Judgment of the ECHR of September 17, 2020 in the case "Grubnik v. Ukraine (Grubnyk v. Ukraine)" (aplication No. 58444/15).
In 2015, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Ukraine.
The case successfully considered the aplication that there were no sufficient grounds for applying a preventive measure in the form of detention to the applicant, which was not affected by the law restricting the powers of the court to release persons suspected of terrorism from custody. The case involved violations of the requirements of article 5, paragraph 3, of the Convention.
CIRCUMSTANCES OF THE CASE
After the explosions near the building of the Security Service of Ukraine in the Odessa region, the applicant was detained on suspicion of participating in the commission of a terrorist act. He was taken into custody as part of the chosen preventive measure. The applicant unsuccessfully appealed against this circumstance. In this respect, the applicant appealed against the application to his case of part five of Article 176 of the Criminal Procedure Code of Ukraine ("The inability to apply a milder measure of restraint"), which excluded the possibility of applying to persons suspected of terrorism, preventive measures not related to detention. Subsequently, the Constitutional Court of Ukraine declared this provision of the Criminal Procedure Code of Ukraine unconstitutional on the grounds that its application in practice limited the ability of the courts of Ukraine to make properly justified decisions on the application of a preventive measure in the form of detention.
LEGAL ISSUES
The Court has concluded that the establishment in the legislation of schemes restricting the powers of State courts to decide on the application of a preventive measure in the form of detention violates article 5, paragraph 3, of the Convention (see the Judgment of the European Court in the case "S. B. C. v. United Kingdom" (S. B. C. v. United Kingdom) of 19 June 2001, application No. 39360/98, the Judgment of the European Court in the case "Boicenco v. Republic of Moldova" (Boicenco v. Moldova) of 11 July 2006, application no. 41088/05, Judgment of the European Court of Justice in the case "Piruzyan v. Armenia" of 26 June 2012, application no. 33376/07). However, in the present case, unlike the cases mentioned above, the Ukrainian courts had the right to consider the existence of a reasonable suspicion against the detainee, examine the relevant evidence and order the release of the person from custody if they considered that there were no risks justifying the detention of the detainee. The Ukrainian courts, which had a considerable amount of evidence to support the suspicions against the applicant, exercised these powers, as they did in other cases involving terrorism and the protection of national security.
The inability to obtain release from pre-trial detention was obvious, given the special circumstances of the applicant's case. The applicant was suspected of organizing and leading a terrorist group of several people, one of whom had disappeared at the time of the applicant's arrest. The group used sophisticated undercover techniques and engaged in extremely dangerous activities, which were allegedly ongoing at the time of the applicant's detention.
In this context, the Ukrainian authorities were obliged, in accordance with articles 2 and 3 and article 5, paragraph 1, of the Convention, to protect the rights of actual and potential victims of terrorist acts. In the circumstances of the applicant's case, the Court should have considered the limits of the Ukrainian authorities ' obligation under article 5, paragraph 3, of the Convention to justify their decisions in a manner that would meet the practical requirements of fulfilling this obligation.
Moreover, the applicant's case had to be considered in the light of the extremely tense situation that had developed in Odessa during the period related to the circumstances of the case, as well as the facts of the defendants ' escapes in other previous cases that had received a wide public response.
The Court of First Instance (the district court), which had full jurisdiction in this matter, found that the available evidence justified a reasonable suspicion of the applicant in relation to the charge against him of committing crimes of a special category of gravity and that there was a risk that, while at large, the applicant could escape. Although the first instance court's decision to impose a preventive measure of detention on the applicant was rather brief, given that the risk of the applicant's escape was obvious, this circumstance alone could not be sufficient to establish a violation of article 5, paragraph 3, of the Convention. Moreover, as time passed, the courts issued more detailed rulings.
The most important thing in the present case is that the decision to impose a preventive measure of detention on the applicant was not based on a provision providing for the application of a more lenient preventive measure, and although it contained a reference to this rule of law, it was the result of a balanced assessment, which took into account the gravity of the crime of which the applicant was suspected and the risks associated with his release from custody.
Thus, the Ukrainian courts cited "relevant" grounds for the applicant's detention, which, in the circumstances of the case, were "sufficient" to meet the minimum standards guaranteed by article 5, paragraph 3, of the Convention.
RESOLUTION
There was no violation of the requirements of article 5, paragraph 3, of the Convention (adopted unanimously).
The Court also held unanimously that there had been two violations of article 5, paragraph 1, of the Convention: the first because of the delay in drawing up the report on the applicant's detention, the second because of the applicant's detention without a court order, and that there had been no violation of article 5, paragraph 2, of the Convention, since there was nothing to indicate that the delay in formally explaining the reasons for the applicant's detention had in any way adversely affected the applicant's ability to appeal against the illegality of his detention. In addition, the Court held unanimously that there had been a violation of article 6, paragraph 2, of the Convention in connection with the wording of the decision to impose a preventive measure of detention on the applicant, which implied that the Ukrainian courts considered the applicant guilty.
COMPENSATION
In the application of article 41 of the Convention. The Court held that the finding of a violation of the Convention was in itself sufficient just compensation for non-pecuniary damage.