The Constitutional Court of Ukraine established new standards for investigative judges: bail is not ransom and not a criminal punishment

On July 21, the Second Senate of the Constitutional Court of Ukraine made an important decision that defines the future of the bail institution in the country. The Court recognized the constitutionality of the possibility to set bail beyond the limits established by law, but imposed requirements on judges: bail can no longer be unattainable, it must remain a real alternative to detention.

Decision No. 9-р(ІІ)/2026 became the final point in the dispute regarding the constitutionality of the fifth paragraph of part five of Article 182 of the Criminal Procedure Code of Ukraine. The case concerned the powers of an investigative judge to set bail exceeding the standard 80 or 300 subsistence minimums. The significance of the decision is hard to overestimate as it balances the need to protect investigative interests and the constitutional right of a person to freedom.

"Sudovo-yurydychna hazeta" has repeatedly noted that determining the amount of bail is increasingly becoming a subject of discussion regarding compliance with the principle of proportionality. As practice shows, the defense side increasingly emphasizes during the selection of preventive measures that the proposed amounts do not correspond to the real financial capabilities of the suspects. This, in turn, raises the issue of proportionality of the preventive measure and its compliance with the practice of the European Court of Human Rights regarding the inadmissibility of the de facto punitive nature of bail.

Essence of the appeal

The constitutional complaint subject, Roman Dudin, argued that the lack of clear criteria and an upper limit for bail in "exceptional cases" leads to subjectivity of judges and manipulations. In his case, bail was repeatedly set at over 5 million hryvnias, which amounts to 1700 subsistence minimums. According to the applicant, this turned bail into a "no-alternative imprisonment". The petitioner emphasized violations of the principles of equality, the right to freedom, and the presumption of innocence.

Constitutional Court conclusions: bail is constitutional

During the case consideration, the Constitutional Court received official positions from the Verkhovna Rada and the President, which effectively supported the current model of determining bail. Both state institutions emphasized that the law already contains sufficient safeguards against arbitrary determination of its amount.

The Chairman of the Verkhovna Rada noted that in "exceptional cases" the court indeed has broad discretion to set bail beyond the limits defined by Article 182 of the CPC. At the same time, such discretion is not unlimited: the court must consider the severity of the crime, the financial and family status of the suspect, risks of obstructing criminal proceedings, and the amount of damage caused. Moreover, according to the law, bail cannot be deliberately excessive for the person.

At the same time, the parliament recognized that broad judicial discretion theoretically does not exclude the risk of setting excessive bail, so proper application of the law and motivation of court decisions are of key importance.

The President’s Office emphasized that the CPC explicitly prohibits setting bail that is excessive for the suspect, and the decision on its amount must be made only after a comprehensive examination of the case circumstances, respecting the presumption of innocence principle.

Freedom is the rule, not the exception

The Constitutional Court reminded that bail is not a punishment, a way to compensate damage, or "ransom" from custody. Its sole purpose is to guarantee the proper procedural behavior of the suspect and ensure their participation in criminal proceedings.

The right to freedom and personal inviolability, guaranteed by Article 29 of the Constitution of Ukraine, is one of the fundamental human rights. Therefore, any restriction of it is possible only on convincing grounds, in the manner prescribed by law, and exclusively based on a motivated court decision.

The Court specifically emphasized that the Constitution does not allow turning detention into a standard preventive measure. According to the principle in dubio pro libertate ("when in doubt, in favor of freedom"), personal freedom is the natural state of a person, and detention is an exception that should be applied only when no softer measure can ensure the goals of criminal proceedings.

That is why the legislation must guarantee the existence of a real alternative to detention, and bail is such an alternative.

Bail must be significant but realistic

The Constitutional Court noted that the amount of bail should be determined individually, taking into account the specific circumstances of the case and the financial situation of the person.

It must be sufficiently significant to motivate the suspect to fulfill the procedural obligations imposed on them, but not so high as to effectively deprive the person of the possibility to use the alternative to detention.

Otherwise, the Court noted, bail loses its constitutional function and ceases to be a real alternative preventive measure.

The position of the CCU aligns with the practice of the ECHR

The Constitutional Court also emphasized that this approach corresponds to international human rights protection standards enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. Ukraine, as a party to these international treaties, is obliged to ensure that restrictions on freedom remain exceptional, and bail is a real alternative to imprisonment, not its hidden form.

Very high bail is possible, but only under clear rules

The Constitutional Court concluded that the court’s right to set bail beyond the limits established by Article 182 of the CPC does not contradict the Constitution of Ukraine.

The Court noted that this possibility is applied only in exceptional cases when the standard bail amount cannot guarantee the suspect’s fulfillment of procedural obligations. At the same time, the decision cannot be arbitrary — the court must thoroughly justify why it is necessary to deviate from the general limits.

The Constitutional Court separately explained why the law does not establish a maximum bail limit. According to the Court, due to significant differences in people’s financial status, a fixed "ceiling" could lose its deterrent effect for suspects with very substantial assets. That is why the CPC allows, in exceptional cases, setting bail beyond established limits, but only if the court individually justifies its amount and it is not deliberately excessive for the specific person.

However, even in exceptional cases, the direct norm of part four of Article 182 of the CPC applies: the amount of bail cannot be deliberately excessive for the suspect or accused.

The CCU emphasized that exceeding the maximum bail amount is possible only with a properly motivated court decision. The judge must explain what specific risks exist, why the standard bail is insufficient, and why the determined amount is proportional in this case.

Moreover, such decisions can be appealed, which is an additional guarantee against possible abuses.

In summary, the Constitutional Court recognized that the fifth paragraph of part five of Article 182 of the CPC complies with the Constitution of Ukraine, and the bail determination model contains sufficient legal safeguards against arbitrary application.

Bail must be a real alternative to detention

Although the Constitutional Court recognized the constitutionality of the possibility to set bail without an upper limit, it established an important safeguard: bail cannot turn into a hidden form of detention.

The Court stressed that the amount of bail must be sufficiently significant to guarantee the proper procedural behavior of the suspect, but at the same time not so excessive as to effectively deprive the person of the possibility to be released from custody. In other words, bail must remain a real alternative to detention, not a formal option.

What judges must now consider

The Constitutional Court effectively outlined the standards that investigative judges must follow when determining bail in "exceptional cases".

In particular, courts must assess the real financial status of the suspect: their lawful income, assets, family status, dependents, and the availability of property for bail payment. If assets are seized within the same criminal proceeding, this must also be taken into account.

Each decision on bail must be thoroughly motivated and based on concrete evidence, not assumptions.

The Constitutional Court’s decision sets standards for determining bail amounts in criminal proceedings. From now on, setting bail exceeding 300 subsistence minimums will require especially careful justification. Courts must assess not only the severity of the alleged crime and procedural risks but also the real financial status of the person, availability of their assets, family circumstances, and the practice of the European Court of Human Rights, particularly in cases Mangouras v. Spain, Istomina v. Ukraine, and others.

The CCU Decision No. 9-р(ІІ)/2026 did not limit the courts' right to set bail beyond the limits established by law. At the same time, the Court clearly outlined constitutional guarantees: the absence of an upper limit does not mean unlimited discretion.

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