CCU defined criteria under which bail must be a real alternative to detention
The Constitutional Court reports that the Second Senate of the CCU on July 21 at a plenary session considered the case and adopted Decision No. 9-р(ІІ)/2026 on the constitutional complaint of Roman Volodymyrovych Dudina 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. The reporting judge in this case is the judge of the Constitutional Court of Ukraine Vasyl Lemak.
Although the Constitutional Court of Ukraine in this Decision recognized the fifth paragraph of part five of Article 182 of the CPC as compliant with the Constitution of Ukraine, it established that judicial practice regarding the determination of the amount of bail has "signs of inconsistency and internal contradictions," and therefore emphasized the strict necessity of interpreting and applying this provision of the CPC in conjunction with the Constitution of Ukraine, the European Convention on Human Rights, as well as the practice of the European Court of Human Rights.
In the legal positions of this Decision, based on the principle that all doubts and assumptions must be interpreted in favor of the person suspected or accused, the Court introduced the "test of real alternativeness of bail," the content of which, in particular, provides that to prevent bail from becoming a disguised form of detention, the investigating judge or court, when determining the amount of bail in the court decision, must justify the financial capacity of the person, assess their legal income and assets, take into account not only the amount of damage caused by the criminal offense but also other circumstances provided by the CPC, as well as the presence of persons dependent on this person.
Furthermore, the investigating judge or court is obliged to carefully motivate the amount of bail with reference to documents on the financial status of the person, justify each component that forms the total amount of bail, avoid assumptions about the material capacity of the person, indicate why exactly such an amount of bail is sufficient to prevent the risk of the person evading pre-trial investigation bodies and the court, consider their social ties (family, other personal communications), as well as connections abroad.
In view of the above, the Constitutional Court of Ukraine emphasized that it is precisely the adherence by the investigating judge or court to the legal positions regarding the real alternativeness of bail 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.
The full text of the decision and its summary the "Judicial and Legal Newspaper" will publish later.
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