Preventive Measures under Martial Law: Problematic Aspects of Application and Improvement

Abstract. The article highlights the problem of the transformation of the institution of preventive
measures in criminal proceedings in Ukraine under martial law. A relevant area of study is the balance between
the need for effective crime counteraction, particularly against crimes against the foundations of national
security, and the state’s obligation to guarantee fundamental human rights, primarily the right to liberty and
personal inviolability, which, according to the Constitution of Ukraine, is not subject to restriction even under
extraordinary circumstances. The article analyzes the complex system of legal norms regulating this issue,
including the provisions of the Constitution of Ukraine, the Law of Ukraine “On the Legal Regime of Martial
Law”, special norms of the Criminal Procedure Code of Ukraine, and the state’s international legal obligations,
particularly the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The article substantiates the need for a thorough scientific understanding of the innovations in criminal
procedure legislation introduced after February 24, 2022. Special attention is given to such problematic aspects
as the temporary delegation of the investigative judge’s powers to the head of the prosecutor’s office, the
introduction of non-alternative detention for certain categories of crimes, the mechanism for the automatic
extension of arrest periods, and the specifics of applying preventive measures to military personnel. The
research methods included formal legal analysis of current legislation, systemic analysis of judicial practice,
particularly decisions of the Constitutional Court of Ukraine and the Supreme Court, as well as a comparative
analysis of national regulations with international human rights standards.

The article analyzes the practice of applying the amended norms and its impact on adherence to the
fundamental principles of criminal proceedings, such as the adversarial principle and the right to judicial review. The author argues that the legislator, in responding to the challenges of war, has sometimes chosen the path of excessively expanding the powers of the prosecution, which has created threats to the fundamental rights of individuals. The key role of the Constitutional Court of Ukraine in restoring balance and declaring unconstitutional certain provisions that contradicted the principle of the rule of law and the right to liberty is emphasized.

The paper concludes that the effectiveness of criminal proceedings under martial law cannot be achieved
at the expense of negating the fundamental principles of justice. Special attention is paid to the concepts of
“judicial review”, “proportionality of restrictions”, and “non-alternativeness of a preventive measure”. The
expediency of revising certain provisions of the Criminal Procedure Code of Ukraine to strengthen guarantees of the right to defense is established. The author proposes their own suggestions for improving legislation,
particularly regarding the introduction of a mechanism for deferred judicial review of prosecutor’s decisions,
amending the norms on non-alternative detention, improving the procedure for canceling a preventive measure
for military service, and unifying judicial practice by the Supreme Court.