05.03.2026

On 4 March 2026, the Second Senate deliberated the case at a plenary session and delivered Decision No. 1-r(II)/2026 upon the constitutional complaint of Artur Gorobets regarding the constitutionality of Article 76.1 of the Criminal Procedure Code of Ukraine (hereinafter the “Code”).

The judge-rapporteur in the case is Serhiy Riznyk.

The contested provisions of the Code stipulate that “a judge who participated in criminal proceedings during the pre-trial investigation shall not have the right to participate in the same proceedings in the court of first instance, appeal and cassation, except in cases where he or she reviews, on appeal, a decision of the court of first instance on the imposition of a preventive measure in the form of detention, to change another preventive measure to a preventive measure in the form of detention, or to extend the term of detention, which was decided during court proceedings in the court of first instance before the court decision on the merits was delivered”.

The subject of the constitutional complaint noted that “a judge who participated in the pre-trial investigation will no longer be able to be objective during the trial of criminal proceedings, since he already formed a certain subjective opinion about the person against whom criminal proceedings are being conducted at the stage of pre-trial investigation”, therefore, in the opinion of Artur Gorobets, Article 76.1 of the Code contradicts the principle of fair and impartial consideration of a case by a court and, accordingly, Article 55.1 of the Constitution of Ukraine.

In resolving the issues raised in the constitutional complaint, the Constitutional Court of Ukraine took into account that the aforementioned regulatory guarantees of appeal against first instance court rulings on the application of preventive measures in the form of detention were the result of a series of amendments to criminal procedural legislation made by the Verkhovna Rada of Ukraine in accordance with the Decision of the Constitutional Court of Ukraine of 13 June 2019 No. 4-r/2019.

Having enshrined in law the right to appeal against court rulings related to the application of preventive measures in the form of detention, issued during court proceedings in the court of first instance, as guaranteed by the Constitution of Ukraine and confirmed by Court Decision No. 4-r/2019, the Verkhovna Rada of Ukraine additionally provided for a regulatory mechanism for its implementation. One of the elements of this mechanism was the exception established in Article 76 of the Code to the general rule on the inadmissibility of a judge's repeated participation in criminal proceedings.

The court noted that the exception enshrined in part one of this article of the Code does not essentially affect the effectiveness of the specified rule and is objectively determined by the peculiarities of resolving criminal proceedings in the court of appeal, as well as the need to comply with reasonable time limits for the court to consider the case.

The Decision emphasises that leaving part of Article 76.1 of the Code unchanged while establishing the possibility of appealing against first instance court rulings related to the application of preventive measures in the form of detention issued at the stage of court proceedings, would render the introduced right declarative and negate its effectiveness in advance.

In assessing the proportionality of the method chosen by the legislator to guarantee the right to appeal against court rulings related to detention, the Court took into account that, according to Article 76.1 of the Code, the permission of a judge who participated in criminal proceedings during the pre-trial investigation to participate in the same proceedings in the court of appeal concerns a narrow range of issues related exclusively to verifying the legality of the application of a preventive measure in the form of detention during court proceedings.

At the same time, a judge who participated in criminal proceedings during the pre-trial investigation, as before, does not have the right to participate in the same proceedings during the consideration of the case on its merits in the court of first, appeal or cassation instance.

The court emphasised that if the subject of judicial review, the procedural function of the court of appeal and the methodology for assessing the circumstances of the case remain unchanged, the participation of a judge of the court of appeal who, during the pre-trial investigation, reviewed the rulings on the application of a preventive measure in the form of detention, in the appeal review of rulings issued by the court of first instance at the stage of court proceedings, does not in itself indicate a violation of the principle of impartiality and objectivity of the judge.

At the same time, in the Court's opinion, the problem of the quality of justification of court decisions on preventive measures in the form of detention and related violations of a person's constitutional right to judicial protection is not caused by the updated content of Article 76 of the Code, but requires further improvement of criminal procedural legislation by the Verkhovna Rada of Ukraine within the scope of its relevant legislative powers.

Having examined the issues raised in the constitutional complaint, the Court concluded that Article 76.1 of the Code complies with the Constitution of Ukraine, and that the regulatory provisions enshrined therein: are aimed at achieving a legitimate goal and are proportionate to that goal; contribute to the achievement of the goals of justice and do not infringe upon other constitutional principles of judicial proceedings; do not worsen the situation of suspects (defendants) compared to the previous regulatory framework; do not violate the rights of other participants in criminal proceedings; meet the requirement to affirm and ensure the right of a person to judicial protection by an impartial and unbiased court, and are therefore consistent with the values, principles and norms of the Constitution of Ukraine.