The Government of Denmark as a 3rd party in the case of Christensen v. Russia before the European Court

Unofficial translation

Application No. 39417/17

Dennis Ole Christensen v. Russia

Comments by the Government of Denmark

1. In a letter dated 7 September 2017, the European Court of Human Rights (hereinafter referred to as the Court) notified the Government of Denmark (hereinafter referred to as the Government) of the above-mentioned application lodged by a Danish citizen and invited the Government to notify the Court if the Government decided to exercise its right to intervene under Article 36 § 1 of the European Convention on Human Rights (hereinafter referred to as the Convention) and Rule 44 of the Rules of Court.
2. In a letter of 30 November 2017 the Government informed the Court of their intention to exercise their right to intervene.
3. In a letter of 26 March 2018, the Court sent to the Government a copy of the parties' observations concerning this application and invited the Government to submit in writing any observations it might have on the issues raised in the present case. The deadline for submission of comments from the Government was set for April 27, 2018.
4. The Government argued that the applicant's pre-trial detention constituted a violation of Article 5 § 3 of the Convention.
5. The Government emphasise that the above arguments are without prejudice to the present case, either when Article 9 § 1 of the Convention is applied alone or when applied in conjunction with Article 14 of the Convention, which has also been violated, as alleged by the applicant.
6. If the Court has any questions in view of these observations or the statement in general, the Government will be at your disposal.

I. QUESTIONS TO THE PARTIES

7. Parties were invited to address the following issues in their comments:
   1. Has there been a violation of Article 9 of the Convention, taken alone or in conjunction with the provisions of Article 14 of the Convention, in connection with the applicant's arrest and detention?
   2. Did the domestic courts' decisions to detain the applicant and extend his detention contain "substantial and sufficient" grounds, as required by Article 5 § 3 of the Convention (see Buzadji v. Moldova, No. 23755/07, paras. 92-102, ECHR 2016 (excerpts))?
8. The Government further provides comments on question 2.
9. This case concerns the imprisonment of a Danish citizen for 10 months by the Russian authorities and, according to the information provided to the Government, it is clear that he was deprived of his liberty without sufficient grounds. Article 5 of the Convention is one of the key provisions of the Convention and prohibits arbitrary deprivation of liberty. A fundamental safeguard against arbitrary deprivation of liberty is that any deprivation of liberty must be justified on substantial and sufficient grounds.
10. Moreover, as provided for in article 5, paragraph 1, of the Convention, pre-trial detention is an exception to the basic rule under article 5, paragraph 1, that everyone has the right to liberty. Article 5, paragraph 3, of the Convention provides for a number of procedural guarantees, including the provision that pre-trial detention should not exceed a reasonable time.

II. THE GOVERNMENT'S OBSERVATIONS

11. According to the Court's case-law under Article 5 § 3, the maintenance of "reasonable suspicion" is a sine qua non[1] condition for the lawfulness of continued detention (see, inter alia[2], Grand Chamber judgment of 5 July 2016, Buzadji v. Moldova, application No. 23755/07).
12. In paragraph 102 of Buzadji v. Moldova, cited above, the Court stated that, in addition to maintaining reasonable suspicion, the official was required to provide "substantial and sufficient" reasons for detention immediately after arrest.
13. In previous cases, the Court has found arguments to be "substantial" and "sufficient" reasons on grounds such as "the threat of escape, the risk of exerting pressure on witnesses or the falsification of evidence, the risk of collusion, the risk of re-offending, the risk of causing public disorder and the need to protect the detainee" (see paragraph 88 of Buzadji v. Moldova, cited above).

a. Reasonable suspicion

14. The investigator of the Investigative Department of the FSB of Russia in the Oryol region justified the first requirement for the applicant's detention as follows (Appendix 16):

    [...] in the period from October 18, 2016 to May 16, 2017, D.O. Christensen, being a member of the local religious organization of Jehovah's Witnesses "Orel" (hereinafter referred to as the LRO of Jehovah's Witnesses "Orel") [...] , in respect of which the decision of the Oryol Regional Court of June 14, 2016, which entered into force, was made on the liquidation of activities in connection with the implementation of extremist activities, committed actions of an organizational nature, aimed at continuing the illegal activities of the LRO of Jehovah's Witnesses "Eagle" and expressed in the convening of meetings of the LRO of Jehovah's Witnesses "Eagle" in the premises at: [...], the organization of preaching activities, the distribution of funds of the LRO of Jehovah's Witnesses "Eagle".

15. As can be seen from the above quotations, the applicant was allegedly a member of the LRO "Oryol", which was dissolved on the grounds of extremist activity. However, according to the available information, the applicant had never been a member of the Oryol LRO and he could never have become a member because the Orel LRO did not recognise foreign nationals as members (see paragraph 10 of the applicant's reply of 21 February 2018 to the Government's observations on the admissibility and merits of the case). It would be more accurate to say that the applicant was a member of the legitimate religious assembly "Central".
16. Furthermore, the Government would like to point out that the Supreme Court of the Russian Federation, in its judgment of 18 October 2016, made it clear that the "liquidation" of the Orel LRO does not prohibit its members from holding worship services that are not related to the distribution of extremist literature. This conclusion further confirms that the applicant has the right to attend, participate in and conduct worship services at the Tsentralnoye Meeting.
17. On this basis, the Government considered that there were no grounds for "reasonable suspicion" that the applicant had committed the offence for which he had been detained. The Government considered that Article 5 § 3 of the Convention had been violated on that ground alone.

b. "Substantial" and "Sufficient"

i. Threat of Escape

18. On 21 June 2017 the Oryol Regional Court upheld the decision to impose pre-trial detention on the applicant. The court's reasoning includes the following (Appendix 36-B):

    The arguments of the defense lawyers that Christensen has been registered as a permanent resident of the city of Oryol for more than 10 years, has a residence permit and a legal source of income in the Russian Federation, is married to a citizen of the Russian Federation, has a positive characteristic at the place of residence, are not a sufficient guarantee that in case of release Christensen will not leave the Russian Federation, This could seriously complicate the preliminary investigation.

19. In principle, the threat of escape is among the circumstances which have been considered "substantial" and "sufficient" in previous cases before the Court (see paragraph 88 of Buzadji v. Moldova, cited above).
20. However, the Court recognizes the threat of escape only when such a risk is considered real. The Court pointed out that the threat of escape could not be determined solely by the gravity of the sentence possible; it should be assessed on the basis of other relevant factors. In this context, account must be taken, inter alia, of the character of the person concerned, his or her morals, property, connection with the State in which he or she is persecuted and his or her international contacts (see, inter alia, paragraph 33 of the judgment of 26 January 1993, V. (W) v. Switzerland, application No. 14379/88).
21. In the present case, the Oryol Regional Court found that the applicant had been registered as a permanent resident of Oryol for more than 10 years, had a residence permit and a legal source of income in the Russian Federation, was married to a citizen of the Russian Federation and had a positive characteristic at his place of residence, but, nevertheless, the court found that these factors did not constitute a sufficient guarantee that that the applicant will not leave the Russian Federation. In its appeal decision, the Oryol Regional Court did not state any reason why these factors could not be considered as a guarantee against escape.
22. Moreover, on 15 September 2017 the applicant received a letter from the Embassy of Denmark in Moscow (Annex 20) assuring him that the Embassy would not issue him a new passport or otherwise assist him in leaving the territory of the Russian Federation. However, the letter did not lead to the applicant's release. The Court had previously ruled that an applicant who provided reasonable grounds for his or her to appear before a court, for example by providing guarantees or depositing his or her passport, should be released (see paragraph 39 of the Court's judgment of 12 December 1991 in the case of Clooth v . Belgium, application No. 12718/87).
23. In this regard, the Government considered that there was no real risk of escape, and therefore such an alleged justification could not constitute "substantial" and "sufficient" reasons for the applicant's detention.

ii. Risk of collusion

24. In its appeal decision of 21 June 2017 the Oryol Regional Court also gave the following reason, leaving unchanged the decision to impose a preventive measure on the applicant in the form of pre-trial detention (Appendix 36-B):

    [The applicant] may use his authority and position among the members of the religious organization Jehovah's Witnesses "Oryol", in respect of which the court issued a decision to liquidate it in connection with its recognition as extremist, can influence them in order to induce them to testify in his favor or refuse to testify, thereby obstructing the proceedings, or take measures to destroy evidence.

25. In principle, the risk of collusion, including fears that witnesses will be influenced or that evidence will be tampered with, is also one of the justifications that the Court has defined in previous cases as "substantial" and "sufficient" grounds for pre-trial detention (see paragraph 88 of Buzadji v. Moldova, cited above).
26. In its case-law, the Court has found that the risk of collusion, including the fear that witnesses will be influenced or that evidence will be tampered with, is a justification that becomes invalid over time (see, inter alia, paragraph 35 of the Court's judgment cited above in W. v. Switzerland).
27. According to the information submitted, the FSB investigator interviewed all the witnesses and collected all the evidence in the case case until 20 November 2017, when the Oryol Regional Court nevertheless ordered the extension of the applicant's pre-trial detention (see paragraph 57 of the applicant's reply of 21 February 2018 to the Government's observations on the admissibility and merits of the case). According to the available information, the applicant was in pre-trial detention until the trial, which began on 3 April 2018, i.e. for a total of just over ten months.
28. In the light of the foregoing, the Government argued that the risk of collusion had not, or at least had not continued, to be a "substantial" and "sufficient" reason justifying the applicant's pre-trial detention.
29. The courts did not provide any other reasons to justify the applicant's pre-trial detention.
30. The general assessment was that the Government therefore considered that there was neither a "reasonable suspicion" nor "substantial and sufficient" reasons for the applicant's pre-trial detention and, thus, the Government alleged that there had been a violation of Article 5 § 3 of the Convention.

III. CONCLUSION

31. The Government claimed that the applicant's detention constituted a violation of Article 5 § 3 of the Convention.

Copenhagen, 26 April 2018

Mr. Tobias Elling Rehfeld, Chargé d'Affaires of the Government of Denmark

Ms. Nina Holst-Christensen, Chargé d'Affaires of the Government of Denmark