Right to liberty and security of a person

Everyone has the right to liberty and security of person.

Article 6 of the Charter of Fundamental Rights of the European Union

Text as of April 2026

Based on research and human rights practice, the following problems in the exercise of this right in Ukraine can be distinguished:

  1. Covert detentions. Informal detentions, often called “covert detentions,” remain widespread and are not documented. Although various measures had been implemented earlier to suppress them, their numbers surged markedly during martial law, particularly during the period of mobilization. ECtHR case law, particularly in Smolik, Belousov, and Oshurko cases, establishes that the autonomous concept of “detention” under Article 5 of the ECHR begins when a person’s freedom is actually restricted, not when the protocol is executed.
    • Covert detention results in detainees often lacking legal aid and sometimes being incommunicado with the outside world and loved ones. This situation can also violate the right to a fair trial, respect for private life, and the prohibition of torture or inhuman treatment.
    • Police officers rely on various legal grounds for detention and often inform detainees that they are “interviewees,” “persons with whom they communicate,” “delivered persons,” or “persons detained for administrative report purposes.” However, in nearly all cases, these detentions are not documented, and most of the reasons cited for detention are either exaggerated or unlawful.
    • In the liberated territories and near the front line, there are documented cases of individuals being deprived of freedom without formal registration during filtration and counterintelligence procedures. A distinct legal mechanism for recording and monitoring should be established, in line with international humanitarian law standards and Article 5 of the ECHR.
  2. The “Custody Records” system within the Information and Communication System “Information Portal of the National Police of Ukraine” (approved by Order of the Ministry of Internal Affairs No. 311 of May 24, 2022) has not been implemented at an adequate level. The system remains unevenly distributed and is not integrated with other authorized detention entities. There is insufficient technical support for continuous video recording of interactions between law enforcement officials and individuals, as well as for storing these recordings.
  3. Inadequate judicial oversight, generic procedural requests for detention permission, and investigative judges’ decisions that overlook individual circumstances. The lack of justification for court decisions that authorize detention, particularly those that extend detention periods. The frequent failure to conduct individual assessments of each detention case, including whether there are grounds for extending detention periods, even when the person cooperates with the investigation, complies with its requirements, does not attempt to escape, and demonstrates positive procedural behavior. ECtHR standards require court rulings to provide “relevant and sufficient” reasons. Legislation must explicitly reflect the standard of “real risks,” not abstract risks. This is a systemic issue, as demonstrated by ECtHR case law concerning Ukraine:
    • deprivation of liberty not resulting from a court decision; issuing a detention order without specifying the duration of detention;
    • the absence of any grounds given by the court in the decision to grant permission for detention;
    • delay in releasing a person from custody after the detention permit expires;
    • delay in executing the detention report;
    • a blanket ban on alternative preventive measures for certain crimes, preventing the possibility of tailoring decisions regarding detention authorization;
    • a lack of clear legal grounds for detention without a prior court decision. Article 208 of the Criminal Procedure Code defines detention without court authorization too broadly and imprecisely. Given the widespread abuse of this provision, revision is necessary.
  1. The law does not allow bail to be offered in the form of other personal property, such as shares, movable or immovable assets, or a stake in a business, apart from money. This restriction greatly limits an individual’s ability to utilize such bail options. Bail should be based on the financial ability of the individual rather than solely on the objective severity of the crime, which is often overlooked in practice.
  2. The Code of Administrative Offenses has not undergone a comprehensive review. The 1984 Code governs administrative detention and arrest, but it does not align with the current standards set out in Articles 5 and 6 of the ECHR. The idea of reforming the Code of Administrative Offenses has been debated since 2014 and is currently pending consideration by parliament (draft law No. 11386, dated June 28, 2024).
  3. An ineffective compensation system for unlawful, unfounded detentions or other violations during a person’s detention. The Law of Ukraine “On the Procedure of Compensation of Damage Caused to a Citizen by Illegal Actions of Inquest, Pretrial Investigation, Office of Public Prosecutor and Judicial Bodies” of 1994 is morally outdated and does not cover all situations provided for by ECtHR case law.
  4. The institution responsible for overseeing detainees and ensuring the rights of persons, as outlined in Article 212 of the Criminal Procedure Code of Ukraine, is not functioning efficiently.
  5. The application of Article 615 of CPC, which establishes a special regime during hostilities and allows for deviations from the typical protections of Article 5 § 3 (prompt judicial review) and Article 5 § 4 (judicial review of detention lawfulness) of the ECHR, does not have a clear mechanism to evaluate the proportionality and time limits of these exceptions. Prosecutor decisions under Article 615 of the CPC, including those on detention for up to 30 days in specific categories of cases, do not require approval by the investigative judge and lack a clearly defined appeal process. In 2024 and 2026, the Constitutional Court declared Parts 5 and 6 of Article 615 of the CPC unconstitutional, but the procedure remained unchanged afterward. Public statistics on cases under Article 615 of the CPC are unavailable, and there is no independent oversight to monitor abuses.
  6. The Supreme Court’s lack of discretionary control over decisions authorizing or extending detention complicates the development of positive case law and does not help resolve issues in how investigative judges apply the law.
  7. Legal regulation is insufficient in protecting the rights of military personnel, including conscripts and reservists, during training. This particularly concerns the grounds and procedures for placing them in guardhouses, special wards within healthcare facilities of the Ministry of Defense of Ukraine, and rooms designated for temporarily detained military personnel. Detention procedures and grounds must be defined by law and comply with Article 5 of the ECHR, akin to criminal proceedings. This involves informing individuals of their rights and reasons for detention, notifying relatives, providing access to legal aid, and ensuring judicial oversight.
  8. There is no collection or annual (or quarterly) publication of statistical data on key indicators that reflect the observance of this right. These indicators include the number of detentions per day or per year, broken down by entities with detention powers; the number of detention requests and how often they are granted; the average detention length; complaints about illegal detention and ill-treatment; and the outcomes of disciplinary and criminal investigations into such cases. Without such data, effective monitoring and assessment of the country’s progress is impossible.

What Ukraine needs to do during its accession to the EU to improve the situation:

  • The implementation of the EU acquis regarding the exercise of this right is required, in particular:
  • Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings;
  • Directive 2012/13/EU on the right to information in criminal proceedings (letter of rights of the detainee);
  • Directive 2013/48/EU on the right of access to a lawyer and the right to have a third party informed upon deprivation of liberty;
  • Directive (EU) 2016/343 on the presumption of innocence and the right to be present at the trial;
  • Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons;
  • Directive (EU) 2016/1919 on free legal aid for suspects and accused persons;
  • Framework Decision 2002/584/JHA on the European Arrest Warrant;
  • Framework Decision 2009/829/JHA (European Supervision Order);
  • Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union;
  • European Commission Recommendation (EU) 2023/681 on procedural rights of suspects and accused persons subject to pretrial detention and on material detention conditions.
  • Implement measures to reduce and prevent arbitrary and unlawful detentions: introduce oversight mechanisms to prevent unregistered detentions, limit detention periods, prohibit detention without valid grounds, establish a robust appeal process, and include extrajudicial protections against detentions beyond court authorization.
  • Implement steps to reduce the reliance on detention as a preventive measure, such as:
  • Address the issue of insufficient electronic control devices.
  • Enshrine in legislation that courts must provide a written explanation whenever they reject an alternative restraint measure, considering the specific circumstances of each case.
  • Amend Article 182 of the CPC to include a comprehensive list of property that can be pledged as bail: cash, real estate, securities, corporate rights, and valuable movable property. The amendment should establish procedures for independent valuation and safekeeping of these assets and consider the individual’s property status when determining bail amounts.
  • Introduce a national electronic risk assessment system, inspired by EU models, to standardize decision-making on preventive measures.
  • Maintain continuous training for judges on applying ECtHR standards as outlined in Article 5 § 3.
  • To raise the standard of effectiveness of judicial oversight in observing human rights and freedoms, especially through the Habeas Corpus procedure. Allow investigative judges within their jurisdiction to step in when there is unjustified detention or other violations of detainees’ rights and freedoms. Promote the development of a consistent body of case law that prioritizes alternative preventive measures, focusing on individual risk assessment of the suspect or accused (particularly when deciding bail) and ensuring that detention is used only as a last resort and is thoroughly justified.
  • Regarding foreigners and stateless persons, alternative preventive measures should be expanded to decrease the use of detention for the purpose of forced expulsion or identification.
  • Enshrine in legislation the discretionary right of the Cassation Criminal Court within the Supreme Court to review decisions regarding detention authorizations, selection of preventive measures, extension of these measures, or their review.
  • Amend Part 1 of Article 208 of the CPC to specify the provisions on “reasonable grounds” in order to reduce abuses of detention without court authorization. Reasonable suspicion must be defined in the light of ECtHR’s case law (see, for example, Fox, Campbell and Hartley v. UK (1990) and other cases).
  • Further implement the Custody Records system as a nationwide electronic register of detainees, ensuring its active use by police officers and authorized entities to carry out detention, and provide the necessary functional technical tools.
  • Strengthen the institutional capacity of the State Bureau of Investigation in investigating crimes committed by law enforcement officers, the National Guard, the Armed Forces of Ukraine, the TRSSC, including: staffing, establishing clear deadlines for responding to complaints, introducing an early warning system for deaths, injuries, or trauma in penitentiary facilities or during detention, and ensuring de facto independence from the bodies whose activities are subject to investigation.
  • Further enhance the institution of persons responsible for detainees by ensuring their rights, providing the latter more independence and impartiality in practice, broadening their powers and opportunities to intervene at any stage to stop rights violations, and increasing their staff.
  • Expand reparations for unlawful or unjustified arrests, continued detention, and inadequate detention conditions to ensure compensation for all affected individuals, regardless of subsequent conviction, and provide compensation in monetary form. Ensure that the regulation of the compensatory measure provides for a retroactive effect. A new law, “On Compensation for Damage Caused by Unlawful Deprivation of Liberty,” should be developed and adopted. It must comply with Article 5 § 5 of the ECHR, ensuring an unconditional right to compensation without requiring acquittal, a presumption of moral damage, and a simplified procedure through administrative courts.
  • Adopt a new Code of Administrative Offenses (draft law No. 11386, pending consideration) that clearly separates administrative offenses from criminal ones based on the Engel criteria. It will include a comprehensive set of procedural guarantees, such as the right to defense counsel, the presumption of innocence, the right to appeal, and effective judicial oversight. Abolish administrative arrest as a form of administrative penalty or greatly restrict its use, ensuring complete procedural safeguards. According to the Code of Administrative Offenses, administrative arrest (up to 15 days, Articles 32 and 32-1 of the CAO) is considered a deprivation of liberty under Article 5 of the ECHR and constitutes a “criminal charge” under Article 6 of the ECHR, which requires comprehensive procedural safeguards, such as the right to a lawyer, the presumption of innocence, and the right to question witnesses. The ECtHR case law confirms that even short-term deprivation of liberty during disciplinary or administrative proceedings may fall within the criminal guarantees of the Convention. Review the administrative detention regime (Articles 261–263 of the Code of Administrative Offences) to ensure full compliance with Article 5 of the ECHR, focusing on mandatory recording from the moment of restriction of liberty, immediate access to the lawyer, real-time judicial oversight (not after the detention term ends), and an effective remedy per ECtHR case law (Shvydka, Kornev, and Karpenko group of cases).
  • Revise Article 615 of the Criminal Procedure Code of Ukraine to align with Article 5 of the ECHR, the Constitution of Ukraine, and the Constitutional Court’s decision. This revision should specify time limits for deviations from regular judicial oversight, clearly list permissible situations for such deviations, require written justification from the prosecutor if contacting an investigative judge is impossible, ensure mandatory retrospective judicial oversight, establish a straightforward appeal process for these decisions, limit prosecutorial detention without judicial authorization to a maximum of 72 hours, and include the collection of public statistics on the use of this norm.
  • Part 6 of Article 176 of the CPC should be amended to remove absolute prohibitions on the use of alternative preventive measures to detention in certain categories of cases. The lack of alternative detention options fails to fulfill the requirement for an individual assessment under Article 5 § 3 of the ECHR. Additionally, it is essential to implement improved personalized risk assessments for these types of cases, such as through a national electronic risk assessment system.
  • Observe human rights during mobilization. Develop a clear mobilization protocol that specifies who may be detained, the grounds and procedures for detention during mobilization, and the process for notifying relatives. The protocol should also establish an independent mechanism for appealing actions taken by employees of the TRSSC, National Guard, and police. It is advisable to reconsider the use of administrative detention during mobilization, as it is not intended for preparing an administrative offense report. The ECtHR case law in cases against Ukraine (in particular the Ignatov group of cases) has already noted the abuse of administrative detention for the purposes of criminal proceedings or other purposes.
  • Ensure individual identification of persons carrying out detention: law enforcement officers, members of the Armed Forces of Ukraine (including TRSSC), and National Guard during public detention and transfer operations.
  • Guarantee an independent and impartial investigation into instances where government officials illegally detain individuals or prolong their deprivation of liberty.
  • Enhance independent preventive monitoring of facilities where people are deprived of liberty, ensuring genuine access for the NPM to these locations, including military facilities where individuals are detained, and establish conditions to address potential cases of unlawful deprivation of liberty.
  • Habeas Corpus in real time. Establish a 24/7 hotline and an electronic reporting system for potential illegal detentions, requiring the investigative judge to respond within 6 hours. Ensure integration with the NPM and the Legal Aid Coordination Center.
  • Introduce a public reporting system for law enforcement agencies, the National Guard, and the Armed Forces of Ukraine that provides open data on: (a) the number of detentions by type and agency; (b) the number of detention requests and the percentage approved; (c) the average duration of pretrial detention; (d) the number of cases involving Article 615 of the CPC; and (e) the number and outcomes of investigations into complaints of il legal detention and ill-treatment during detention.
  • Complete the enforcement of ECtHR judgments in the following cases against Ukraine:
  • group of cases Ignatov v. Ukraine;
  • Shvydka v. Ukraine, Kornev and Karpenko v. Ukraine group of cases (problems of administrative detention);
  • group of cases M. v. Ukraine, Cherednychenko v. Ukraine, Pogoryelov v. Ukraine, Shanovskyy v. Ukraine, Kaganovskyy v. Ukraine, Zaichenko v. Ukraine No. 2, Fyodorov and Fyodorova v. Ukraine (unfounded granting of authorization for forced detention in psychiatric institutions and extension of this authorization, lack of compensation).

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Experts

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Valentyn Serdiuk

Legal analyst of the NGO “Center for Civil Liberties”

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Volodymyr Yavorskyy

lawyer, human rights defender, program director of the NGO “Center for Civil Liberties”