Pre-trial detention in wartime Ukraine: the Court's judgment in Kolesnyk and Smelnytskyy v. Ukraine

Introduction

On 23 July 2026, the European Court of Human Rights (Fifth Section) delivered its judgment in the case of Kolesnyk and Smelnytskyy v. Ukraine (Applications nos. 24465/23 and 25217/23; ECLI:CE:ECHR:2026:0723JUD002446523). The case was brought by two Ukrainian nationals, Mr Pavlo Yevgenovych Kolesnyk and Mr Sergiy Mytrofanovych Smelnytskyy, both detained in Kharkiv at the time of their most recent communication with the Court.

The central question before the Court was whether the applicants' pre-trial detention for offences against national security — under legislation introduced in the specific context of Russia's full-scale invasion of Ukraine — was justified and conducted with the requisite diligence, as required by Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

This article provides an educational overview of the factual background, the legal framework at issue, and the Court's principal findings as they appear in the judgment. It does not constitute legal advice, and readers with specific legal concerns should consult a qualified legal professional.

Background and factual context

The judgment situates the case within the broader context of Russia's full-scale military attack against Ukraine, which began on 24 February 2022. On that same date, the President of Ukraine introduced martial law across the territory of Ukraine, a measure subsequently endorsed by Parliament and periodically extended, remaining in effect at the time of the judgment. The Court noted, with reference to Ukraine and the Netherlands v. Russia [GC], that Kharkiv in particular became the scene of heavy urban warfare from 24 February 2022 onwards.

On 29 July 2022, the applicants were arrested by the Security Service of Ukraine (Sluzhba bezpeky Ukrayiny — the SBU). They were served with formal notifications of suspicion that, on 27 July 2022, they had filmed Ukrainian military fortifications and equipment in Kharkiv and had shared that material on Telegram channels used by Russian intelligence services for the collection of information and subversive activities against Ukraine.

The charges were brought under Article 114-2 § 3 of the Criminal Code, which prohibits the unauthorised dissemination of information about Ukrainian military positions during wartime, unless that information had already been published by military authorities. According to the charges, the first applicant drove a vehicle while the second applicant assisted with filming using a camera mounted on the car, capturing footage of fortifications and military equipment in a manner that made it possible to locate them. The first applicant then transmitted the video to the relevant Telegram channels.

The pre-trial detention orders

On 1 August 2022, the Kyivskyi District Court of Kharkiv issued two similarly worded rulings ordering the applicants' pre-trial detention. The court found that there was sufficient evidence supporting a reasonable suspicion against the applicants, including the results of an examination of digital material and witness statements identifying the applicants as driving a particular car in the relevant area of Kharkiv at the relevant time.

The District Court also identified a number of detention risks: the risk of absconding (aggravated by the severity of the potential punishment), the risk of influencing witnesses or otherwise interfering with the investigation, and the risk of reoffending. In reaching its conclusions, the court expressly took into account the personal circumstances of each applicant.

In the case of Mr Kolesnyk, the court noted his higher level of education, his married status, his prior service in the police, his absence of a criminal record, his registered address in Kharkiv, and positive references from neighbours. In the case of Mr Smelnytskyy, the court noted his university-level education, his pension status, his married status, the recent loss of employment by his wife, his two minor children including a disabled son, and his reported care for an elderly mother. Notwithstanding these personal circumstances, the court concluded that, having regard in particular to the seriousness of the alleged offence against national security, none of the identified risks could be adequately addressed by any preventive measure other than detention.

Simultaneously, and with reference to the Code of Criminal Procedure provisions concerning bail, the court set an alternative bail amount equivalent to 372,150 Ukrainian hryvnias (approximately 9,800 euros at the time) for each applicant. Bail was paid on behalf of both applicants on 2 August 2022.

Article 5 § 3 of the Convention: the legal standard

Article 5 § 3 of the Convention guarantees the right of persons detained pending trial to be brought promptly before a judge and to be tried within a reasonable time or released pending trial. The Court's established case-law requires that the continued detention of an accused person must be justified by relevant and sufficient reasons, and that the authorities must demonstrate special diligence in the conduct of the proceedings.

The judgment's headnote, as prepared by the Registry, identifies the key issues as the reasonableness of pre-trial detention, the existence of relevant and sufficient reasons for that detention, and whether — in the particular circumstances of administering justice in wartime conditions — any lack of special diligence in the conduct of the proceedings was demonstrated.

The Court's assessment in this case was therefore conducted against the backdrop of the exceptional circumstances created by Russia's full-scale invasion of Ukraine and the ongoing regime of martial law, factors which the judgment treats as directly relevant to the evaluation of the domestic authorities' conduct.

The Court's findings

The Court found that the domestic courts had provided relevant and sufficient reasons for the applicants' pre-trial detention. The District Court's rulings identified concrete risks — absconding, interference with the investigation, and reoffending — and grounded those findings in the specific evidence available, including digital material and witness statements, as well as the gravity of the offence charged under the wartime national security legislation.

Importantly, the Court also considered the personal circumstances of each applicant as they had been weighed by the District Court. The judgment reflects that the domestic court did not disregard those circumstances but concluded, on the basis of the seriousness of the alleged offence, that detention was the only adequate preventive measure. The setting of an alternative bail amount further demonstrated that the court had engaged with the question of proportionality.

On the question of special diligence, the Court found that, in the case circumstances and in the context of administering justice in wartime conditions, no lack of special diligence in the conduct of the proceedings had been shown. This finding acknowledges the significant operational and institutional challenges facing the Ukrainian judicial system during the period of active armed conflict and martial law, without departing from the Convention's core requirements.

Significance of the wartime context

One of the notable features of this judgment is the explicit recognition of the wartime context as a relevant factor in assessing compliance with Article 5 § 3. The Court's headnote specifically references 'the context of administrating justice in wartime conditions' as part of the framework within which the special diligence requirement was evaluated.

The judgment also situates the applicable domestic legislation — Article 114-2 § 3 of the Criminal Code — as legislation introduced in the context of Russia's full-scale invasion. This contextualisation is significant: it reflects the Court's awareness that the legal and factual environment in which the applicants were detained was shaped by an ongoing armed conflict of exceptional scale, as confirmed by the Grand Chamber's findings in Ukraine and the Netherlands v. Russia, cited in the judgment itself.

At the same time, the judgment does not suggest that wartime conditions suspend or diminish the Convention's guarantees under Article 5 § 3. Rather, the wartime context informs the assessment of what constitutes relevant and sufficient reasons and what level of diligence can reasonably be expected of judicial authorities operating under conditions of active armed conflict.

Conclusion

The judgment in Kolesnyk and Smelnytskyy v. Ukraine offers an instructive illustration of how the European Court of Human Rights approaches Article 5 § 3 complaints arising from pre-trial detention in the context of an ongoing armed conflict. The Court found that the domestic courts had provided relevant and sufficient reasons for the detention, had engaged with the personal circumstances of the applicants, and had not failed to demonstrate the requisite special diligence when assessed against the realities of administering justice under wartime conditions in Ukraine.

The case underscores that the Convention's procedural guarantees remain applicable even in times of armed conflict, while also acknowledging that the context in which judicial authorities operate is a legitimate consideration in evaluating compliance with those guarantees. Practitioners, academics, and policymakers working in the fields of international human rights law and the law of armed conflict will find the Court's reasoning of particular relevance as the jurisprudence on wartime detention continues to develop.

The judgment is not yet final at the time of writing, as it may become final in the circumstances set out in Article 44 § 2 of the Convention, and it may be subject to editorial revision. The full text is available on the HUDOC database at https://hudoc.echr.coe.int/eng?i=001-251251.

This article is for educational and informational purposes only and does not constitute legal advice.

Sources consulted

• CASE OF KOLESNYK AND SMELNYTSKYY v. UKRAINE - European Court of Human Rights, Council of Europe