With the support of Barristers, JSC, a public discussion was held at the Ukrinform News Agency dedicated to a constitutional and legal analysis of Article 615 of the Criminal Procedure Code of Ukraine and the practice of its application under martial law in light of the latest legal positions of the Constitutional Court of Ukraine. The purpose of the event was to facilitate a comprehensive professional discussion of current issues in criminal procedural law, taking into account the practice of the Constitutional Court of Ukraine, the standards of the European Court of Human Rights, and the need to improve legal regulation under martial law.
During the public discussion, Oleksandr Shadrin, an attorney and partner at Barristers Law Firm, spoke as the representative of the parties who filed constitutional complaints, the review of which led to the issuance of decisions in cases No. 8-r(II)/2024 (regarding the unconstitutionality of Part 6 of Article 615 of the Code of Criminal Procedure of Ukraine) and No. 7-r/2019 (regarding the unconstitutionality of Part 5 of Article 176 of the Code of Criminal Procedure of Ukraine), as well as a representative in five ECHR cases concerning the right to liberty. He devoted his speech to the issue of respecting fundamental human rights during detention and the application of preventive measures under martial law, as well as the need to bring Ukrainian criminal procedural legislation into line with ECHR standards.
In his speech, Mr. Oleksandr Shadrin emphasized that a detained person must have real and immediate access to an investigating judge, since judicial oversight is the key safeguard against potential human rights violations, mistreatment, or restrictions on the right to a defense. To this end, it is advisable to provide for the immediate transfer of a detained person to the investigating judge closest to the place of detention (since, for example, an investigator from Kyiv may detain a person in Zaporizhzhia).
Particular attention was paid to the problem of inconsistent application of Article 615 of the Code of Criminal Procedure of Ukraine across different regions of Ukraine and to the practice of using extraordinary procedures, which in fact led to the automatic extension of preventive measures without proper judicial oversight.
The expert also noted that certain mechanisms applied during martial law need to be brought into line with the standards of the European Court of Human Rights and the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.
During the presentation, the need to establish clear and reasonable limits on the duration of pretrial detention was specifically raised. For example, it was proposed to limit this period (from arrest to sentencing) to 6–9 months in peacetime or 1 year and 4 months during martial law (for longer periods, no rulings were found in which the ECHR did not find a violation of Article 5(3) of the ECHR)
It was emphasized that the prolonged detention of a person without a court verdict is systematically subject to criticism by the ECHR and requires appropriate legislative regulation. To counteract abuses by prosecutors who fail to appear at court hearings, it is advisable to codify the practice—already in place in some appellate courts—of hearing the defense’s appeals without the participation of prosecutors, who were duly notified of the date and time of the court hearing but failed to appear.
