The Constitutional Court of Ukraine Recognized the CPC Provision on Mandatory Detention as Unconstitutional: Analysis of the Decision Text

“Judicial and Legal Newspaper” has already reported on the decision of the Second Senate of the Constitutional Court of Ukraine dated June 24, 2026, No. 4-r(II)/2026 in case No. 3-50/2025(102/25), which recognized part eight of Article 176 of the Criminal Procedure Code of Ukraine as unconstitutional. We offer a more detailed review of the key legal conclusions of the Constitutional Court of Ukraine set out in this decision.

This issue is decisive for the system of constitutional guarantees as it defines the limits of legislative interference in the powers of the judiciary and protects the fundamental human right to freedom and personal inviolability even under the extraordinary conditions of war.

The protection of servicemen’s rights through judicial control over deprivation of liberty is not only a requirement of international standards but also the foundation of trust in a democratic state. The question of whether the law can dictate a single option for the court’s decision on personal freedom directly concerns the preservation of the essence of justice and respect for the defenders of the Fatherland.

Circumstances of the Case

A serviceman of the Armed Forces of Ukraine, suspected of desertion (part four of Article 408 of the Criminal Code of Ukraine), applied to the Constitutional Court of Ukraine.

During the consideration of his case, courts applied and extended detention without setting bail, referring to part eight of Article 176 of the Criminal Procedure Code of Ukraine, which provided that for servicemen certain crimes (disobedience, desertion, etc.) exclusively detention is applied as a preventive measure.

The constitutional complainant argued that this provision violates the principles of equality before the law and personal inviolability, as it places servicemen in an unequal position and deprives courts of the opportunity to impose a milder measure, effectively equating them with especially dangerous criminals without proper justification.

Position of the Constitutional Court of Ukraine

In considering the case, the Constitutional Court of Ukraine proceeded from the premise that personal freedom is the natural state of a person, while arrest or detention is an exceptional condition constitutionally permitted temporarily and only when legal and factual grounds are established (verified) by the court.

The Constitutional Court of Ukraine indicated that detention based on a motivated decision of an investigative judge or court within the meaning of part two of Article 29 of the Constitution of Ukraine complies with the rule of law principle and minimizes the risk of arbitrariness, which cannot be achieved by considering only the gravity of the crime without assessing the specific circumstances of the case, real reasons justifying the necessity of detention, or the impossibility of applying other, milder preventive measures.

The Court noted that the lexical meaning of the word “exclusively” (“only,” “solely”), used by the legislator in the contested provision of the Code, in the context of its wording clearly indicates the obligation for the investigative judge or court to apply the only preventive measure to the relevant category of servicemen — detention.

The investigative judge or court is limited in the possibility to choose a different, milder preventive measure than detention for the respective persons, even considering the relevant risks and other specific circumstances. This means that the investigative judge or court is deprived of the opportunity to make a motivated and fair judicial decision on this matter, including properly justifying the application of a certain preventive measure, and therefore the legislative regulation embedded in the contested provision of the Code distorts the very essence of justice.

The Constitutional Court of Ukraine emphasized that for each serviceman suspected or accused of committing criminal offenses provided for in Articles 402–405, 407, 408, 429 of the Criminal Code of Ukraine, and for whom a preventive measure is chosen, the circumstances and risks prescribed by the Code must be individually assessed.

Thus, the Constitutional Court of Ukraine concluded that the establishment of a mandatory preventive measure in part eight of Article 176 of the Code is inconsistent with the requirements of parts one and two of Article 29 of the Constitution of Ukraine.

The CCU noted that the legislator did not comply with the constitutional prohibition on the usurpation of judicial functions by other state authorities in cases where it restricted judicial discretion so much that the court decision could only have one outcome in resolving the law enforcement situation. The constitutional role of justice cannot be reduced by the legislator to a technical-legal “formalization” of the parliament’s will.

Human Dignity as an Absolute Standard for Protecting Servicemen

The Constitutional Court of Ukraine pointed out that improper regulation of the procedure for choosing a preventive measure for servicemen results in an infringement on their human dignity.

The Court noted that strengthening Ukraine’s defense capabilities depends primarily on comprehensive state and public support for servicemen of the Armed Forces of Ukraine and other military formations. Strengthening Ukraine’s defense is also related to the attitude of society and the state toward each serviceman as a person endowed with human dignity and rights.

A person who has committed a criminal offense cannot be turned into a mere object of the fight against crime with a violation of their constitutionally protected social claim to value and protection.

Inviolability of Human Rights under Martial Law

The CCU emphasized that in the context of the subject matter of this case and according to the second sentence of part two of Article 64 of the Constitution of Ukraine, human rights and freedoms guaranteed by Article 24 (right to equality and equal protection under the law), Article 28 (right of everyone to respect for their dignity), Article 29 (right to freedom and personal inviolability), Article 55 (right to judicial protection) of the Constitution of Ukraine cannot be restricted under martial law.

Thus, the Constitutional Court of Ukraine recognized part eight of Article 176 of the Criminal Procedure Code of Ukraine as unconstitutional. Part eight of Article 176 of the Criminal Procedure Code of Ukraine shall cease to be effective three months from the date of adoption of this Decision by the Constitutional Court of Ukraine.

By its position, the Court confirmed that automatic, mandatory deprivation of liberty contradicts the very nature of justice and the principle of the rule of law. This decision obliges the legislator and courts to adhere to an individual approach when choosing preventive measures, ensuring the right of each serviceman to a motivated judicial decision.

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