CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 septembre 2020

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margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s53CE0290 { width:176.96pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }   FIFTH SECTION CASE OF GRUBNYK v. UKRAINE (Application no. 58444/15)   JUDGMENT Art 5 § 3 • Reasonableness of pre-trial detention • Proper justification for applicant’s pre-trial detention, unaffected by law limiting courts’ powers to release terrorism suspects • Domestic court’s balanced assessment, taking into account considerable evidence supporting the suspicion, seriousness of the crime in question and risk of absconding posed by release • Unavailability of release self-evident in specific circumstances of the instant case • Authorities’ duty to protect the rights of the actual and potential victims of violent attacks • Decisions not based on the law subsequently declared unconstitutional Art 5 § 1 • Lawful arrest or detention • Delay in drawing up of arrest report • No legal basis for arrest without prior court decision Art 5 § 2 • Information on reasons for arrest • Tenor of questioning and circumstances of search communicating sufficient information • Applicant not prevented from challenging the lawfulness of his detention despite possible delay in the formal explanation of the reasons for arrest Art 6 § 2 • Presumption of innocence • Wording of pre-trial detention order expressing the domestic court’s opinion that the applicant was guilty   STRASBOURG 17 September 2020   FINAL   17/12/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Grubnyk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Gabriele Kucsko-Stadlmayer,   Ganna Yudkivska,   Mārtiņš Mits,   Latif Hüseynov,   Lado Chanturia,   Anja Seibert-Fohr, judges, and Victor Soloveytchik, Section Registrar, Having deliberated in private on 25 August 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 58444/15) against Ukraine lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Volodymyr Yuriyovych Grubnyk (“the applicant”), on 13 November 2015. 2.     The applicant was initially represented by Mr V. Khilko and then by Mr A. Bogachev, lawyers practising in Odessa. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. 3.     The applicant alleged, in particular, under Article 5   § 1 of the Convention that his arrest had remained unrecorded from 10.30 a.m. on 19   October 2015, when he had in fact been deprived of his liberty, until the arrest report had been drawn up the next day, and that his arrest under the arrest report of 20 October 2015 had been unlawful because there had been no grounds under domestic law to arrest him without a court decision. The applicant also alleged, under Article 5   § 2, that he had not been informed promptly of the reasons for his arrest. He further alleged, under Article   5 §   3, that the Code of Criminal Procedure had barred the use of any preventive measures other than pre-trial detention in his case. Relying on Article 6   § 2 of the Convention, the applicant complained of a breach of the principle of the presumption of innocence on account of an expression used in the initial pre-trial detention order. 4.     On 21   April 2016 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54   §   3 of the Rules of Court. 5 .     On 3 September 2019 the Chamber invited the parties to submit further observations in respect of the applicant’s complaint under Article   5 §   3 of the Convention, in light of the judgment of the Constitutional Court of Ukraine of 25 June 2019 (see paragraph 53 below) any other relevant case-law of the domestic courts, notably that cited in paragraphs 54 to 56 below. THE FACTS THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1983 and, at the time of the most recent communication from the parties to the Court, was detained in Odessa. Background information 7 .     In its report of 4 November 2015 the International Advisory Panel – an international body constituted by the   Secretary General   of the Council of Europe to assess the effectiveness of the investigations carried out by the Ukrainian authorities into the violent clashes during the Maidan demonstrations between 30 November 2013 and 21 February 2014 and events in Odessa in May 2014 – described the events in Odessa in the following terms: “2. In spring 2014, following the political changes in Ukraine, groups of protesters (variously referred to in this Report as ‘pro-federalism’ activists or as ‘the pro ‑ federalists’) took positions ranging from mere opposition to the newly formed government to claims for the federalisation of Ukraine, and even secession of certain regions and their further annexation to the Russian Federation. EuroMaidan activists, for their part, countered the pro-federalists by holding demonstrations in support of a united Ukraine (also referred to in this Report as ‘the pro-unity’ activists). ... 3. By May 2014 Odesa was unstable following numerous mass demonstrations, seizures of official buildings, incitements to violence and clashes between the pro ‑ federalism and pro-unity activists. On 2 May 2014 [major clashes between the pro-unity and pro-federalism activists and a fire at the Trade Union Building] occurred. ... 31. According to official statistics, as a result of the clashes on 2 May, 48 persons died (seven women and 41 men). Six persons died as a result of firearm injuries they had received during the clashes... and 42 died as a result of the fire in the Trade Union Building. Of those 42, 34 died as a direct result of the fire and eight died as a result of jumping or falling from a height ...” 8.     The above events occurred against a background of events occurring in the Donetsk and Luhansk regions at around the same time. From the beginning of April 2014, armed groups started to seize official buildings there and announced the creation of self-proclaimed entities known as the “Donetsk People’s Republic” and the “Luhansk People’s Republic” (“DPR” and “LPR”). In response, on 14 April 2014 the Ukrainian government authorised the use of force against them in the legal form of an “anti ‑ terrorist operation” (see Khlebik v. Ukraine , no.   2945/16, §§   8-12, 25   July 2017). In a number of documents, including its declaration of 4   February 2015 concerning recognition of the jurisdiction of the International Criminal Court, the Parliament of Ukraine labelled the “DPR” and “LPR” terrorist organisations. 9 .     In late 2014 and early 2015 a series of explosions occurred in Odessa. They mainly targeted military facilities and buildings occupied by volunteers supporting the Ukrainian military’s war effort in the east of Ukraine. 10 .     According to the Government, the applicant is a member of Sut vremeni ( Суть времени , Essence of Time), a Russian nationalist movement with its headquarters in Moscow, Russia. The leader of the movement, Mr   Kurginyan, commented on the applicant’s case and arrest (see paragraphs 13 and 16 below) in a video presentation published on the movement’s website on 28   October 2015. Mr Kurginyan acknowledged that the applicant used to be a member of the movement but had left before the relevant events, and that all branches of the movement in Ukraine outside of the so-called “DPR” and “LPR” had been closed. They continued to operate, however, in the “DPR” and “LPR” and their members fought Ukrainian government forces there. Mr   Kurginyan denied that there was any connection between the applicant, his group’s activities and the movement and suggested that the applicant was either a victim or a tool in a false flag operation organised by the Ukrainian security services. Explosion of 27 September 2015 and the applicant’s arrest 11 .     On 27 September 2015 an explosive device was placed outside the offices of the Odessa Regional Directorate of the Security Service of Ukraine ( Служба безпеки України , “the SBU”, Ukraine’s domestic security agency), where it later exploded. There were no casualties. 12 .     On the same day the SBU started a criminal investigation into the incident, which was classified as a terrorist act. The incident received considerable media coverage. 13 .     According to the official notification of suspicion and charges subsequently presented to the applicant (see paragraphs 23 and 33 below), the explosion was organised by a group created and led by the applicant and composed of him and three co-conspirators, G., V. and Ch. They were driven by the desire to avenge the arrests by the Ukrainian security services of militants hostile to the Ukrainian government, and the victims of the events of 2 May 2014, for which they considered the Ukrainian authorities responsible. From July to September 2015 the applicant planned the explosion. Communicating with co-conspirators through encrypted messaging applications, he and the members of his group had the necessary equipment purchased and the explosive device made. They also scoped the location and developed a plan for the operation. Following the explosion of 27 September 2015 the applicant started planning a new attack: in the period from 27 September to 18 October 2015 he purchased a number of bomb-making ingredients and, in a flat he rented on Parkova Street in Odessa, started making additional explosives. He also instructed one of his co-conspirators, G., subsequently convicted of those acts (see paragraph 32 below), to study techniques for making the explosives and the latter offered to use the gunpowder he owned to make the explosive devices. 14 .     On 1 October 2015, following a search of Ch.’s home and the retrieval of mobile telephone data, G. was identified as a suspect. Ch. himself could not be found. A search for him as a wanted person was commenced on 23 October 2015. 15 .     On 15 October 2015 a considerable amount of gunpowder was discovered in G.’s home. He was later convicted in a separate case (see paragraph 32 below). A mobile telephone used to communicate with other members of the group was discovered and G. was questioned. On 19   October 2015 the investigating authority also showed him a line-up of photographs including the applicant’s. 16 .     At 10.30 a.m. on 19 October 2015 SBU officers arrested the applicant outside his home, in his car, on suspicion of organising the explosion. 17 .     According to the Government, at the time of the applicant’s arrest the officers introduced themselves and informed him of the reasons for the arrest and his rights, as they were required to do by the Code of Criminal Procedure (see paragraph 45 below). According to the Government, the applicant resisted arrest. The applicant denied this and stated that, in actual fact, the officers had behaved in “an aggressive manner”. He also denied that the officers had informed him of the reasons for his arrest. 18 .     From 11 a.m. to 8.30 p.m. that day an SBU investigator conducted a search of the applicant’s home. A large number of mobile telephones, SIM cards, notes, ammunition, body armour, balaclavas and camouflage clothing were seized, as well as the lease for the Parkova Street flat and other items. The applicant was also searched and numerous items were seized, including a key ring holding a number of keys. 19 .     From 12.02 to 7 a.m. on 20 October 2015 the investigator conducted a search of the Parkova Street flat rented by the applicant. According to the report on that search, upon the conclusion of the previous search of his home the applicant had informed the investigator that explosives and other bomb-making equipment could be found at the rented flat. The report went on to state that the applicant had freely given his consent to the search. All the residents of the block of flats had been evacuated. The applicant, unlocking the flat with his own key, had entered the flat with an explosives specialist to make sure that there was no risk of explosion. In the course of the subsequent search, certain chemicals, radio, electric and other tools and hardware had been seized. 20 .     The search reports were signed by the applicant, his father (the first report), the flat’s owner (the second report), two attesting witnesses, the investigator and two other SBU officers, listing them all by full name and rank. They identified the dates, time of start and finish and the locations of the searches. 21.     According to an expert report subsequently summarised in the charges against the applicant (see paragraph 33 below), the explosives discovered had the potential to cause damage within at least a sixty-seven metre radius. 22 .     At 9 a.m. the same morning the investigator drew up an arrest report stating that he had arrested the applicant at 10.30 a.m. the previous day. The text of the report included a quote from the Code of Criminal Procedure concerning the grounds for the arrest of a person without a court order, setting out verbatim sub-paragraphs 1 and 2 of Article 208 § 1 of the Code (see paragraph 45 below). The following words were underlined: “immediately after the offence, an eyewitness, including a victim, or a combination of clear signs on the body, clothing or at the scene of the event, indicate that this person has just committed an offence.” The report stated that the applicant was suspected of participation in a terrorist act committed on 27 September 2015, carried out as part of a conspiracy with G., V. and Ch. It also contained an explanation of the applicant’s rights, including the right to challenge the lawfulness of his arrest. 23 .     At 10.30 a.m. on 20 October 2015 the applicant was served with a formal notification of suspicion stating that he had, between July and September 2015, conspired with G., V. and Ch. and other unidentified individuals to plan and prepare a terrorist act, and that he had then, on 27   September 2015, committed a terrorist act, an offence under Article   258   § 2 of the Criminal Code (see paragraph 49 below). 24 .     It is not contested that the applicant’s right to access a lawyer was respected only from 20 October 2015 after the arrest report had been drawn up and formal notification of suspicion served. The applicant’s placement in pre-trial detention 25 .     On the same day, 20 October 2015, the investigator applied to the Odessa Prymorsky District Court (“the District Court”) for the applicant to be placed in pre-trial detention. The application ran to six pages and the material in support of the application to 240 pages, which included search and expert examination reports, transcripts of interviews and results of identification by photographs conducted with other suspects and witnesses, including G. (his interview and the results of identification were dated 15   and 19 October 2015, see paragraph 15 above), messages between the applicant and other suspects exchanged through encrypted communication applications, and photographic identification reports. 26 .     On the same day the District Court held a hearing at which it heard submissions from the prosecutor, the applicant and his lawyer. It ordered his pre-trial detention for sixty days, to be counted from 10.30 a.m. on 19   October 2015. The reasons were formulated as follows: “The pre-trial investigation authorities suspect [the applicant] of commission of a [terrorist act] under the following circumstances: [there followed a seventeen-paragraph description of the facts as presented by the investigator, set out in paragraph 13 above] On 19 October 2015 [the applicant was arrested under the provision of the Code of Criminal Procedure allowing arrests without a court warrant]. On 20 October 2015 [the applicant was served with a formal notification of suspicion]. The investigator, with the prosecutor’s approval, has applied for the applicant’s placement in pre-trial detention, arguing that the applicant is suspected of committing a particularly grave offence, punishable by more than ten years’ imprisonment ... if at liberty he may abscond from the pre-trial investigation authorities and the court, commit another criminal offence, continue his criminal activity, [or] exert unlawful influence on the victim, which indicates that it [would not be] possible to safeguard against those risks by less severe preventive measures. [... In] the course of the pre-trial investigation it has been established that there was a risk [that the applicant would abscond]. The need to prevent new attempts to abscond is grounds for applying pre-trial detention. Other, less restrictive, preventive measures would not ensure the applicant’s compliance with his [procedural obligations]. In the course of the hearing the prosecutor supported the investigator’s application ... [The applicant] and his lawyer objected ... Having examined the material on which the application is based, having examined the suspect, his lawyer ... having considered the prosecutor’s position, I come to the conclusion that the application must be granted for the following reasons. It can be seen from the criminal case material submitted that there is a reasonable suspicion that the applicant committed the offence [under the Criminal Code provision providing for the punishment of terrorist acts], which is punishable by more than ten years’ imprisonment. The above-mentioned circumstances show that there are risks which give reason to believe that the suspect may breach the procedural obligations imposed on him by law. The aim of the imposition of pre-trial detention on [the applicant] is the prevention of attempts to abscond from the pre-trial investigation authorities or the court; destroy, conceal or spoil any of the items or documents that are of material importance for establishing the circumstances of the criminal offence; exert unlawful influence on the victim or the witnesses in the same criminal proceedings; obstruct the criminal proceedings and commit another criminal offence. The evidence for this is that [the applicant] committed a particularly grave offence ( доказами цього є те, що Грубник В.Ю. вчинив особливо тяжкий злочин ). In [imposing] pre-trial detention I take into account the weighty evidence pointing to the commission of the offence by the applicant, the severity of the punishment which he faces, his age and his state of health. I consider that the prosecutor, in the course of the hearing regarding the application for pre-trial detention, has submitted material sufficient to [support the opinion] that none of the less restrictive preventive measures would prevent the occurrence of the risks proven in the course of the hearing. There are none of the circumstances provided for by Article 183 § 2 of the Code of Criminal Procedure] that would prevent the application of pre-trial detention. In summary, based on the material submitted, I have come to the conclusion that less restrictive preventive measures may fail to ensure that the [applicant] conduct himself in an appropriate fashion. Also ( при цьому ), pursuant to Article 176 § 5 of the Code of Criminal Procedure, preventive measures less restrictive than pre-trial detention cannot be imposed on a person who is suspected of [the provision of the Criminal Code providing for the punishment of terrorist acts]. It is impossible to prevent the risks set out in the application by applying less restrictive preventive measures.” 27.     On the same date the District Court also ordered the pre-trial detention of the other two suspects. 28 .     The applicant appealed to the Odessa Regional Court of Appeal (“the Court of Appeal”) arguing, in particular, that there had been a delay in the drawing up of his arrest report; that during that time the grounds for his arrest and his rights had not been explained to him; that there had been no grounds for an arrest without a court order since he had not been arrested immediately after the offence; that the evidence submitted by the investigator was insufficient to support a reasonable suspicion against him; that the District Court had not sufficiently taken into account his strong ties to the community; and that it had not properly examined the possibility of using a non-custodial preventive measure. In view of those arguments, the applicant asked the Court of Appeal to quash the detention order and dismiss the investigator’s application. He further argued that the statement in the detention order to the effect that he had “committed a particularly grave offence” was at odds with the principle of the presumption of innocence. 29 .     On 28 October 2015 the Court of Appeal upheld the detention order. In response to the applicant’s arguments it stated, in particular, that in the course of the hearing before the District Court it had been sufficiently proven that there was a reasonable suspicion against him and that there was a risk that he could abscond or obstruct the criminal proceedings. The Court of Appeal was of the opinion that the District Court had taken into account the particular seriousness of the offence of which the applicant was suspected, the severity of the punishment he faced, and the danger presented to the public by the offence of which he was suspected. It decided that no other preventive measure would be adequate in view of the risks he presented. 30 .     Concerning the grounds for the applicant’s arrest, the investigator’s application for pre-trial detention, the District Court’s and the Court of Appeal’s decisions all contained the same statement: “On 19 October 2015 [the applicant] was arrested under Article 208 of the Code of Criminal Procedure” (see paragraph 45 below). Subsequent criminal proceedings 31.     On 17 December 2015 the District Court extended the detention of the applicant and the other two suspects. No copy of the relevant detention order was provided to the Court. 32 .     On 9 February 2016 the proceedings against G. were split into a separate case. He pleaded guilty and on 29 March 2016 the District Court convicted him of participation in the creation of a terrorist group, commission of a terrorist act, preparation of terrorist acts, and unlawful possession of firearms. Reducing the sentence due to G.’s cooperation, the court convicted him to four and a half years’ imprisonment. 33 .     On 11 March 2016, almost five months after his arrest, the charges against the applicant were amended. He was notified that he was accused of creation, leadership of and membership in of a terrorist group, unlawful fabrication of explosives, unlawful possession of firearms (two handguns, ammunition and a silencer), commission of a terrorist act, and preparation of new terrorist acts after the explosion at the SBU building. 34.     On 30 March 2016 the District Court again extended the applicant’s detention. 35 .     On 8 April 2016 the Court of Appeal upheld that extension order. It pointed out that, according to the material provided by the prosecution, the suspect had organised clandestine activities, searched for material for the commission of terrorist acts, and ensured the safe movement of members of the terrorist group. Those elements indicated that, if the suspect were at liberty, there was a risk that he would commit new serious offences, abscond or interfere with the investigation. The court referred to Article 176 § 5 of the Code of Criminal Procedure, which precluded the granting of bail or imposition of other non-custodial preventive measures in respect of individuals suspected of or charged with certain terrorism-related or national security offences (see paragraph 40 below). The court rejected the applicant’s argument to the effect that that provision was contrary to Article   5 of the Convention. It held that Article 5 provided that detention could be effected for the purpose of bringing an individual before the competent legal authority on reasonable suspicion of having committed an offence or if it was reasonably considered necessary to prevent his committing an offence or fleeing after having done so. The District Court had established the presence of exactly such risks in the case. 36.     On 12 April 2016 the bill of indictment in respect of the applicant was transferred to the District Court for trial. 37 .     Subsequently the District Court extended the applicant’s detention on multiple occasions. According to the most recent information from the parties, on 3 October 2019 his detention was extended until 2   December 2019. 38.     According to media reports, on 26 November 2019 the District Court extended the applicant’s detention until 25 January 2020 but on 29   December 2019 he was released and handed over to the so-called “DPR” as part of a large exchange of prisoners agreed through negotiations between Ukraine and Russia. RELEVANT DOMESTIC LAW Constitution of Ukraine 1996 39 .     Article 29, which is relevant to the case, reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with the procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the time of detention, with a reasoned court decision in respect of the holding in custody...” Code of Criminal Procedure 2012 40 .     Article 176 § 1 provides for the following preventive measures: (i)     a personal undertaking of the defendant; (ii)     a personal warranty of a third party; (iii)     bail; (iv)     house arrest; and (v)     pre-trial detention. The investigating judge or the court must reject an application for a preventive measure if the investigator or the prosecutor has not proven that there are sufficient grounds to believe that none of the more lenient preventive measures would be sufficient for the prevention of the established risk or risks. The most lenient preventive measure is a personal undertaking and the most severe is pre-trial detention (Article 176 §   3). Preventive measures are applied by the judge at the request of the investigator, on application by the prosecutor, or on application by the investigator approved by the prosecutor (Article 176 § 4). Article 176 §   5, added by the Act of 7 October 2014 (hereinafter also “the Bail Exclusion Clause”, see paragraph 50 below regarding its legislative history), provides that “preventive measures of a personal undertaking, a personal warranty, house arrest and bail may not be imposed on people who are suspected of or charged” with: (i)     terrorism (Article 258 of the Criminal Code, see paragraph 49 below) and certain terrorism-related offences: creation of a terrorist group, recruitment for the purposes of terrorism, public appeals to commit a terrorist act and terrorism financing; (ii)     certain offences against national security, such as treason, attacks on the territorial integrity of Ukraine, creation of an unlawful armed group, and so forth. 41 .     Article 177 § 1 provides that the purpose of preventive measures is to ensure compliance with procedural obligations and prevent the risk of the suspect or accused: (i)     absconding from the pre-trial investigation authorities and/or the court; (ii)     destroying, concealing or spoiling any of the items or documents that are of essential importance for establishing the circumstances of the criminal offence; (iii)     exerting unlawful influence on the victim, witnesses, other suspects, the accused, expert...; (iv)     obstructing the criminal proceedings in any other way; (v)     committing another criminal offence or continuing the criminal offence of which he or she is suspected or accused. Article 177 § 2 provides that a preventive measure can be applied provided that there is a reasonable suspicion that the person has committed a criminal offence and there are risks giving sufficient grounds for the judge to believe that the suspect, accused or convicted person could commit the actions specified in Article 177 §   1. 42 .     Article 183 defines pre-trial detention as an “exceptional” preventive measure which can only be applied where the prosecutor has proven that no less restrictive preventive measure would prevent the risks set out in Article   177 of the Code (see paragraph 41 above). Moreover, it provides that only the categories of defendants explicitly mentioned in paragraph   2 of that Article can be subjected to pre-trial detention. Among these are certain defendants with prior convictions and defendants without prior convictions accused of offences punishable by more than five years’ imprisonment (for the classification of offences under the Criminal Code, see paragraph   48 below). 43 .     Article 194 § 1 provides that, in examining an application for a preventive measure, the court must consider whether the following circumstances have been proven: (i)     there is a reasonable suspicion against the suspect or accused; (ii)     the prosecutor asserts in the application for a preventive measure, and there are sufficient grounds to believe, that there is at least one of the risks specified in Article 177; (iii)     less severe preventive measures would be insufficient to prevent the relevant risks identified in the application. Article 194 § 2 provides that the court must refuse to apply a preventive measure if the prosecutor has failed to prove the existence of all the circumstances specified in Article 194   §   1. Article 194 § 3 provides that if the prosecutor has proven the existence of a reasonable suspicion, but not the existence of the risks and an inability to prevent them, the court may bind the suspect or the accused over to appear when summoned by the court or another authority. This binding over order is not considered a “preventive measure”. 44 .     Article 198 provides that the findings made in the order imposing a preventive measure concerning any circumstances regarding the substance of the suspicion or charges against the applicant are not binding ( не мають преюдиціального значення ) on the trial court, investigating authority and prosecutors in the course of the same and other criminal proceedings. 45 .     Article 208 authorises arrests without a court order in the following circumstances and subjects them to the following requirements: “1. [In the absence of a court order a] competent official shall be entitled to arrest a person suspected of having committed a crime for which imprisonment may be imposed only in the following cases: (1) if the person has been caught whilst committing a crime or attempting to commit one; or (2) if immediately ( безпосередньо ) after a criminal offence the statements of an eyewitness, including the victim, or [a combination] of clear signs on the body, clothes or at the scene of the event indicate that the person has just committed an offence... ... 4. The ...official who carried out the arrest shall immediately inform the arrested person, in a language which he or she understands, of the grounds for the arrest and of the crime he or she is suspected. The official shall also explain to the arrested person his or her rights: to be legally represented; to be provided with medical assistance; to make statements or to remain silent; to inform [third] parties ... of his or her arrest and whereabouts; to challenge the grounds for the arrest; as well as the other procedural rights set out in this Code. 5. A report shall be drawn up in respect of an individual’s arrest containing, [in particular,] the following information: the place, date and exact time (the hour and minute) of the arrest..; the grounds for the arrest; the results of the search of the person; requests, statements or complaints of the arrested person, if any; and a comprehensive list of his or her procedural rights and duties. The arrest report shall be signed by the official who drew it up, and by the arrested person. A copy shall immediately be served on the arrested person after his or her signature is obtained...” 46.     Article 276 provides that when a person has been arrested, a formal notification of suspicion must be served on him or her. From that moment, the person acquires the procedural status of a suspect. On service of the formal notification, he or she must be informed of his or her procedural rights, including the right to remain silent and have legal assistance. Code of Criminal Procedure 1960 47 .     The relevant provisions of the Code, in effect until 18 November 2012, provided: Article 106. Arrest of a suspect by the body of inquiry “The body of inquiry shall only be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed on one of the following grounds: (1) if the person is discovered while or immediately after committing an offence; (2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence; (3) if clear traces of the offence are found either on the suspect’s person, or on his clothing, or with him, or in his home. If there is other information giving rise to grounds for suspecting a person of a criminal offence, a body of inquiry may arrest that person if the latter attempts to flee, or does not have a permanent place of residence, or if the identity of that person has not been established. ...” Article 115. Arrest of a suspect by an investigator “An investigator may arrest ... a person suspected of having committed a crime in accordance with the procedure provided for in [Article] 106 ... of the Code. ...” Criminal Code 2001 48 .     Article 12 of the Code divides criminal offences into four categories, ranging from minor to particularly grave offences, based on the severity of the punishment imposed by the Code. A particularly grave offence is an offence punishable by more than ten years’ imprisonment. 49 .     Article 258 § 2 provides for imprisonment of between seven and twelve years for a terrorist act committed as part of a conspiracy or for a terrorist act which has caused substantial pecuniary damage or other serious consequences. Legislative history of the Bail Exclusion Clause 50 .     The of 7 October 2014, which introduced the Bail Exclusion Clause into the Code of Criminal Procedure, originated in a draft law entitled “Draft law concerning introduction of amendments to the Criminal and Criminal Procedure Codes of Ukraine concerning certainty of punishment for certain offences against national and public security and corruption offences” (“ Про внесення змін до Кримінального та Кримінального процесуального кодексів України щодо невідворотності покарання за окремі злочини проти основ національної безпеки, громадської безпеки та корупційні злочини "). The draft law primarily concerned introduction of a new system of in absentia proceedings for the national security and corruption-related offences. The explanatory note to the draft was mainly dedicated to that procedure. The only provision of the explanatory note concerning the Bail Exclusion Clause read: “introduction of pre-trial detention as the only preventive measure for separatist and terrorist offences will increase the speediness of pre-trial investigations concerning them” ( запровадження єдиного можливого запобіжного заходу у вигляді тримання під вартою за сепаратистські та терористичні злочини підвищить оперативність проведення їх досудового розслідування ). Constitutional Court Act 2017 51 .     The Act, which came into force on 3 August 2017, introduced, for the first time in Ukrainian law, the right for individuals to apply directly to the Constitutional Court for review of constitutionality of legislative provisions applied by courts in their cases. This change was based on the constitutional amendments enacted in 2016. Section 55 of the Act provides that a person considering that a provision of an Act of Parliament applied in his or her case can lodge a constitutional complaint with the Constitutional Court. The complaint can be lodged once ordinary courts have delivered a final decision in the case. 52.     Section 91 of the Act provides that laws declared unconstitutional lose legal force from the day of delivery of the Constitutional Court’s decision declaring them unconstitutional, unless the Constitutional Court rules that they would lose legal force from a later date. The Constitutional Court’s decision concerning the Bail Exclusion Clause 53 .     On 25 June 2019 the Constitutional Court declared the Bail Exclusion Clause contrary to Article 29 of the Constitution guaranteeing the right to freedom and personal inviolability (see paragraph 39 above). The case had been brought by four applicants and concerned the application of the Bail Exclusion Clause in their cases (see paragraph 51 above concerning this procedure). However, the Constitutional Court’s decision did not describe the circumstances of those cases. The decision was based on the following reasons: (i)     the Bail Exclusion Clause prevented the courts from issuing duly motivated decisions concerning pre-trial detention. Citing Korniychuk v.   Ukraine (no. 10042/11, § 57, 30 January 2018), the court pointed out that according to the Court’s case-law, justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities and the judicial officer is required to give relevant and sufficient reasons for the detention; (ii)     in accordance with the judgments in Khayredinov v. Ukraine (no.   38717/04, §§ 29 and 31, 14 October 2010) and Kharchenko v.   Ukraine (no. 40107/02, § 80, 10 February 2011), the courts were under an obligation to consider other preventive measures as an alternative to detention. However, the Bail Exclusion Clause had taken away the courts’ right to impose preventive measures that were less restrictive than detention; (iii)     Article 29 of the Constitution required a reasoned court decision as grounds for detention. Such a decision had to be fair and could not be merely formalistic. This reduced the risk of arbitrariness which would exist if detention was based merely on the gravity of the offence without an examination of the specific circumstances of the case and reasons for detention; (iv)     the Bail Exclusion Clause allowed for detention on the basis of formalistic court decisions, based purely on a formal classification of the offence, which was contrary to the principles of the rule of law and did not provide for a correct balance between the public interests justifying detention and individual liberty, a requirement inherent in Article   29 and other provisions of the Constitution. Domestic case-law concerning detention of defendants charged with terrorism and national security-related offences 54 .     On 13 October 2016 the Kharkiv Court of Appeal quashed a detention order in respect of a defendant (applicant in case no.   38718/16 Aleksandrovskaya v. Ukraine , communicated on 18   February 2017), charged with acting to undermine the territorial integrity of Ukraine, an offence covered by the Bail Exclusion Clause, and placed the defendant under house arrest. Relying essentially on Articles 2, 3 and 5 of the Convention, the court held that the defendant’s continued detention could adversely affect her medical situation, and that it had not been persuasively demonstrated that there was a risk that she might evade or hinder the ongoing investigation. 55.     On 12 March 2018 the Kyiv Holosiyivsky District Court rejected a prosecutor’s application to extend detention of a defendant (applicant in case no. 71818/17 Avraimov v. Ukraine , communicated on 5 January 2018) charged with terrorism financing, an offence under Article 258-5 of the Criminal Code, covered by the Bail Exclusion Clause. The court released the defendant, which had been in detention since 24 April 2017, and bound him over to appear when summoned. The court found that the prosecution had failed to prove that the defendant represented any risks envisaged by Article 177 of the Code of Criminal Procedure (see paragraph 41 above). The court had taken into account that the applicant had permanent accommodation and strong social ties, namely minor children and an elderly mother dependent on him and had no criminal record. The court cited Jablonski v. Poland (no.   33492/96, §   80, 21 December 2000) for the proposition that while the persistence of reasonable suspicion that the person arrested has committed an offence was a condition sine qua non for the lawfulness of the continued detention, after a certain lapse of time it no longer sufficed and judicial authorities had to give other grounds to extend deprivation of liberty. 56 .     In another case (domestic case no. 11-cc/796/4904/2017), on 27   September 2017 the Kyiv City Court of Appeal quashed a detention order and released a defendant, Mr O.L., charged with conspiracy to commit a coup d’état or insurrection, an offence under Article 109 of the Criminal Code, covered by the Bail Exclusion Clause. The Court of Appeal found that neither the reasonable suspicion in respect of the charges presented nor the risks the preventive measure was supposed to safeguard against have been proven by the prosecution. RELEVANT INTERNATIONAL MATERIAL Office of the United Nations High Commissioner for Human Rights (OHCHR) 57 .     The report of the OHCHR on the human rights situation in Ukraine from 16 May to 15 August 2016 reads: “81. OHCHR has documented a clear and consistent trend that human rights violations against persons charged with conflict-related or national security and ‘terrorism’-related offenses often begin with arbitrary pre-trial detention. According to the Code of Criminal Procedure, as amended in October 2014, pre-trial detention is mandatory for all conflict-related or national security and ‘terrorism’-related cases. According to the Minister of Justice, “custodial detention for separatist and terrorist crimes... increases the efficacy of a pre-trial investigation”. ... 83. Through trial monitoring, OHCHR has observed that neither the prosecution nor the judges address the grounds for continued detention at review hearings. Courts rarely examine alternatives to pre-trial detention, such as bail or other conditions to guarantee appearance for trial, which would render detention unnecessary in particular cases... 84. OHCHR finds that the relevant provisions of the Code of Criminal Procedure providing for mandatory pre-trial detention for accused charged with conflict-related or national security or terrorism offenses are contrary to international human rights standards and result in excessive and at times arbitrary detention. In May 2015, Ombudsperson filed an appeal with the Constitutional Court, challenging the constitutionality of the amendments citing the jurisprudence of the European Court of Human Rights. However, the Ombudsperson’s Office withdrew