Постановление Европейского суда по правам человека от 22.12.2009 «Дело Макаренко (Makarenko) против России» [англ.]

iples to the present case
101. The Court finds that the period to be examined commenced on 2 December 2002, when the applicant was arrested, and ended on 28 June 2004, the day of his conviction by the Leninskiy District Court on the charges of fraud, unlawful possession of ammunition and forgery of documents. The Court has already found that the applicant's detention was initially warranted by a reasonable suspicion that he was involved in large-scale fraud (see paragraph 93 above). The domestic authorities cited the gravity of the charges and the need to prevent the applicant from absconding and obstructing as the grounds for his placement in custody. At that stage of the proceedings those reasons justified keeping the applicant in custody (see Khudoyorov v. Russia, No. 6847/02, § 176, ECHR 2005-X (extracts)). However, with the passage of time those grounds inevitably became less and less relevant. Accordingly, the authorities were under an obligation to analyse the applicant's personal situation in greater detail and to give specific reasons for holding him in custody.
102. The Court notes that the authorities extended the applicant's detention on a number of occasions. In their decisions they consistently relied on the gravity of the charges as the main factor and on the applicant's potential to abscond or pervert the course of justice.
103. As regards the authorities' reliance on the gravity of the charges as the decisive element, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention (see Panchenko v. Russia, No. 45100/98, § 102, 8 February 2005; Goral v. Poland, No. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81). This is particularly true in the Russian legal system, where the characterisation in law of the facts - and thus the sentence faced by the applicant - is determined by the prosecution without judicial review of whether the evidence obtained supports a reasonable suspicion that the applicant has committed the alleged offence (see Khudoyorov, cited above, § 180).
104. The other grounds for the applicant's continued detention were the authorities' findings that the applicant might abscond and pervert the course of justice. The Court reiterates 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 concrete facts in support of their conclusions.
105. 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).
106. In the present case, apart from a bald reference to the applicant's being likely to threaten witnesses and destr



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