05.08.2026
On 15 July 2026, the Second Senate, at its plenary session, deliberated the case and delivered Decision No. 7-r(II)/2026 upon the constitutional complaint of Yevhen Heniievskyi regarding the constitutionality of Article 616.1.2 of the Criminal Procedure Code of Ukraine.
The Judge Rapporteur in the case is Viktor Gorodovenko.
In accordance with Article 616.1.2 of the Code, “following consideration of the application provided for in the first paragraph of this part, the prosecutor has the right to apply to the investigating judge or the court hearing the criminal proceedings, with a motion to revoke the preventive measure in the form of detention imposed on that person, so that they may continue and/or undertake military service under conscription during mobilisation, for a special period and/or contract military service for enlisted personnel, sergeants, senior non-commissioned officers and officers”.
The applicant submits that Article 616.1.2 of the Code violates the accused’s constitutional right of access to a court, as guaranteed by Article 8 of the Constitution of Ukraine, the right to challenge before a court the acts or omissions of prosecutorial authorities, as guaranteed by Article 55 of the Constitution, and the fundamental principles of judicial proceedings, in particular the equality of all participants in judicial proceedings and the adversarial nature of judicial proceedings, as enshrined in Article 129 of the Constitution.
In examining the issues raised in the constitutional complaint, the Constitutional Court of Ukraine emphasised that the right to liberty and personal inviolability is a fundamental constitutional value, a natural human right and an inseparable component of human dignity and autonomy; the substance of this right is interlinked with the priority of human dignity and the principle of the rule of law.
The Constitutional Court of Ukraine noted that the ongoing large-scale armed aggression by the Russian Federation against Ukraine has created an objective need to amend domestic legislation, particularly in the sphere of criminal procedure, through the introduction of new legal institutions and procedural mechanisms that are not inherent in either the national legal system or the established international standards developed in peacetime. Such changes are subject to the limits set out in the Constitution of Ukraine. The legislature has no right to alter the constitutionally defined procedure for the application of measures of criminal procedural coercion, the role of the court therein, and the functional division of procedural powers among its participants in a manner that distorts their constitutional essence, even in the context of armed aggression. The introduction of special procedural mechanisms in the sphere of criminal proceedings, dictated by the objective needs of the state, in particular those related to ensuring its defence capability, is not permitted if it leads to the creation of mechanisms for carrying out the tasks of criminal proceedings that go beyond the constitutional model of justice or undermine constitutional guarantees of human rights and the principle of the rule of law.
The Constitutional Court of Ukraine emphasised that, within Ukraine’s constitutional legal order, the court is the sole body authorised to exercise control over the lawfulness of interference with a person’s right to liberty and personal inviolability. Any other forms of control cannot be regarded as equivalent to judicial review within the meaning of Article 29 of the Constitution of Ukraine. The provisions of Articles 29, 55, 124.1–124.3, 127.1 of the Constitution of Ukraine, interpreted in the light of Article 5.4 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights, cannot under any circumstances be construed as permitting judicial review of an interference with a person’s right to liberty and security of person to be replaced by review conducted by a prosecutor or any other official, even where a special mechanism for the release of a person from custody has been introduced. Nor may powers be conferred on bodies or officials that are not courts and that act as parties to adversarial criminal proceedings where the exercise of such powers effectively determines or prevents a suspect’s or accused person’s access to a court in matters concerning his or her liberty.
In assessing the contested legislative provision, the Constitutional Court of Ukraine noted that, although the procedure for the examination by an investigating judge or a court of a prosecutor’s application, submitted in accordance with the procedure set out in Article 616.1.2 of the Code, remains formally unchanged, the very fact that it is the prosecutor, rather than the defence, who applies to the court results in a change to the prosecutor’s procedural role. In such a case, the prosecutor, in supporting before the court the application which he himself has filed, effectively acts not as a party to the prosecution but as a party with an interest in its granting, which, by its procedural nature, is atypical for a party to the prosecution but characteristic of the defence. Since the law does not provide for the involvement of another prosecutor in the consideration of such a motion, this necessitates the investigating judge or the court to independently identify and assess the circumstances that may prevent the motion from being granted. Under such circumstances, the court is effectively compelled to act as an opponent to the defence, which leads to a shift in the procedural balance and, in a certain sense, means that the court assumes the functions of the prosecution.
The Constitutional Court of Ukraine has also concluded that the fundamental principles of judicial proceedings, as set out in Article 129.2 of the Constitution of Ukraine, although formally aimed at the administration of justice by the court, are not, in terms of their content and purpose, limited to the stage of the actual court hearing of the case. These principles have a normative influence on the legislature’s formulation of procedural mechanisms for access to the courts, and legislative regulation must not establish procedural conditions that render impossible or significantly impede the implementation of these fundamental principles of judicial proceedings by restricting a person’s access to the courts. Consequently, when determining the procedure for initiating judicial review, the legislature is obliged to ensure that the relevant procedural conditions do not undermine the substance of the fundamental principles of judicial proceedings and do not impede their full realisation, both during the administration of justice and at the stage of bringing a case before the court. Vesting a prosecutor, who acts as the prosecution, with procedural powers – the exercise of which makes the possibility of a judicial hearing on the merits of a suspect’s or accused person’s application for release from custody in order to continue and/or undertake military service, as well as powers characteristic of the defence, is inconsistent with the constitutional role of the Public Prosecutor’s Office, as defined in Article 1311 of the Constitution of Ukraine, consequently, this also gives rise to the risk of a blurring of the procedural functions of the parties and the court, which, in turn, may adversely affect compliance with such fundamental principles of judicial proceedings as the adversarial nature of the proceedings and the equality of participants in the judicial process before the law and the court, as well as call into question the impartiality of the court and affect the realisation of an individual’s right to judicial protection.
The Constitutional Court of Ukraine noted that the procedural mechanism established in Article 616.1.2 of the Code, read in conjunction with Article 616.1.1 of the Code, whereby the possibility of a judicial review of the issue of revoking a suspect’s or accused person to have a preventive measure in the form of detention in custody lifted for the purpose of continuing and/or performing military service is made dependent on the prosecutor’s initiative, substantially restricts the suspect’s or accused person’s real and effective access to judicial review of their continued deprivation of liberty and thereby permits interference with the substance of the rights guaranteed by Articles 29, 55, 63 of the Constitution of Ukraine, in conjunction with Articles 129.2.1, 129.2.3, 129.2.5 of the Constitution of Ukraine.
At the same time, even interference with constitutional rights and freedoms, even where there is a legitimate aim, must comply with the principle of proportionality – a component of the principle of the rule of law, enshrined in Article 8 of the Constitution of Ukraine, and with other criteria established by the Constitution of Ukraine regarding the admissibility of restrictions on an individual’s right to liberty and personal inviolability, the right to judicial protection and the right of a suspect, accused person or defendant to a defence, as guaranteed by Articles 29, 55, 63.2 of the Constitution of Ukraine, in conjunction with the fundamental principles of judicial proceedings enshrined in Articles 129.2.1, 129.2.3, 129.2.5 of the Constitution of Ukraine.
In elaborating on its legal positions, the Constitutional Court of Ukraine concluded that the right of a suspect or accused person to have access to a court regarding the revocation of a preventive measure cannot be made conditional upon prior consent from the prosecution, as otherwise judicial protection would lose its constitutional essence.
The Constitutional Court of Ukraine found that the contested provision of the Code effectively makes it impossible for the defence to make a direct and effective application to the investigating judge or the court with the relevant motion. Consequently, the investigating judge or the court, acting on the initiative of the person whose rights are subject to the most intense interference by the state, is deprived of the opportunity to exercise judicial review in the matter in question, unless the prosecutor consents to it, which is incompatible with the principle of the rule of law and with the constitutional model of justice, in which the court is an independent arbiter rather than a procedural instrument for the exercise of the prosecution’s discretion.
On the basis of the foregoing, the Constitutional Court of Ukraine concluded that Article 616.1.2 of the Code, read in conjunction with Article 616.1.1 of the Code, renders it impossible for an investigating judge, or by a court, of a suspect’s or accused person’s application for the revocation of a preventive measure in the form of detention in custody for the purpose of continuing and/or performing military service without the prosecutor’s consent, and therefore contravenes Articles 8.1, 29.1, 29.2, 29.5, 55.1, 63.2, 64, 129.2.1, 129.2.3, 129.2.5 of the Constitution of Ukraine.
Following its deliberation of the case, the Constitutional Court of Ukraine declared that Article 616.1.2 of the Criminal Procedure Code of Ukraine is inconsistent with the Constitution of Ukraine (i.e. unconstitutional).
At the same time, exercising the powers set out in Article 152.2 of the Constitution of Ukraine, the Constitutional Court of Ukraine deferred the expiry of this provision for six months from the date of the Decision and noted that, until the expiry of this period, the contested provision remains in force and is subject to application.
