Reflections on the constitutionality of the provisions of Part 6 of Article 615 of the Criminal Procedure Code of Ukraine regarding the automatic extension of the term of detention under martial law

Abstract

In this publication, in connection with the consideration by the Constitutional Court of Ukraine of proceedings on the constitutionality of part six of Article 615 of the CPC of Ukraine, the author’s position on this issue is given. It seems that under martial law, as a result of the full-scale armed aggression of the Russian Federation against Ukraine, amendments to part 6 of Article 615 of the CPC of Ukraine (as amended by Law No. 2111-IX of March 3, 2022) actually led to a deviation from certain conventional obligations of Ukraine and constitutional provisions regarding the exercise of the right to liberty and personal inviolability of a person in criminal proceedings, whereas part 6 of Article 615 of CPC of Ukraine provides for an out-of-court procedure for resolving the issue of extending the term of preventive measure in the form of detention in respect of the accused, in particular: “in case of expiration of the term of validity of the court ruling on remand in custody and it is impossible for the court to consider the issue of extending the term of detention in custody in accordance with the procedure established by this Code, the chosen measure of restraint in the form of detention in custody is considered extended until the relevant issue is resolved by the court, but not more than two months”, which, in the opinion of the author of the article, does not correspond to Article 3, part one and two of Article 8, part one of Article 29, part one and two of Article 55, part one of Article 59, part two of Article 63, part one and two of Article 64, part one to three of Article 129 of the Constitution of Ukraine. It seems that the issue of continuing the accused’s detention can only be resolved by a court at a court hearing with a fair, justified and motivated procedural decision (ruling). Thus, the provisions of part six of Article 615 of the CPC of Ukraine should be declared unconstitutional. Finally, this issue should be decided by the Constitutional Court of Ukraine.