October 2, 2025
On October 1, 2025, during the public part of the plenary session, the Second Senate commenced deliberation of the case upon the constitutional complaint of Serhiy Hnezdilov in the form of written proceedings.
During the plenary session, the Judge-Rapporteur in the case, Vasyl Lemak, a judge of the Constitutional Court of Ukraine, presented the content of the constitutional complaint and the applicant's arguments.
The judge pointed out that the subject of constitutional review in this case is Article 176.8 of the Criminal Procedural Code of Ukraine (hereinafter, the “Code”), according to which “during martial law, military personnel who are suspected or accused of committing crimes provided for in Articles 402-405, 407, 408, and 429 of the Criminal Code of Ukraine, shall be subject exclusively to the preventive measure specified in paragraph 5 of Article 176.1”
The content of the constitutional complaint and the documents and materials attached to it indicate the following.
On October 10, 2024, an investigator of the Main Investigation Department of the State Bureau of Investigations served Serhiy Hnezdilov with a notice of suspicion of committing a criminal offense specified in Article 408.4 of the Criminal Code of Ukraine.
By a ruling dated October 11, 2024, the investigating judge of the Pechersky District Court of Kyiv applied a preventive measure to Serhiy Hnezdilov in the form of detention in custody with detention in the guardhouse, and by a ruling dated November 29, 2024, extended Serhiy Hnezdilov's term of detention without setting bail.
The Kyiv Court of Appeal, by its ruling of December 25, 2024, left unchanged the ruling of the investigating judge of the Pechersky District Court of Kyiv dated November 29, 2024, and dismissed the appeal of the defense attorney acting on behalf of Serhiy Gnezdilov.
The Shevchenkivskyi District Court of the city of Dnipro (former Babushkinskyi District Court of the city of Dnipropetrovsk), by its ruling of January 23, 2025, released Serhiy Gnezdilov from criminal liability for committing a criminal offense under Article 408.4 of the Criminal Code of Ukraine, on the basis of Article 401.5 of this Code, terminated the criminal proceedings, and the preventive measure previously applied to Serhiy Gnezdilov in the form of detention was canceled and he was immediately released from custody in the courtroom.
The applicant claims that the contested provisions of the Code violate the principle of equality of citizens before the law (Article 24 of the Constitution of Ukraine), since during martial law they place military personnel, in particular those who have committed criminal offenses such as insubordination, unauthorized absence from a military unit or place of service, desertion, to an unequal position and equate them with particularly dangerous criminals who pose a threat to society, which constitutes discrimination on the basis of activity.
In his opinion, as a result of such discriminatory provisions of the Code, military personnel who have committed criminal offenses specified in Articles 402-405, 407, 408, and 429 of the Criminal Code of Ukraine, only the most severe preventive measure in the form of detention without the right to bail is applied, which violates, without proper justification, his right to liberty and personal inviolability, guaranteed by Article 29 of the Constitution of Ukraine.
The Judge-Rapporteur informed that in order to ensure a full and objective deliberation of the case and the delivery of justified decision by the Court, he had sent requests to state authorities and higher education establishments and scholars who are part of the Scientific and Advisory Council of the Constitutional Court of Ukraine. The judges will be informed of the content of the positions expressed in the in-camera part of the plenary session.
After examining the case materials in the public part of the plenary session, the Court proceeded to the in-camera part of the session for a decision.
The plenary session was attended by authorized persons acting on behalf of the subject of the constitutional complaint, lawyers Anastasia Burkovska and Ilia Podvorny, citizens of Ukraine.
The video recording of the plenary session is available on the Court’s official website in the Section “Archive of Video Broadcasts of Sessions”.
