CASE OF DEREVYANKO AND TARASOVA v. UKRAINE
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.
CASE OF KOLESNYK AND SMELNYTSKYY v. UKRAINE
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This judgment, *Kolesnyk and Smelnytskyy v. Ukraine*, concerns the compatibility of pre-trial detention with Article 5 § 3 of the European Convention on Human Rights during the ongoing state of martial law in Ukraine. The applicants, charged with national security offences—specifically treason and the unauthorized dissemination of military information—challenged the necessity and length of their detention, as well as the denial of bail. The European Court of Human Rights (ECtHR) examined whether the domestic courts provided “relevant and sufficient” reasons for continued detention and whether the proceedings were conducted with the required “special diligence.” Ultimately, the Court ruled that there was no violation of Article 5 § 3, emphasizing the unprecedented wartime context and the specific security risks involved. The decision confirms that while detention must be justified, the extraordinary circumstances of Russia’s full-scale invasion allow for a margin of appreciation in how justice is administered in frontline regions.
### Structure and Main Provisions
The decision is structured into three primary segments:
1. **Facts and Legal Framework:** It details the arrest of the applicants in Kharkiv, the subsequent reclassification of their charges from unauthorized dissemination of information to treason, and the application of the “Wartime Detention Clause” and the “Exceptions to Mandatory Bail Clause” of the Ukrainian Code of Criminal Procedure.
2. **Admissibility:** The Court rejected the applicants’ complaint under Article 5 § 1 regarding the “reasonableness of suspicion,” finding the reclassification of charges to be a standard investigative evolution rather than an act of bad faith.
3. **Merits (Article 5 § 3):** The Court assessed the necessity of detention. It analyzed the interaction between domestic law and Convention standards, specifically referencing the June 2024 Constitutional Court of Ukraine decision, which clarified that wartime detention provisions do not mandate automatic detention but allow for judicial discretion.
Compared to previous jurisprudence (such as *Grubnyk v. Ukraine*), this decision clarifies that the current wartime legislative framework does not create a system of “mandatory detention” that would inherently violate the Convention, provided that domestic courts retain the power to assess individual risks and the possibility of bail.
### Key Provisions for Legal Practice
* **Judicial Discretion in Wartime:** The most critical takeaway is the Court’s affirmation that the “Wartime Detention Clause” is not a blanket authorization for detention. Courts must still perform a substantive assessment of risks (absconding, influencing witnesses, reoffending) and retain the authority to set bail if the circumstances warrant it.
* **Contextual “Special Diligence”:** The Court explicitly linked the “special diligence” requirement to the wartime context. It recognized that in regions near the frontline, the administration of justice faces extreme challenges. Consequently, the Court will be more deferential to the state’s procedural pace unless the applicant can demonstrate specific, inordinate delays attributable to the authorities.
* **Sufficiency of Reasoning:** The judgment establishes that while detention orders must be reasoned, “succinct” reasoning that relies on previously established facts is acceptable, provided the underlying justification for the detention (the specific risks to national security) remains valid and has been clearly articulated in earlier proceedings.
* **Reclassification of Charges:** The Court reaffirmed that the reclassification of charges during the early stages of an investigation is not, in itself, a violation of the Convention, provided there are objective elements supporting the new, more serious charges.
