"Non-Alternative" Detention in the Legislation and Judicial Practice of Ukraine

Abstract

The article examines problematic aspects of ensuring the right to liberty and personal inviolability under martial law in Ukraine. The topic's relevance is determined by legislative changes that provide for the de facto "non-alternative" application of detention for specific categories of criminal offenses, as well as the need to assess their compliance with constitutional guarantees of human rights. The article aims to determine the consistency between the provisions of Parts 6 and 8 of Art. 176 of the Criminal Procedure Code of Ukraine and the constitutional guarantees of the right to liberty and personal inviolability. The study employs dialectical, formal-legal, formal-logical, analytical, and synthetic methods, which enable a comprehensive assessment of legislative approaches, the position of the Constitutional Court of Ukraine, and law enforcement practice. The study's results demonstrated that the formal existence of an alternative in the form of bail does not eliminate the judicial tendency to perceive detention as the only possible preventive measure for the category of proceedings specified in Parts 6 and 8 of Art. 176 of the CPC. While recognizing that the legislative approach reflected in these provisions may be considered permissible from the standpoint of conventional standards and justified by the need for effective counteraction to armed aggression, the authors conclude that the current norms of the CPC are inconsistent with those constitutional guarantees that cannot be restricted even under martial law (Art. 29 of the Constitution of Ukraine). It seems promising to explore the development of an optimal model for striking a balance between public interest and the observance of fundamental rights in emergency legal regimes in the future.