06.08.2026
On 21 July 2026, the Second Senate of the Constitutional Court of Ukraine deliberated the case at a plenary session and delivered Decision No. 9-r(II)/2026 on the constitutional complaint of Roman Dudin regarding the compliance of Article 182.5.5 of the Criminal Procedure Code of Ukraine (hereinafter, the “Code”) with the Constitution of Ukraine (constitutionality).
The Judge-Rapporteur in this case is Vasyl Lemak, a judge of the Constitutional Court of Ukraine.
The contested provision of the Code provides that, in exceptional cases, where the investigating judge or the court finds that bail within the statutory limits is insufficient to ensure that a person suspected or accused of having committed a serious or especially serious offence complies with the obligations imposed on him or her, bail may be set in an amount exceeding eighty or three hundred times the subsistence minimum for able-bodied persons, respectively.
In its Decision, the Constitutional Court of Ukraine observed that legislative regulation of bail imposing a significant financial obligation on a suspect or an accused person must be designed to provide an effective incentive for that person to refrain from unlawful conduct, since only in this way can bail constitute a genuine alternative to pre-trial detention. Accordingly, the regulation of bail requires an individualised assessment of both the personal circumstances of the suspect or accused and the circumstances of the criminal proceedings. The amount of bail must therefore be substantial enough to have a deterrent effect, while not being so excessive as to deprive bail of its function as a genuine alternative to detention.
The Court emphasised that the legal purpose of bail, as a less restrictive measure interfering with the right to liberty and security of person guaranteed by Article 29.1 of the Constitution of Ukraine, is to provide the individual with a genuine opportunity to replace pre-trial detention with release on bail while assuming the procedural obligations necessary to secure the proper conduct of the criminal proceedings. Bail therefore enables the objectives of criminal proceedings to be achieved without resorting to the most severe preventive measure, namely detention.
The second sentence of Article 182.4 of the Code provides that “the amount of bail must be sufficient to ensure that the suspect or accused complies with the obligations imposed on him or her and must not be manifestly excessive for that person.”
The Constitutional Court of Ukraine further noted that the requirements laid down in Article 182.4 of the Code concerning the obligation to take account of the relevant circumstances and risks, as well as the prohibition on setting bail at a manifestly excessive level, are of a general nature and therefore also apply in the exceptional cases governed by the contested provision, namely Article 182.5.5 of the Code.
The Court concluded that Article 182.5.5, read in conjunction with Articles 182.4 and 183.3 of the Code, establishes the relevant criteria, including the circumstances of the case and the risks involved, enabling the investigating judge or the court, by means of a reasoned decision based on an individual assessment, to determine a fair and proportionate amount of bail even where bail within the statutory limits is insufficient to secure compliance by a person suspected or accused of a serious or especially serious offence with the procedural obligations imposed in the criminal proceedings.
The Constitutional Court of Ukraine further observed that, since the legislature has not established an upper limit for bail in the exceptional cases covered by the contested provision, the considerable degree of economic and social differentiation in modern society means that any predetermined maximum amount of bail could prove inadequate to ensure its deterrent function as a preventive measure in criminal proceedings.
The Court also took into account that the contested provision, read together with the other provisions of the Code, requires the investigating judge or the court to consider the person's financial situation and therefore enables an individual assessment leading to the determination of an amount of bail that has a genuine deterrent effect regardless of that person's financial means.
The Constitutional Court of Ukraine held that Article 182.5.5, read in conjunction with Article 182.4 of the Code, is justified in the light of such constitutional values as the right to liberty and security of person guaranteed by Article 29.1 of the Constitution of Ukraine and the interests of the administration of justice in accordance with the fundamental principles of judicial proceedings laid down in Article 129.2 of the Constitution.
At the same time, the Court drew attention to the fact that the judicial practice of applying the contested provision reveals signs of inconsistency and internal contradiction.
While declaring Article 182.5.5 of the Code consistent with the Constitution of Ukraine (i.e. constitutional), the Constitutional Court of Ukraine stressed that this provision must be interpreted and applied by the courts in a manner consistent with the norms, principles and values of the Constitution of Ukraine, the Convention for the Protection of Human Rights and Fundamental Freedoms, the case-law of the European Court of Human Rights, and the common European constitutional tradition.
The Court further stated that, in order to ensure that bail genuinely functions as an alternative to pre-trial detention, and in accordance with the settled case-law of the European Court of Human Rights, whenever bail is set above the statutory limits in exceptional cases, the investigating judge or the court must give specific reasons demonstrating why such an amount is justified.
Having regard to the case-law of the European Court of Human Rights, the Constitutional Court of Ukraine further held that, in order to prevent bail from becoming a disguised form of detention, the investigating judge or the court must substantiate the person's financial capacity, assess his or her lawful income and assets, take into account not only the damage caused by the alleged criminal offence but also the other circumstances prescribed by the Code, including the existence of dependants. The court must also ensure that the assets required to pay the amount of bail are in fact available to the suspect or accused, including by taking into account any seizure of property ordered in the criminal proceedings.
Relying on the case-law of the European Court of Human Rights and proceeding from the principle that any doubt or uncertainty must be interpreted in favour of the suspect or accused, the Constitutional Court of Ukraine emphasised that the investigating judge or the court is under a duty to provide particularly careful reasoning for the amount of bail. In particular, the court must refer to evidence concerning the person's financial situation, justify each element forming the total amount of bail, avoid assumptions regarding the person's financial capacity, explain why the amount determined is sufficient to prevent the risk of absconding from the pre-trial investigation authorities or the court, and take into account the person's social ties, including family and other personal relationships, as well as his or her links abroad.
In the light of the foregoing, the Constitutional Court of Ukraine emphasised that only compliance by the investigating judge or the court with these legal positions concerning the genuine availability of bail as an alternative to pre-trial detention ensures that Article 182.5.5 of the Code is applied in a manner compatible with Article 29.2 of the Constitution of Ukraine.
Having examined the issues raised in the constitutional complaint, the Court declared Article 182.5.5 of the Criminal Procedure Code of Ukraine to be consistent with the Constitution of Ukraine (i.e. constitutional).
