The Constitutional Court of Ukraine has struck down the provision requiring mandatory pretrial detention for war crimes
On June 25, the Constitutional Court of Ukraine ruled that a provision of the Criminal Procedure Code—which mandated strict pretrial detention without alternative measures for military personnel suspected of committing certain war crimes—was unconstitutional. The Court concluded that such provisions contradict the Constitution of Ukraine, and therefore the legislation must be brought into line with this decision.
Under current law, a series of war crimes allegedly committed by military personnel during a state of emergency are punishable exclusively by pretrial detention. The Constitutional Court of Ukraine believes that this provision distorts the essence of justice.
In particular, experts believe that mandatory pretrial detention cannot be applied to military personnel who
- have committed insubordination or failed to carry out an order;
- left their military unit without authorization or committed desertion;
- left the battlefield without authorization or refused to use their weapons.
- In cases of suspicion or charges of such crimes, the court could not issue a ruling on bail, house arrest, or
- a personal undertaking, but was required to apply only pretrial detention.
However, the Second Senate of the Constitutional Court of Ukraine ruled on a constitutional complaint filed by Serhiy Hnezdilov. As a result, this provision is to be repealed because it contradicts the Constitution.
Legal disputes over this issue have arisen on more than one occasion. The judges cite Article 29 of the Constitution, which guarantees that every person has the right to liberty and personal inviolability. In other words, a person cannot be deprived of their liberty without lawful grounds.
Part 2 of this article stipulates that detention may occur only pursuant to a reasoned court decision and only on the grounds and in the manner prescribed by law.
The current rules for imposing pretrial detention for war crimes apply only during martial law and therefore generally do not meet the requirement for a reasoned court decision.
The Constitutional Court also noted that the provision of the Code of Criminal Procedure violates other articles of the Constitution.
It should be noted, therefore, that the use of pretrial detention alone for certain categories of military personnel may violate the principles of equality, human dignity, the right to liberty, and the right to a full judicial review of the issue of pretrial measures in each specific case. It is precisely for this reason that decisions on pretrial detention have often been challenged. Now this provision will be removed from the Code, according to the Constitutional Court.
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