Whenever law enforcement officials make a big announcement that they have caught (i.e., detained) a “big fish” in the murky, corrupt waters of the law enforcement system, an initial review of the legality of such a detention is conducted by a “referee”—an investigating judge—who, often at the initial national level, may deem the detention unlawful and order the person’s release. After that, law enforcement officials are often tempted to resort to unsportsmanlike conduct—to carry out a repeat detention, because they supposedly “can,” since, in their view, Ukraine’s Code of Criminal Procedure does not contain an explicit prohibition on such actions, or they blatantly disregard the legal grounds for detention, which are often absent even in the first instance.

Therefore, to examine the question of whether repeated detentions are lawful, it is proposed to analyze the relevant case law of the European Court of Human Rights, which serves as a source of law in Ukraine and forms part of national legislation.

For example, in its communication regarding Application No. 62209/17
, Vadym Anatoliyovych MELNYK v. Ukraine https://hudoc.echr.coe.int/?i=001-193412, the Court raised the relevant issue, citing the established case law of the ECHR: “4.  Was the applicant’s “re-arrest” on May 30, 2017, free from arbitrariness and based on sufficient grounds for the purposes of Article 5 § 1 of the Convention (see Makarenko v. Ukraine, no. 622/11, §§ 73–76, January 30, 2018)?”

Below is an excerpt from the relevant provisions of paragraphs 74–76 of the ECHR judgment in Makarenko v. Ukraine (no. 622/11):

“73. The Court notes that, under Ukrainian law, deprivation of liberty without a reasoned court decision is possible only in a limited number of situations that are sufficiently clearly defined. Thus, Article 29 of the Constitution permits the application of such a measure for a maximum period of three days, but only in response to an urgent need to prevent or stop a crime (see paragraph 49). Pursuant to Article 106 of the Code of Criminal Procedure (1960, essentially almost identical to Article 208 of the 2012 Code of Criminal Procedure of Ukraine. – Author’s note), an investigator may detain a person if the person was caught in the act (in flagrante delicto), if eyewitnesses or victims have directly identified that person, or if clear traces of a crime were found on the person or their clothing (Part 1). Any other evidence giving grounds to suspect a person of committing a crime shall constitute a lawful basis for detaining that person without a court order only if: (a) the person attempted to flee; (b) they have no fixed abode; or (c) the suspect’s identity has not been established (see para. 50).

74. There is no indication that any of these conditions were present in the applicant’s case; therefore, it cannot be classified as falling under the exceptions that grant an investigator the right to detain without a court order.

75. It should be noted that the applicant was detained in connection with events that had occurred nearly a year and a half earlier. Accordingly, it cannot be argued that the authorities were faced with an urgent situation such as, for example, in flagrante delicto. In general, there are no grounds to believe that the general requirement to obtain prior court authorization for detention could not or should not have been complied with.

76. In light of the foregoing considerations, the Court concludes that the applicant’s arrest and detention from June 23 to June 24, 2010, on the basis of the investigator’s report, were contrary to domestic law and, therefore, were incompatible with the provisions of Article 5(1) of the Convention.”

Consequently, the repeated detentions that continue to this day are unlawful, even under domestic law.