Ruling by Ukraine's Constitutional Court
Ukraine's Constitutional Court has issued a clarification regarding its March 4, 2026, ruling (No. 1-r(II)/2026) on the permissibility of a judge's repeated involvement in a criminal case. The Court upheld the constitutionality of the first part of Article 76 of the Criminal Procedure Code of Ukraine (CPC), which prohibits a judge who participated in a pre-trial investigation from hearing the same case in court. However, the article contains a specific exception. This exception allows a judge to participate in appellate court proceedings solely for reviewing a first-instance court's ruling on the application of pre-trial detention as a preventive measure.
The Court's decision was made in response to a constitutional complaint filed by A. V. Horobets. The judges who deliberated on the case were:
- Serhiy Riznyk - Reporting Judge
- Oleksandr Vodianykov
- Viktor Horodovenko
- Halyna Yurovska
It is important to note that Judge Oleksandr Vodianykov filed a separate dissenting opinion to Ruling No. 1-r(II)/2026.
Scope of Article 76 of the CPC
Article 76 of the CPC stipulates that a judge involved in a criminal case during the pre-trial investigation stage is barred from participating in the same proceedings at the first-instance, appellate, and cassation court levels. The exception permitting a judge's renewed involvement at the appellate stage is narrowly defined. It applies only to matters concerning the legality of pre-trial detention. When reviewing detention rulings, the appellate court examines the reasonableness of suspicion, the presence of risks outlined in Article 177 of the CPC, and considers the circumstances specified in Article 178 of the CPC.
This exception in Article 76 of the CPC was established as part of a legislative mechanism to implement the right to appeal. This right was introduced by the Verkhovna Rada (Ukraine's parliament) following the Constitutional Court's Ruling No. 4-r/2019 of June 13, 2019, in the case of the constitutional complaint by V. M. Glushchenko. In that earlier ruling, the second part of Article 392 of the CPC was deemed unconstitutional. This series of rulings reflects ongoing judicial reforms in Ukraine aimed at strengthening procedural safeguards.
In the context of the 2026 decision, Judge Oleksandr Vodianykov noted that
"a judge who participated in the pre-trial investigation can no longer be objective during the judicial hearing of the criminal proceedings, as they have already formed a certain subjective opinion about the individual subject to the criminal proceedings—the complainant (A. V. Horobets)—at the pre-trial investigation stage."
The audience for discussions on this ruling included legal practitioners, attorneys, prosecutors, judges from the court system, representatives of the National School of Judges of Ukraine, academics, lecturers, postgraduate students, university students, and legal scholars from the Junior Academy of Sciences. This broad engagement underscores the ruling's significance within Ukraine's legal community.
The Constitutional Court's decision holds considerable importance for the future development of criminal procedure in Ukraine, as it emphasizes the necessity of ensuring judicial objectivity and impartiality in criminal matters. Establishing clear procedural norms regarding judge participation at different stages of criminal proceedings can help bolster public trust in the judicial system. Such rulings may also serve as a foundation for further legislative amendments governing criminal procedure in the country.
In light of the Constitutional Court's recent clarification on judicial recusal, the ongoing discussions about the effectiveness of the judicial system in Ukraine continue to gain momentum. The Court's ruling not only impacts the handling of criminal cases but also raises questions about the accountability of investigators. For more insights into the implications of judicial inaction and its legal consequences, visit the latest developments on investigator accountability.