The Constitutional Court of Ukraine Recognises CPC Provision on Cancellation of Preventive Measures for Military Service as Unconstitutional
The Constitutional Court of Ukraine has issued a decision concerning the cancellation of preventive measures for military service.
Specifically, the Second Senate, at a plenary session, considered the case and adopted Decision No. 7-р(ІІ)/2026. This decision addresses the constitutional complaint filed by Yevhen Anatoliiovych Henievskyi regarding the constitutionality of the second paragraph of part one of Article 616 of the Criminal Procedure Code of Ukraine.
According to the second paragraph of part one of Article 616 of the Code, "based on the results of consideration of the petition provided for in the first paragraph of this part, the prosecutor has the right to apply to the investigating judge or court considering the criminal proceedings with a petition to cancel the preventive measure in the form of detention for continuation and/or undergoing military service by conscription during mobilisation, special period, and/or military service under contract for persons of the rank-and-file, sergeant, senior non-commissioned officer, and officer personnel."
The applicant argued that this paragraph violates the constitutional rights of the accused to apply to the court, to challenge the actions/inaction of prosecution officials in court, and infringes upon fundamental principles of justice, particularly the equality of all participants in the judicial process and the adversarial nature of the parties.
The Constitutional Court of Ukraine stated that the procedural mechanism established in the second paragraph of part one of Article 616 of the Code, in conjunction with the first paragraph of the same article, makes the possibility of judicial consideration of cancelling a preventive measure (detention) for military service dependent on the prosecutor's initiative. This significantly restricts the suspect's or accused's real and effective access to judicial control over further deprivation of liberty, thereby interfering with the rights guaranteed by Articles 29, 55, and 63 of the Constitution of Ukraine, in connection with paragraphs 1, 3, 5 of part two of Article 129 of the Constitution of Ukraine.
Following its examination of the issues raised in the constitutional complaint, the Court decided:
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To recognise the second paragraph of part one of Article 616 of the Criminal Procedure Code of
Ukraine as inconsistent with the Constitution of Ukraine (unconstitutional).
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The second paragraph of part one of Article 616 of the Criminal Procedure Code of Ukraine, having been recognised as unconstitutional, shall cease to be in force six months from the date of this decision by the Constitutional Court of Ukraine.
The full text of the decision and its summary will be published later by the Judicial-Legal Newspaper.
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