April 1, 2026: The Second Senate of the Constitutional Court of Ukraine adopted Decision No. 3-r(II)/2026, in which it declared part five of Article 615 of the Criminal Procedure Code of Ukraine unconstitutional. This decision is fundamental to the protection of human rights, as it concerns the very essence of judicial review of restrictions on the right to liberty.

As the representative of the petitioner, Roman Chervinsky, and co-author—along with Marisa Skuba—of the constitutional complaint, I offer a direct analysis of the legal positions underlying this precedent and its implications for the national legal system.

The path to constitutional review began with procedural developments in Kropyvnytskyi, where on April 19, 2024, by a ruling of the Kirovohrad District Court of Kirovohrad Oblast pursuant to Article 615 of the Code of Criminal Procedure of Ukraine, it was decided to extend the term of the preventive measure in the form of pretrial detention imposed on Roman Chervinsky.

The judges issued this ruling in the absence of a motion by the prosecution to extend the term of pretrial detention—that is, on their own initiative— and in the absence of Roman Chervinsky’s defense attorneys, and without the mandatory appointment of a public defender, and without examining, accordingly, the materials of the motion and its attachments, they did not assess the validity of the suspicion or the existence of risks.

The rationale for this ruling was the alleged impossibility of holding a hearing due to the defense attorneys’ failure to appear. Subsequently, the appellate court, upon reviewing the contested decision, noted: “Taking into account the aforementioned circumstances of the case, considering the numerous and prolonged air raid alerts, as well as the related failure of the defense attorneys to appear at the preliminary hearing after its conclusion, the court of first instance took into account all objective factors that contributed to the impossibility of holding the preliminary hearing and considering the prosecution’s motion to extend the period of pretrial detention for the defendant R.G. Chervinsky,”

It should be noted here that the prosecution did not file a motion to extend the preventive measure, but rather a motion to apply the provisions of Part 5 of Article 615 of the Code of Criminal Procedure of Ukraine.

Consequently, the court regarded the failure of the defense attorneys, as contracted, to appear at the preliminary hearing following the end of another air raid alert as rendering it impossible to hold the preliminary hearing.

However, from the perspective of criminal procedural law, this assertion is legally untenable. Article 324 of the Code of Criminal Procedure of Ukraine clearly regulates the court’s actions in the event of a defense attorney’s failure to appear: postponement of the hearing or, if an immediate resolution of the matter is necessary, the appointment of a defense attorney from the center for the provision of free secondary legal aid.

The failure of defense counsel to appear as contracted results in the application of Articles 52 and 53 of the Code of Criminal Procedure of Ukraine, under which the court was obligated to appoint defense counsel to conduct a specific procedural action in accordance with the procedure provided for in Article 49 of this Code, rather than applying the provisions of Part 5 of Article 615 of the Code of Criminal Procedure of Ukraine, since there were no objective grounds for doing so.

Instead, the court used Part 5 of Article 615 of the CPC as a simplified alternative, which effectively nullified the right to defense and the adversarial nature of the proceedings.

Furthermore, Part 5 of Article 615 of the Criminal Procedure Code of Ukraine provides for its application in cases where it is impossible to hold a preparatory court hearing; however, under the circumstances described, it is evident that such a possibility existed and the provision in question should not have been applied during the court hearing on April 19, 2024.

The preliminary hearing was scheduled for April 17, 2024, and continued before a panel of judges on April 18, 2024, and April 19, 2024, with the direct participation of the defense attorneys. In other words, the judges had at least three days to conduct the preliminary hearing in this case; therefore, it is evident that the provisions of Part 5 of Article 615 of the Code of Criminal Procedure of Ukraine could not be applied for these reasons.

Moreover, a conceptual contradiction has arisen, which lies in the fact that the court issued its ruling specifically during the court hearing (as confirmed by the court hearing record and the existence of the ruling itself). Consequently, the assertion that “it was impossible to hold a hearing” is a logical fallacy.

One cannot assert the impossibility of an event that de facto took place in a manner sufficient to render a decision imposing a custodial sentence.

It is also necessary to refute the view, widespread among some fellow attorneys, that there was no court decision in this case. A decision was rendered; it was appealed; and it was precisely the appellate court’s refusal to grant the appeal that served as the final step—within the meaning of the Law of Ukraine “On the Constitutional Court of Ukraine”—that made it possible to initiate constitutional proceedings.

Moreover, it is paradoxical that, under Part 5 of Article 615 of the Code of Criminal Procedure of Ukraine, in fact, effectively provides for an extrajudicial procedure for resolving the issue of extending the term of a preventive measure in the form of pretrial detention for the accused in cases where it is impossible to hold a preliminary hearing. This is further confirmed by the fact that, in parallel with this provision, amendments were also made to the Law of Ukraine “On Pretrial Detention,” which effectively legalized pretrial detention based on a prosecutor’s order when the court is unable to perform its functions.

Consequently, the introduction of Part 5 of Article 615 of the Code of Criminal Procedure was part of a broad legislative initiative aimed at adapting the justice system to the conditions of a major war. However, this process was accompanied by a dangerous drift toward restricting judicial oversight.

An analysis of judicial practice throughout Ukraine revealed widespread abuse of these provisions. Courts began using the term “impossibility of holding a hearing” as a catch-all formula for automatically extending detentions.

In our constitutional complaint, we detailed examples where courts cited: the formal existence of martial law without assessing the actual security situation in the region; air raid alerts as a permanent obstacle, even when video conferencing was technically feasible; purely organizational difficulties on the part of the court, which were shifted onto the suspect in the form of an extension of detention.

Thus, as grounds for the necessity of considering the constitutional complaint—particularly on the basis of public interest—we cited numerous examples of courts abusing their procedural rights with respect to individuals accused of committing criminal offenses.

July 17, 2024—The Pechersk District Court of Kyiv, in Case No. 757/40279/23-k, issued a ruling extending the term of the preventive measure, citing as grounds for applying Part 5 of Article 615 of the Code of Criminal Procedure was the failure of the prosecutor, the victim, the defense counsel, and the defendants to appear at the preliminary hearing (it should be noted that the defendants were not brought from the pretrial detention center).

July 12, 2023 – The Pechersk District Court of Kyiv, in Case No. 757/26044/23-k, the court imposed a pretrial detention measure on the defendant, despite the fact that the judge still had 6 days to consider the issue of extending the term of the pretrial detention measure. The basis for applying this provision was the failure of the prosecutor, the defense attorney, and the defendant—who had not been brought to court—to appear at the preliminary hearing.

June 5, 2024 – The Svyatoshyn District Court of Kyiv, in Case No. 759/11536/24, applied the provisions of Part 5 of Article 615 of the Code of Criminal Procedure of Ukraine, by issuing a court ruling to extend the term of the pretrial measure, limiting the reasoning to the claim that it was allegedly impossible to hold a preliminary court hearing within the term of the measure (until June 10, 2024) of the investigating judges’ rulings extending the term of the preventive measure, despite the fact that the judge still had 5 days remaining to do so.

This led to a situation where the right to personal inviolability (Article 29 of the Constitution) became dependent on the court’s subjective and often unfounded conclusion regarding the “impossibility” of holding a hearing.

Legal Positions of the Constitutional Court in Decision No. 3-r(II)/2026

During the consideration of the constitutional complaint, the Verkhovna Rada of Ukraine (represented by Chairman R. Stefanchuk) and the Ministry of Justice of Ukraine (represented by First Deputy Minister M. Kucheryavenko) submitted official explanations in which they consistently insisted on the constitutionality of the contested provision. Their argument was based on the “exceptional circumstances” doctrine, according to which national security interests and ensuring the continuity of the investigation take precedence over standard procedural safeguards.

The key argument put forward by the state authorities was Ukraine’s official derogation from its obligations under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 4 of the International Covenant on Civil and Political Rights. Representatives of the Verkhovna Rada and the Ministry of Justice emphasized that, in the context of military aggression, the state has the right to temporarily restrict rights—in particular, the right to liberty and security of person (Article 5 of the Convention)— to the extent strictly required by the gravity of the situation. They argued that the inability to hold in-person hearings due to shelling, air raid alerts, or the lack of safe conditions for the courts to operate justifies a “simplified” mechanism for extending detentions. According to their reasoning, the provision of Article 615(5) of the Code of Criminal Procedure was a necessary measure to prevent the mass release of persons suspected of serious crimes due to purely procedural delays caused by the war.

However, the Constitutional Court of Ukraine rejected this approach, noting that even a derogation cannot be absolute or arbitrary.

The Principle of Legal Certainty

The Constitutional Court of Ukraine noted that the provision of Part 5 of Article 615 of the Code of Criminal Procedure suffers from a critical lack of certainty, which constitutes a direct violation of the principle of the rule of law. The Court emphasized that “the requirement for legal certainty is essential to prevent arbitrariness and ensures that individuals can foresee the consequences of their conduct.”

The legislature did not define any specific criteria for the “impossibility of holding a preliminary court hearing,” which turned this condition into a discretionary concept with an excessively broad scope for interpretation. In paragraph 4.1.7 of its Decision, the Constitutional Court noted: “The phrasing ‘in the event that a preparatory court hearing cannot be held’ is abstract and does not contain any indications of objective circumstances that would demonstrate such impossibility.”

The Court emphasized that the absence of clear legislative boundaries allowed each judge to interpret this concept according to their own subjective understanding, which directly contradicts the requirement of legal predictability.

Consequently, the provision did not meet the criterion of “quality of law,” as it was not formulated with sufficient precision to enable individuals to regulate their conduct and understand the legal consequences of actions by state authorities.

Legitimate Purpose and the Limits of “Discretion”

In determining the legitimacy of the purpose behind the amendments to Part 5 of Article 615 of the Code of Criminal Procedure, the Constitutional Court of Ukraine took into account the context of the introduction of a special regime for criminal proceedings under martial law (para. 4.2).

The Constitutional Court analyzed the genesis of the contested provision, which was set forth in its current version by Law No. 2462-IX of July 27, 2022. According to the Explanatory Note to the draft law (Reg. No. 7370), the rationale was the need to clarify the procedure for “extending the term of pretrial detention, under martial law, when judicial bodies are unable to function properly for objective reasons,” as well as “ensuring the promptness and effectiveness of criminal investigations... especially in areas where active combat operations are taking place” (para. 4.2.3).

In assessing the right to liberty and personal inviolability as an unquestionable constitutional value (Article 29(1) of the Constitution), the Court simultaneously recognized that the state has “broad discretion” in matters of regulating criminal proceedings during martial law (para. 4.2.4). The result of exercising this discretion was the adoption of Section IX-1 of the CPC as a special law.

The Constitutional Court concluded that the establishment of a special regime and the amendments to Part 5 of Article 615 of the Code of Criminal Procedure were necessitated by “the need to ensure the fulfillment of the objectives of criminal proceedings during the period of full-scale armed aggression by the Russian Federation against Ukraine, taking into account the specificities of conducting criminal proceedings during a period of martial law.”

However, despite recognizing the legitimacy of the objective—ensuring the promptness of investigations under extraordinary circumstances—the Court further emphasized that the protection of the right to liberty can be effective only if there are effective mechanisms to prevent arbitrariness. Ultimately, the Court found that the method chosen by the legislature (automatic extension without a hearing) was disproportionate, since judicial review of restrictions on the right to liberty is a fundamental guarantee that cannot be completely nullified even in the presence of a legitimate aim and “margin of appreciation.”

The Phenomenon of “Deferred Unconstitutionality” and the Legislature’s Passivity

The Constitutional Court of Ukraine established a three-month period before the provision ceases to be in force. This mechanism, provided for in Article 97 of the Law on the Constitutional Court of Ukraine, is intended to prevent a legal vacuum. Three months is the period during which Parliament must regulate the procedure to ensure a balance between security and human rights.

However, it is worth noting an alarming trend. In Constitutional Court Decision No. 8-r(II)/2024 regarding Part 6 of Article 615 of the Code of Criminal Procedure (which addressed similar issues but at a different stage of judicial proceedings), the same timeframe was established. To date, this deadline has passed, but the Verkhovna Rada has not made any amendments to the Code of Criminal Procedure. This means that the legislature is deliberately ignoring the Constitutional Court’s directives, effectively waiting for the moment when the provisions will simply lapse.

Such an attitude toward constitutional decisions undermines the foundations of the rule of law. In three months, Part 5 of Article 615 of the CPC will automatically cease to be in force, and if new provisions are not adopted, we will face serious challenges in the administration of criminal justice.

Prospects for Compensation for Damages Under Article 152 of the Constitution

The issue of compensation for damages caused by the application of an unconstitutional provision deserves special attention. General judicial practice under Article 152 of the Constitution is currently stagnant, and the courts are constantly seeking new grounds for denial. As of now, we can identify three main categories of such cases:

• Cases involving prosecutors (e.g., No. 640/9991/21). Plaintiffs are seeking to recover the difference in salary following Constitutional Court Decision No. 6-r/2020. However, the courts are denying these claims, arguing that the social benefits not received do not constitute “losses” (material damage) within the meaning of Article 22 of the Civil Code of Ukraine, and the claims themselves are classified as “an improper remedy.”

• Cases involving judges (e.g., No. 300/1791/20). These concern compensation for damages caused by the unconstitutional taxation of lifetime maintenance. Despite positive rulings by the Constitutional Court of Ukraine, the mechanism for actual recovery is often blocked by procedural obstacles.

• Cases involving “Chernobyl victims” (e.g., No. 140/415/20). This category is based on Constitutional Court Decision No. 1-r(II)/2021. Here, the main reason for denials is the alleged lack of a special budgetary mechanism or the argument that pension recalculation does not constitute property damage.

For a long time, courts denied these claims due to the absence of a “special law” that would regulate compensation for damages under Article 152 of the Constitution. However, the Supreme Court (specifically, in cases No. 320/47969/23 and No. 620/9564/24) has settled this issue, noting: “No special law has been adopted that would define the procedure for compensation for damages at the legislative level; therefore, the provisions of the Constitution must be applied as directly applicable provisions.”

Despite this, the courts continue to deny claims by manipulating the concepts of “means of protection” or “causal link.”

The most illustrative case in this context is Case No. 754/14608/19. In this case, the plaintiff sought compensation for damages resulting from unlawful detention based on a provision (Art. 176 of the Code of Criminal Procedure) that was subsequently declared unconstitutional (the lack of alternatives to the preventive measure). Although the Supreme Court recognized the direct applicability of the Constitution, it denied the claim, stating that there was no direct causal link between the unconstitutional act and the harm suffered. The court noted that the preventive measure was selected based on many factors, not solely on the unconstitutional provision.

However, Roman Chervinsky’s case has a fundamentally different legal nature, which offers significantly better prospects for a favorable ruling. A direct causal link—unlike in case No. 754/14608/19, where Article 176 merely limited the choice of pretrial measures, the provision of Article 615(5) of the Code of Criminal Procedure was the sole and exclusive basis for the automatic extension of detention without a hearing. In other words, the harm (deprivation of liberty for a specific term) was a direct result of the application of this very unconstitutional provision, without which such an extension would have been impossible.

Furthermore, this case does not concern the recalculation of a pension or salary, but rather unlawful deprivation of liberty—a violation of the very core of constitutional rights. This renders the argument about an “inappropriate remedy” unfounded, since compensation for unlawful detention is a classic form of pecuniary and non-pecuniary damages.

Thus, the Constitutional Court’s decision in the Chervinsky case presents an opportunity for the judicial system to demonstrate that Article 152 of the Constitution is not merely a declarative slogan, but a real instrument for protecting citizens’ rights against legislative arbitrariness.