The Constitutional Court of Ukraine explained the motives of the decision on the unconstitutionality of mandatory detention of servicemen

The Constitutional Court of Ukraine announced that an online lecture was held dedicated to the CCU decision of June 24, 2026, in the case of the constitutional complaint by Serhiy Hnezdilov.

The subject of constitutional control in this case was part eight of Article 176 of the Criminal Procedure Code of Ukraine, according to which "during martial law, a preventive measure defined in paragraph 5 of part one of this article shall be applied exclusively to servicemen suspected or accused of committing crimes provided for in Articles 402–405, 407, 408, 429 of the Criminal Code of Ukraine." By this decision, the Court recognized the challenged provision of the Code as unconstitutional.

Explaining the constitutional principles underlying the Decision, the reporting judge Vasyl Lemak focused on the guarantees of the right to liberty and personal inviolability established by Article 29 of the Constitution of Ukraine. He emphasized that this article not only proclaims the respective right but also defines an effective mechanism for its protection: the issue of arrest or detention must be decided by a court based on a reasoned judicial decision.

According to the judge, the requirement of reasoned justification implies that the decision to apply a preventive measure must be based on the law and an individual assessment of the factual circumstances of the specific case. Since the circumstances, risks, and features of each criminal proceeding differ, the legislator cannot predefine a single outcome of the judicial review in an exclusive and mandatory manner.

"Can a court decision truly be reasoned if its outcome is predetermined by the legislator? If the law provides only one preventive measure – detention, the judge is effectively deprived of the opportunity to assess the specific circumstances of the case and choose a less severe measure," the reporter noted.

Vasyl Lemak stressed that the challenged provision was evaluated not in isolation but in connection with other provisions of the Criminal Procedure Code of Ukraine, the objectives of criminal proceedings, and the rules for applying preventive measures. At the same time, the decisive standard of constitutional control was precisely Article 29 of the Constitution of Ukraine.

The judge also emphasized that the legislator cannot reduce the role of the court to the technical-legal formalization of a predetermined decision. The determination of a preventive measure belongs to the law enforcement activity of the court, and thus legislative interference in the exercise of these powers violates the constitutional principle of separation of powers.

Special attention was paid to the principles of equality and human dignity. Suspicion of committing a criminal offense, including a military one, does not deprive a person of constitutional guarantees and cannot be grounds for automatic application of the harshest preventive measure. According to the reporter, human dignity belongs to every person regardless of their status, behavior, or circumstances in which they find themselves.

The judge emphasized that the adopted Decision concerns not only the applicant or a specific category of servicemen. Above all, it aims to ensure the constitutional powers of the investigating judge, who must independently determine the appropriate preventive measure in each specific case.

The lecture also addressed the balance between the needs of state defense and human rights guarantees under martial law. It was emphasized that war should not be opposed to human rights. The Constitution of Ukraine provides for a special legal regime of martial law but at the same time establishes a list of rights and guarantees that cannot be restricted even under such conditions. The administration of justice cannot be abolished, limited, or transferred to other bodies or officials.

Constitutional Court judge of Ukraine Oleksandr Vodyannikov, who expressed a concurring separate opinion regarding the Decision, focused on its methodological and practical significance. He also drew attention to the three-month delay in the loss of validity of the unconstitutional provision. According to him, this approach should ensure an orderly review by courts of preventive measures applied based on the challenged provision and prevent legal uncertainty in the criminal justice system.

A separate opinion on this Decision was also expressed by Constitutional Court judge of Ukraine Viktor Horodovenko.

Constitutional Court judge of Ukraine Halyna Yurovska reminded that the legal positions of the Constitutional Court of Ukraine are binding for all state authorities, including the legislator and courts. She also noted the importance of scientific conclusions provided by experts at the request of the reporting judge during the preparation of the case for consideration.

Summarizing the discussion, the judges emphasized that Decision No. 4-r(II)/2026 develops constitutional standards for the protection of freedom, human dignity, equality, and judicial independence. It is of great importance for the formation of constitutional law during wartime and confirms that even under exceptional circumstances, the state is obliged to act within the framework of the Constitution of Ukraine.

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