This judgment, *Derevyanko and Tarasova v. Ukraine* (applications nos. 39465/23 and 43066/23), concerns the **** issue of pre-trial detention standards in Ukraine during the ongoing state of martial law. The European Court of Human Rights (ECtHR) examined whether the detention of two individuals suspected of national security offences—specifically “collaborationist activity” and “assisting the aggressor State”—met the requirements of Article 5 of the Convention. The Court found that while the initial detention of the second applicant was not arbitrary, the domestic courts failed to provide “relevant and sufficient” reasons to justify the continued deprivation of liberty for both applicants. The judgment highlights that the severity of a potential sentence, while a factor, cannot be the sole basis for detention without an individualized assessment of risks such as absconding or witness tampering. Ultimately, the Court ruled that the Ukrainian authorities’ reliance on formulaic justifications, rather than specific evidence, resulted in violations of Article 5 § 3 in both cases.
### Structure and Main Provisions
The decision is structured into two distinct parts corresponding to the individual applicants, followed by a unified legal assessment.
* **The First Applicant (Derevyanko):** The Court focused on the lack of specific evidence regarding the risk of absconding or witness interference. It noted that the domestic courts relied on the “severity of the punishment” for a “less serious” offence, which the ECtHR found unpersuasive.
* **The Second Applicant (Tarasova):** The Court analyzed both Article 5 § 1 (lawfulness of arrest) and Article 5 § 3 (reasonableness of detention). While it found no violation of Article 5 § 1—accepting that the initial suspicion was not arbitrary despite the novelty of the legislation—it found a violation of Article 5 § 3 due to the failure to consider the applicant’s prior cooperation with the investigation.
* **Changes/Clarifications:** A significant aspect of this judgment is the Court’s correction of a “misconception” by domestic courts. The Ukrainian courts had cited a formula regarding “greater firmness in assessing breaches of society’s values” as if it were established ECtHR case-law (referencing *Letellier v. France*). The ECtHR clarified that this language was a misinterpretation of a different principle from *Selmouni v. France* (which concerned Article 3, not Article 5) and explicitly stated that this “firmness” standard is not applicable to justifying pre-trial detention.
### Key Provisions for Legal Practice
For legal practitioners, the following points are of paramount importance:
1. **Individualized Assessment:** The Court reiterated that the danger of absconding cannot be gauged solely by the potential length of a sentence. Courts must assess other factors (social ties, lack of prior attempts to flee, cooperation with authorities).
2. **Rejection of Formulaic Reasoning:** The judgment serves as a stern warning against the use of “boilerplate” or repetitive judicial language. If a court extends detention, it must explain why the risks (absconding, influencing witnesses) remain high *at that specific moment in time*.
3. **Cooperation as a Mitigating Factor:** The decision establishes that if a suspect has been aware of an investigation and has cooperated (e.g., by providing evidence or not fleeing), the domestic courts must explicitly address why this history of compliance does not negate the alleged risks.
4. **Clarification on “Wartime Detention”:** The Court confirmed that while the “Wartime Detention Clause” and “Exceptions to Mandatory Bail Clause” are not inherently contrary to the Convention, they do not grant courts a license to ignore the fundamental requirement to provide “relevant and sufficient” reasons for detention. The Court emphasized that these clauses do not mandate detention but merely provide the *possibility* of it, leaving the judicial duty to justify the necessity of the measure intact.
This judgment is **** as it provides clear guidance to Ukrainian courts on how to balance national security interests with the right to liberty under the Convention, even in the context of a full-scale war.
