(Suspected) terrorists
THE LAW ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE CONVENTION 59. The applicant complained that there had been violations of Article 5 § 1 of the Convention because he had been arrested without a court decision, the arrest report had only been drawn up the day after his arrest, and the arrest report had been worded in vague terms. The relevant parts of Article 5 § 1 read: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” Admissibility 60. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 61. The urgency of the situation had not prevented the officers conducting the search from drawing up two detailed search reports, running to seven pages each, printed on a laptop. This demonstrated that they had had sufficient time to formalise the details of the search. The Government had not explained why the same could not have been done in respect of the arrest report. There had been many officers involved and so it had been possible. The applicant considered that the real reason for the delay had been to delay his access to a lawyer. 62. The fact that the arrest report had correctly indicated the date of the actual arrest was of little relevance, since the report itself had been drawn up with a delay. Before it had been drawn up on 20 October 2015, no other record of detention had existed. In Smolik v. Ukraine ( no. 11778/05, §§ 43 ‑ 48, 19 January 2012), the Court had found that a subsequent acknowledgement of the actual date of arrest in a judicial decision had not been sufficient to cure the absence of a contemporaneous record of arrest. There had been no public record of the arrest as soon as it had occurred, resulting in the denial of procedural safeguards. This had prejudiced the applicant ’ s situation as he had not been informed of his rights to remain silent and to a lawyer, as a result of which supposedly self-incriminating statements had been recorded in the search reports. 63. The crime the applicant had been charged with had taken place weeks before his arrest. No arrest could therefore be made without a court order as the conditions for a “warrantless” arrest set out in Article 208 of the Code of Criminal Procedure had not been met. The report had not indicated exactly who had “identified” the applicant as the perpetrator or which clear “signs” had indicated that he had just committed the crime. There had been a breach of the domestic law in that respect. (b) The Government 64. The Government referred to the events in certain areas of the Donetsk and Luhansk regions, where the anti-terrorist operation had been conducted, since April 2014, against the so-called “DPR” and “LPR”, considered by the Government to be illegal armed groups and terrorist organisations. The very decision to launch that military operation had been motivated by the rapid proliferation of the separatist movement in a number of regions of Ukraine, including Odessa. That movement benefitted from what the Government described as the “comprehensive support” of the Russian Federation. Odessa remained one of the cities with the highest levels of terrorist threat. The applicant was a member of Sut vremeni, the same movement whose members were also involved in the armed activities of the “DPR” and “LPR” ( see also paragraph 10 above). 65. The Government pointed out that the situation in the present case was to be distinguished from cases where the Court had condemned the practice of unrecorded detention by the police. Notably, it had been recorded in the arrest report that the arrest had taken place at 10.30 a.m. on 19 October 2015 ( see paragraph 22 above). 66. The authorities had had strong grounds to believe that the applicant was engaged in terrorist activity and had been under an obligation to act with the utmost urgency, most notably to extract the explosives from the block of flats where they were stored. After that had been done the applicant had been escorted to the office where the arrest report had been finalised. 67. The delay in the finalisation of the report had not affected the applicant ’ s position: he had been provided with a defence counsel and brought before a court already on 20 October 2015. The court, in its order authorising the applicant ’ s detention, had noted that he had been taken into custody at 10.30 a.m. on 19 October, so his arrest had been subject to a judicial review and his complaints in that respect had been found to be unsubstantiated. 68. The arrest report had contained specific information concerning the grounds for the applicant ’ s arrest, including the offence of which he had been suspected, the names of his suspected accomplices, and the time and place where the offence had been committed. This demonstrated that there had been a reasonable suspicion against him. The matter had been examined by two levels of domestic court, which had found that the arrest had been in compliance with domestic law. The Court ’ s assessment (a) Delay in the drawing up of the arrest report 69. It is not disputed that the applicant was first deprived of his liberty at 10.30 a.m. on 19 October 2015 ( see paragraph 16 above) and that there was a delay of more than twenty-three hours between the actual time of arrest and drawing up of the arrest report the next day ( see paragraph 22 above). While the applicant complained about the delay ( see paragraph 28 above), no explanation was ever provided for it in the domestic proceedings. 70. The Court has found violations of Article 5 § 1 in a number of cases where there was a delay in the drawing up of such reports (see, among many other examples, Grinenko v. Ukraine, no. 33627/06, §§ 9, 75 and 76, 15 November 2012, where the delay was in excess of fourteen hours, and Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 78, 26 June 2018, where, in respect of eight applicants, delay lasted from seven to twenty ‑ three hours). 71. It is true that in the present case the authorities immediately acknowledged that the arrest report had been made with a delay. However, in Smolik v. Ukraine (no. 11778/05, § 46, 19 January 2012) the Court held that the subsequent acknowledgement of a delay in the recording of an arrest could not remove the problem under Article 5 § 1 in the absence of contemporaneous records. In this respect it recalls that the absence of an arrest record must in itself be considered a serious failing, as it has been the Court´s constant view that unrecorded detention of an individual is a negation of the fundamentally important guarantees contained in Article 5 of the Convention (see, mutatis mutandis, Fortalnov, cited above, §§ 76 and 79; see also Makarenko v. Ukraine, no. 622/11, §§ 60 and 65, 30 January 2018; Beley v. Ukraine [Committee], no. 34199/09, § 60, 20 June 2019). The lack of a necessary record of a person ’ s detention as a suspect may deprive that person of access to a lawyer and all other rights of a suspect (see, mutatis mutandis, Fortalnov, cited above, § 77). 72. The Court sees no reason to reach a different conclusion in the particular circumstances of the present case. As to the Government ’ s argument that the applicant was not affected, the Court notes that on account of the delay in drawing up of the arrest report, the applicant ’ s access to a lawyer and notification of his rights as a defendant were delayed ( see paragraphs 22 and 24 above). 73. There has, accordingly, been a violation of Article 5 § 1 of the Convention on account of the delay in the drawing up of the arrest report. (b) Arrest without a prior court decision 74. Article 208 § 1 of the Code of Criminal Proceedings provides for only two situations where a person can be arrested without a prior court decision ( see paragraph 45 above): (1) if the person has been caught whilst committing a crime or attempting to commit one; or (2) if immediately 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. 75. It is the latter of the two grounds that was underlined in the arrest report ( see paragraph 22 above). It has never been suggested by any domestic authority that the former of the two grounds was also applicable. 76. The applicant argued before this Court, as he had done at the domestic level, that the second sub-clause of Article 208 § 1 did not apply to him. Firstly, it was unclear from the arrest report who the “eyewitnesses” had been who implicated him in that alleged offence. Secondly, the requirement of “immediacy” was not met since several weeks passed between the terrorist act of which the applicant had been suspected at the time and his arrest ( see paragraph 63 above). 77. The Court notes that the authorities did possess evidence of at least one eyewitness, the applicant ’ s co-conspirator G. ( see paragraphs 25 and 32 above). The relevant domestic law provisions required, however, that such an eyewitness identification occur “immediately” after the offence. It remains to be seen whether this requirement of “immediacy” was met. 78. The parties have not pointed to any domestic case-law which would define the exact meaning of the term “immediate” in that context. 79. In its previous judgments the Court found violations of Article 5 § 1 in respect of arrests effected under the equivalent provision of the 1960 Code of Criminal Provision ( see paragraph 47 above), which also allowed arrest without a court decision “immediately after” an offence was committed, where considerable time elapsed between the alleged offence and the arrest (see, for example, Malyk v. Ukraine, no. 37198/10, § 27, 29 January 2015, where the period concerned was half a year, and Strogan v. Ukraine, no. 30198/11, § 88, 6 October 2016, where it was four months). 80. In the present case, the applicant was arrested about three weeks after the offence in question, the terrorist act at the SBU building ( see paragraphs 11 and 16 above). 81. The applicant argued before the domestic courts that such a delay was incompatible with the requirement of “immediacy” under the relevant provision of the Code of Criminal Procedure. Given that the literal language of the Code tended to support the applicant ’ s interpretation, his argument does not appear frivolous and required a response. However, the domestic courts, in particular the Court of Appeal, did not address it ( see paragraph 29 above). 82. The Court does not exclude that there might have been other legal grounds under domestic law for the applicant ’ s arrest, but the Court is not in a position to speculate on that point since the domestic authorities did not refer to any such alternative grounds. 83. In summary, neither the domestic courts provided no explanation for why sub-paragraph 2 of Article 208 § 1 of the Code of Criminal Procedure could serve as the legal basis for the applicant ’ s warrantless arrest, despite the applicant ’ s argument, grounded in the language used in the relevant legislative provision itself, to the contrary. Nor did they point to any other provisions of domestic law which would provide a legal basis for the applicants ’ detention. 84. In such circumstances, the Court is unable to find that the applicant ’ s arrest in the absence of a prior court decision was “in accordance with a procedure prescribed by law”. 85. There has, accordingly, been a violation of Article 5 § 1 of the Convention on account of the applicant ’ s arrest without a prior court decision. (c) The wording of the arrest report 86. In view of the findings above there is no need to examine the complaint under Article 5 § 1 of the Convention concerning the wording of the arrest report. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 87. The applicant complained of a violation of Article 5 § 2 of the Convention: “2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” Admissibility 88. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 89. The applicant submitted that the officers who had arrested him had not informed him of the reasons for either his arrest or the search (see paragraph 17 above). The search reports ( see paragraphs 18 and 19 above) had contained no indications which would have allowed him to understand those reasons, and there had been no other document which had contained that information. In the course of the first search, at his home, the officers had discovered a lease for the rented flat ( see paragraph 18 above). It had been on that discovery and not his statements that the decision to search the rented flat had been based. 90. Furthermore, his keys had been seized from him in the course of the first search and, therefore, he could not have opened the rented flat with his own key as indicated in the report on the second search ( see paragraphs 18 and 19 above). He had made no objection to the content of the latter report as he had had no lawyer at the time and had only been provided with one on 20 October 2018. In any event, the officers concerned had extensively questioned him after the arrest without explaining his rights to him or ensuring that he had access to a lawyer. The authorities could not therefore be allowed to “profit from their wrongdoing” by relying on the statements obtained from him during the searches in breach of his rights as evidence that he had been informed of the reasons for his arrest. 91. The applicant relied on the case of Zuyev v. Russia ( no. 16262/05, §§ 84 and 85, 19 February 2013), where the Court found a fourteen-hour delay too long to satisfy the requirements of Article 5 § 2. (b) The Government 92. The applicant had been informed orally of the reasons for his arrest immediately after it had taken place, as required by law ( see paragraph 45 above). Article 5 § 2 did not require the reasons to be given in writing or otherwise in a particular form (citing Kane v. Cyprus ( dec. ), no. 33655/06, 13 September 2011). 93. In the course of the first search conducted immediately after the arrest in his home, the applicant had informed the officers that the bomb ‑ making equipment was at his rented flat. This demonstrated that he had fully understood the nature of suspicions against him. Article 5 § 2 allowed the reasons for the arrest to be provided in the course of post-arrest interrogations or questioning (citing Murray v. the United Kingdom, 28 October 1994, § 77, Series A no. 300 ‑ A). In any event, detailed written reasons for the arrest had been served on the applicant the very next day, on 20 October 2015, which had been prompt enough in the context to meet the requirements of Article 5 § 2. The Court ’ s assessment 94. The Government submitted that at the time of arrest the SBU officers had informed the applicant of the reasons for the arrest orally, as required by law ( see paragraph 92 above). The applicant denied this ( see paragraph 89 above). However, while the Government ’ s explanations are corroborated by the context and sequence of events, the applicant ’ s denial is vague, unsubstantiated and does not appear plausible. Notably, he did not explain in any detail what precisely the officers had told him concerning his arrest and the searches, whether he had demanded an explanation and, if so, what the response had been. 95. He appeared to concede that the security officers had questioned him about the explosives in the course of the search ( see paragraph 90 above) but insisted that that fact, and his responses recorded in the search report, could not be considered a valid notification for the purposes of Article 5 § 2, as his statements had been obtained in breach of his right to a lawyer. However, even in the absence of any response on his part, the tenor of the questions must have given him an indication of the reasons for his deprivation of liberty. 96. Moreover, the issue of whether any questioning in the course of the search led to a violation of the applicant ’ s right to legal assistance could be relevant in the context of Article 6 of the Convention. However, this matter is not part of the present application. 97. The primary goal of Article 5 § 2 is not to safeguard an applicant ’ s right to legal assistance in the criminal proceedings against him but rather to provide a safeguard against arbitrary deprivation of liberty and allow the applicant to obtain an effective review of the lawfulness of his detention, which would not be possible without knowing the reasons for it ( see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170 ‑ A). The Court ’ s judgment in Dikme v. Turkey ( no. 20869/92, §§ 54-57, ECHR 2000 ‑ VIII) provides a good example of this distinction: in that case, even though there were credible allegations that the applicant was ill-treated and questioned without a lawyer, the Court found no violation of Article 5 § 2 because the very tenor of that potentially problematic questioning had communicated to the applicant the reasons for the arrest. 98. Be it as it may, given the situation in Odessa at the relevant time and the notorious nature of the series of explosions in question ( see paragraphs 9 and 12 above), the very fact that a search was conducted by SBU officers, accompanied by a demining expert, in the course of which explosive devices were discovered must have largely communicated to the applicant the reasons for his deprivation of liberty (compare, mutatis mutandis, Öcalan v. Turkey ( dec. ), no. 46221/99, 14 December 2000). 99. There is no indication that any possible delay in the formal explanation of the reasons for the applicant ’ s arrest was in any way prejudicial to him in terms of him being able to challenge the lawfulness of his detention: in fact, he appeared before the judge the day after his arrest and, at that time, he and his lawyer already had the formal notification of suspicion against him. 100. There has, accordingly, been no violation of Article 5 § 2 of the Convention. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 101. The applicant complained that the application in his case of Article 176 § 5 of the Code of the Criminal Procedure, which precluded the use of non-custodial preventive measures to terrorism suspects, had resulted in a violation of Article 5 § 3 of the Convention, which reads: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” Admissibility 102. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 103. Article 176 § 5 of the Code of Criminal Procedure ( see paragraph 40 above, hereinafter also “the Bail Exclusion Clause”) barred the use of any preventive measure other than pre-trial detention in respect of persons accused of involvement in terrorism, like the applicant. For him, the situation was analogous to S.B.C. v. the United Kingdom ( no. 39360/98, § 23, 19 June 2001) and Boicenco v. Moldova (no. 41088/05, §§ 135-138, 11 July 2006) and also disclosed a violation of Article 5 § 3. 104. After the initial pre-trial detention order the courts had continued to invoke the Bail Exclusion Clause in their subsequent decisions. On 8 April 2016 the Court of Appeal had even explained why it considered the Bail Exclusion Clause compliant with Article 5 of the Convention ( see paragraph 35 above). This demonstrated that reliance on the provision in question was important and far from an incidental formal reference with no effect, as the Government had pretended. 105. Contrary to what the Government had suggested, the courts could not in any way derogate from the Bail Exclusion Clause. In that connection the applicant submitted a press release from the SBU dated 15 October 2005 announcing that criminal proceedings had been instituted against a judge in the Donetsk region who had released a person suspected of terrorism financing on bail. The applicant also referred to a report of the OHCHR criticising the Bail Exclusion Clause ( see paragraph 57 above). 106. In further observations submitted at the Chamber ’ s invitation ( see paragraph 5 above), the applicant maintained his initial position and submitted that the Constitutional Court ’ s decision of 25 June 2019 declaring the Bail Exclusion Clause unconstitutional and other recent domestic case ‑ law could be seen as measures which were, in principle, favourable to him. Those developments did not mean, however, that the authorities acknowledged a violation of the applicant ’ s rights or afforded redress to him. Notably, none of the decisions extending his detention had been set aside. The Constitutional Court ’ s decision had no retroactive effect. Therefore, the applicant could still claim to be a “victim” of a violation of his rights under Article 5 § 3 and his complaint remained admissible. (b) The Government 107. The Government submitted that there had only been a pro forma reference to the Bail Exclusion Clause in the court decision ordering the applicant ’ s detention. The court had primarily relied on grounds such as the strong suspicion that the applicant had committed a terrorist attack and the risk that he would continue criminal activities or abscond if released. The applicant ’ s detention had been necessary because he was a member of “a pro-Russia underground terrorist network” and if at large could abscond as another suspect, Ch., had done ( see paragraph 14 above). Moreover, the fact that after the attack on the SBU building the applicant had continued to make explosive devices had demonstrated his intention to continue his dangerous criminal activities. The applicant would therefore have been detained regardless of the Bail Exclusion Clause. 108. For this reason, the speculative question of whether, in the absence of that legislative provision, the applicant would have been placed in detention, was irrelevant. 109. In further observations submitted at the Chamber ’ s invitation ( see paragraph 5 above), the Government reported that, after the period covered by their initial observations, the applicant ’ s detention continued to be extended ( see paragraph 37 above). The Court ’ s assessment (a) Relevant general principles 110. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention ( see Buzadji, cited above, § 90, with further references). Any system of mandatory detention on remand is per se incompatible with Article 5 § 3 ( see Ilijkov v. Bulgaria, no. 33977/96, § 84, 26 July 2001). 111. It primarily falls to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. Accordingly, they must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above-mentioned requirement of public interest or justifying a departure from the rule in Article 5, and set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 ( see Buzadji, cited above, § 91). 112. The persistence of a reasonable suspicion is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices: the Court must then establish (1) whether other grounds cited by the judicial authorities continue to justify the deprivation of liberty and (2), where such grounds were “relevant” and “sufficient”, whether the national authorities displayed “special diligence” in the conduct of the proceedings. The Court has also held that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (ibid., § 87). 113. That requirement on the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand (ibid., § 102). 114. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative means of ensuring his or her appearance at trial (ibid., § 87). 115. Justifications which have been deemed “relevant” and “sufficient” reasons (in addition to the existence of reasonable suspicion) in the Court ’ s case-law, have included grounds such as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (ibid., § 88). (b) Application of the relevant principles to the present case 116. The Court has held, on several occasions, that legislative schemes limiting the domestic courts ’ decision-making powers in matters of pre-trial detention breached Article 5 § 3 of the Convention ( see S.B.C. v. the United Kingdom, no. 39360/98, §§ 23 and 24, 19 June 2001; Boicenco v. Moldova, no. 41088/05, §§ 134-38, 11 July 2006; and Piruzyan v. Armenia, no. 33376/07, §§ 105 and 106, 26 June 2012). 117. In this context the Court notes the Constitutional Court ’ s decision to declare unconstitutional the Bail Exclusion Clause on the grounds that its operation in practice limited the domestic courts ’ ability to issue properly reasoned detention orders ( see paragraph 53 above). It is a matter of satisfaction for the Court that the Constitutional Court ’ s decision eliminated the risk (also stressed by the OHCHR – see paragraph 57 above ) that the Bail Exclusion Clause would have such a negative effect in future cases. 118. The Court reiterates, however, that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they affected the applicant gave rise to a violation of the Convention ( see N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X). As stated above, the Constitutional Court ’ s decision was primarily focused on the Bail Exclusion Clause preventing the courts from properly reasoning the detention orders, which is also a matter that is closely associated with the particular circumstances of a given case. 119. Contrary to the situation in the cases cited in paragraph 116 above, in the present case the domestic courts had the power to review the existence of a reasonable suspicion against the defendant, examine the evidence in this respect and order his release if they considered that no reasonable suspicion was shown in respect of the charges brought against him (see, for an example of a similar situation in Croatia, Merčep v. Croatia, no. 12301/12, § 102, 26 April 2016) or if they considered that there were no risks justifying detention ( see paragraphs 43 and 54 to 56 above). 120. The case material demonstrates that the domestic courts, which had before them considerable evidence in support of the suspicion against the applicant, did exercise this power of control in his case ( see paragraphs 14, 15, 18, 19, 25 and 26 above), as they had done in some other terrorism and national security-related cases ( see examples of the domestic courts ’ decisions in paragraphs 54 to 56 above). 121. The Court reiterates that in some instances concerning particularly serious crimes, the nature and gravity of the charges against a defendant is a factor weighing heavily against his or her release and in favour of remanding him or her in custody ( see Merčep, cited above, § 96, with further references). The generally formulated risk flowing from the organised nature of the criminal activities of which the applicant is accused has been accepted as the basis for his or her detention, in particular at the initial stages of the proceedings ( see Dudek v. Poland, no. 633/03, § 36, 4 May 2006 ). 122. In Khodorkovskiy v. Russia (no. 5829/04, § 196, 31 May 2011) the Court remarked that, even though that situation had not arisen in that case, in some circumstances, for example where the suspect allegedly belonged to a gang implicated in violent crimes, or, probably, in terrorist cases, the “unavailability of bail” could be self-evident (citing Galuashvili v. Georgia, no. 40008/04, §§ 6 et seq., 17 July 2008; Kusyk v. Poland, no. 7347/02, § 37, 24 October 2006; and Celejewski v. Poland, no. 17584/04, §§ 35-37, 4 May 2006). 123. The Court considers that this was the situation in the applicant ’ s case. The unavailability of release was self-evident, given the specific circumstances of the applicant ’ s case. He was suspected of organising and leading a terrorist group composed of several individuals, one of whom had already absconded by the time the applicant was arrested. The group used sophisticated undercover operations techniques and was engaged in a highly dangerous activity, an activity which was allegedly ongoing at the time the arrest was made. 124. In this context the Court must stress that the authorities were under a duty to protect the rights of the actual and potential victims of violent attacks under Articles 2, 3 and 5 § 1 of the Convention. The Court considers that, in circumstances such as those in the applicant ’ s case, it must interpret the scope of the authorities ’ obligations under Article 5 § 3 to provide reasons for their decisions in a manner consistent with the practical requirements of discharging that duty (see, in the context of Article 6, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 252 and 259, 13 September 2016 ). 125. Moreover, his case was examined against the background of great tensions in Odessa at the relevant time and the fleeing of defendants in other previous high-profile cases ( see paragraphs 7 to 10 and 58 above). 126. It is also of key relevance that the District Court, which had full jurisdiction in that respect, found, in proceedings which raised no other issue of compliance with Article 5 § 3, that the evidence supported a reasonable suspicion against the applicant on those specific charges and that there was a risk of him absconding if released. Those findings were reviewed and upheld on appeal. Given the material before the Court, there is no reason to doubt the well-founded nature of the domestic courts ’ findings in that respect. 127. It is true that the reasons in the District Court ’ s initial detention order were stated in a succinct fashion, given that the danger of the applicant absconding was evident. However, the court ’ s succinct reasoning cannot alone amount to a violation of Article 5 § 3 (see, for example, Van der Tang v. Spain, 13 July 1995, § 60, Series A no. 321). Moreover, the degree of specificity of the domestic courts ’ reasons evolved over time: on 8 April 2016, in upholding the order extending the applicant ’ s detention, the Court of Appeal referred to his specific role in the organisation of clandestine activities as grounds for believing that he presented a flight risk ( see paragraph 35 above). The Court observes that it has not been suggested that the authorities failed to display “special diligence” in the conduct of the proceedings 128. Lastly, and most importantly, the decision of 20 October 2015 was not based on the Bail Exclusion Clause, although it contained a reference to the latter, but as explained above was the result of a balanced assessment which took into account the seriousness of the crime of which the applicant was suspected and the risk posed by release. 129. In view of the above-mentioned circumstances, the Court considers that the domestic courts gave “relevant” reasons for his detention which were “sufficient” under the circumstances to meet the minimum standard of Article 5 § 3 of the Convention. 130. The Court finds, therefore, that, in the particular circumstances of the present case, there has been no violation of Article 5 § 3 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 131. The applicant complained of a violation of Article 6 § 2 of the Convention on account of the language used by the District Court in its initial pre-trial detention order. Article 6 § 2 of the Convention reads: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Admissibility 132. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 133. The applicant submitted that the District Court had stated, in its pre-trial detention order, that he “had committed a particularly grave offence” ( see paragraph 26 above) and thus had affirmed his guilt in the absence of a conviction. That statement had been phrased as a statement of fact, expressed without any qualification or reservation. By making it, the District Court had taken the side of the prosecution, thus prejudging the outcome of the proceedings against him. The statement could only have conveyed to the reader that he was in fact guilty. Even though he had raised this matter on appeal, the Court of Appeal had not commented on it. 134. That latter fact was of critical importance. The applicant considered that a similar situation had occurred in Fedorenko v. Russia, (no. 39602/05, §§ 89-93, 20 September 2011), where the Court of Appeal had failed to correct the first-instance court, which had stated in a detention order that the applicant “had committed a serious criminal offence”, dismissing it as a mere “technical error”. In that case the Court had found a violation of Article 6 § 2. (b) The Government 135. The Government submitted that what was important in the application of Article 6 § 2 was the true meaning of statements and not their literal form. The District Court, in its decision of 20 October 2015, had made it clear that the applicant was merely suspected by the authorities of a terrorist attack. While the literal expression used by the District Court “had committed a particularly grave offence” might seem to be in breach of the principle of the presumption of innocence, its context had to be taken into account. It had been used in the context of considering whether the applicant ’ s detention had to be ordered, and it had been essential in that context to examine whether there was a reasonable suspicion against the applicant. That was precisely what the judge had intended to say in the order, and this had been explained in the Court of Appeal ’ s decision of 28 October 2015. Moreover, the relevant court order had not been made available to the public. The Court ’ s assessment (a) Relevant general principles 136. The Court reiterates that the principle of the presumption of innocence under Article 6 § 2 will be violated if a judicial decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proved under the law. It suffices, in the absence of a formal finding, that there is some reasoning suggesting that the court or the official in question regards the accused as guilty, and a premature expression of such an opinion by the tribunal itself will inevitably run foul of the principle ( see Ramkovski v. the former Yugoslav Republic of Macedonia, no. 33566/11, § 81, 8 February 2018, with further references ). However, a distinction should be made between statements which reflect the opinion that the person concerned is guilty and statements which merely describe “a state of suspicion”. The former infringe the presumption of innocence, whereas the latter have been regarded as unobjectionable in various situations examined by the Court. 137. The Court has previously held that the statements in question must be read as a whole and in their proper context (ibid., § 82). When regard is had to the nature and context of the particular proceedings, even the use of some unfortunate language may not be decisive. The Court ’ s case-law provides some examples of instances where no violation of Article 6 § 2 was found even though the language used by domestic authorities and courts had been criticised ( see Allen v. the United Kingdom [GC], no. 25424/09, § 126, ECHR 2013, citing, in the latter respect, Reeves v. Norway ( dec. ), no. 4248/02, 8 July 2004, and A.L. v. Germany, no. 72758/01, §§ 38-39, 28 April 2005). (b) Application of the above principles to the present case 138. The Court has found violations of Article 6 § 2 in many cases where the domestic courts, in pre-trial detention decisions, stated in an unqualified way that the applicant had committed an offence (see, for example, Matijašević v. Serbia, no. 23037/04, §§ 47-51, ECHR 2006 ‑ X; Garycki v. Poland, no. 14348/02, §§ 13, 71-73, 6 February 2007; Nešťák v. Slovakia, no. 65559/01, §§ 89-91, 27 February 2007; Fedorenko, cited above, §§ 90-93; Gutsanovi v. Bulgaria, no. 34529/10, §§ 202-204, ECHR 2013 (extracts); and Mugoša v. Montenegro, no. 76522/12, §§ 68 and 69, 21 June 2016). 139. The pre-trial detention order contained references to the suspicion against the applicant and, indeed, the District Court ’ s role in the proceedings was first of all to verify whether there was a reasonable suspicion against the applicant, as submitted by the investigating authority. However, the part of the pre-trial detention order where the expression in question was used was not dedicated to a description of the investigating authority ’ s submissions or a discussion of the presence or otherwise of a reasonable suspicion. 140. Rather, the expression was used in the context of examining whether there were circumstances justifying the applicant ’ s detention: a risk of him absconding, interfering with the investigation or continuing criminal activities. By the time the District Court turned to those matters, it had already summarised the investigating authority ’ s submissions and had found it established that there was a reasonable suspicion against the applicant. 141. The Court does not perceive any reason for the District Court then to return to the matter again just to repeat, as the Government suggested ( see paragraph 135 above), that it considered that there was a reasonable suspicion against the applicant. Moreover, under domestic law, persistence of a reasonable suspicion and existence of certain risks justifying detention, such as the risk of absconding, are two distinct matters. The District Court clearly used the expression in the latter, not the former, context. 142. The District Court appears to have used the expression not to proclaim the applicant guilty as such but to justify its decision to place him in pre-trial detention. However, as the above-mentioned case-law indicates, this alone does not rule out a finding of a violation since the Court has repeatedly found violations of Article 6 § 2 on account of an unqualified declaration of guilt in a pre-trial detention order. 143. The circumstances of the present case should be distinguished from cases where the courts stated that the applicants had “committed” certain acts classified in some way under domestic law merely to say that they considered that the applicants met certain legal criteria for a measure to be applied to them, such as extradition ( see Gaforov v. Russia (no. 25404/09, § § 212-16, 21 October 2010) or pre-trial detention ( see Lada v. Ukraine ([CTE], no. 32392/07, §§ 17, 18 and 51, 6 February 2018). By contrast, in the present case the District Court, by the time it used the offending expression, had already disposed with the question, indeed a relevant one under domestic law ( see paragraphs 48 above) of whether the applicant fell into a category of defendants, which, because of the particular gravity of the charges against them, qualified for pre-trial detention ( see the relevant provision of the domestic law in paragraph 42 above). 144. Lastly, it cannot be said that the District Court referred to the particular characteristics of the charges against the applicant, such as the organised nature or sophistication of the alleged criminal activity (contrast Perica Oreb v. Croatia, no. 20824/09, §§ 29 and 142, 31 October 2013, and Ramkovski, cited above, §§ 18, 83 and 84) or its particularly gruesome nature, exceeding the “basic” features of the offence in question (contrast Karan v. Croatia ( dec. ), no. 21139/05, 7 December 2006), as a basis for the court ’ s opinion that the pre-trial detention was justified. The District Court ’ s statement was devoid of any of those redeeming features, as it referred not to the particular characteristics of the offence the applicant was suspected of but to the applicant having “committed it”. 145. In such circumstances, the Court is unable to read the statement in question other than as an expression of the District Court ’ s opinion that the applicant was indeed guilty of the particularly grave offence of which he had been merely suspected, and not convicted, at the time. 146. The Court is prepared to entertain the possibility that the District Court may have merely committed a technical error in poorly wording its decision. However, neither the District Court, Court of Appeal nor any other domestic authority acknowledged that any such error had been committed or attempted to correct it (see, mutatis mutandis, Matijašević, § 47, and Mugoša, § 68, and contrast Fedorenko, § 91, and Lada, §§ 18 and 51, all cited above). 147. There has, accordingly, been a violation of Article 6 § 2 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 148. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 149. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage. 150. The Government, reiterating their submissions that there had been no violations of the applicant ’ s rights, considered the claim unjustified and, in any event, excessive. 151. The Court considers that, in the circumstances of the present case, the finding of violations constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage sustained by the applicant. Default interest 152. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been no violation of Article 5 §§ 2 and 3 (right to liberty and security) of the Convention concerning the applicant’s complaints about not being informed promptly of the reasons for his arrest and about bail not being available to him by law because he was accused of terrorism offences. The Court found in particular that, in the specific circumstances of the applicant’s case, the domestic courts had provided sufficient reasons for his pre-trial detention given that he had been suspected of a bomb attack at a time of great tension in Odessa and in the context of defendants in other previous high-profile cases having fled once released. However, it noted with satisfaction that the Constitutional Court of Ukraine had since decided to declare unconstitutional the law on bail, invoked in the applicant’s case, which in some cases had limited the domestic courts’ ability to issue properly reasoned detention orders. The Court held, however, that there had been two violations of Article 5 § 1 of the Convention, because the applicant’s arrest had been carried out without a prior court decision and had not actually been recorded until the next day. Lastly, the Court held that there had been a violation of Article 6 § 2 (presumption of innocence) of the Convention in the applicant’s case, because the initial pre-trial detention order against him had stated that he was guilty of a particularly “grave offence” while, at the time, he had merely been suspected and not convicted of any terrorism offence.