Formulation of guilt of the accused in a decision for temporary detention and before trial in substance. Violation of the presumption of innocence
JUDGMENT
Grubnyk v. Ukraine 17.09.2020 (app.no. 58444/15)
SUMMARY
Presumption of innocence. Temporary detention of a suspect, the right to liberty and security of a dangerous criminal as opposed to the public’s right to protection from violent attacks.
The applicant was arrested for his involvement in a terrorist attack. The charge was amended to include the involvement and direction of a terrorist organization. He was detained for 23 hours without a court order, however at the time of his arrest he was informed of the reasons for his deprivation of liberty. His continued detention was based on sufficient reasons, due to his danger to society.
Prior to the hearing, a domestic court had found the applicant “guilty” in a detention order, without correcting this in subsequent court decisions in the same case.
Strasbourg reiterated its case-law that unjustified detention constituted a serious breach of fundamental guarantees under Article 5 of the Convention. There has therefore been a violation of Article 5 § 1, due to the pre-trial detention without a court order and court decision.
On the contrary, the ECtHR found that at the time of his arrest, he had been adequately informed of the reasons for this and therefore there had been no violation of Article 5 .2.
Accordingly, the ECtHR found that the extension of his detention was based on serious indications of guilt for his participation in a terrorist organization and that the release of terrorists had already been declared unconstitutional under domestic law, therefore ruling that Article 5 had not been violated.
The ECtHR found a violation of the applicant’s presumption of innocence in the trial of his guilt in a decision on pre-trial detention even before he was tried on the merits of the case (Article 6§2 of the ECHR).
PROVISIONS
Article 5§1,
Article 5§2,
Article 5§3
Article 6§2
PRINCIPAL FACTS
The applicant, Volodymyr Yuriyovych Grubnyk, is a Ukrainian national who was born in 1983 and
was, until his reported release in a prisoner exchange, in detention in Odessa.
The applicant’s arrest and detention took place against the background of a series of terrorist
attacks in Odessa – in particular an explosion at the Security Service of Ukraine’s (“the SBU”) office
on 27 September 2015 – and the violent events in the Crimea and eastern Ukraine in 2014 and 2015.
The applicant had links to a Russian nationalist group.
On 19 October 2015, following the arrest of some alleged co-conspirators, the applicant was
arrested in connection with the attack on the SBU office. The charges were subsequently amended
to also include forming and leading a terrorist organisation.
The applicant alleges he was not informed of the reasons for his arrest. Searches of his home and a
flat he rented were carried out in his presence, but he only had access to a lawyer from the following
day, when a formal arrest report was drawn up. On that same day he was placed in pre-trial
detention for 60 days.
That period was extended multiple times and confirmed by higher courts on appeal. In particular,
the courts reasoned that, by law, bail was not available for terrorism offences, and that the applicant
was a flight risk and might reoffend. The courts did not address the applicant’s complaint that there
had been a delay of more than 23 hours between his actual arrest and the drawing up of the arrest
report. Nor did they deal with his argument that the ground underlined in the report for allowing his
arrest without a court order, namely that the offence had just been committed, was not applicable
in his case.
According to media reports, on 29 December 2019 the applicant was released and sent to the socalled “Donetsk People’s Republic” in a prisoner exchange with Russia.
THE DECISION OF THE COURT…
Article 5 § 1
The applicant complained that he had been arrested without a prior court decision and that the
arrest report had only been drawn up the day after his arrest and had been worded in vague terms.
The Court noted that there was no dispute that there had been a delay of more than 23 hours
between the applicant’s actual arrest and the drawing up of the formal arrest report. The applicant
had complained about that delay but no explanation had been provided in the domestic
proceedings.
It had been the Court’s constant view that unrecorded detention was a serious failing and a negation
of the fundamentally important guarantees under Article 5 of the Convention. There had accordingly
been a violation of Article 5 § 1.
The Court also found that the applicant’s arrest without a prior court decision had not been “in
accordance with a procedure prescribed by law”, in further violation of Article 5 § 1. The domestic
courts had not provided an explanation for why the grounds underlined in the arrest report, namely
that the arrest had taken place “immediately after” an offence had been committed, could serve as
a legal basis for the applicant’s arrest without a warrant when he had actually been arrested three
weeks after the terrorist attack.
Given those findings, the Court held that there was no need to examine the applicant’s remaining
complaint under Article 5 § 1 concerning the wording of the arrest report.
Article 5 § 2
The applicant denied that SBU officers had informed him of the reasons for his arrest orally, as
submitted by the Government.
The Court found, however, that the applicant’s denial was vague and unsubstantiated. The
Government’s explanations on the other hand were corroborated by the context, namely a highprofile terrorist attack at a time of great tension in Odessa, and the sequence of events involvingsearches conducted by SBU officers, accompanied by a demining expert, and resulting in the discovery of explosive devices in the applicant’s rented flat. Those factors, plus the fact that the
security officers had questioned the applicant about explosives during the search, had to have
largely communicated to him the reasons for his deprivation of liberty.
Moreover, the delay in the formal explanation of the reasons for the applicant’s arrest had not in
any way been prejudicial to him challenging the lawfulness of his detention. He had appeared before
a judge the day after his arrest and at that time he had already been informed formally of the
suspicion against him.
There had therefore been no violation of Article 5 § 2 of the Convention.
Article 5 § 3
The Court noted that in 2019 the Constitutional Court had decided to declare unconstitutional the
Bail Exclusion Clause, the 2014 law which had made it impossible for terrorism suspects to obtain
bail. The Constitutional Court’s decision underlined in particular that, in practice, that law had
limited the domestic courts’ ability to issue properly reasoned detention orders, even though the
courts retained the power to release such suspects if they presented no risks.
The Court’s task, however, was to review the relevant law and practice in the given circumstances of
a particular case and not in the abstract.
In the specific circumstances of the applicant’s case, the Court considered that it had been
self-evident that release had not been an option. The applicant had been suspected of organising
and leading a terrorist group which used sophisticated undercover operation techniques to engage
in highly dangerous ongoing activities.
Furthermore, his case had been examined against a background of great tension in Odessa and the
fleeing of defendants in other previous high-profile cases.
The domestic courts, which had had full jurisdiction to review the applicant’s detention, had
therefore had before them considerable evidence in support of the suspicion against him and of the
risk of him absconding if released.
Moreover, the domestic courts’ reasons for extending the applicant’s detention had evolved over
time; they had notably specified in April 2016 that his role in organising clandestine activities was a
further ground for believing that he was a flight risk.
Stressing that the authorities had a duty under the Convention to protect the rights of victims, actual
or potential, from violent attacks, the Court found that the domestic courts had given “relevant” and
“sufficient” reasons for the applicant’s detention. There had therefore been no violation of Article 5 § 3.
Article 6 § 2
The applicant submitted that the District Court had stated in the initial detention order that he “had
committed a particularly grave offence”, thus prejudging the outcome of the proceedings against
him.
The Court found that it could only read that statement as an expression of the District Court’s
opinion that the applicant had indeed been guilty of the particularly grave offence of which he had
merely been suspected, and not convicted, at the time.
Such poor wording might have been a technical error by the District Court, but it had at no point
subsequently been acknowledged or rectified by the courts or by any other domestic authority.
There had accordingly been a violation of the applicant’s right to be presumed innocent, in breach of
Article 6 § 2.
Just satisfaction (Article 41)
The Court considered that the finding of violations constituted in itself sufficient just satisfaction for
any non-pecuniary damage sustained by the applicant.
