05.08.2026

On 15 July 2026, at a plenary session, the Second Senate deliberated the case and delivered Decision No. 6-r(II)/2026 upon the constitutional complaint of Tetiana Samborska on the constitutionality of Articles 309 and 428.2.2 of the Criminal Procedure Code of Ukraine (hereinafter, the “Code”).

The Judge-Rapporteur in the case is Serhiy Riznyk.

Articles 309.1 and 309.2 of the Code set out the list of rulings of the investigating judge that may be appealed during the pre-trial investigation. Pursuant to Article 309.3 of the Code, “other rulings of the investigating judge are not subject to appeal, and objections thereto may be raised during the preparatory court proceedings.”

Pursuant to Article 428.2.2 of the Code, the court of cassation shall issue a ruling refusing to initiate cassation proceedings if “it is apparent from the cassation appeal, the court decisions attached thereto and other documents that there are no grounds for granting the appeal”.

The person entitled to submit a constitutional complaint noted that the Code does not confer on the court the power to set aside an investigating judge’s order setting a time limit for reviewing the materials of the criminal proceedings, issued in accordance with Article 290.10 of the Code, both at the stage of preparatory court proceedings and during subsequent stages of criminal (judicial) proceedings. Objections to such a ruling may be lodged during preparatory proceedings in court. In the opinion of Tetiana Samborska, such objections, as a procedural remedy, are ineffective, since the provisions of the Code do not specify what actions the court must take following the consideration of such objections.

In substantiating the claim that Article 428.2.2 of the Code is inconsistent with the Constitution of Ukraine, the person entitled to submit a constitutional complaint pointed out, in particular, that the contested provision hinders full-fledged procedural activity in the court of cassation, as it effectively allows for unlimited procedural discretion to resolve any case without initiating cassation proceedings.

In addressing the issues raised in the constitutional complaint, the Constitutional Court of Ukraine emphasised the significance of its previous legal positions, which it had formulated in cases concerning the guarantee of an individual’s right to appeal against court decisions. Taking these into account, the Constitutional Court of Ukraine noted in its Decision that Article 129.2.8 of the Constitution of Ukraine guarantees an individual the unconditional right to an appeal review of their case on the merits, however does not establish guarantees of the same content and scope for appealing against those procedural court decisions which resolve specific issues in criminal proceedings.

At the same time, the Verkhovna Rada of Ukraine cannot arbitrarily determine which rulings of an investigating judge are subject to appeal and which are not. The legislature has a duty to regulate this matter in such a way that, on the one hand, the objectives of justice are effectively achieved – in particular, by preventing unjustified delays in the consideration of court cases – and, on the other hand, a person is not deprived of their constitutional right to judicial protection and their other human rights are not violated.

The Decision emphasises that a legislative prohibition on the right to appeal against rulings of an investigating judge is constitutionally permissible if it: is established for a legitimate aim, linked, in particular, to ensuring the proper conduct of criminal proceedings, adherence to reasonable time limits for court proceedings, the prevention of excessive fragmentation of court proceedings and the prevention of abuse of procedural rights; is proportionate, that is, such that it does not lead to an arbitrary restriction of a person’s constitutional right to judicial protection and does not violate the essence of that right.

The Court emphasised that the absence of a right to appeal against rulings of an investigating judge is permissible: in respect of those rulings whose legal consequences do not give rise to an irreversible or sufficiently significant interference with a person’s constitutional rights and freedoms, which it would be impossible to remedy in a timely and effective manner without recourse to a court of appeal; if other (alternative) legal remedies provided for by criminal procedure law are capable of ensuring that the consequences of a possible infringement of a person’s rights, caused by a ruling of the investigating judge, are remedied, thereby ensuring their effective restoration.

In its Decision, the Court examined the substantive link between the right of access to the materials of the pre-trial investigation and the constitutional right of a suspect or accused person to a defence, as well as the Convention right to a fair trial.

The Constitutional Court of Ukraine emphasised that access to the materials of the pre-trial investigation is not merely a formal procedural step but constitutes one of the fundamental guarantees of the effective exercise of the right to judicial protection. It is at this stage that the defence is afforded an opportunity to ascertain the scope and content of the prosecution’s evidence, assess its relevance to the criminal proceedings, determine its legal position, prepare the necessary procedural applications, and otherwise exercise its defence rights effectively.

The Decision states that the setting of a time limit by the investigating judge for reviewing the materials of the pre-trial investigation is a procedural measure intended to ensure the proper conduct of criminal proceedings and to prevent their unjustified delay. At the same time, the application of this measure is permissible only where the time limit set is objectively sufficient, having regard to the volume and complexity of the materials, the conditions of access to them, and all other circumstances relevant to the proper preparation of the suspect’s (or accused person’s) defence.

In resolving the issue of the constitutionality of Article 309 of the Code in relation to the matters raised in the constitutional complaint lodged by Tetiana Samborska, the Court noted that the absence of a statutory provision enshrining the right to appeal against an investigating judge’s ruling setting a time limit for reviewing the materials of the pre-trial investigation does not deprive participants in criminal proceedings of procedural means to seek a review of its legality by other means, since criminal procedure law provides for a set of interrelated legal remedies, within which an appeal against an investigating judge’s ruling is one means of judicial review, but not the only one.

One such means of judicial review is the lodging, pursuant to Article 309.3 of the Code, of objections to the investigating judge’s ruling during preparatory proceedings in court.

Having carried out a constitutionally consistent (conformist) interpretation of Article 309.3 of the Code, the Court noted that objections to a ruling of an investigating judge, which is not subject to appeal, must be considered and taken into account by the court; a person’s right to raise objections to a ruling of an investigating judge corresponds to the court’s duty to properly consider such objections, examine the arguments set out therein, give them due legal assessment and, where necessary, take the necessary measures to remedy the infringement of the right.

Having assessed the practical feasibility of reviewing the materials of the pre-trial investigation following the court’s consideration of the objections raised by the accused during the preparatory court hearing, the Court concluded that the fact that not all the materials of the pre-trial investigation are directly at the court’s disposal at the stage of the preparatory court hearing does not deprive the court of the possibility of obliging the prosecution to grant the accused access to these materials for review within a period specified by the court, without their necessarily being attached to the materials of the criminal case held by the court. At the same time, the choice of specific procedural means to ensure and put into practice a person’s right to examine the materials of the pre-trial investigation, following the submission of objections, must be determined by the courts of the Ukrainian judicial system in the course of judicial proceedings. The Decision finds that, since lodging objections to an investigating judge’s ruling setting a time limit for reviewing the materials of the pre-trial investigation is capable of ensuring the protection and restoration of the relevant right of the suspect (accused), there are no grounds for declaring Article 309 of the Code unconstitutional on the basis that it does not provide for an appeal against the said ruling.

In resolving the issue of the constitutionality of Article 428.2.2 of the Code in relation to the issues raised in the constitutional complaint submitted by Tetiana Samborska, the Court noted that of particular importance for assessing the constitutionality of this provision of the Code is the fact that the degree of constitutional protection afforded to the right to a cassation appeal against judicial decisions resolving specific issues in criminal proceedings is even lower than that afforded to decisions resolving the case on its merits.

The Court observed that the legal and technical imperfection in the wording “it appears that there are no grounds for upholding the complaint”, as used in Article 428.2.2 of the Code, is not sufficient grounds for concluding that it is unconstitutional, provided that the meaning of such a provision can be correctly established through a systematic interpretation of the provisions of the Code, taking into account the constitutional principles of the rule of law, access to justice and the right to judicial protection.

The Decision emphasises that, given the limited level of protection afforded to the right to appeal against court decisions on points of law, particularly those which do not resolve the case on its merits, the absence in Article 428.2.2 of the Code of detailed criteria for deciding to refuse to initiate the relevant cassation proceedings does not preclude the cassation court’s ability to properly review the correctness of the refusal to grant a person access to an appeal review of the investigating judge’s ruling.

The Constitutional Court of Ukraine pointed out that Article 428.2.2 of the Code does not grant the court of cassation the power to refuse to initiate cassation proceedings if, based on the content of the cassation appeal and the documents attached thereto, it is impossible to reach a convincing and well-founded conclusion regarding the legality of the relevant ruling of the court of appeal. The court of cassation is obliged to satisfy itself that the court of appeal carried out a proper legal assessment of the admissibility of the appeal against the relevant ruling of the investigating judge, and also to ascertain whether the individual’s right of access to an appeal review was unreasonably restricted as a result of the erroneous application of procedural law.

In conclusion, the Court held that Article 428.2.2 of the Code serves as a procedural filter designed to ensure the proper administration of justice, procedural economy and the effective functioning of the court of cassation. The Court further held that, insofar as this provision establishes a ground for refusing to initiate cassation proceedings in response to a cassation appeal against a ruling of the court of appeal refusing to initiate appeal proceedings, it pursues a legitimate aim, is proportionate and justified, does not undermine the constitutional principles of judicial proceedings, and does not impair the very essence of the suspect’s or accused person’s right to a defence.

The Constitutional Court of Ukraine held:

• that Article 309 of the Code is consistent with the Constitution of Ukraine (i.e. constitutional), insofar as it does not provide for an appeal against a ruling of an investigating judge setting a time limit for familiarisation with the materials of the pre-trial investigation;
• that Article 428.2.2 of the Code is consistent with the Constitution of Ukraine (i.e. constitutional), insofar as it serves as a ground for refusing to initiate cassation proceedings in response to a cassation appeal against a ruling of the court of appeal refusing to initiate appeal proceedings.