As stated in the separate opinion of ECHR by the
judge Z. Kalaidzhieva in the decision on the case
"Shalimov v. Ukraine" (application No.
20808/02) dated June 4, 2010, any concept of
"automatic legality" of deprivation of liberty is
incompatible with the principles of the
Convention and there is no doubt that paragraph
4 of Article 5 of the Convention is a procedural
guarantee and a means of legal protection against
such detention (Case of Shalimov v. Ukraine,
2010).
Thus, in each criminal proceeding, the
investigating judge, the court must examine in
detail the evidence provided by the prosecutor to
confirm the risks identified in the petition,
conduct their analysis and make an assessment.
This is consistent with the position of the ECHR,
which in its decision on the case "Kobets v.
Ukraine" (application No. 16437/04) dated
February 14, 2008 noted that "the Court reiterates
that, in accordance with its precedent practice,
when evaluating evidence, it is guided by the
criterion of proving "beyond a reasonable doubt"
(also the decision in the case "Avsar v. Turkey",
paragraph 282). Such proving must be derived
from a set of signs or irrefutable presumptions,
sufficiently weighty, clear and mutually agreed
upon" (Pohoretskyi, Salenko, 2020; Case of
Kobets v. Ukraine, 2008).
The results of the analysis of the ECHR's practice
on the outlined issues make it possible to
determine which factors should be taken into
account when substantiating a petition for the
presence of a risk of absconding from pre-trial
investigation authorities and/or the court.
1. The severity of the punishment. When
establishing the risk of absconding from the
pre-trial investigation authorities and / or the
court, one of the factors that the
investigating judge takes into account is the
severity of the punishment. However, the
severity of the punishment itself does not
indicate the existence of the risk under study.
2. The identity of the suspect, the accused. The
results of the analysis of data on the identity
of the suspect, the accused are significant
and allow us to make a predictive conclusion
about the possible negative behavior of a
person in criminal proceedings and
determine the level of danger of such a
person escaping.
The ECHR in the case of Becciev v. Moldova
(para. 58) noted that the risk of absconding must
be assessed in the light of factors related to the
character of the individual, his morality, place of
residence, occupation, property status, family
ties and all kinds. connection with the country in
which such a person is subject to criminal
prosecution. In addition, the ECHR noted that,
with regard to the risk of the applicant being a
fugitive, the Czech courts noted in particular that
the applicant had already evaded criminal
proceedings in Germany, that he had numerous
business connections abroad and that he was
threatened relatively harsh punishment. In the
Court's opinion, such reasoning is sufficient and
"relevant" and the arguments put forward by the
applicant prevail" (para. 76)).
3. The behavior of the suspect, the accused
and other factors. This factor corresponds to
the above factors and is taken into account
by the investigating judge, the court when
establishing the risk of absconding. So, the
investigating judge, the court takes into
account the circumstances of the
commission of the crime, the behavior after
the commission of the crime. The
conscientious performance by the suspect or
the accused of his procedural duties, the
failure to use the real possibility of
absconding or flight, the staying at the scene
of the crime, the transfer of the instrument of
the crime, etc., may indicate a decrease in the
risk of absconding. Thus, the ECHR noted
that during the four weeks when the
applicant was at large, she performed all the
duties related to judicial control and did not
try to leave from justice. By the way, it
would be difficult for her to do this, because
she has minor children and a trading
establishment, which is the only source of
her income. Therefore, the Court concluded
that the decisions of the indictment
chambers did not indicate reasons on which
to explain why they did not take into account
the applicant's arguments and proceeded
only from the risk that she would leave the
investigating authorities.
Thus, taking into account the results of the
analysis of the law enforcement practice of
national courts and the practice of the ECHR, we
come to the conclusion that when determining
the risk of absconding, there is no single
approach to justifying it, in each specific case it
is necessary to take into account the presence or
absence of facts that are relevant in accordance
with the current criminal procedure. the
legislation of Ukraine, as well as to study in detail
all the factors determined by the practice of the
ECHR, in particular: the severity of the intended
punishment, the personality and behavior of the
suspect, the accused, etc. The prosecutor’s