Volume 11 - Issue 58
/ October 2022
7
http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2022.58.10.1
How to Cite:
Serhieieva, D., Іskenderov, E., Sukhachova, I., Pohoretskyi, M., & Lysachenko, Y. (2022). Substantiation of the risk of absconding
when applying pre-trial restriction measures related to the limitation of a constitutional person’s right. Amazonia Investiga, 11(58),
7-17. https://doi.org/10.34069/AI/2022.58.10.1
Substantiation of the risk of absconding when applying pre-trial
restriction measures related to the limitation of a constitutional
person’s right
Обґрунтування ризику переховування при застосуванні запобіжних заходів,
пов`язаних з обмеженням конституційних прав особи
Received: October 1, 2022 Accepted: November 9, 2022
Written by:
Diana Serhieieva1
https://orcid.org/0000-0003-1005-7046
Elchin Іskenderov2
https://orcid.org/0000-0002-9613-3806
Iryna Sukhachova3
https://orcid.org/0000-0002-5844-2229
Mykola Pohoretskyi4
https://orcid.org/0000-0003-2888-0911
Yelyzaveta Lysachenko5
https://orcid.org/0000-0003-0937-2110
Abstract
The article examines the features of the
prosecutor's substantiation of the risk of
absconding from the pre-trial investigation
bodies and / or the court when applying measures
related to the restriction of the constitutional
rights of a person. Statistical data show a trend
towards an increase in the number of cases of
refusals by investigating judges to approve
petitions of prosecutors as subjects of proving on
the use of means of criminal procedural
evidence, in particular, security measures, which
indicates, among other things, the low level of
validity of the petitions filed. Thus, in 2018,
investigating judges refused to satisfy 5,970
petitions out of a total of 37,193 petitions for the
application of precautionary measures (16.5%);
in 2019 - 5,733 out of 34,780 (about 16.4%); in
2020 - 5,693 out of 31,547 (18.1%); for 2021 -
5,277 out of 30,408 (17.3%); for January-March
2022 - 799 out of 4,526 (17.6%). This is due to
the fact that the problems of the prosecutor's
1
Doctor of Science in Law, Professor, Professor of Criminal Procedure and Criminalistics Department, Educational and Scientific
Institute of Law, Taras Shevchenko National University of Kyiv, Kyiv, Ukraine.
2
Doctor of Science in Law, Professor, Professor of the Department of Law Enforcement and Anti-Corruption Activities, Educational
and Scientific Institute of Law, Interregional Academy of Personnel Management, Kyiv, Ukraine.
3
Doctor of Science in Law, Researcher of the scientific laboratory on the problems of combating crime National Academy of Internal
Affairs, Kyiv, Ukraine.
4
Ph.D (Law), Associate Professor of the Department of Criminal Law and Criminology, National Academy of the Security Service
of Ukraine, Kyiv, Ukraine.
5
Ph.D (Law), Researcher of the scientific laboratory, National Academy of the Security Service of Ukraine, Kyiv, Ukraine.
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exercise of his powers in proving in the pre-trial
investigation, in particular in substantiating the
presence of the risk of absconding, have not yet
been subjected to a comprehensive theoretical
study.
The study of the practice of the European Court
of Human Rights allows us to reveal the essence
of the risk of absconding as a basis for the
application of measures related to the restriction
of the constitutional rights of a person, as well as
to find out what factors should be taken into
account by the prosecutor when substantiating
the risk of absconding.
Key words: prosecutor, proving, risk of
absconding, constitutional rights.
Introduction
The application of pre-trial restriction measures
in criminal proceedings related to the limitation
of the constitutional rights of a person will be
allowed only on the basis and in the order
provided by the current criminal procedural
legislation of Ukraine, as well as with the
implementation of constitutional guarantees of
protection of the rights and freedoms of a person
and a citizen.
In accordance with the current criminal
procedural legislation of Ukraine, the burden of
proving the need to apply pre-trial restriction
measures to a suspect, accused before an
investigating judge is placed by the court on the
investigator, prosecutor as subjects conducting
criminal proceedings.
Furthermore, according to the requirements of
Art. 177 of the Criminal Procedure Code of
Ukraine (hereinafter referred to as the Criminal
Procedure Code of Ukraine), the purpose of
applying a pre-trial restriction measures is to
ensure that the suspect, accused person fulfills
the procedural duties assigned to him, and the
basis is the existence of a well-founded suspicion
that a person has committed a criminal offense,
as well as the existence of risks that provide
sufficient grounds for the court to believe that the
suspect, the accused, can abscond from the court;
illegally influence the victim, witness, other
suspect, accused, expert, specialist in the same
criminal proceedings; obstruct criminal
proceedings in other ways; continue a criminal
offense or commit another one (Law № 4651-VI,
2012).
In view of the above, the investigator, the
prosecutor, in the petition for the application of
pre-trial restriction measures, must set out two
mandatory components: 1) the presence of well-
founded suspicion; 2) the presence of risks
defined by the criminal procedural legislation of
Ukraine, in particular the risk of absconding from
pre-trial investigation bodies and/or the court.
However, the legislator when regulating in Art.
178 of the Criminal Procedure Code of Ukraine,
the circumstances that are taken into account
when choosing a pre-trial restriction measure, did
not determine the criteria for establishing the
presence or absence of risks that give reasons for
the investigating judge, the court to believe that
the suspect, accused, convicted person can carry
out the actions provided for in part 1 of Art. 177
of the CPC of Ukraine. In addition, at the
legislative level, the content of the category
"sufficient grounds" is not defined when
establishing the presence or absence of risks, in
particular absconding from pre-trial investigation
bodies and/or the court, which negatively affects
the unity of law enforcement practice,
compliance with the constitutional rights and
freedoms of a person and a citizen when applying
pre-trial restriction measures and determines the
relevance of the chosen research topic.
The Constitution of Ukraine in Part 2 of Article
29 establishes that no one can be arrested or
detained except by reasoned court decision and
only on the grounds and in the order established
by law.
The Constitutional Court of Ukraine, as the only
body of constitutional jurisdiction in Ukraine,
which ensures the supremacy of the Constitution
of Ukraine, resolves the issue of conformity of
the Constitution of Ukraine with the laws of
Ukraine and carries out the official interpretation
of the Constitution of Ukraine, emphasizes in its
Serhieieva, D., Іskenderov, E., Sukhachova, I., Pohoretskyi, M., Lysachenko, Y. / Volume 11 - Issue 58: 7-17 / October, 2022
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decisions that the right to freedom and personal
integrity is not absolute and can be limited, but
only on the grounds and in the order specified in
the law (clause 3 of the Decision of the KSU
dated October 11, 2011 No. 10-рп/2011). The
limitation of the constitutional right to freedom
and personal integrity must be carried out in
compliance with the constitutional guarantees of
protection of the rights and freedoms of a person
and a citizen (Decision of the Constitutional
Court of Ukraine № 10-рп/2011, 2011).
Restrictions on the realization of constitutional
rights and freedoms cannot be arbitrary and
unfair, they must pursue a legitimate goal, be
conditioned by the social need to achieve this
goal, be proportionate and justified, in the event
of a restriction of a constitutional right or
freedom, the legislator is obliged to introduce
such legal regulation that will provide the
opportunity to optimally achieve a legitimate
goal with minimal interference in the realization
of this right or freedom and not to violate the
essential content of this right (clause 2 of the
Decision of the CCU dated June 1, 2016 No. 2-
рп/2016) (Decision of the Constitutional Court
of Ukraine № 2-рп/2016, 2016).
The Convention for the Protection of Human
Rights and Fundamental Freedoms of 1950
(hereinafter - the Convention) in Clause 1 of Art.
6 stipulates the right of everyone to a fair hearing
of his case by an independent and impartial court
determined by law (Convención Europea de
Derechos Humanos, 1950).
The importance and fundamentality of the right
to freedom and personal integrity is recognized
at the international level. In particular, in Art. 9
of the Universal Declaration of Human Rights of
1948 stipulates that no one can be subjected to
unjustified arrest, detention or exile, the
International Covenant on Civil and Political
Rights of 1966 in clause 1 of Art. 9 stipulates that
no one should be deprived of liberty other than
on the grounds and in accordance with the
procedure established by law.
The right to freedom and personal integrity, as a
fundamental human right, requires the existence
of an effective mechanism of protection against
arbitrary restriction, in particular through the
implementation of judicial control over such
restriction or deprivation of freedom and
personal integrity, which must be carried out in
accordance with the procedure established by
law.
Taking into account the provisions of Art. 8 of
the Criminal Procedure Code of Ukraine on
conducting criminal proceedings based on the
principles of the rule of law, taking into account
the practice of the European Court of Human
Rights, we consider it necessary to analyze the
decisions of the specified court in the context of
the outlined issues. Thus, according to the
practice of the European Court of Human Rights
(hereinafter referred to as the ECHR) in the
application of paragraph 3 of Article 5 of the
Convention, in particular in the case "Yeloiev v.
Ukraine", after a certain period of time, the
existence of only reasonable suspicion ceases to
be a reason for deprivation of liberty, and judicial
authorities must cite other reasons for continuing
to keep the person in custody; moreover, such
grounds must be clearly stated by the national
courts. In addition, the ECHR in the case under
review emphasizes that the national courts never
considered the possibility of choosing alternative
pre-trial restriction measures instead of
detention, and the authorities, referring mainly to
the seriousness of the charges against the
applicant, continued to detain the applicant on
the grounds that cannot be considered
"appropriate and sufficient". These conclusions
are sufficient for the court to recognize a
violation of paragraph 3 of Article 5 of the
Convention in this case ("Yeloev v. Ukraine"
case of November 6, 2008 (application No.
17283/02, paragraph 60) (Case of Yeloiev v.
Ukraine, 2008).
In addition, the decision of the KSU emphasized
that the validity of the application of pre-trial
restriction measures related to the restriction of
a person's right to freedom and personal integrity,
in particular house arrest and detention, should
be subjected to judicial control after certain
intervals of time, periodically objective and
impartial by the court to verify the presence or
absence of risks for which the specified pre-trial
restriction measures are applied, including at the
end of the pre-trial investigation, when some
risks may already disappear (paragraph 3 of the
motivational part of the Decision of the KSU
dated November 23, 2017 No. 1-r/2017)
(Decision of the Constitutional Court of Ukraine
№ 1-р/2017, 2017).
This shows that the application of a pre-trial
restriction measure to a person, which limits the
right to freedom and personal integrity, without
proper substantiation, is a violation of Article 3.
5 of the Convention for the Protection of Human
Rights and Fundamental Freedoms.
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The purpose of this article is to study the
specifics of the prosecutor's substantiation of the
risk of absconding when applying pre-trial
restriction measures related to the restriction of a
person's right to freedom and personal integrity.
Materials and methods
To achieve the set goals and ensure the scientific
objectivity of the results of the study, a set of
modern general scientific and special methods
was chosen, in particular:
dialectical - to study the structure and content of
the prosecutor's petition for the application of
measures related to the restriction of a person's
right to freedom and personal integrity;
system-structural - to determine the criteria for
assessing the risk of absconding to decide on the
application of precautionary measures;
formal-logical - to analyze the current legislation
and existing theoretical provisions regarding the
essence of the risk of absconding and the features
of the prosecutor's substantiation for the presence
of such a risk in criminal proceedings;
comparative law - for comparing constitutional,
criminal law and criminal procedural norms and
a number of legal norms of foreign states;
statistical - to study law enforcement practice in
criminal proceedings and in the analysis of
reporting, which made it possible to generalize
the results obtained.
At the same time, all scientific research methods
were used in interrelation and interdependence,
which contributed to ensuring the principle of
comprehensiveness, completeness, objectivity of
the study and made it possible to lay the
foundation for further possible directions for the
development of theoretical knowledge about the
substantiation by the prosecutor of the presence
of the risk of absconding when applying
precautionary measures, which restrict human
rights to freedom. and personal integrity.
The empirical basis of the study is the studied and
generalized criminal proceedings for 2018-2021
(320 proceedings of the prosecutor's offices of
Lviv, Zhytomyr, Odesa, Kyiv regions and the
city of Kyiv); statistical and analytical data of
2018-2021 of General Prosecutor's Office on the
application of precautionary measures; materials
of studying the decisions of the Constitutional
Court of Ukraine, decisions of the Supreme
Court, decisions of the European Court of
Human Rights.
Results
Statistical data show an upward trend in the
number of cases of investigating judges refusing
to approve prosecutors' petitions for
precautionary measures, indicating, among other
things, the low level of validity of the submitted
petitions. Thus, in 2018, investigating judges
refused to satisfy 5,970 petitions out of a total of
37,193 petitions for the application of
precautionary measures (16.5%); in 2019 - 5,733
out of 34,780 (about 16.4%); in 2020 - 5,693 out
of 31,547 (18.1%); for January-September 2021
- 4,030 out of 23,148 (17.4%) (Information from
the Office of the Prosecutor General of Ukraine,
2021).
Taking into account the results of the study of
criminal proceedings and judicial practice, we
can note that the petition for the application of
measures filed by investigators and prosecutors
in most cases does not contain a meaningful load,
only formally lists the risks provided for in Art.
177 of the Criminal Procedure Code of Ukraine,
there is no reference to proper, sufficient and
admissible evidence in the case. At the same
time, the current criminal procedural legislation
of Ukraine does not define the criteria for
establishing the presence or absence of the risk of
absconding from the pre-trial investigation
bodies and / or the court. Thus, in each criminal
proceeding, it is necessary to examine the
circumstances that the ECHR emphasizes in its
decisions, and also take into account that the risk
is of a specific nature, the presence of which must
be proven in a particular criminal proceeding by
appropriate, admissible and sufficient evidence.
The absence of substantiation by the prosecutor
of the risk of absconding when applying pre-trial
restriction measures leads to a violation of the
constitutional human rights to freedom and
personal integrity and to the European Court of
Human Rights ascertaining a violation by the
state of Ukraine of paragraph 1 "c" of Art. 5
Convention for the Protection of Human Rights
and Fundamental Freedoms.
Discussion
In the doctrine of criminal procedural law, the
concept of "risk" is defined as a well-founded
probability of resistance of the suspect, the
accused to the criminal proceedings in the forms
provided for in Part 1 of Art. 177 of the Criminal
Procedure Code of Ukraine (Fomina, 2018).
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Thus, the application of a pre-trial restriction
measure mitigates the identified risks and makes
it impossible to have negative consequences in
the form of the influence of the suspect, the
accused on the course and results of the criminal
proceedings.
According to the decision of the ECHR in the
case "Klishyn v. Ukraine" (application No.
30671/04) dated 23.02.2012, the existence of
each risk must not be abstract, but specific in
nature and must be proven by appropriate
evidence (Case of Klishyn v. Ukraine, 2012).
The prosecutor's substantiation of the existence
of risks as a basis for the application of pre-trial
measures related to the restriction of the
constitutional rights of a person is complicated
by the absence of criteria at the legislative level
for establishing their existence, as well as the
probable nature of conclusions about the
existence of such risks.
After all, the provision of the probable presence
of risks that the suspect, accused, convicted
person may in the future take actions aimed at
obstructing criminal proceedings, in particular,
absconding from pre-trial investigation bodies
and the court is subject to criminal procedural
proving. In such a case, the subjects of proving
must establish the presence of factual data that
indicate not an event that has already taken place,
but only the possibility of its occurrence, that is,
substantiate assumptions about a certain event in
the future.
On this issue, O.H. Shylo notes that "proving the
existence of the stated reasons in combination
with the circumstances specified in Art. 178 of
the Criminal Procedure Code of Ukraine, makes
it possible to reasonably predict the possible
negative behavior of the suspect, the accused, to
make sure of the necessity of applying a pre-trial
restriction measure to him and the impossibility
of ensuring the implementation of criminal
proceedings by other measures" (Shylo, 2014).
V.V. Mykhailenko emphasizes that assumptions
about the presence of risks of obstruction of
criminal proceedings on the part of the suspect or
the accused must be substantiated by factual data.
This can be evidence that confirms both real,
already committed (statement of the victim or a
witness about threats, protocols of interrogation
of these persons), and potential actions (sale of
property, closing / opening of bank accounts,
purchase of foreign tours or tickets, availability
of materials of covert investigative activities
about intentions to leave the country)
(Mykhailenko, 2019).
However, the results of the analysis of law
enforcement practice allow us to conclude that in
most petitions for the application of a pre-trial
restriction measure related to the restriction of a
person's constitutional rights, only a list of risks
is outlined without substantiating the possibility
of their occurrence, which is a violation of the
current criminal procedural legislation of
Ukraine (Hablo, 2020).
The lack of proper substantiation of the existence
of risks as a basis for the application of
precautionary measures is also noted by the
ECHR in its decisions regarding Ukraine. Thus,
in the case “Moskalenko v. Ukraine”
(application no. 37466/04) dated 20.08.2010, it
was stated that in their decisions to keep the
applicant in custody or extend the detention, the
state authorities did not indicate any specific
reasons on the basis of which they came to such
a conclusion. Moreover, as the proceedings
progressed and the collection of evidence was
completed, the risk that the applicant would
threaten certain witnesses also became less and
less. The Court also notes that the authorities did
not consider any other alternatives to ensure the
applicant's appearance in court (paragraphs 37,
38) (Case of Moskalenko v. Ukraine, 2010).
In the case of Temchenko v. Ukraine
(application no. 30579/10) dated 10/16/2015, it
was stated that the applicant's initial detention
was based on the seriousness of the charges
against him, as well as on other grounds, such as
the likelihood of him evading investigation and
trial and obstructing investigation. While the
applicant's detention may have been initially
justified on these grounds, after a certain period
of time had elapsed, the courts were under an
obligation to provide clearer grounds for
extending the detention (see Gavula v. Ukraine,
application No. 52652/07, paragraphs 89-90).
However, they repeatedly referred to the same
grounds and did not provide any specific
information. In particular, they did not explain
how the applicant could influence witnesses and
interfere with the investigation; the authorities
did not explain how the applicant could influence
witnesses and interfere with the investigation
(paragraph 116) (Case of Temchenko v. Ukraine,
2015).
In the case of Tkachov v. Ukraine (application
no. 39458/02) dated 13.12.2007, the Court noted
that the prosecutor limited himself to repeating
the formal grounds for detention, which were set
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out without any attempt to demonstrate how they
applied in the applicant's case. Furthermore,
neither the possibility of absconding nor the
possibility of obstruction of the investigation
were mentioned in the prosecutor's orders,
according to which the applicant's detention
during the pre-trial investigation was extended to
six months. Moreover, the Regional Court's
ruling - the only judicial decision on the
applicant's detention to which the parties referred
in their submissions - contained no basis for
extending the applicant's detention pending the
pre-trial investigation. Thus, even if such risks
were contained in the first detention order, the
Court cannot assess whether they continued to
justify the applicant's deprivation of liberty
during the entire period in question (paragraphs
49-51) (Case of Tkachov v. Ukraine, 2007).
The study of the materials of criminal
proceedings indicates that quite often in law
enforcement practice, the risk of absconding
from the bodies of pre-trial investigation and the
court or illegal influence on the victim, the
witness is justified by the severity of the crime
committed. However, in the cited Moskalenko v.
Ukraine case, the ECHR points out that the
judiciary repeatedly referred to the possibility
that the applicant could face severe punishment,
given the gravity of the crimes he was charged
with. In this context, the Court reiterates that the
severity of the penalty that may be imposed is an
appropriate element in assessing the risk of
absconding or committing another offence. The
Court accepts that, given the seriousness of the
applicant's charges, the authorities could
justifiably consider that such a risk existed.
However, the Court has repeatedly found that the
gravity of the charge in itself cannot justify long
periods of detention (paragraph 36) (Pohoretskyi,
Salenko, 2020; Sukhachova, 2020).
Moreover, in the case of Todorov v. Ukraine
(application no. 16717/05) of 12.01.2012, it is
noted that the Court cannot accept as an
argument that the overall complexity of the case
and the seriousness of the charges against the
applicant could be considered “sufficient” the
reasons for his detention (para. 63) (Case of
Todorov v. Ukraine, 2012).
The danger of absconding of the accused cannot
be judged solely on the basis of the severity of
the punishment for the crime. The existence of a
absconding risk must be assessed with reference
to a number of other relevant factors which may
either confirm the existence of a risk of
absconding or make it so insignificant that it
cannot justify detention, as reflected in Strohan
v. Ukraine case (application No. 30198/11)
dated October 06, 2016 (p. 97) (Case of Strohan
v. Ukraine, 2016).
In the cases Becciev v. Moldova (application no.
9190/03) dated 04.10.2005, Eloev v. Ukraine
(application no. 35231/02 of November 27, 2008,
the European Court of Human Rights noted that
the gravity of the crime in which a person is
reasonably suspected is of significant
importance, but cannot be the only basis for
detention.
In addition, noteworthy is paragraph 21 of the
ECHR decision in the case of Pozvezko v.
Ukraine (application No. 74297/11) dated
February 12, 2015, where the Court also found
that paragraph 3 of Article 5 of the Convention
requires the authorities to provide convincing
substantiation for any period of detention, no
matter how short it is. Arguments for and against
release (from custody), including the risk that the
accused may obstruct the proper proceedings,
should not be assessed in the abstract (in
abstracto), but supported by factual data. The risk
that the accused may go into absconding cannot
be judged solely on the severity of the possible
punishment. It must be assessed in the light of a
number of other relevant factors which may
either confirm the existence of a risk of
absconding or prove that such a possibility is so
low as to not justify pre-trial detention (Case of
Pozvezko v. Ukraine, 2015).
In addition, in the case "Osypenko v. Ukraine"
(application No. 4634/04) dated February 9,
2011, it was stated that "over time, additional
substantiation is required for the long-term
detention of the applicant, but the courts did not
provide any additional arguments. In addition, at
no stage did the national courts consider any
other pre-trial restriction measures as an
alternative to detention. The stated
considerations are sufficient for the Court to
come to the conclusion that there has been a
violation of paragraph 3 of Article 5 of the
Convention" (paragraphs 77, 79) (Case of
Osypenko v. Ukraine, 2011).
In the decision of the ECHR in the case " Becciev
v. Moldova" (application No. 9190/03) dated
October 4, 2005, it is indicated that the risk of
flight must be assessed by the court in the context
of factors related to the character of the person,
his morality, place of residence, occupation,
property status, family ties and all types of
connection with the country in which such a
person is subject to criminal prosecution. The
seriousness of the punishment is a relevant factor
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in assessing the risk that the suspect may escape
(Case of Becciev v. Moldovа, 2005).
The stated decisions of the ECHR on the outlined
issues indicate the impossibility of assessing any
risks in the abstract and the need to confirm the
existence of such risks with actual data. Thus, the
severity of the punishment is not a substantiation
for the risk of absconding from pre-trial
investigation bodies and/or the court and the
basis for the application of a pre-trial measure
related to the restriction of a person's right to
freedom and personal integrity. This legal
conclusion is confirmed in the decision of the
Constitutional Court of Ukraine dated
08.07.2003 (the case on taking into account the
gravity of the crime during the application of a
pre-trial restriction measure), which emphasizes
that the gravity of the committed crime is taken
into account along with other circumstances
(Decision of the Constitutional Court of Ukraine,
2003).
Given that the practice of the ECtHR is a source
of law in Ukraine, we consider it necessary to
dwell in detail on the conclusions set forth in the
decisions of the ECHR regarding the
substantiation of the risk of absconding from pre-
trial investigation bodies and/or the court.
In the decision of the ECHR in the case "
Boicenco v. Moldova" (application No.
41088/05) dated 11.07.2006, it was concluded
that the mere reference of the courts to the
relevant provision of the law without indicating
the grounds on which they consider justified the
statement that the applicant allegedly can
obstruct the proceedings of the case, abscond
from justice or commit new crimes are not
sufficient for making a decision to keep the
applicant in custody (paragraph 143) (Case of
Boicenco v. Moldova, 2006). A similar legal
position is laid out in the case "Becciev v.
Moldova”.
The decision of the ECHR in the case "Avraimov
v. Ukraine" (application No. 71818/17) dated
March 25, 2021 emphasized that the existence of
a reasonable suspicion that a prisoner has
committed a crime is a condition sine qua non for
the legality of his or her long-term detention. But
when the national judicial authorities consider
for the first time "immediately" after detention
the question of the need to apply to the detainee
a pre-trial restriction measure in the form of
detention, this suspicion will no longer be
sufficient, and the state authorities must also
provide other relevant and sufficient grounds for
justifying the detention. These other grounds
may include the risk of absconding, the risk of
pressure on witnesses or falsification of
evidence, the risk of conspiracy, the risk of re-
offending or causing a breach of public order and
the associated need to protect the detainee. These
risks must be properly substantiated, and the
considerations of state authorities on these issues
cannot be abstract, general or stereotyped
(paragraph 57) (Case of Avraimov v. Ukraine,
2021). In the case "Klishyn v. Ukraine"
(application No. 30671/04) dated February 23,
2012, the Court draws attention to the fact that
the grounds for detention must be substantiated
by facts (Case of Klishyn v. Ukraine, 2012).
Detention can be justified only in the presence of
a specific public interest, which, despite the
presumption of innocence, prevails over the
principle of respect for individual freedom (the
decision of the ECHR in the case "Kharchenko
v. Ukraine" (application No. 40107/02) dated
February 10, 2011, (p. 85)) (Case of Kharchenko
v. Ukraine, 2011). Limiting consideration of a
petition for election, continuation of a pre-trial
restriction measure in the form of detention only
by a list of legislative (standard) grounds for its
application without establishing their existence
and validity to a specific person is a violation of
paragraph 4 of Article 5 of the Convention (the
decision of the ECHR in the case "Belevetskyi v.
Russia" (application No. 72967/01) dated March
1, 2007, (paragraphs 111-112)) (Case of
Belevetskyi v. Russia, 2007).
Taking into account the conclusions reached in
the decision of the ECHR in the case "Olexander
Makarov v. Russia" (No. 15217/07) dated
12.03.2009, national authorities are obliged to
analyze the personal circumstances of the person
in more detail and to cite specific grounds in
favor of keeping him in custody, supported by the
established evidence in the court session (Case of
Olexander Makarov v. Russia, 2009).
In the decision of the ECHR in the case
"Vierentsov v. Ukraine" (No. 20372/11) dated
July 11, 2013, the Court stated that, in
accordance with its established practice, which
reflects the principle related to the proper
administration of justice, the grounds must be
adequately stated in the court's decision, on
which they are based. The degree of application
of this obligation to give reasons may vary
depending on the nature of the decision and
should be determined taking into account the
circumstances of the case (paragraph 33) (Case
of Vierentsov v. Ukraine, 2013).
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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
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request for the application of measures related to
the restriction of the constitutional rights of a
person must include a substantiation of the
existing risks with reference to appropriate and
admissible evidence, which would enable the
court to conclude that there are real risks of a
person’s dishonest behavior in criminal
proceedings.
Conclusions
In criminal proceedings, there is no single
formula by which it would be possible to justify
the risk of absconding from the authorities of the
pre-trial investigation and/or the court. Each
criminal proceeding, in which it is necessary to
apply pre-trial restriction measures, requires a
detailed study of the circumstances emphasized
by the ECHR in its decisions, as well as to take
into account that the risk is not abstract, but
concrete in nature, and to prove it with proper,
admissible and sufficient evidence.
A request for the application of a pre-trial
restriction measure related to the restriction of a
person's constitutional rights to freedom and
personal integrity must be substantiated by
factual data that make it possible to conclude that
there is a real risk of hiding. The prosecutor's
abstract assumptions about the likely negative
behavior of the suspect, accused, convicted
person in the future, as well as references only to
the gravity of the offense committed and possible
punishment, which collectively lead to
prognostic conclusions, cannot be considered by
the court as confirmation of the presence of the
risk of absconding.
Taking into account the results of the analysis of
the practice of the ECHR, the risk of absconding
must be determined taking into account a number
of factors that can confirm or deny the presence
of danger, for example, the character of the
accused, his moral qualities, his financial
situation, social ties, his international contacts.
Proper substantiation of the investigated risk can
be the facts that the person previously hid from
law enforcement agencies or the court, has work
relationships in foreign countries, urgently
alienates real estate in which he was registered or
lived, opened accounts in foreign banks, acquired
cash in foreign currency, etc. However, the
specified information must be confirmed by the
evidence contained in the materials of the
criminal proceedings. Also, when substantiating
the existence of the specified risk, it is necessary
to take into account whether the suspect or the
accused had the opportunity to hide from the pre-
trial investigation authorities and the court earlier
during the criminal proceedings. If the person did
not take advantage of this opportunity, the risk of
escape at the time of considering the application
of a pre-trial restriction measure is significantly
reduced. At the same time, the decisive factors
when justifying the risk of absconding cannot be
the behavior of accomplices of the person in
custody, as well as the person's lack of a
permanent place of residence. The application of
a pre-trial restriction measure limiting the right to
freedom and personal integrity, without proper
substantiation of the risks provided for in Part 1
of Art. 177 of the Criminal Procedure Code of
Ukraine, is a violation by the state of clause 3 of
Article 5 of the Convention for the Protection of
Human Rights and Fundamental Freedoms.
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