22.10.2026
On October 14 2026, the Constitutional Court of Ukraine (the Second Senate), at a plenary session, considered the case upon the constitutionality of Articles 309.9.1.9 and 309.3 of the Criminal Procedure Code of Ukraine (hereinafter, the “Code”), following the constitutional complaints lodged by Kateryna Chernysh, Alona Karas, and Volodymyr Karas, and delivered Decision No. 12-r(II)/2026.
The Judges-Rapporteurs in the case – Oleh Pervomaiskyi and Vasyl Lemak.
Article 309.1.9 of the Code provides that, during the pre-trial investigation, appeals may be lodged against investigating judge rulings concerning “the seizure of property or the refusal thereof”.
Under Article 309.3 of the Code “other rulings of an investigating judge shall not be subject to appeal, and objections to such rulings may be submitted during the preparatory proceedings before the court”.
In addressing the issues raised in the constitutional complaints, the Constitutional Court of Ukraine (hereinafter, the “Court”) proceeds from the premise that the right to judicial protection, including access to a court of appeal, is not absolute. The provisions of the Code may restrict the right to appeal judicial decisions in which an investigating judge or a court does not determine the merits of the case. However, such restrictions must be based on legal provisions that are clear and understandable in their content and foreseeable in their application, pursue a legitimate aim, and be proportionate.
Articles 309.1.9 and 309.3 of the Code do not provide for a right to appeal an investigating judge’s ruling refusing a motion to lift a property seizure following consideration of the relevant motion.
The Decision emphasizes that the contested provisions of the Code regulate the relevant criminal procedural matters in a clear, understandable, and foreseeable manner. They pursue a legitimate aim, namely ensuring that pre-trial investigations in criminal proceedings are conducted within a reasonable time.
Having examined whether the interference with individual rights satisfies the requirement of proportionality and conducted a comprehensive analysis of the provisions of the Code, the Court concluded that the lack of an opportunity to appeal an investigating judge’s ruling refusing a motion to lift a property seizure is offset by other procedural guarantees for the judicial protection of the right to property and other lawful possession of seized property, in particular:
· the obligation of an investigating judge or court, when deciding on the seizure of property, to take into account circumstances set out in Article 173.2 of the Code;
· the obligation of an investigating judge or a court, when granting a motion for the seizure of property, to apply the least burdensome method of seizure (Article 173.4 of the Code);
· the right of a suspect or accused person, their defense counsel or legal representative, another owner or possessor of the property, or a representative of the legal entity in respect of which the proceedings are conducted, who were not present when the issue of a property seizure was considered, to apply to an investigating judge or a court for the seizure to be lifted in whole or in part (Article 174.1.1 of the Code);
the right of a suspect or accused person, their defense counsel or legal representative, another owner or possessor of the property, or a representative of the legal entity in respect of which the proceedings are conducted, to apply to an investigating judge or a court for the seizure to be lifted if the need for the continued application of this measure has ceased to exist or if the property was seized without sufficient grounds (Article 174.1.2 of the Code);
· the right of a person to submit a repeated motion to an investigating judge to lift the property seizure if the grounds for its continued application have changed;
· the right of a person to appeal a judicial decision concerning the seizure of property (Article 309.1.9 of the Code).
Therefore, the Court concluded that, in the light of the effective procedural guarantees for the judicial protection of the right to property and other lawful possession of seized property, the statutory restriction on the right to appeal, established by the contested provisions of the Code, serves the stated legitimate aim and is proportionate. It ensures a fair balance between the public interest in in ensuring that pre-trial investigations in criminal proceedings are conducted within a reasonable time and the private interest of an lawful possession.
Having examined the issues raised in the constitutional complaints, the Court concluded that Articles 309.1.9 and 309.3 of the Code are consistent with the Constitution of Ukraine insofar as they establish restrictions on the appellate review, during a pre-trial investigation, of an investigating judge’s ruling refusing a motion to lift a property seizure.
