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Постановление Европейского суда по правам человека от 29.04.2010 «Дело Юрий Яковлев (Yuriy Yakovlev) против России» [англ.]





ates that it is incumbent on the domestic authorities to establish the existence of concrete 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). It remains to be ascertained whether the domestic authorities established and convincingly demonstrated the existence of specific facts in support of their conclusions.
(i) The danger of absconding
71. 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, thus facing 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).
72. It appears that, apart from the reference to the gravity of the charges, the only other factor on which the domestic courts based their conviction of the applicant's liability to abscond was his ownership of a passport for travel. In this respect, the Court accepts that the possession of the passport for travel could be a relevant factor in assessing the risk of flight. However, the danger of an accused absconding does not result just because it is possible or easy for him to cross the frontier: there must be a whole set of circumstances, such as, particularly, the lack of well-established ties in the country, which give reason to suppose that the consequences and hazards of flight will seem to him to be a lesser evil than continued imprisonment (see {Stogmuller} v. Austria, 10 November 1969, § 15). The domestic courts did not mention any such circumstance in their decisions or point to any specific aspects of the applicant's character or behaviour that would justify their conclusion that the applicant presented a persistent flight risk. The applicant, on the other hand, constantly invoked the facts showing his close ties with Russia, such as his permanent place of residence, work and family in Russia, and cited other factors, for instance his age and poor health, to confirm that there was no danger of his absconding (see, by contrast, W. v. Switzerland, 26 January 1993, § 33, Series A No. 254-A). The Court also does not overlook the fact, which was not disputed by the Government, that the applicant was not in custody for the first eight months after the criminal proceedings had been instituted on the bribery charge, having complied with the prosecution's orders and participated in the investigation process, whenever summoned. In any event, the domestic authorities did not explain why the withdrawal of the applicant's Russian passport for travel, a measure explicitly envisaged in domestic law for removing flight risks, would not have been sufficient to prevent him from absconding abroad (see Lind v. Russia, No. 25664/05, § 81, 6 December 2007).
73. The Court further observes that the authorities did not indicate any other circumstance to suggest that, if released, the applicant would abscond. Even though, as the Government submitted, other facts that could have warranted the authorities' conclusion about his potential to abscond may have existed, they wer



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