DISSENTING OPINION OF JUDGE KOVLER

To my regret, I am unable to agree with the majority ’ s finding of a violation of Article 5 § 3 of the Convention. It is not the Chamber ’ s finding per se that troubles me, but rather the manner in which it reached its conclusion.

I have little doubt that the case is admissible. Indeed, it meets the admissibility criteria of Article 35 § 1. Equally, it concerns pre-trial detention, a topic that the Court has examined, albeit more carefully, in many previous Russian cases (see, for example, Kalashnikov v. Russia , no. 47095/99, ECHR 2002 ‑ VI; Smirnova v. Russia , nos. 46133/99 and 48183/99, ECHR 2003 ‑ IX (extracts); Panchenko v. Russia , no. 45100/98, 8 February 2005; Rokhlina v. Russia , no. 54071/00, 7 April 2005; Romanov v. Russia , no. 63993/00, 20 October 2005; and Khudoyorov v. Russia , no. 6847/02, ECHR 2005 ‑ ... (extracts)).

When analysing the domestic legislation, this judgment, unlike, for example, the above - mentioned Kalashnikov judgment, makes it clear that Russian criminal procedure distinguishes detention pending preliminary investigation from detention following the preliminary investigation. This distinction is crucial for understanding whether the length of pre-trial detention was reasonable.

Some of the initial charges laid against the applicant (see paragraph 15) were, to put it mildly, doubtful (for example, ‘ violent overthrow of State power ’ under Article 278 of the Criminal Code). Nevertheless, most of the charges – ‘ intentional destruction of property ’ and ‘ vandalism ’ , later changed to ‘ rioting ’ – , and the gravity of the charges justified her detention. One must not forget that the Strasbourg Court may not overrule the national authorities ’ decision to detain a person. W hat the Strasbourg Court may do , i n my opinion, is to assess whether the length of the detention was reasonable.

The applicant was det ained ‘ pending investigation ’ from 14 December 2004 to 7 June 2005 , i.e. five months and 22 days, whereas for such criminal cases Article 109 § 2 of the Code of Criminal Procedure permits detention f or two to six months. She was detained ‘ pending trial ’ from 7 June to 8 December 2005 , i.e. six months and one day, whereas Article 255 § 3 of the Code of Criminal Procedure establishes a ‘ basic ’ period of up to six months.

T he judgment lacks analysis of the ‘ reasonableness ’ of th ose periods in the light of the circumstances of th is particular case. The Court has exhaustively analysed its own case-law but has not applied it to the case at hand. Y et ‘ the issue of whether a period of detention is reasonable cannot be assessed in abstracto . Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features ’ (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000 ‑ IV).

Having passed over the issue of whether the detention period was reasonable, the Court rapidly turned to the question of the cancellation or amendment of the detention. Overall, this case has been marked by h aste : the Court reached its judgment remarkably quickly . This h aste has had an adverse effect on the Court ’ s findings and has prevented me from joining the majority, al though my inclination was to detect signs of a violation of Article 5 § 3. The approach in such cases should not be a cavalier and Bolshevik-style one - no pun intended - but festina lente : hurry slowly.

I must make one more remark. Traditionally, the Court has carefully avoid ed referring to facts that have not been submitted by the parties. The instant judgment breaks this tradition and refers – quite selectively – to certain unidentified ‘ media reports ’ . H owever, the Court ’ s wish to provide an account of the facts which differ s from those of the parties is understand able .

Finally, the non-pecuniary damages awarded are too high. They are the same as in Kalashnikov , al though the violations in the Kalashnikov case were more numerous and more serious. Even the applicant ’ s young age is no excuse for such an approach.