June 20, 2024
On June 19, 2024, the Second Senate of the Constitutional Court of Ukraine, at its plenary session, delivered the Decision in the case upon the constitutional complaints of Serhii Bychkov and Anatolii Bai regarding the constitutionality of Article 176.6 of the Criminal Procedure Code of Ukraine.
The applicants appealed to the Court to verify the compliance of Article 176.6 of the Criminal Procedure Code of Ukraine (hereinafter, the “Code”), in accordance with which “during martial law, the precautionary measure specified in paragraph 1.5 of this Article shall be applied to persons suspected or accused of committing crimes provided for in Articles 109-1142, 258-2586, 260, 261, 437-442 of the Criminal Code of Ukraine, in the presence of the risks specified in Article 177 of this Code,” namely, the detention, with the Constitution of Ukraine.
The case file provides that the court imposed a precautionary measure in the form of detention on Serhii Bychkov, who is suspected of committing a criminal offence under Articles 27.2, 114¹.3 of the Criminal Code of Ukraine.
The content of the constitutional complaint of Anatolii Bai and the materials attached to it shows that the pre-trial investigation body accuses him of committing a criminal offence under Articles 28.2, 111.1 of the Criminal Code of Ukraine. The precautionary measure was chosen in the form of detention. During the extension of the term of detention, the Shevchenkivskyi District Court of Kyiv, by its ruling dated January 15, 2024, upheld by the decision of the Kyiv Court of Appeal dated February 28, 2024, determined the possibility of applying the bail.
The authors of the petitions considered that Article 176.6 of the Code did not comply with the provisions of Article 29 of the Constitution of Ukraine, as it “actually establishes a presumption that the presence of suspicion of committing certain crimes necessitates the exclusive application of the precautionary measure in the form of detention without the right to apply another precautionary measure”.
According to the subjects of the constitutional complaint, “this approach is discriminatory, as it puts persons subject to such a precautionary measure in unequal conditions compared to those suspected or accused of committing other crimes of a similar gravity”. They argued that the contested provision of the Code does not provide the suspect or accused with adequate protection against arbitrariness and does not comply with Article 29 of the Constitution of Ukraine.
In resolving the issues raised in the constitutional complaints, the Court proceeds from the following.
The Constitution of Ukraine stipulates that “human and citizen’s constitutional rights and freedoms may not be restricted, except in cases provided for by the Constitution of Ukraine”; “in the conditions of martial law or a state of emergency, certain restrictions on rights and freedoms may be established, specifying the duration of these restrictions. The rights and freedoms provided for in Articles 24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62, 63 of this Constitution may not be restricted” (Article 64).
The Court stated that for every person, freedom and personal inviolability are natural, especially valuable and crucial for ensuring human dignity and the realisation of all other constitutional rights and freedoms. In its previous decisions, the Court has expressed its legal position on the constitutional right to freedom and personal inviolability as a fundamental value in a democratic state and the priority of ensuring this right.
The Court emphasises that the right to freedom and personal inviolability, as defined by Article 29.1 of the Constitution of Ukraine, in conjunction with other provisions of this Article of the Constitution of Ukraine, is, in particular, the right of every person to physical freedom and means that no person may be arbitrarily deprived of such freedom in any way. Therefore, the state is obliged to introduce legal regulations that will protect people from arbitrary deprivation of freedom and comply with constitutional norms and principles.
The Court proceeds from the fact that deprivation of freedom, in particular in the case of the application of the precautionary measure in the form of detention, is the most tangible form of restriction of the constitutional right to freedom and inviolability of person, therefore Article 29 of the Constitution of Ukraine stipulates enhanced guarantees of protection of this right against arbitrary restriction, which consists in the fact that no one may be detained “except by a reasoned court decision” and “only on the basis and in accordance with the procedure established by law”.
In order to achieve the purpose of criminal proceedings and protect the relevant public interests, the legislator may not determine the precautionary measure in the form of detention as a non-alternative measure and must ensure that at least one precautionary measure, which is more mitigating and may be chosen as less burdensome for the constitutional right to freedom and inviolability of person, is available in criminal proceedings.
Taking into account the above, the Court considers that according to Article 29.2 of the Constitution of Ukraine in connection with the provisions of Articles 3, 8, 55.1, 62.1, 64,1 of the Constitution of Ukraine, the normative regulation of the grounds and procedure for applying precautionary measure in the form of detention to a person shall first of all comply with the principles of the rule of law, proportionality, presumption of innocence, provide a person with adequate judicial protection against arbitrariness, and the application of this precautionary measure must be based not only on the gravity of the crime in which the person is suspected or accused, but also on the presence of a reasonable suspicion that a person has committed a crime, risks in connection with improper procedural behaviour of such a person for carrying out criminal proceedings and protecting respective public interests, which will guarantee detention only on the basis of a reasoned court decision.
The Court holds that the fundamental judicial protection of a person against arbitrariness during the deprivation of his/her freedom may not be restricted under any circumstances, even under martial law. In accordance with the provisions of Article 64.2 of the Constitution of Ukraine, the constitutional rights to freedom and inviolability of person (Article 29), to judicial protection (Article 55), and the presumption of innocence (Article 62) may not be restricted under martial law.
The Court underscores that, in pursuance of the provisions of Article 17.1 of the Constitution of Ukraine, under martial law, the protection of the sovereignty and territorial integrity of Ukraine, ensuring its economic and information security are not only the most important functions of the state, the matter of the entire Ukrainian people, but also an indispensable condition for the preservation of Ukrainian statehood as such. The state has a positive obligation to create appropriate national legal mechanisms for bringing a person to criminal liability, particularly, to ensure the effective functioning of the criminal justice, in order to guarantee enhanced protection of the sovereignty, territorial integrity, inviolability, defence capacity, state, economic and information security of Ukraine under martial law and to bring to criminal liability the persons who have committed crimes that infringe on these crucial constitutional public interests.
The Court outlines that pursuant to the respective provisions of the Constitution of Ukraine, Article 176 of the Code was supplemented with part 6 by the Law of Ukraine “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine on Improving Liability for Collaboration and Peculiarities of Application of Precautionary Measures for Crimes against the Foundations of National and Public Security” No. 2198-IX dated April 14, 2022.
As a consequence of such legislative amendments, under Article 176.6 of the Code, the precautionary measure in the form of detention is applied only under martial law, if there are risks specified in Article 177 of the Code, to persons suspected or accused of committing a certain list of crimes (Articles 109‒1142, 258‒2586, 260, 261, 437‒442 of the Criminal Code of Ukraine).
The Court finds legitimate the purpose for which the legislator supplemented Article 176 with part 6 of the Code intending to enhance the protection of the sovereignty, territorial integrity, inviolability, defence capacity, state, economic, and information security of Ukraine by establishing by the respective norm of the Code a special procedure for the application of a precautionary measure in the form of detention to persons suspected or accused of committing crimes that are acutely dangerous by their gravity and nature under martial law.
The court pointed out that the legislator has enshrined the discretion of the investigating judge, and the court when applying a precautionary measure in the form of detention provided in Article 176.6 of the Code not to determine or to determine the amount of bail, taking cognisance of the grounds and circumstances set forth in Articles 177 and 178 of the Code.
Hence, when applying a precautionary measure in the form of detention under set out in Article 176.6 of the Code, it is possible, under certain grounds and circumstances specified in Articles 177 and 178 of the Code, to apply bail as a more mitigating precautionary measure.
Thus, in keeping with Article 176 of the Code, a precautionary measure in the form of detention is not defined as a non-alternative exceptional precautionary measure.
The Constitutional Court of Ukraine declared Article 176.6 of the Criminal Procedure Code of Ukraine constitutional.
