ECHR upheld the arrest of those accused of treason for handing over videos of Ukrainian Armed Forces military fortifications to Russia

On July 23, 2026, the European Court of Human Rights (ECHR) issued a decision in the case of Kolesnyk and Smelnytskyy v. Ukraine (applications No. 24465/23 and No. 25217/23), in which it assessed the compliance of Article 5 §§ 1 and 3 of the Convention with the prolonged detention of persons accused of crimes against national security under the rules of Ukrainian legislation introduced after the start of Russia’s full-scale invasion.

The practical significance of this decision lies in the Court’s detailed assessment of the compatibility of the special rules of the Criminal Procedure Code of Ukraine, introduced during martial law, with the guarantees of Article 5 of the Convention.

Circumstances of the case

On July 29, 2022, the Security Service of Ukraine detained two former police officers in Kharkiv. According to the investigation, on July 27 they filmed Ukrainian military fortifications and military equipment, after which they transmitted the video recordings via Telegram channels used by Russian special services for intelligence gathering and subversive activities against Ukraine.

According to the case materials, one applicant was driving the vehicle while the other filmed with a camera mounted on the car, which allowed recording the locations of Ukrainian defensive positions. Later, the video was sent to the relevant Telegram channels.

Initially, the applicants were suspected of unauthorized dissemination of information about the location of the Armed Forces of Ukraine during martial law, but a few days later the investigation reclassified the charges to treason. The investigator stated that the collected materials indicated the transfer of information to facilitate Russia’s subversive activities against Ukraine.

National courts repeatedly extended the applicants' detention. They based their decisions on the existence of reasonable suspicion, risk of absconding, unlawful influence on witnesses, obstruction of the investigation, destruction of evidence, and the possibility of committing new crimes against national security. At the same time, the courts took into account family status, positive character references, and absence of convictions, but concluded that these circumstances did not eliminate the mentioned risks.

The applicants appealed to the ECHR complaining about the lack of reasonable suspicion, arbitrary reclassification of charges, and unjustified length of detention.

Position of the ECHR

The ECHR noted that for reasonable suspicion to arise, there must be facts or information that could convince an objective observer that the person concerned may have committed a criminal offense. Such facts do not need to reach the level of evidence required for a conviction or even for bringing formal charges.

The Court emphasized that a change in the legal qualification of charges at an early stage of criminal proceedings is not unusual. The applicants did not provide convincing arguments indicating the absence of factual grounds for the treason charge or that the reclassification was done in bad faith.

The ECHR stated that any system of mandatory detention is incompatible with the requirements of Article 5 § 3 of the Convention. At the same time, the provisions of Ukrainian legislation introduced during martial law do not establish automatic detention, as they do not deprive courts of the authority to set bail but only relieve them from the obligation to do so for certain categories of crimes.

The Court stressed that national courts identified specific risks of absconding, destruction of evidence, unlawful influence on witnesses, and committing new criminal offenses, referring to the individual circumstances of this case. Therefore, it found no reason to question the assessment of these risks made by the Ukrainian courts.

The ECHR noted that although the reasoning of some detention extension rulings was brief and did not substantially change over time, brevity of reasoning itself does not constitute a violation of Article 5 § 3 of the Convention if the necessity of detention was properly justified by previous court decisions taking into account the specific facts of the case.

The Court emphasized that the assessment of the reasonableness of the length of detention must be made considering the specific context of the case. In this case, the unprecedented circumstances of Russia’s full-scale invasion of Ukraine, which posed a threat to the statehood, independence, and very existence of Ukraine, were of particular importance. These circumstances carry special weight when justice is administered in frontline regions, as was the case in Kharkiv.

At the same time, the ECHR noted that the applicants did not prove the absence of due procedural diligence by the authorities. Despite the detention lasting over two years, the case materials did not indicate unjustified delays in proceedings attributable to the state.

The ECHR accepted the complaints under Article 5 § 3 of the Convention but concluded there was no violation of this provision. The Court also rejected as manifestly ill-founded the complaints regarding the lack of reasonable suspicion under Article 5 § 1 of the Convention.

Thus, the Court confirmed that even in extraordinary circumstances, prolonged detention must be based on an individual assessment of specific risks, but the special circumstances of full-scale war and administration of justice in frontline regions may be taken into account when assessing the reasonableness of such a restriction of liberty.

Earlier, the "Judicial and Legal Newspaper" also analyzed the ECHR decision in the case of Derevyanko and Tarasova v. Ukraine (applications No. 39465/23 and No. 43066/23), adopted the same day, in which the Court reached the opposite conclusion and found a violation of Article 5 § 3 of the Convention. The ECHR emphasized that even under martial law, the mere gravity of charges for crimes against national security does not justify detention, and Ukrainian courts are obliged to provide individualized, proper, and sufficient grounds for such preventive measures.

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