Постановление Европейского суда по правам человека от 22.04.2010 «Дело Горощеня (Goroshchenya) против России» [англ.]

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). It remains to be ascertained whether the domestic authorities established and convincingly demonstrated the existence of concrete facts in support of their conclusions.
85. The Court notes that the domestic authorities gauged the applicant's potential to abscond by reference to the fact that he had been charged with serious criminal offences, and thus faced a severe sentence. In this connection the Court reiterates that, although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view. It must be examined with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding and reoffending or make it appear so slight that it cannot justify detention pending trial (see Letellier v. France, 26 June 1991, § 43, Series A No. 207, and Panchenko, cited above, § 106).
86. In the present case, in a number of the detention decisions the domestic authorities cited the lack of a registered place of residence as the ground for the applicant's continued detention. The applicant maintained that he had a permanent place of residence in St Petersburg. However, the Court does not need to determine the applicant's residence situation, as the mere lack of a fixed abode does not give rise to a danger of absconding or reoffending (see Pshevecherskiy v. Russia, No. 28957/02, § 68, 24 May 2007).
87. Another argument employed by the domestic authorities concerned the applicant's placement on the wanted persons' list in 1995. The Court accepts that that factor was relevant in assessing the risk of his absconding. Such a risk, if convincingly established, may lead the judicial authorities to place and leave a suspect in detention in order to prevent any attempts to escape. It is however necessary, among other conditions, that the danger be a plausible one and the measure appropriate, in the light of the circumstances of the case and in particular the past history and the personality of the person concerned (see, mutatis mutandis, Sergey Medvedev v. Russia, No. 3194/08, § 52, 30 July 2009). In the light of this principle the Court is particularly mindful of the applicant's arguments, which were not disputed by the Government, that in 1994 he had openly moved his family from Omsk to St Petersburg and that it was not until 1999 that he had learned about the criminal charges brought against him in 1995 (see paragraph 76 above). The Government also did not dispute that those charges had been dropped in 2000 on "rehabilitation grounds". In this respect the Court does not lose sight of the fact that the reference to the applicant's placement on the list only appeared in the prosecution decisions extending the applicant's detention before October 2000. The domestic courts which took over the task of authorising the applicant's detention after October 2000 never mentioned his alleged attempt to abscond from criminal prosecution in 1995. The Court is therefore not convinced that in the circumstances, when the applicant was not aware of the criminal charges against him, the mere failure of the investigating authorities to find him at the place of his former residence in Omsk leading to his placement on the list of wanted persons justified the conclusion that he was liable to abscond, particularly so after the charges had been dropped on rehabilitation grounds in 2000.<

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