05.08.2026

On 21 July 2026, the Second Senate, at a plenary session, deliberated the case and delivered Decision No. 8-r(II)/2026 upon the constitutional complaint of Serhiy Gudyrenko regarding the compliance of Articles 307.3, 309.1, 309.2 of the Criminal Procedure Code of Ukraine with the Constitution of Ukraine (constitutionality) (hereinafter, the “Code”).

The Judge-Rapporteur in the case is Oleg Pervomayskiy.

In accordance with Article 307.3 of the Code, “a ruling of the investigating judge delivered following the examination of a complaint against a decision, act or omission of an investigator, an inquiry officer or a prosecutor shall not be subject to appeal, except for a ruling dismissing a complaint against a decision to close criminal proceedings, a complaint against an investigator’s or prosecutor’s refusal to grant a motion to close criminal proceedings on the grounds provided for in Article 284.1.9¹ of this Code, a ruling setting aside a notice of suspicion, and a ruling dismissing a complaint against a notice of suspicion”.

Article 309 of the Code specifies the rulings of the investigating judge that may be appealed during the pre-trial investigation. In particular, it sets out the list of such rulings (paragraph 1) and further provides that “during the pre-trial investigation, the following rulings of the investigating judge may also be appealed against in appellate proceedings: a ruling dismissing a complaint against a decision to close criminal proceedings or against an investigator’s or prosecutor’s decision refusing to grant a motion to close criminal proceedings on the grounds provided for in Article 284.1.9¹ of this Code; a ruling setting aside a notice of suspicion or dismissing a complaint against a notice of suspicion; and a ruling returning a complaint against a decision, act or omission of an investigator or prosecutor, or refusing to open proceedings in respect of such a complaint” (part 2).

In analysing the provisions of Articles 307.3, 309.1 and 309.2 of the Code with regard to whether they pursue a legitimate aim in limiting the right to appeal, during the pre-trial investigation, against a ruling of the investigating judge dismissing a complaint concerning an investigator’s or prosecutor’s omission consisting in the failure to return temporarily seized property in accordance with Article 169 of the Code, the Constitutional Court of Ukraine emphasised the following.

The State enjoys a margin of discretion in regulating by law the criminal procedural framework governing the exercise of the right to appeal procedural judicial decisions that determine specific issues arising in criminal proceedings. In regulating such legal relations, the Verkhovna Rada of Ukraine is required to adhere to the values, principles and provisions of the Constitution of Ukraine.

In fulfilling its primary duty to affirm and ensure human rights and freedoms, and in upholding the effectiveness of the principle of the rule of law, the State must not only refrain from disproportionate interference with the right to property and other forms of lawful possession, but must also take appropriate measures to ensure that everyone within its jurisdiction is able to exercise those rights freely and at their own discretion, subject to the limits established by law. Such legislative provisions must comply with the principle of legal certainty, pursue a legitimate aim, and be proportionate.

A person whose property has been temporarily seized, in respect of which no ruling of the investigating judge ordering the seizure of property has been issued under the provisions of the Code, has the right to lodge a complaint with the investigating judge against a decision, act or omission of an investigator or prosecutor consisting in the failure to return the temporarily seized property in accordance with Article 169 of the Code. Where the investigating judge dismisses such a complaint, that person is entitled to lodge objections to the ruling during the preparatory court proceedings.

However, the possibility of exercising the right to lodge objections to the investigating judge’s ruling dismissing a complaint concerning an investigator’s or prosecutor’s omission consisting in the failure to return temporarily seized property in accordance with Article 169 of the Code depends on the completion of the pre-trial investigation and is not contingent upon any actions or decisions of that person. Under the provisions of the Code, a person whose property has been temporarily seized may lodge such objections only after the pre-trial investigation has been completed.

Throughout that period, the person whose property has been temporarily seized under the provisions of the Code is also deprived of the rights to possess, use and dispose of that property, as guaranteed by Article 41 of the Constitution of Ukraine.

In the light of the foregoing, the Constitutional Court of Ukraine held that the components of the mechanism of judicial review of the lawfulness of interference with individual rights during a pre-trial investigation, in which no person has been notified of suspicion, established by Articles 303.1.1, 309.3 of the Code, do not provide effective and adequate protection of the constitutional rights guaranteed by the Constitution of Ukraine.

The Constitutional Court of Ukraine therefore concluded that Articles 307.3, 309.1, 309.2 of the Code are incompatible with Articles 3.2, 8.1, 41.1, 41.3, 55.1, 55.2, 129.2.8 of the Constitution of Ukraine.

Having examined the issues raised in the constitutional complaint, the Court declared Articles 307.3, 309.1, 309.2 of the Criminal Procedure Code of Ukraine inconsistent with the Constitution of Ukraine (i.e. unconstitutional), insofar as those provisions do not provide for the right to appeal, during the pre-trial investigation, against a ruling of the investigating judge dismissing a complaint concerning an investigator’s or prosecutor’s omission consisting in the failure to return temporarily seized property in accordance with Article 169 of the Code.

Articles 307.3, 309.1, 309.2 of the Criminal Procedure Code of Ukraine, having been declared unconstitutional in the above respect, cease to have effect as of the date of the delivery of this Decision by the Constitutional Court of Ukraine.