The Constitutional Court of Ukraine published a decision on the criteria under which bail must be a real alternative to detention

As previously reported by the "Judicial and Legal Newspaper", the Second Senate of the Constitutional Court of Ukraine on July 21 at a plenary session considered the case and adopted Decision No. 9-r(II)/2026 on the constitutional complaint of Roman Volodymyrovych Dudin regarding the compliance of the fifth paragraph of part five of Article 182 of the Criminal Procedure Code of Ukraine with the Constitution of Ukraine (constitutionality). This was reported by the CCU.

The reporting judge in this case is the judge of the Constitutional Court of Ukraine Vasyl Lemak.

The contested provision of the Code establishes that in exceptional cases, if the investigating judge or court determines that bail within the specified limits is unable to ensure the fulfillment by the person suspected or accused of committing a serious or particularly serious crime of the obligations imposed on them, bail may be set at an amount exceeding eighty or three hundred times the subsistence minimum for able-bodied persons, respectively.

The Constitutional Court of Ukraine in its Decision notes that legislative regulation of bail, the amount of which imposes a significant financial obligation on the person suspected or accused, must be aimed at effectively motivating the person to refrain from unlawful behavior, since only in this way bail is a real alternative to the preventive measure of detention. Therefore, legislative regulation of bail requires individualization concerning the person suspected or accused, as well as the circumstances of the criminal proceedings, meaning the amount of bail must be significant for the person but not so much as to effectively eliminate its alternative nature to detention.

The legal meaning of the bail institution as a means that is a less burdensome interference by the state in the right to freedom and personal inviolability, guaranteed by part one of Article 29 of the Basic Law of Ukraine, lies in the fact that the person has a real opportunity to replace the preventive measure of detention with a preventive measure in the form of bail, simultaneously assuming procedural obligations arising from achieving the objectives of criminal proceedings. The application of bail enables achieving these objectives without applying the harshest preventive measure to the suspect or accused – detention.

In the second sentence of part four of Article 182 of the Code, the legislator established that "the amount of bail must sufficiently guarantee the fulfillment by the suspect or accused of the obligations imposed on them and cannot be knowingly disproportionate to them."

The Constitutional Court of Ukraine separately notes that the requirements of part four of Article 182 of the Code regarding the obligation to consider circumstances, risks, and the prohibition of knowingly disproportionate bail amounts are general in nature and apply also in exceptional cases provided for by the contested provisions of the Code – the fifth paragraph of part five of Article 182 of the Code.

The Constitutional Court of Ukraine concluded that the fifth paragraph of part five of Article 182 of the Code, in connection with the provisions of part four of Article 182 and part three of Article 183 of the Code, establishes parameters (circumstances, risks) that allow the investigating judge or court, in a reasoned decision based on an individual assessment of such criteria, to set a fair and reasonable amount of bail also in cases where bail within the limits specified by the Code (eighty or three hundred times the subsistence minimum for able-bodied persons, respectively) is unable to ensure the fulfillment by the person suspected or accused of committing a serious or particularly serious crime of the obligations imposed on them in criminal proceedings.

Considering that the legislator did not establish a maximum amount (upper limit) of bail in exceptional cases specified in the contested provisions of the Code, the Constitutional Court of Ukraine emphasizes that property and other social differentiation in modern society is significant, and therefore

any maximum amount of bail may prove irrelevant in ensuring the deterrent role of bail as a preventive measure in criminal proceedings.

The Constitutional Court of Ukraine takes into account that the contested provisions of the Code, in connection with other provisions of the Code, imply the need to consider the property status of the person, thus allowing the investigating judge or court, based on an individual assessment, to determine such an amount of bail that has a deterrent character for each person regardless of their property status indicators.

The Constitutional Court of Ukraine considers that the fifth paragraph of part five of Article 182 of the Code, in connection with part four of Article 182 of the Code, is justified given the importance of constitutional values such as the right to freedom and personal inviolability (part one of Article 29 of the Constitution of Ukraine) and the interests of justice administration according to the fundamental principles of judicial proceedings (part two of Article 129 of the Constitution of Ukraine).

The Constitutional Court of Ukraine draws attention to the fact that the practice of applying the contested provisions of the Code by courts of the judicial system of Ukraine shows signs of inconsistency and internal contradictions.

Recognizing the fifth paragraph of part five of Article 182 of the Code as compliant with the Constitution of Ukraine (constitutional), the Constitutional Court of Ukraine emphasizes the strict need for its interpretation and application by courts of the judicial system of Ukraine taking into account the compatibility of these provisions of the Code with the norms, principles, and values of the Constitution of Ukraine, the Convention, as well as the practice of the European Court of Human Rights and the common European constitutional tradition.

The Constitutional Court of Ukraine points out that to truly achieve the purpose of bail as an alternative to detention, according to established positions of the European Court of Human Rights, when determining the amount of bail in exceptional cases, the investigating judge or court in the judicial decision is obliged to provide arguments confirming the establishment of the bail amount beyond the limit boundaries defined by the contested provisions of the Code.

The Constitutional Court of Ukraine, taking into account the practice of the European Court of Human Rights, believes that to prevent bail from becoming a disguised way of detaining a person, the investigating judge or court, when determining the amount of bail in the judicial decision, must justify the financial capacity of the person, assess their legal income and assets, consider not only the amount of damage caused by the criminal offense but also other circumstances defined by the Code, as well as the presence of persons dependent on this person; at the same time, assets for paying the determined bail amount must be accessible to the person suspected or accused, including consideration of the circumstance that was the basis for imposing an arrest on the person’s property within the criminal proceedings.

Taking into account the positions of the European Court of Human Rights, the Constitutional Court of Ukraine, based on the principle that all doubts and assumptions must be interpreted in favor of the person suspected or accused, separately emphasizes the obligation of the investigating judge or court to carefully motivate the amount of bail, in particular, referring to documents on the financial status of the person, justifying each component forming the total amount of bail, avoiding assumptions about the material capacity of the person, indicating why exactly such an amount of bail is sufficient to prevent the risk of the person hiding from pre-trial investigation bodies and the court, considering their social ties (family, other personal communications), as well as connections abroad.

In view of the above, the Constitutional Court of Ukraine emphasizes that it is precisely the compliance by the investigating judge or court with the stated legal positions regarding the real alternative nature of bail to detention that ensures such application of the fifth paragraph of part five of Article 182 of the Code, which is compatible with the requirements of part two of Article 29 of the Constitution of Ukraine.

Having examined the issues raised in the constitutional complaint, the Court recognized the fifth paragraph of part five of Article 182 of the Criminal Procedure Code of Ukraine as compliant with the Constitution of Ukraine (constitutional).

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