KOLESNYK AND SMELNYTSKYY v. UKRAINE

Both cases concern complaints that pre-trial detention for national-security offences imposed under wartime legislation introduced after the full-scale invasion was 'unjustified and unreasonably lengthy', which is precisely the complaint raised by the applicants here.

The characterisation rule applied there—that such complaints 'fall to be examined from the standpoint of Article 5 § 3'—applies with equal force here since the applicants' complaint is likewise about the length and justification of pre-trial detention rather than any procedural failure to bring them before a judge.

The domestic court there invoked the identical statutory pairing—the Wartime Detention Clause (Article 176 § 6 CCP) and the Exceptions to Mandatory Bail Clause (Article 183 § 4 CCP)—that the District Court expressly invoked in ordering the applicants' detention without bail on 3 August 2022.

The Government's argument that reliance on the Wartime Detention Clause was compatible with Article 5 § 3 because courts retained discretion to assess Articles 177-178 grounds mirrors the domestic courts' own stated methodology in this case (paras 9, 15, 20), which likewise recited evidence of suspicion and Article 177 risks before ordering detention.

That case shows the Court of Appeal expressly citing ECtHR case-law (Letellier v. France) on the 'genuine requirement of public interest' to justify detention, whereas in the present case the record shows only that the Kharkiv Court of Appeal 'largely endorsing and stating the same reasons as those given by the lower court' (para 18, 24) without any comparable citation of Convention case-law appearing in the extracted record.

The finding there that 'the potential punishment faced was in itself the reason why the second applicant would possibly abscond' is the same reasoning used in the present case, where detention orders stated the absconding risk was 'aggravated owing to the severity of the punishment faced' (paras 9, 15, 20).

The Court of Appeal's addition of a risk of continuing the offence, alongside express reliance on the Wartime Detention Clause, matches the present case where the courts likewise found a risk of 'reoffending' in addition to invoking the Wartime Detention Clause (paras 9, 15, 25).

The first applicant's objection there—'there was no evidence of the alleged risks'—is factually identical to the argument raised on appeal in this case that 'there was no evidence to support a reasonable suspicion or the existence of the risks' (para 17).

The analysis states that the rule 'only reproduces the opposing positions' and that 'no holding of the Court on the merits is given in these passages.' However, the source passages for the rule are from the 'CASE OF DEREVYANKO AND TARASOVA v. UKRAINE,' which is a judgment of the European Court of Human Rights. While the rule section itself might present the arguments, the full context of the Derevyanko and Tarasova judgment would contain the Court's actual holding and reasoning on these very issues. The analysis should have acknowledged that the 'rule' as presented is an incomplete representation of the Court's position, rather than suggesting the Court itself has not resolved these issues. The conclusion that 'no holding of the Court on the merits is given in these passages' is true for the *selected rule passages*, but misleading if interpreted as the Court having no holding on the matter.

The analysis states that the rule 'only reproduces the opposing positions of the Government... and of the applicants.' While the quoted rule passages do present these positions, the full context of the Derevyanko and Tarasova judgment, from which these quotes are drawn, would include the Court's assessment of these arguments and its ultimate decision. Presenting these as merely 'unresolved' positions without acknowledging that they are part of a decided case, where the Court *did* reconcile or rule on these positions, misrepresents the nature of the 'rule' being applied. The 'rule' is not just a statement of opposing arguments; it's a summary of elements from a judicial decision.

The conclusion states that 'the rule as stated does not indicate which prevails.' This is an overreach because the 'rule' is derived from a specific case (Derevyanko and Tarasova v. Ukraine). While the *extracted* rule passages might not explicitly state the Court's final determination, the full judgment from which these passages are taken *would* indicate which arguments prevailed. The analysis incorrectly implies that the Court itself has not resolved these tensions, when in fact, the resolution is simply not fully captured in the selected 'rule' excerpts.