In one of the high-profile cases, the application of paragraph 3 of part 2 of Article 183 of the Code of Criminal Procedure of Ukraine became a point of interest.

Thus, according to the provisions of paragraph 3 of Part 2 of Article 183 of the Code of Criminal Procedure of Ukraine, a preventive measure in the form of pretrial detention may not be applied except to a person with no prior convictions who is suspected or accused of committing a crime for which the law provides for a sentence of imprisonment for a term of up to five years—exclusively if the prosecutor, in addition to the grounds provided for in Article 177 of this Code, proves that, while at liberty, that person absconded from the pretrial investigation authority or the court, obstructed criminal proceedings, or has been notified of suspicion of committing another crime.

It would seem that there is nothing complicated about the practical application of this article; however, in practice, in a case involving suspicion of committing a crime under Part 2 of Article 28 and Part 1 of Article 260 of the Criminal Code of Ukraine, the investigating judge did not apply this provision of the law, instead imposing pretrial detention as a preventive measure (ruling of April 17, 2025, Case No. 522/7397/25, Proceedings No. 1-ks/522/2676/25).

The appellate court, in overturning the investigating judge’s decision, noted that the provisions of paragraph 3 of Part 2 of Article 183 of the Criminal Procedure Code of Ukraine cannot be applied in criminal proceedings under Part 2 of Article 28, Part 1 of Article 260 of the Criminal Code of Ukraine, and partially granted the prosecutor’s motion, imposing a preventive measure on the suspect in the form of pretrial detention with the possibility of posting bail (ruling of April 25, 2025, case No. 11-ss/813/874/25, case No. 522/7397/25 1-ks/522/2676/25).

Is this application of the provisions of the Code of Criminal Procedure of Ukraine correct? As we can see, both the investigating judge, when ruling on the motion to impose a preventive measure, and the appellate court referred to the provisions of Part 6 of Article 176 of the Code of Criminal Procedure of Ukraine, according to which, during martial law, persons suspected or accused of committing the crimes provided for in Articles 109–114-2, 258–258-6, 260, 261, and 437–442-1 of the Criminal Code of Ukraine, and where the risks specified in Article 177 of this Code exist, the pretrial measure defined in paragraph 5 of Part 1 of this article shall be applied. Paragraph 5 of Part 1 of Article 176 of the Criminal Procedure Code of Ukraine provides for a preventive measure such as pretrial detention.

Constitutional Court of Ukraine Decision No. 7-r(II)/2024 dated June 19, 2024, which held that Article 176 of the Code of Criminal Procedure is consistent with the Constitution of Ukraine.

Thus, both the investigating judge and the appellate court concluded that the legislature has imperatively established – that, during the period of martial law in Ukraine, the sole preventive measure applicable to persons suspected or accused of committing crimes—including those provided for in Article 260 of the Criminal Code of Ukraine—is pretrial detention, as a measure to ensure the conduct of criminal proceedings.

The appellate court’s decision also stated that, under the martial law in effect on the territory of Ukraine, a person suspected of committing a criminal offense under Part 2 of Article 28, Part 1 of Article 260 of the Criminal Code of Ukraine may be subject exclusively to the preventive measure of pretrial detention, as regulated by the provisions of Part 6 of Article 176 and Part 4 of Article 183 of the Criminal Procedure Code of Ukraine.

In its Decision No. 7-r(II)/2024 dated June 19, 2024, the Constitutional Court of Ukraine stated that, based on the provisions of Articles 3, 8, the first and second parts of Article 29, the first part of Article 55, the first part of Article 62, and Part 1 of Article 64 of the Constitution of Ukraine, the Constitutional Court of Ukraine holds that, in accordance with the aforementioned provisions of the Code, when applying a preventive measure in the form of pretrial detention under Part 6 of Article 176 of the Code, it is possible, under certain circumstances specified in Articles 177 and 178 of the Code, to apply bail as a less severe preventive measure. Thus, under Part 6 of Article 176 of the Code, pretrial detention is not defined as an exclusive, non-alternative preventive measure.

Further, in its Decision, the Constitutional Court of Ukraine states that the courts, when determining the legality of applying the preventive measure of detention to these individuals under Part 6 of Article 176 of the Code, have ascertained and taken into account the grounds and circumstances specified in Articles 177, 178, and 194 of the Code, assessed the reasonableness of the suspicion of having committed a criminal offense, the existence of risks, the danger to society posed by the criminal offenses of which the aforementioned individuals are suspected or accused, the severity of the punishment that may be imposed if a person is found guilty of committing such offenses, as well as the impossibility of applying another, more lenient preventive measure.

In light of the foregoing, the Constitutional Court of Ukraine holds that the special procedure for applying a preventive measure in the form of pretrial detention under Part 6 of Article 176 of the Code provides the investigating judge with the court the opportunity to apply such a preventive measure only on the basis of a reasoned court decision, as required by Article 8 and Part 2 of Article 29 of the Constitution of Ukraine.

Thus, it appears that the conclusion that, under the martial law imposed on the territory of Ukraine, a person suspected of committing a criminal offense under Part 2 of Article 28 and Part 1 of Article 260 of the Criminal Code of Ukraine may be subject exclusively to the preventive measure of pretrial detention, is inconsistent with the conclusions reached by the Constitutional Court of Ukraine in its decision, in which it clearly stated the need to take into account the grounds and circumstances specified in Articles 177, 178, and 194 of the Code, an assessment of the reasonableness of the suspicion of committing a criminal offense, the presence of risks, the public danger posed by criminal offenses, of which individuals are suspected or accused, the severity of the punishment that may be imposed if the person is found guilty of committing such offenses, as well as the impossibility of applying another, less severe preventive measure.

At the same time, the provisions of paragraph 3 of Part 2 of Article 183 of the Code of Criminal Procedure of Ukraine do not specify that it is impossible to apply a preventive measure such as pretrial detention. Paragraph 3 of Part 2 of Article 183 of the Code of Criminal Procedure of Ukraine establishes only an exception under which pretrial detention may not be applied, namely:

1. The person has no prior convictions.

2. The crime carries a sentence of imprisonment for up to five years.

3. And exclusively in cases where, in addition to the grounds provided for in Article 177 of this Code, the prosecutor proves that, while at liberty, this person absconded from the pretrial investigation authority or the court, obstructed criminal proceedings, or has been notified of suspicion of committing another crime.

In other words, paragraph 3 of Part 2 of Article 183 of the Code of Criminal Procedure of Ukraine establishes additional circumstances that must be established, in addition to those specified in Article 177 of the Code of Criminal Procedure of Ukraine, for the application of a preventive measure in the form of pretrial detention.

Neither Part 6 of Article 176 of the CPC nor Part 1 of Article 183 of the CPC of Ukraine, nor anyother provision of the Code does not stipulate that the provisions of paragraph 3 of Part 2 of Article 183 of the CPC of Ukraine do not apply or are not effective in criminal proceedings involving certain classifications of offenses.

Moreover, the provision of paragraph 3 of Part 2 of Article 183 of the CPC of Ukraine does not conflict with or contradict Part 6 of Article 176, Part 1, Part 4 of Article 183 of the CPC of Ukraine, nor with the provisions of Article 177 of the CPC of Ukraine, as it establishes additional conditions under which a preventive measure such as pretrial detention may be applied.

Consequently, the conclusion that, in cases of suspicion under Part 2 of Article 28 and Part 1 of Article 260 of the Criminal Code of Ukraine, the provisions of paragraph 3 of Part 2 of Article 183 of the Code of Criminal Procedure of Ukraine do not apply during martial law is erroneous, since such an approach would also imply that there is no need to establish the circumstances specified in Article 177 of the Criminal Procedure Code of Ukraine, which in turn would not comply with the requirements of Article 8 and Part 2 of Article 29 of the Constitution of Ukraine and Decision No. 7-r(II)/2024 of the Constitutional Court of Ukraine dated June 19, 2024. 

The issue addressed in this article concerns the relationship between the imposition of martial law and the application of the provisions of the Code of Criminal Procedure of Ukraine during such a state. Therefore, when deciding on the application of a preventive measure, the investigating judge, among other things, is obligated—when selecting a preventive measure that is legally linked to a circumstance such as martial law—to take into account not only the duration of the pretrial investigation but also the duration of martial law, that is, a preventive measure applied under Part 6 of Article 176 of the Code of Criminal Procedure of Ukraine cannot exceed the term of the Presidential Decree of Ukraine on the extension of martial law and the corresponding Law approving it—that is, it cannot exceed the term of martial law itself.