Information Note on the Court’s case-law 243
August-September 2020
Grubnyk v. Ukraine - 58444/15
Judgment 17.9.2020 [Section V]
Article 5
Article 5-3
Reasonableness of pre-trial detention
Proper justification for applicant’s pre-trial detention, unaffected by law limiting courts’ powers to release terrorism suspects: no violation
Facts — Following an explosion outside the offices of the Odessa Regional Directorate of the Security Service of Ukraine, the applicant was arrested on suspicion of having participated in a terrorist act. He was placed in pre-trial detention, against which he appealed unsuccessfully. In this regard, the applicant complained of the application in his case of Article 176 § 5 of the Code of the Criminal Procedure (the “Bail Exclusion Clause”), which precluded the use of non-custodial preventive measures to terrorism suspects. Subsequently, the Constitutional Court declared unconstitutional the Bail Exclusion Clause on the grounds that its operation in practice had limited the domestic courts’ ability to issue properly reasoned detention orders.
Law — The Court had held that legislative schemes limiting the domestic courts’ decision-making powers in matters of pre-trial detention had breached Article 5 § 3 of the Convention (see S.B.C. v. the United Kingdom, 39360/98, 19 June 2001, Information Note 31; Boicenco v. Moldova, 41088/05, 11 July 2006, Information Note 88; Piruzyan v. Armenia, 33376/07, 26 June 2012, Information Note 153). In the present case, however, unlike in the above judgments, the domestic courts had the power to review the existence of a reasonable suspicion against the defendant, examine the evidence in this respect and order his release if they considered that no reasonable suspicion was shown in respect of the charges brought against him or if they had considered that there were no risks justifying detention. The domestic courts, which had before them considerable evidence in support of the suspicion against the applicant, had exercised this power of control in his case, as they had done in some other terrorism and national security-related cases.
The unavailability of release had been self-evident, given the specific circumstances of the applicant’s case. He had been suspected of organising and leading a terrorist group composed of several individuals, one of whom had already absconded by the time the applicant had been arrested. The group had used sophisticated undercover operations techniques and had been engaged in a highly dangerous activity, an activity which had been allegedly ongoing at the time the arrest had been made.
In this context the authorities had been under a duty to protect the rights of the actual and potential victims of violent attacks under Articles 2, 3 and 5 § 1 of the Convention. In circumstances such as those in the applicant’s case, it must interpret the scope of the authorities’ obligations under Article 5 § 3 to provide reasons for their decisions in a manner consistent with the practical requirements of discharging that duty.
Moreover, the applicant’s case had been examined against the background of great tensions in Odessa at the relevant time and the fleeing of defendants in other previous high-profile cases.
The District Court, which had full jurisdiction in that respect, had found that the evidence had supported a reasonable suspicion against the applicant on those specific charges and that there had been a risk of him absconding if released. Although the District Court’s initial detention order had been stated in a succinct fashion, given that the danger of the applicant absconding had been evident, this could not alone amount to a violation of Article 5 § 3. Moreover, the degree of specificity of the domestic courts’ reasons had evolved over time.
Most importantly, the decision to place the applicant in pre-trial detention had not been based on the Bail Exclusion Clause, although it had contained a reference to the latter, but had been the result of a balanced assessment which had taken into account the seriousness of the crime of which the applicant had been suspected and the risk posed by release.
The domestic courts had therefore given “relevant” reasons for his detention which were “sufficient” under the circumstances to meet the minimum standard of Article 5 § 3.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there had been two violations of Article 5 § 1, a first one on account of a delay in drawing up the applicant’s arrest report, and a second one on the basis of the applicant’s arrest without a prior court decision; that there had been no violation of Article 5 § 2 on the basis that nothing had indicated that any possible delay in the formal explanation of the reasons for the applicant’s arrest had been in any way prejudicial to the applicant in terms of him being able to challenge the lawfulness of his detention; that there had been a violation of Article 6 § 2 on account of the wording in pre-trial detention order, which had expressed the domestic court’s opinion that the defendant had been guilty.
Article 41: finding of violations constituted in itself sufficient just satisfaction for the non-pecuniary damage.
(See also Khodorkovskiy v. Russia, 5829/04, 31 May 2011, Information Note 141).
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This summary by the Registry does not bind the Court.
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