Over 1000 Days of Detention Without a Verdict: When Detention Ceases to Be Justified and Becomes Automatic

The right to liberty and personal security guaranteed by Article 5 of the European Convention on Human Rights is the foundation of a democratic society. One of the challenges threatening the right to freedom today is procedural inactivity in criminal cases, where an initially justified suspicion turns into indefinite imprisonment without proper review.

Analysis of criminal proceedings shows a tendency to use formulaic wording throughout the entire pre-trial investigation and judicial inquiry, ignoring alternative preventive measures. Ukrainian and European practices often demonstrate the production of court decisions based on templates, where risks are reiterated for years without regard to changing circumstances.

The problem of excessive detention is most clearly manifested in two interrelated aspects of practice.

The first lies in the use of a template approach to justifying risks provided for in Article 177 of the Criminal Procedure Code of Ukraine. In many cases, court decisions contain generalized references to risks of evading pre-trial investigation and court authorities, unlawful influence on witnesses, or obstruction of criminal proceedings, but are not accompanied by a proper analysis of the specific factual circumstances of the case and the individual characteristics of the suspect or accused.

The second aspect is related to insufficient assessment of the possibility of applying alternative preventive measures. Practice shows that bail, house arrest, or personal recognizance are often rejected without detailed reasoning of their ineffectiveness in minimizing established risks. Instead, court decisions often limit themselves to a general conclusion that milder preventive measures cannot ensure proper procedural behavior of the person.

This approach is inconsistent with the standards established in the practice of the European Court of Human Rights. In its decisions, the ECtHR systematically emphasizes that the passage of time itself diminishes the persuasiveness of the initial grounds for detention. Accordingly, as the period of restriction of liberty increases, the state bears an increased burden to prove the existence of specific and sufficient grounds justifying the continued application of the most severe preventive measure. National courts must not only state the existence of risks but also assess the possibility of neutralizing them by less restrictive measures.

Procedural Template: Why Duplication of Grounds in Criminal Proceedings Is Illegitimate

The formulaic nature of court decisions regarding detention is not merely a consequence of court overload but a serious procedural problem that nullifies judicial control as a guarantee against arbitrary restriction of liberty.

The law requires proof of a real, not abstract, risk. To restrict the right to freedom, there must be concrete facts indicating the person's intent to evade justice or obstruct criminal proceedings.

Important ECtHR Decisions Establishing the Standard of Increased State Obligation

A particularly problematic approach remains where the risk of evasion is automatically derived from the severity of the alleged crime. However, the practice of the European Court of Human Rights emphasizes that the severity of possible punishment can be considered only as one of the factors in risk assessment and cannot alone justify prolonged detention.

The European Court of Human Rights in the cases of Gomes Costa v. Portugal, Bluks Savickis v. Latvia, and Selahattin Demirtaş v. Turkey established that with the passage of time, the initial grounds for arrest inevitably lose their force.

Each subsequent decision to extend detention must be based on current and specific facts.

If at the beginning of the investigation suspicions are sufficient for arrest, then after a prolonged period, it is the authorities' duty to prove that no other measure (e.g., house arrest) can ensure the goals of justice.

The case of Kharchenko v. Ukraine is of particular importance for Ukraine. In it, the Court noted a systemic problem of national courts using template wording when extending detention periods. The ECtHR stated that references to abstract risks without analysis of specific case circumstances and without assessing the possibility of applying alternative preventive measures do not meet the requirements of paragraph 3 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In the case of Maassen v. the Netherlands, the European Court of Human Rights emphasized that a full discussion of the parties' positions during the court hearing does not relieve the court of the obligation to properly motivate its decision. Oral discussions cannot compensate for the absence of individualized and convincing written reasoning.

The ECtHR pays special attention to the assessment of the risk of evasion. The Court consistently holds that the severity of possible punishment can be considered only as one of the factors in the assessment but cannot be the sole or decisive ground for detention. Risks must be supported by specific case circumstances and not based on assumptions or general references to the severity of the charge. This approach is especially important in cases where the person's actual ability to leave the country or dispose of assets is significantly limited, for example, due to asset seizure or the application of sanction restrictions.

Article 178 of the Criminal Procedure Code of Ukraine and ECtHR practice require the court, when considering a motion for detention, to mandatorily consider the possibility of applying less severe preventive measures. The choice of the most severe measure is possible only when the prosecutor proves that no alternative can neutralize the established risks.

Bail Ceases to Be an Alternative If It Is Unattainable

A separate manifestation of ignoring alternatives is the setting of excessive, deliberately unrealistic bail amounts that serve as a form of hidden detention. Article 182 of the Criminal Procedure Code of Ukraine clearly defines the limits of bail amounts but allows the court to exceed these limits in exceptional cases if the crime is especially serious or caused significant property damage. However, this exception has become the rule.

The amount of bail should primarily be assessed considering the suspect's financial capabilities, their ability to pay this amount, and the degree of their attachment to the property. Bail set at an amount deliberately exceeding any real possibilities of the person is hidden detention without proper justification.

In the case of Bluks Savickis v. Latvia, the European Court of Human Rights emphasized that the amount of bail must be determined considering the person's property status and their real ability to fulfill the imposed financial obligations. Bail cannot be set detached from the suspect's actual capabilities.

In this context, setting bail in especially large amounts simultaneously with asset seizure, account blocking, or the application of sanction restrictions may call into question the reality of such an alternative preventive measure. In such cases, bail risks becoming a purely formal procedural construct that effectively leaves the person no opportunity to use the legally provided alternative to detention.

Equally important is the court's duty to verify the effectiveness of less severe preventive measures. Refusal to consider the possibility of applying 24-hour house arrest combined with electronic monitoring and other procedural obligations contradicts the ECtHR approach, according to which deprivation of liberty should be applied only as an exceptional measure when no other form of procedural control can neutralize the established risks.

Humanitarian Issues During Detention

The assessment of the legality and proportionality of detention is not limited to the requirements of Article 5 of the Convention. In certain cases, the issue arises of compliance with Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits inhuman or degrading treatment.

Cases involving elderly persons or persons with serious illnesses are of particular importance. The ECtHR practice holds that the decisive factor is not age or health status alone but the combination of circumstances, including the duration of detention, conditions of detention, and the state's ability to provide adequate medical care.

In the case of Morabito v. Italy, the Court drew attention to the need for constant review of the appropriateness of restrictions on elderly persons and those with serious cognitive impairments. The ECtHR emphasized that the continuation of detention cannot be automatic and requires an assessment of its impact on human dignity and the physical condition of the person.

Additional significance in Ukrainian realities is given to the issue of detainee safety in pre-trial detention centers under martial law conditions. Risks related to missile strikes, lack of proper shelters, and threats to life may also be relevant when assessing the proportionality of further detention.

ECtHR practice shows that detention can remain lawful only with constant and individualized justification of its necessity. The use of template reasoning, ignoring alternative preventive measures, disregarding humanitarian factors, or applying detention for purposes unrelated to justice contradicts European standards for protecting the right to liberty.

In the absence of proper reasoning, detention risks losing its procedural character and turning into a form of de facto pre-trial punishment, which is incompatible with the principles of the rule of law and the guarantees of the Convention.

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