Published on 16 September 2024
FIFTH SECTION
Application no. 24465/23
Pavlo Yevgenovych KOLESNYK against Ukraine
and 3 other applications
(see list appended)
communicated on 28 August 2024
SUBJECT MATTER OF THE CASES
The applicants are accused of certain national security-related offences. The domestic courts, in placing them in pre-trial detention or in extending their detention, relied in part on Article 176 § 6 of the Code of Criminal Procedure (introduced on 14 April 2022) which provides that pre-trial detention is the only preventive measure to be applied to defendants suspected of such offences (see, mutatis mutandis, Grubnyk v. Ukraine, no. 58444/15, §§ 110-30, 17 September 2020, and compare, for example, Avraimov v. Ukraine, no. 71818/17, §§ 57-72, 25 March 2021 [Committee], Aleksandrovskaya v. Ukraine, no. 38718/16, §§ 105-13, 25 March 2021 [Committee]; Kraynyak v. Ukraine, 68353/17, §§ 16-25, 16 February 2023 [Committee]).
The applicants mainly complain, invoking Articles 5 §§ 1, 3, 4 and 6 § 1 of the Convention, that, in part because of the reliance on the above-mentioned domestic law provision, the domestic courts failed to give relevant and sufficient reasons for their detention.
Additional facts related to particular applications are as follows.
Applications nos. 24465/23 Kolesnyk and 25217/23 Smelnytskyy
The applicants are accused, in the same proceedings, with dissemination, on a Telegram channel, of a video depicting Ukrainian military forces and military installations in Kharkiv.
Initially those acts were classified as the offence of “unauthorised dissemination of information about the location of the Armed Forces of Ukraine” under Article 114-2 of the Criminal Code. On 1 August 2022 a domestic court ordered the applicants’ detention and, in the alternative, set bail. The acts were then reclassified as the offence of “treason”, an offence under Article 111 of the Criminal Code, and on 3 August 2022 detention was ordered without bail alternative.
At the relevant time, the former offence was not listed in Article 176 § 6 of the Code of Criminal Procedure as excluding the use of bail but the latter offence was.
Application no. 39465/23 Derevyanko
The applicant is accused of the offence of “collaborationist activities” (Article 111-1 § 4 of the Criminal Code) which is defined as “transmission of material resources to the illegal armed formations created in the occupied territory, to the armed formations of the aggressor State or conducting business activities in coordination with the aggressor State or in coordination with illegal authorities created in the occupied territory.”
The alleged offence consisted in the applicant occupying the position of an acting director of a local bread factory and, as such, running its day-to-day operations during the period of occupation by Russian forces in 2022.
Application no. 43066/23 Tarasova
The applicant is accused of the offence of “assisting the aggressor State” (Article 111-2 of the Criminal Code) which is defined as “an intentional act aimed at assisting the aggressor State, its military formations or occupation administration ... with the aim of harming the interests of Ukraine.”
According to the charges, the applicant worked as a sales representative of a Ukrainian medicines manufacturer and it is suspected that she had a role in having drugs exported, through Latvia and Estonia, to Belarus, from where they were exported to Russia.
QUESTIONS TO THE PARTIES
1. Has there been a breach of Article 5 § 3 of the Convention in the applicants’ cases? In particular:
(i) did the courts provide relevant and sufficient reasons for the applicants’ detention and do the national authorities display “special diligence” in the conduct of the proceedings (see Kharchenko v. Ukraine, no. 40107/02, §§ 79-81 and 99, 10 February 2011, and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 87, 5 July 2016)?
(ii) is the domestic courts’ reliance on Article 176 § 6 of the Code of Criminal Procedure in the applicants’ cases compatible with the requirements of Article 5 § 3 of the Convention (see, mutatis mutandis, Grubnyk v. Ukraine, no. 58444/15, §§ 110-30, 17 September 2020, and compare, for example, Avraimov v. Ukraine, no. 71818/17, §§ 57-72, 25 March 2021 [Committee], Aleksandrovskaya v. Ukraine, no. 38718/16, §§ 105-13, 25 March 2021 [Committee]; Kraynyak v. Ukraine, no. 68353/17, §§ 16-25, 16 February 2023 [Committee])?
2. In application no. 43066/23, can the applicant be considered to have been detained on the basis of “a reasonable suspicion” that she had committed an offence, within the meaning of Article 5 § 1 of the Convention and has her detention been in compliance with the requirements of that provision of the Convention?
3. Does Ukraine’s derogation under Article 15 of the Convention (initially made on 28 February 2022 and subsequently extended and modified) apply in respect of the Article 5 rights at issue? If so, are the decisions which are the subject of the applicants’ complaints justified and limited to what is strictly required by the exigencies of the current situation?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
24465/23
Kolesnyk v. Ukraine
28/05/2023
P. KOLESNYK
1971
Kharkiv
Ukrainian
Y. VYSHNEVETSKYY
2.
25217/23
Smelnytskyy v. Ukraine
29/05/2023
S. SMELNYTSKYY
1975
Kharkiv
Ukrainian
Y. VYSHNEVETSKYY
3.
39465/23
Derevyanko v. Ukraine
24/10/2023
A. DEREVYANKO
1967
Verbivka Kharkiv region
Ukrainian
S. CHUB
4.
43066/23
Tarasova v. Ukraine
29/11/2023
Y. TARASOVA
1978
Kyiv
Ukrainian
D. LOSHAKOV