 2003. The court found the application well ‑ founded and noted that the applicant, who had been accused of grave and very grave crimes, had no permanent place of work, had been characterised negatively at his place of residence, that a number of investigative activities had to be carried out in case no.   23334, in particular the applicant’s and his co ‑ accused’s questioning together with the victims and their acquaintance with the case file. 34.     It also noted that the applicant’s allegation that his state of health was incompatible with his detention had not been supported by any evidence. (c)     Decision of 22 March 2003 35.     On 22 March 2003 the Town Court granted the Investigation Committee’s request for the extension of the applicant’s remand in custody until 24 June 2003 in view of the fact that he might continue his criminal activities, abscond from investigation, threaten the persons participating in the proceedings and destroy the evidence. The Town Court agreed with the Investigation Committee that there were weighty grounds to believe that the applicant might continue criminal activities, in particular, the nature of the crimes of which he was accused, and the fact that he was not working and had extremely negative references. 36.     It noted that the defence had submitted no evidence that the applicant’s state of health was incompatible with his detention, while the forensic medical experts had confirmed that it was. (d)     Decision of 21 June 2003 37.     On 21 June 2003 the Town Court examined the Investigation Committee’s request for the extension of the applicant’s remand in custody until 24 September 2003, in which it was submitted that the applicant, who had a propensity to commit offences with the use of firearms and violence, had extremely negative references from his place of residence and did not work, could flee from justice, continue his criminal activities, threaten the participants in the proceedings and destroy the evidence. It was also noted that the case involved numerous incidents and four co-defendants, was very complex, and that a number of investigative activities, such as the applicant’s and his lawyer’s examination of the materials in the case file after the completion of the investigation and the preparation of the indictment, were yet to be carried out. 38.     The Town Court granted the request, taking into consideration that the applicant was capable of escaping from justice and continuing criminal activities, given the gravity of the charges and the lengthy imprisonment which they might entail, as well as his negative references, the fact that he did not work and had no dependants, the complexity of the case and the lack of evidence that his state of health was incompatible with the conditions of his detention. B.     Trial 1.     First set of proceedings (a)     Jury trial 39.     On 19 September 2003 the case was transferred for trial to the Magadan Regional Court, which scheduled on 2 October 2003 and held from 16 October to 26 December 2003 a preliminary hearing to decide on numerous requests by the applicant, his three co-defendants and their lawyers concerning the admissibility of evidence, often involving the reproduction of video records of investigative activities, and other procedural issues, as well as to prepare a jury trial, as requested by the applicant and the other co-accused. During this period the hearing was postponed for about four weeks at the applicant’s request. 40.     As a result of the preliminary hearing the Regional Court issued a ruling on 26 December 2003. It ordered that the case be examined at an open hearing by a jury court on 23 January 2004, and granted the applicant additional time until 22 January 2004 for the examination of the case file. 41.     On 23 January 2004 less than twenty candidate jurors appeared before the court instead of the fifty invited and the court, therefore, ordered that 100 other candidate jurors be summoned. 42.     On 13 February 2004 a jury was formed and the jurors took an oath. 43.     Six court sessions followed during which the court heard eight victims and two witnesses and decided various procedural issues, such as the replacement of some jurors, the exclusion or examination of certain evidence and the ordering of expert opinions. 44.     The Regional Court held twenty-four further sessions during which it continued its examination of the evidence including the victims’, witnesses’ and experts’ testimonies, started the examination of the defendants and decided on various procedural requests by the parties. The hearing was adjourned for two weeks as one of the defence lawyers could not be present. 45.     On 15 June 2004 the prosecution dropped one of the charges of hooliganism against the applicant and altered one of the charges of robbery to a milder charge. 46.     The trial continued on 17-18, 21-24 and 29 June 2004, when the Regional Court delivered its judgment by which the applicant was convicted of battery under Article 116 of the CC, sentenced to a fine and indemnified from punishment as the prosecution had become time ‑ barred; he was acquitted of the other charges based on the jury’s non-guilty verdict. The applicant was released in the courtroom. 47.     The applicant, his co-defendant and the prosecution appealed against the trial court’s judgment. On 7   December 2004 the Supreme Court examined the case on appeal and quashed the judgment on the grounds, inter alia , of some jurors’ having concealed information about their family members’ criminal records while they had been obliged to communicate such information to the parties and the court at the time of their selection, as well as the presiding judge’s failure to sum up the evidence in his directions to the jury, notably the victims’ and witnesses’ statements. It remitted the case to the Magadan Regional Court for a fresh examination. (b)     The applicant’s detention on remand during the first set of court proceedings (i)     Decision of 26 December 2003 48.     In its decision of 26 December 2003 (which was upheld by the Supreme Court on 6 April 2004) the Regional Court observed that on 30   September 1999 the applicant’s criminal prosecution for inflicting grave bodily harm on Mr   N. had been terminated as time-barred, and that on 26   April 2002 he had been subjected to administrative liability for petty hooliganism. The Regional Court was of the opinion that the above circumstances, together with the new offences of which the applicant had been accused, involving numerous incidents of criminal activity punishable by lengthy terms of imprisonment, did not preclude the risk of the applicant’s hindering the administration of justice and violating law and order. It took into account the length of the applicant’s detention and decided that the particular circumstances of the case before it, its complexity and public interest prevailed over the applicant’s right to be released pending trial, and ordered that the applicant’s remand in custody as a measure of restraint should remain unchanged. (ii)     Decision of 16 March 2004 49.     In its decision of 16 March 2004 (upheld by the Supreme Court on 18   May 2004) the Regional Court extended the applicant’s detention until 19   June 2004. It observed that the applicant had previously been prosecuted for inflicting grave bodily harm and that the prosecution had been terminated as time-barred; and that he had previously been subjected to administrative liability for petty hooliganism. It considered that the risk of the applicant’s obstructing justice and violating legal order persisted. It noted that the charges in the case had been brought against four persons accused of committing more than ten episodes of very grave crimes with more than seventy victims and witnesses involved. The court further stated that taking into account the particular features and the complexity of the case, the public interest it involved, the circumstances of the acts of which the defendants were accused, which were indicative of the latter’s danger to society, their detention pending trial should be extended in order to prevent their committing new crimes and exerting influence over the victims and witnesses. 50.     It observed that there was no evidence that the applicant’s state of health was incompatible with his detention in a remand prison. 51.     The court also noted that during the six-month period of the defendants’ detention pending trial the case had not been examined for reasons beyond the court’s control, such as the composition of the jury, issues concerning some jurors’ participation in the trial, and difficulties in ensuring the appearance of victims and witnesses who lived in a remote district of the Magadan Region more than 500 kilometres away from the place of the trial. (iii)     Decision of 15 June 2004 52.     On 15 June 2004 the Regional Court extended the applicant’s detention pending trial until 19 September 2004. It relied on grounds broadly similar to those in its previous decision. (iv)     The applicant’s release 53.     On 29 June 2004 the applicant was released following the delivery of the judgment in his case. 2.     Second set of proceedings (a)     Jury trial 54.     The Regional Court adjourned its hearing twice on 31 January and 7   February 2005 as a co-defendant’s lawyer had failed to appear. 55.     In a decision of 8 February 2005 the Regional Court imposed on the applicant and his three co-defendants an undertaking not to leave their places of residence without its permission, to appear on summons before it and not to obstruct the proceedings in any way, with a possibility of applying a stricter measure of restraint in the event of non-compliance. 56.     The Regional Court’s decision of the same day to remit the case to the Magadan regional prosecutor for rectification of errors in the indictment was appealed against by the defence and quashed as erroneous by the Supreme Court on 26 April 2005. 57.     The hearing before the Regional Court was adjourned on 17   June 2005 as a result of two co-defendants’ failure to appear for unknown reasons. It was adjourned again on 21 June 2005 owing to a co-defendant’s hospitalisation and the impossibility of examining the case in respect of the other defendants in separate proceedings. 58.     The hearing resumed on 22 November 2005. On that day, however, less than twenty candidate jurors appeared before the court instead of the thirty invited and the court, therefore, ordered that 100   other candidate jurors be summoned. 59.     On 9 December 2005 the jury was formed and the court held hearings on 12, 20 and 23 December 2005. On the latter date the applicant was granted time to retain a new lawyer as he had declined the lawyer who had represented him before. On 27 December his new lawyer failed to appear and the hearing was adjourned until 10 January 2006, 1 ‑ 9   January being non-working days. The Regional Court continued the examination of the case in January. It ruled on numerous procedural requests by the defence, in particular their challenges to the presiding judge and the prosecutor. 60.     As the witnesses and victims who lived in Sinegorye had failed to appear at the hearings several times the court ordered on 17 January that they should be brought before it by force. The hearing was adjourned on 20   January until 27 January and 26 February until 10 March 2006 for the execution of that order. 61.     The examination of the case continued in February, March, April and May 2006. During this time the hearing was adjourned on a number of occasions for about four weeks in total at the request of the jurors who could not participate and for about a week at the request of one of the defence lawyers who was ill. On 2 June 2006 the presiding judge declared the examination of evidence closed. During five sessions in June 2006 the Regional Court heard the parties’ pleadings. It announced a break from 14   July until 3 October 2006 in view of the fact that several jurors were leaving for summer holidays to the central parts of the country. 62.     The hearing resumed on 3 October 2006. Having consulted the parties, the court decided that they would repeat their pleadings. They did so on 6, 12 and 19 October and 2 November 2006. The preparation of questions to the jury followed. The jury delivered its verdict on 17   November 2006. After the examination of legal issues during sessions held in November and December the Regional Court delivered its judgment on 5   December 2006. The applicant was convicted, inter alia , of aggravated hooliganism, extortion and illegal possession of arms, sentenced to seven years’ imprisonment and acquitted of the remaining charges. 63.     On 6 June 2007 the Supreme Court examined the appeals against the judgment lodged by the applicant, one of the victims and the prosecution. It found a violation of the rules pertaining to a criminal trial by the applicant, the other three defendants and their lawyers who had abused their rights and, despite the presiding judge’s warnings, had discussed, in the jurors’ presence, issues which fell out of the scope of their competence, such as the alleged falsification of the case materials, the alleged violations of the law in obtaining evidence, for example, by torturing one of the defendants, or the allegation that a certain victim had given statements on the investigators’ instructions. They had made remarks, which did not concern the issues to be decided by the jury and which had been aimed at discrediting the lawfulness of evidence against them and creating a negative impression about the victims and the presiding judge, and a positive image of themselves. This could not but have had unlawfully influenced the jury’s verdict. It was also noted that the jury’s verdict had not been entirely clear as some of the answers had been contradictory. The Supreme Court quashed the judgment and remitted the case to the Regional Court for a fresh examination. (b)     The applicant’s detention on remand during the second set of court proceedings (i)     Decision of 6 December 2005 64.     On 6 December 2005 the Regional Court examined the prosecutor’s request to detain on remand the applicant and the other three defendants as a measure of restraint. 65.     It follows from the court records that the prosecutor submitted that victim Mr   Ya.B. had categorically refused to appear at the hearing on 6   December 2005. He had feared physical reprisals by the accused, as had been confirmed by a report by police officer Sh. and by the victim’s own written submissions to the court in which he had explained his refusal to appear before the court with his fears to give statements against the accused. The prosecutor further submitted that during the preliminary investigation victim Mr   A.K. had refused to confront the applicant in person because he had been afraid of him. His mother too had stated that she had feared reprisals from the applicant. Victim Ms   P. had feared the applicant, considering him to be dangerous for her and her family. Victim Mr   V.B. and witness Ms   S. had left Sinegorye for fear of reprisals from the applicant and had decided to give statements only when he had been detained on remand. Witness Ms   K. had explained that her husband, witness Mr   S.K., had feared reprisals from the applicant and his co-defendants. The applicant argued that after those persons’ questioning at the preliminary investigation, including the time after his release on 29 June 2004, he had not put pressure on any of them, nor had he threatened them. Their fears had not therefore been supported by any specific facts. The applicant further argued that he had not breached his undertaking not to leave his place of residence, that he had been married since 2 December 2005, his wife was pregnant, he had a permanent place of residence, had been working, was the only breadwinner for his family and had a disability. 66.     In its decision the Regional Court noted the grave crimes of which the applicant was accused. It further noted that some witnesses and victims had declared at the preliminary investigation that they had feared unlawful actions by the accused. One of the victims had been afraid to participate in the trial if the defendants were to remain at liberty. The Regional Court ordered the applicant’s and the other three defendants’ detention on remand with a view to precluding the possibility of them obstructing the establishment of the truth and absconding. 67.     On 22   February 2006 the Supreme Court dismissed the applicant’s appeal, noting that the court’s finding that certain victims and witnesses had been reluctant to testify in court out of fear of reprisals from the defendants had been supported by the case materials, and had given the Regional Court grounds to believe that the defendants had breached their previous undertaking not to obstruct the proceedings in the case. (ii)     Decisions of 26 February, 22 May, 14 July and 12 October 2006 68.     The applicant’s detention was extended for three-month periods by the Regional Court’s decisions of 26 February, 22 May, 14 July and 12   October 2006 (as upheld by the Supreme Court on 30 May 2006, 17   August 2006, 2 November 2006 and 1 February 2007) for reasons essentially the same as those in its decision of 6 December 2005. It was noted that the case file contained applications by several victims who had stated, at the time of the trial, that they were afraid to participate in the hearing on account of possible reprisals from the accused. It was also noted that the case was being examined by jurors who should also be protected from possible unlawful influence. The length of the proceedings was explained by the voluminous materials in the case file, which was composed of twenty-two volumes, the large number of victims and witnesses residing outside of Magadan whose appearance the court needed to ensure, and the fact that the case was being heard by a jury. (iii)     Decisions of 5 December 2006 and 6 June 2007 69.     In its judgment of 5 December 2006 the Regional Court, and in its appeal decision of 6 June 2007 the Supreme Court, which quashed the judgment and ordered a fresh trial, ruled that the applicant should remain in custody. 3.     Third set of proceedings (a)     Jury trial 70.     On 4 September 2007 the Magadan Regional Court received the case file and started the proceedings. 71.     On 5 October 2007 less than twenty candidate jurors appeared before the Regional Court instead of the 100 invited and the court, therefore, ordered that 150 other candidate jurors be summoned. 72.     On 2 November 2007 the selection of jurors started. However, after a number of candidate jurors had refused to accept sitting in the case, their number was still insufficient and the court ordered that another 150 candidate jurors be summoned. The same situation occurred on 22   November 2007. 73.     The number of candidate jurors who appeared before the Regional Court was again insufficient on 11 December 2007 and 17 January 2008, which necessitated the summoning of an additional 200 and 250 persons respectively. 74.     The jury was formed on 5 February 2008 and the trial commenced. The court held five or six sessions monthly in February to June 2008, two sessions in July, four in August (after a break in view of the jurors’ holidays from 1   July to 18 August), eleven in September, six in October, ten in November and four in December 2008. Some of the sessions were held without the jury as they were devoted to various procedural issues including the admissibility of evidence and requests for the examination of evidence before the jury. The court examined the vast body of evidence including testimonies by more than seventy victims and witnesses and numerous expert reports. 75.     At a hearing on 24 October 2008 the applicant was removed from the courtroom for improper behaviour and a violation of the rules pertaining to a jury trial. For about a month the trial was delayed by reason of the applicant’s illness. Some delay was due to difficulties in ensuring the appearance of a number of victims and witnesses who resided in remote settlements in Burkhala and Sinegorye or who had moved to the central and other parts of the country. 76.     On 13 February 2009 the Regional Court started hearing the parties’ pleadings. 77.     On 7 March 2009 the jury delivered its verdict in the case. 78.     On 19 March 2009 the Magadan Regional Court delivered its judgment based on the jury’s verdict. The applicant was convicted of armed hooliganism at the town hospital involving beatings and threats to medical staff in the presence of patients, assault and battery, and two other violent attacks on citizens, including the episode on the road on 23   September 2002, classified as arbitrary unlawful actions which had caused substantial harm. He was acquitted on the remaining charges. 79.     The fact that the applicant had an infant and had compensated the victims for the damage was considered to amount to mitigating circumstances. No aggravating circumstances were found by the trial court. It considered that given the gravity of the acts committed by the applicant, as well as the specific circumstances which characterised the crimes committed as bold attacks on citizens with the use of violence, threats and arms, the deprivation of liberty was the only proper punishment. It sentenced the applicant to four years and eight months’ imprisonment and discharged him from other punishment as criminal liability for some of the crimes committed had become time-barred. 80.     The period of the applicant’s detention on remand from 18   November 2002 to 29 June 2004 and from 6 December 2005 to 12   March 2009 – four years, ten months and nineteen days – was counted towards his sentence which the applicant was found to have served. 81.     On 23 July 2009 the Supreme Court dismissed an appeal by the applicant and the prosecution and upheld the judgment. (b)     The applicant’s detention on remand during the third set of proceedings (i)     Decision of 14 September 2007 82.     On 14 September 2007 the Regional Court examined the need for the applicant’s continued detention on remand. The applicant argued, inter alia , that he had a permanent place of residence, a family and a child born in May 2006 dependent on him, that he was an invalid and had a number of chronic diseases. The Regional Court ordered that the applicant’s detention pending trial should be extended for three months to be counted from 4   September 2007 for the reasons relied on in its previous decisions, and that an undertaking not to leave their places of residence should be imposed on the other two accused. 83.     On 3 October 2007 the Regional Court dispatched to the Supreme Court in Moscow statements of appeal against that decision by the applicant and his lawyer of 17 and 19 September 2007 and the case materials. 84.     On 9 October 2007 an appeal by the applicant against the decision of 14   September 2007 was received by the Supreme Court which informed the parties on 12 November 2007 that the appeal would be examined on 5   December 2007. 85.     On 5 December 2007 the Supreme Court rejected the applicant’s appeal and upheld the Regional Court’s decision. It stated that apart from the fact that the applicant had been accused of creating and leading an armed gang which had operated during