The Constitutional Court Publishes Decision: Judicial Review of Release from Custody for Military Service Cannot Depend on Prosecutor's Initiative

The Constitutional Court announced that its Second Senate, in a plenary session, considered and adopted Decision No. 7-р(ІІ)/2026. This decision addresses the constitutional complaint filed by Yevhen Anatoliyovych Heniyivskyi, challenging the constitutionality of the second paragraph of part one of Article 616 of Ukraine's Criminal Procedure Code. Viktor Horodovenko served as the reporting judge for the case.

The contested provision, the second paragraph of part one of Article 616 of the Code, states that "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 the continuation and/or passage of military service by conscription during mobilization, special period and/or military service under contract for persons of the rank-and-file, sergeant, senior and officer personnel."

The applicant argued that this provision infringes upon the accused's constitutional right to appeal to the court, as outlined in Article 8 of the Constitution of Ukraine. It also violates Article 55 of the Constitution, which guarantees the right to challenge actions or inactions of prosecution officials in court. Furthermore, the applicant contended that it undermines the fundamental principles of justice, specifically the equality of all participants in judicial proceedings and the adversarial nature of the parties, as declared in Article 129 of the Constitution.

In its examination of the complaint, the Constitutional Court of Ukraine underscored that the right to liberty and personal inviolability is a fundamental constitutional value, a natural human right, and an integral component of human dignity and autonomy. The Court emphasised that the essence of this right is intrinsically linked to the priority of human dignity and the principle of the rule of law.

The Constitutional Court acknowledged that the ongoing large-scale armed aggression by the Russian Federation against Ukraine has necessitated changes in national legal regulation, including in criminal procedure. This has involved introducing new legal institutions and procedural mechanisms not typically found in either the national legal order or established international standards formed in peacetime. However, the Court stressed that such changes are subject to limits defined by the Constitution of Ukraine. The legislature, it stated, cannot alter the constitutionally defined procedure for applying criminal procedural coercive measures, the court's role in such processes, or the functional division of procedural powers among participants in a way that distorts their constitutional essence, even amidst armed aggression.

The Court further clarified that while special procedural mechanisms in criminal proceedings may be introduced due to objective state needs, particularly those related to national defence, this is impermissible if it leads to the creation of mechanisms for performing criminal procedural tasks that extend beyond the constitutional model of justice or nullify constitutional guarantees of human rights and the principle of the rule of law.

The Constitutional Court of Ukraine reiterated that, within Ukraine's constitutional legal order, the court is the sole body authorised to control the legality of interference with an individual's right to liberty and personal inviolability. Any other forms of control, it asserted, cannot be considered equivalent to judicial control under Article 29 of the Constitution of Ukraine. The Court's decision highlighted that Articles 29, 55, parts one, two, and three of Article 124, and part one of Article 127 of the Constitution of Ukraine – particularly in light of paragraph 4 of Article 5 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights' jurisprudence – cannot be interpreted to allow the replacement of judicial control over interference with an individual's right to liberty and personal inviolability with control by a prosecutor or other official, even when a special mechanism for releasing a person from custody is introduced. This also precludes assigning powers to non-judicial bodies or officials who act as parties in adversarial criminal proceedings, where the exercise of such powers effectively determines or obstructs a suspect's or accused's access to the court on matters concerning their liberty.

In evaluating the contested legislative regulation, the Constitutional Court of Ukraine observed that while the formal procedure for an investigating judge or court to consider a prosecutor's petition, as defined by the second paragraph of part one of Article 616 of the Code, remains unchanged, the mechanism of the prosecutor, rather than the defence, applying to the court alters the prosecutor's procedural role. In such instances, the prosecutor, by supporting their own petition before the court, effectively acts not as the prosecution but as an interested party seeking its satisfaction. This role is procedurally atypical for the prosecution and more characteristic of the defence. Since the law does not provide for the involvement of another prosecutor to participate in the consideration of such a petition, it necessitates the investigating judge or court independently identifying and assessing circumstances that might hinder the petition's satisfaction. Under these conditions, the court is effectively compelled to assume the role of the defence's opponent, which shifts the procedural balance and, in a sense, means the court taking on functions of the prosecution.

The Constitutional Court of Ukraine also concluded that the fundamental principles of justice outlined in part two of Article 129 of the Constitution of Ukraine, although formally directed at the administration of justice by the court, are not limited by their content and purpose to the stage of direct judicial consideration of the case. These principles normatively influence the legislature's formation of procedural mechanisms for access to the court. Legislative regulation, the Court asserted, cannot establish procedural conditions that make it impossible or significantly complicate the implementation of these fundamental principles of justice by restricting an individual's access to the court. Therefore, when defining the procedure for initiating judicial control, the legislature is obligated to ensure that relevant procedural conditions do not nullify the content of the fundamental principles of justice and do not impede their full implementation during both the administration of justice and the stage of appeal to the court. Granting the prosecutor, who performs the function of prosecution, procedural powers whose exercise makes the possibility of judicial review of the suspect's or accused's petition for release from custody for continuation and/or passage of military service dependent on the prosecutor's will, as well as powers characteristic of the defence, is inconsistent with the constitutional purpose of the prosecution defined in Article 131¹ of the Constitution of Ukraine. This also risks blending the procedural functions of the parties and the court, which, in turn, may negatively affect adherence to fundamental principles of justice such as the adversarial nature of the parties and the equality of participants in the judicial process before the law and the court, as well as casting doubt on the court's impartiality and impacting the realisation of the right to judicial protection.

The Constitutional Court of Ukraine noted 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 review concerning the cancellation of a preventive measure in the form of detention for continued and/or 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 allowing interference with the content of rights guaranteed by Articles 29, 55, and 63 of the Constitution of Ukraine in their connection with paragraphs 1, 3, and 5 of part two of Article 129 of the Constitution of Ukraine.

The Court also stressed that even interference in constitutional rights and freedoms, despite serving a lawful purpose, must comply with the principle of proportionality – a component of the rule of law enshrined in Article 8 of the Constitution of Ukraine – and other criteria established by the Constitution for the admissibility of restrictions on the right to liberty and personal inviolability, the right to judicial protection, and the rights of the suspect, accused, and defendant to defence, as guaranteed by Articles 29, 55, and part two of Article 63 of the Constitution of Ukraine, in their interrelation with the fundamental principles of justice enshrined in paragraphs 1, 3, and 5 of part two of Article 129 of the Constitution of Ukraine.

Developing its legal positions, the Constitutional Court of Ukraine concluded that the suspect's or accused's right to access the court regarding the cancellation of a preventive measure cannot be conditional on prior consent from the prosecution, as judicial protection would otherwise lose its constitutional essence.

The Constitutional Court of Ukraine concluded that the contested provision of the Code effectively prevents the defence from directly and effectively applying to the investigating judge or court with the relevant petition. Consequently, the investigating judge or court is deprived of the opportunity to exercise judicial control on the relevant issue, at the initiative of the person whose rights are most intensely interfered with by the state, if the prosecutor does not consent. This, the Court found, is incompatible with the principle of the rule of law and the constitutional model of justice, in which the court serves as an independent arbiter, not a procedural instrument for implementing the prosecution's discretion.

Based on these findings, the Constitutional Court of Ukraine concluded that the second paragraph of part one of Article 616 of the Code, in conjunction with the first paragraph of part one of Article 616 of the Code, makes it impossible for the investigating judge or court to consider the suspect's or accused's petition to cancel the preventive measure in the form of detention for continuation and/or passage of military service without the prosecutor's consent. Therefore, it contravenes part one of Article 8, parts one, two, and five of Article 29, part one of Article 55, part two of Article 63, Article 64, and paragraphs 1, 3, and 5 of part two of Article 129 of the Constitution of Ukraine.

As a result of the case, the Constitutional Court of Ukraine ruled the second paragraph of part one of Article 616 of the Criminal Procedure Code of Ukraine unconstitutional.

However, exercising its powers under part two of Article 152 of the Constitution of Ukraine, the Constitutional Court of Ukraine postponed the invalidation of this provision for six months from the date of the Decision. The Court noted that, until the expiration of this period, the contested provision remains in force and is subject to application.

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