Objections to the Investigative Judge's Ruling During Preparatory Proceedings Are Mandatory for Consideration: Analysis of the Constitutional Court of Ukraine's Decision

The Constitutional Court of Ukraine (CCU) has put an end to the debate on the constitutionality of restrictions on appealing rulings that establish time limits for reviewing case materials. Despite recognizing the provisions of the Criminal Procedure Code (CPC) as constitutional, the Court has given them new life through the mechanism of mandatory consideration of objections.

As reported by the "Judicial and Legal Newspaper", the Second Senate on July 15 at a plenary session reviewed the case and adopted Decision No. 6-р(ІІ)/2026 on the constitutional complaint of Tetyana Samborska regarding the compliance with the Constitution of Ukraine (constitutionality) of Article 309, paragraph 2 of part two of Article 428 of the Criminal Procedure Code of Ukraine.

The decision is significant for shaping criminal justice practice as it concerns ensuring a balance between the interests of effective pre-trial investigation and the realization of a person's right to proper defense preparation.

Circumstances of the Appeal

The constitutional complaint claimant, Tetyana Samborska, was under investigation in a criminal proceeding on suspicion of committing an offense under part 2 of Article 367 of the Criminal Code of Ukraine (official negligence). During familiarization with the case materials, the investigator of the State Bureau of Investigation (SBI) applied to the district court of Kyiv city with a motion to set a time limit for the defense side to review the materials. The investigative judge set such a time limit, which, according to the claimant, restricted the defense in time.

Tetyana Samborska tried to appeal this ruling in appellate and cassation procedures, but the courts refused to open proceedings, citing that according to Article 309 of the CPC, a ruling establishing the time limit for reviewing pre-trial investigation materials is not subject to appeal. This prompted the suspect to apply to the Constitutional Court of Ukraine (CCU), claiming that the existing provisions deprived her of the right to a fair trial and effective remedy.

Constitutionality Through Systemic Interpretation: Article 309 of the CPC

The Constitutional Court of Ukraine outlined the constitutional limits of legislative regulation of the right to appeal investigative judge rulings, emphasizing that this right is not absolute. The legislator has the right to determine which procedural decisions can be appealed, but such discretion must comply with the requirements of the Constitution of Ukraine.

Paragraph 8 of part two of Article 129 of the Constitution guarantees an unconditional right to appellate review of the case on the merits, while the procedure for appealing interim procedural decisions may be established by law. At the same time, the right to appeal investigative judge rulings also stems from constitutional guarantees of the right to defense.

Developing its previous practice, the CCU emphasized that legislative restrictions on appellate appeal are constitutionally permissible only if the principle of proportionality is observed. Such restrictions must pursue a legitimate aim, be necessary to ensure the effectiveness of criminal proceedings, and not violate the essence of the right to judicial protection.

The key criterion is the nature of the consequences of the respective ruling. The absence of the right to appeal is allowed only for those procedural decisions that do not cause irreversible or such significant interference with constitutional rights of a person that it is impossible to timely eliminate without appellate court review. At the same time, the criminal procedural law must ensure the existence of other effective means of legal protection.

Assessing the constitutionality of Article 309 of the CPC of Ukraine, the Court noted that the list of rulings subject to appeal primarily includes decisions related to significant restrictions of constitutional rights or those that have decisive importance for the further course of criminal proceedings.

At the same time, the Constitutional Court stressed that the decisive factor is not the formal title of the procedural ruling but its real content, legal consequences, and degree of impact on human rights. For this reason, the Court applied the principle substantia potior est forma — "substance is more important than form."

The Issuance of a Ruling on Setting a Time Limit Must Be Based on an Individual Assessment of the Case Circumstances

Analyzing the legal nature of the investigative judge's ruling on setting a time limit for reviewing pre-trial investigation materials, the Constitutional Court emphasized that the stage of opening materials according to Article 290 of the CPC of Ukraine is one of the key procedural guarantees for realizing the right to defense.

At this stage, the defense side receives the opportunity to familiarize themselves with the entire array of evidence of the prosecution, assess their content and evidentiary value, determine the legal position, form a defense strategy, prepare necessary procedural documents and motions before the indictment is sent to court.

The Court stressed that the right to review criminal proceeding materials is an integral element of the constitutional right of a person to defense, guaranteed by the Constitution of Ukraine. At the same time, setting a time limit by the investigative judge for such review is itself a legitimate procedural mechanism aimed at ensuring the effectiveness of the pre-trial investigation, adherence to reasonable time limits of criminal proceedings, and preventing abuse of procedural rights by unjustified delay of the material opening procedure.

In essence, the ruling on setting a time limit is a court decision issued by the investigative judge according to Article 290 of the Criminal Procedure Code of Ukraine if the defense side or the victim delays familiarization with the materials. The purpose of the ruling is to prevent investigation delays.

At the same time, the Constitutional Court emphasized that the application of this procedural mechanism is constitutionally permissible only on condition of an individual assessment of the specific circumstances of the case. The time limit set by the investigative judge must be objectively sufficient for effective familiarization of the defense side with the case materials, taking into account their volume, complexity, conditions of access, and other circumstances that may affect the real possibility of proper defense preparation. Only under such conditions is a fair balance ensured between the interests of effective criminal proceedings and guarantees of the constitutional right of a person to defense.

Objections as a Real Instrument

Importantly, the CCU interpreted part 3 of Article 309 of the CPC. This provision stipulates that investigative judge rulings that are not subject to appeal may be the subject of objections during preparatory court proceedings.

The complainant argued that such a remedy is only "illusory" since the law does not define the court's mechanism for responding to submitted objections.

The CCU disagreed with this approach and applied the principle of constitutionally consistent interpretation. The Court emphasized that objections cannot be reduced to merely formal attachment to the criminal proceeding materials without their proper consideration.

The person's right to submit objections corresponds to the court's obligation to consider them on the merits, provide them with proper legal evaluation, and, if grounds exist, take effective measures to restore the violated right.

Even after the completion of the pre-trial investigation, the court during the preparatory hearing has procedural powers to oblige the prosecution to ensure the defense side's access to the criminal proceeding materials if the time limit set by the investigative judge was unjustified or led to violation of the right to defense.

Article 428 of the CPC: Procedural Filter

The Constitutional Court also examined the constitutionality of paragraph 2 of part two of Article 428 of the CPC of Ukraine, which allows the cassation court to refuse to open cassation proceedings if it finds no grounds to satisfy the cassation complaint.

The Court recognized this provision as compliant with the Constitution of Ukraine. In its view, it performs the function of a procedural filter necessary to ensure the effective operation of the Supreme Court and the realization of the principle of procedural economy.

At the same time, the Constitutional Court emphasized that this provision does not grant the cassation court unlimited discretion. When refusing to open proceedings, the cassation court must verify whether the appellate court lawfully refused to open appellate proceedings and did not rely solely on the formal qualification of the investigative judge's ruling.

Summary

The Constitutional Court of Ukraine Decision No. 6-р(ІІ)/2026 dated July 15, 2026, significantly clarifies the balance between procedural economy and the right to defense in criminal proceedings.

Its key practical consequences are that:

• appeals against rulings setting time limits for reviewing pre-trial investigation materials (Article 290 of the CPC) remain excluded, and this restriction is recognized as constitutional;
• objections provided for in part three of Article 309 of the CPC of Ukraine acquire real meaning: the court during preparatory proceedings is obliged to consider them on the merits, assess the legality of the investigative judge's decision, and, if grounds exist, restore the violated right;
• completion of the pre-trial investigation itself is not grounds for refusing the defense side access to criminal proceeding materials if the right to review was unjustifiably restricted.

Thus, the Constitutional Court confirmed that procedural restrictions can be justified only if they do not nullify the essence of the right to defense and are accompanied by effective means of its restoration. The decision strengthens the role of the court during preparatory proceedings and provides the defense side with an effective mechanism to eliminate violations committed at the pre-trial investigation stage.

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