The ECHR pointed out mistakes of Ukrainian courts in justifying detention on suspicion of collaboration with the Russian Federation

On July 23, 2026, the European Court of Human Rights issued a judgment in the case of Derevyanko and Tarasova v. Ukraine (applications No. 39465/23 and No. 43066/23), in which it examined Ukraine’s compliance with the guarantees of Article 5 §§ 1 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms during the application of preventive detention measures to persons suspected of crimes against the foundations of national security in the context of a full-scale war.

The decision is important for Ukrainian judicial practice, as the Court confirmed that even under martial law and investigations of crimes related to collaboration or assistance to the aggressor state, courts are not exempt from the obligation to provide individualized, proper, and sufficient grounds for detaining a person.

Circumstances of the case

The first applicant worked at an enterprise in Balakliia, which was under Russian occupation. After the territory was liberated, he was suspected of collaboration for performing duties as the head of the enterprise during the occupation, organizing its work, interacting with the occupation administration, and ensuring economic activity.

He was detained in March 2023, after which courts repeatedly extended his detention. Later, the court of first instance found him guilty, but the appellate court replaced the imposed imprisonment with a fine and confiscation of property.

The second applicant worked as a sales representative for a Ukrainian pharmaceutical manufacturer. The investigation believed she participated in a scheme to supply medical products to Russia circumventing government bans, disguising shipments as exports to other countries. She was suspected of assisting the aggressor state and was also detained. The applicant claimed she cooperated with the investigation, voluntarily gave law enforcement access to her phone, and did not take any actions indicating an intent to obstruct the investigation.

The ECHR’s position

Analyzing the first applicant’s case, the Court primarily noted that national courts based their decisions essentially on the severity of the possible punishment.

The ECHR stated that the risk of absconding cannot be assessed solely based on the harshness of the potential penalty. It must be determined considering other circumstances that either confirm the existence of such a risk or indicate its insignificance to the extent that it cannot justify detention.

The Court emphasized that the form of collaboration attributed to the applicant under Ukrainian law belonged to the least severe types of this crime, and the sanction allowed for a fine as an alternative to imprisonment. Under these circumstances, the courts' reliance on the severity of the possible punishment as the main basis for the flight risk was particularly unconvincing.

The ECHR noted that national courts did not refute the applicant’s argument that after the de-occupation of the territory, he remained at his place of residence for a long time, although he knew about the criminal proceedings and had the opportunity to leave the territory.

Also, the courts did not provide convincing grounds for the risk of unlawful influence on witnesses and even continued to refer to it after their questioning was completed.

The Court stressed that the appellate court later additionally referred to the risk of committing a new criminal offense but did not provide any reasons for this conclusion other than the possible punishment.

The ECHR paid special attention to how Ukrainian courts used its case law.

The Court noted it positively values the national courts' efforts to consider ECHR practice but expressed concern that they likely misunderstood some of the Court’s legal positions. Some statements attributed by Ukrainian courts to the decision in Letellier v. France are actually absent from that ruling and do not reflect the ECHR’s approach to assessing the lawfulness of detention.

Regarding the second applicant, the Court separately analyzed both the existence of reasonable suspicion and the grounds for her continued detention.

The ECHR noted that the criminal law norm on assisting the aggressor state was new and had no established practice yet. Despite some shortcomings in the investigation’s reasoning, it could not be concluded that the use of this norm lacked reasonable grounds or that the initial suspicion was arbitrary. Therefore, no violation of Article 5 § 1 of the Convention was found.

However, the Court reached a different conclusion regarding the continuation of her detention.

The ECHR stated that the risks of flight, influence on witnesses, and destruction of evidence were formulated by the courts too generally, while significant circumstances of the case were ignored.

The Court emphasized that national courts did not take into account the applicant’s indisputable cooperation with the investigation for several months before her arrest and did not provide any facts indicating attempts to hide or otherwise influence the investigation.

The ECHR also stressed that even after being notified of suspicion, the applicant remained at liberty and continued to fulfill procedural obligations, but the courts effectively ignored this circumstance when assessing the necessity of her continued detention.

Based on the above, the ECHR unanimously found a violation of Article 5 § 3 of the Convention regarding both applicants, recognizing that their detention was not based on proper and sufficient grounds. At the same time, regarding the second applicant, the Court did not find a violation of Article 5 § 1 of the Convention, as the initial suspicion under the new article of the Criminal Code of Ukraine was not arbitrary.

The decision confirms the established approach of the ECHR that even in cases of crimes against national security and under martial law, courts must conduct an individual assessment of each risk, not limiting themselves to general references to the gravity of the charges or public interest.

The "Judicial and Legal Newspaper" will analyze another ECHR decision of July 23, 2026, in the case of Kolesnyk and Smelnytskyy v. Ukraine (applications No. 24465/23 and No. 25217/23), in which the Court, on the contrary, concluded that the detention of persons accused of crimes against national security was properly justified and did not violate Article 5 § 3 of the Convention.

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