29.06.2026

On 24 June 2026, the Second Senate of the Constitutional Court of Ukraine delivered Decision No. 4-r(II)/2026 in the case upon the constitutional complaint by Serhii Hnezdilov.

The subject of constitutional review in this case was Article 176.8 of the Criminal Procedure Code of Ukraine (hereinafter, “CPC”), according to which “during the period of martial law, only the preventive measure specified in Article 176.1.5 shall apply to military personnel who are suspected or accused of committing offences provided for in Articles 402–405, 407, 408 and 429 of the Criminal Code of Ukraine”.

The applicant contended that the contested provision of the CPC violated the principle of equality of citizens before the law (Article 24 of the Constitution of Ukraine), since, during the period of martial law, military personnel – in particular those who have committed criminal offences such as insubordination, unauthorised absence from a military unit or place of service, or desertion – are placed in an unequal position and equated with particularly dangerous criminals who pose a threat to society, which constitutes discrimination on the grounds of the sphere of activity.

In his view, as a result of the application of the contested provision of the Code of Criminal Procedure ˂…˃, his right to liberty and personal inviolability, guaranteed by Article 29 of the Constitution of Ukraine, has been violated without due justification.

Having examined the issues raised in the constitutional complaint submitted by Serhii Hnezdilov, the Court concluded that the contested provision of the Code of Criminal Procedure does not comply with the requirements of Articles 6, 21, 24.1, 24.2, 28.1, 29.1, 29.2, 55.1, 55.2, 64.2 and 124.2 of the Constitution of Ukraine.

The Decision emphasises that the legislature’s imposition of exclusively the most severe preventive measure – detention on remand – on military personnel suspected or accused of committing a range of offences – violates the requirements of Article 29.1, 29.2 of the Constitution of Ukraine, as it fails to ensure the constitutional requirement for a reasoned court decision resulting from judicial discretion. In the Court’s view, this distorts the very essence of justice.

Judicial discretion is so restricted that a court decision can result in only one possible resolution of the legal situation, the Decision states. Consequently, the legislature has deprived the investigating judge and the court of the opportunity to administer justice in a reasoned and fair manner in this matter, which does not comply with the requirements of Articles 6, 55 and 124 of the Constitution of Ukraine.

The Court stressed that, in respect of every member of the armed forces who is suspected or accused of committing specific military criminal offences, and in connection with whom a preventive measure is being imposed, the circumstances and risks provided for in the Code of Criminal Procedure must be assessed on a case-by-case basis.

The Court noted that the contested provision of the Code of Criminal Procedure singles out a group of military personnel suspected or accused of committing specific military criminal offences, in respect of whom the legislature has established the mandatory application of a preventive measure such as detention. However, the Court found that there was no objective and reasonable basis for the distinction made by the legislature regarding the status of this group of military personnel, which results in the application of only the most severe preventive measure to them.

Such constitutionally impermissible legislative regulation for selecting a preventive measure for military personnel results in an infringement of their human dignity, which, in the Court’s view, is inconsistent with the requirements of Article 24.1, 24.2, read in conjunction with Articles 21.1 and 28.1 of the Constitution of Ukraine. Respect for the constitutional guarantees of human dignity is particularly important in the case of military personnel, who fulfil a vital constitutional role under martial law, the Court emphasised.

In view of the foregoing, the Constitutional Court of Ukraine declared Part 8 of Article 176 of the Criminal Procedure Code of Ukraine unconstitutional and postponed the loss of effect of this provision for three months.