The European Court of Human Rights noted that when considering
Posted: Tue Jun 17, 2025 10:33 am
Thus, the judgment of the European Court of Human Rights in the case of Korniychuk v. Ukraine of 30 January 2018 emphasized that the justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities; the duty of the official administering justice to provide relevant and sufficient grounds for detention in addition to the existence of reasonable suspicion ( § 57 ).
In its judgment in the case of Kharchenko v. Ukraine of 10 February 2011, an application for the choice of a preventive measure in the form of detention, the possibility of applying other (alternative) preventive measures must be considered ( § 80 ). In its judgment in the case of Khairedinov v. Ukraine of 14 October 2010, the said court, in particular, concluded that the domestic courts had violated Article 5 § 1 of the Convention, since when adopting the decisions the possibility of applying less severe special database preventive measures than detention was not considered (§ 29, § 31).
Therefore, by establishing, by the contested provision of the Code, exclusively such a preventive measure as detention for the relevant category of persons, the legislator deprived the investigating judge and the court of the opportunity to apply a milder preventive measure to such persons.
From the analysis of part two of Article 29 of the Constitution of Ukraine, it is clear that there are no exceptions to the grounds for applying a preventive measure in the form of detention to a person related to the gravity of the crime committed by him. That is, even when it comes to crimes that encroach on the national security of Ukraine or public safety, the presence of a motivated court decision for keeping a person in custody who is suspected or accused of committing them is mandatory.
In its judgment in the case of Kharchenko v. Ukraine of 10 February 2011, an application for the choice of a preventive measure in the form of detention, the possibility of applying other (alternative) preventive measures must be considered ( § 80 ). In its judgment in the case of Khairedinov v. Ukraine of 14 October 2010, the said court, in particular, concluded that the domestic courts had violated Article 5 § 1 of the Convention, since when adopting the decisions the possibility of applying less severe special database preventive measures than detention was not considered (§ 29, § 31).
Therefore, by establishing, by the contested provision of the Code, exclusively such a preventive measure as detention for the relevant category of persons, the legislator deprived the investigating judge and the court of the opportunity to apply a milder preventive measure to such persons.
From the analysis of part two of Article 29 of the Constitution of Ukraine, it is clear that there are no exceptions to the grounds for applying a preventive measure in the form of detention to a person related to the gravity of the crime committed by him. That is, even when it comes to crimes that encroach on the national security of Ukraine or public safety, the presence of a motivated court decision for keeping a person in custody who is suspected or accused of committing them is mandatory.