7 November 2025
On 5 November 2025, during the public part of the plenary session, the Second Senate began deliberation of the case upon the constitutional complaint of Artur Gorobets regarding the constitutionality of Article 76.1 of the Criminal Procedural Code of Ukraine (hereinafter, the “Code”).
During the plenary session, the Judge-Rapporteur in the case, Serhiy Riznyk, presented the content of the constitutional complaint and the applicant's arguments.
As noted by the Judge-Rapporteur , the contested provisions of the Code establish that “a judge who participated in criminal proceedings during the pre-trial investigation shall not have the right to participate in the same proceedings in the court of first instance, appeal and cassation, except in cases where he or she reviews, on appeal, the decision of the court of first instance on the choice of a preventive measure in the form of detention, to change another preventive measure to a preventive measure in the form of detention or to extend the term of detention, which was decided during court proceedings in the court of first instance before the court decision on the merits was made.”
The content of the constitutional complaint and the materials attached to it show the following. The Investigation Department of the Main Directorate of the National Police in Zaporizhzhia Region conducted a pre-trial investigation of criminal proceedings on the grounds of committing a criminal offence specified in Article 189.2 of the Criminal Code of Ukraine.
Within the framework of these criminal proceedings, in June 2024, Artur Gorobets was notified of his suspicion of committing a criminal offence under Article 189.2 of the Criminal Code of Ukraine.At the pre-trial investigation stage, the investigating judge of the Ordzhonikidze District Court of Zaporizhzhia, by a ruling, applied to the suspect
Artur Gorobets a preventive measure in the form of detention without setting bail, and subsequently repeatedly extended the term of his detention by rulings.
The Zaporizhzhia Court of Appeal, in its rulings, dismissed the appeals of Artur Gorobets defence counsel and left the rulings of the investigating judge of the Ordzhonikidze District Court of Zaporizhzhia on the extension of the term of detention unchanged.
In November 2024, the pre-trial investigation in the criminal proceedings ended with the indictment being sent to the Ordzhonikidze District Court of Zaporizhzhia.
At the pre-trial stage of the case, the Ordzhonikidze District Court of Zaporizhzhia extended the term of detention of the accused, Artur Gorobets, and determined an alternative preventive measure in the form of bail in the amount of 80 minimum subsistence levels for able-bodied persons.
The prosecution filed an appeal, objecting to the imposition of an alternative preventive measure in the form of bail on Artur Gorobets.
The panel of judges of the Zaporizhzhia Court of Appeal, which was to consider the appeal of the prosecution at the stage of judicial review of the criminal proceedings, included two judges who, during the pre-trial investigation, had issued court decisions following a review of the rulings of the investigating judge of the Ordzhonikidze District Court of Zaporizhzhia regarding the imposition of a preventive measure in the form of detention on Artur Gorobets and the repeated extension of this preventive measure.In this regard, prior to the consideration of the appeal, the defence counsel for the accused, Artur Gorobets, filed a motion with the Zaporizhzhia Court of Appeal to recuse the aforementioned judges.
The Zaporizhzhia Court of Appeal denied the recusal request. In its ruling, the court noted that, according to the of Article 76.1 of the Code, a judge who participated in criminal proceedings during the pre-trial investigation has the right to participate in the same proceedings in the court of appeal during the review of the decision of the court of first instance on the choice of a preventive measure in the form of detention, on the change of another preventive measure to a preventive measure in the form of detention, or on the extension of the term of detention.
The applicant, arguing that Article 76.1 of the Code is unconstitutional, asserts that “the provisions of Article 76.1 of the Criminal Procedural Code of Ukraine regarding the possibility of a judge's repeated participation directly contradict the principle of fair and impartial consideration of a case by a court, and therefore also the provisions of Article 55.1 of the Constitution of Ukraine.” He draws attention to the fact that “a judge who participated in the pre-trial investigation will no longer be able to be objective during the trial of criminal proceedings, since he has already formed a certain subjective opinion about the person against whom the criminal proceedings are being conducted at the stage of the pre-trial investigation.”
According to Artur Gorobets, in such circumstances, the legislator has committed a significant and obvious violation of the equality of participants in criminal proceedings before the court and the law, since under the same circumstances, guarantees of inadmissibility of repeated participation in court proceedings are applied to one defendant, but not to another. In his opinion, such a legal mechanism is discriminatory and applies exclusively to persons subject to the most severe preventive measures, i.e. persons who have suffered the most aggressive restrictions of their rights, freedoms and interests.
The Judge-Rapporteur informed that in order to ensure a full and objective deliberation of the case and the delivery of justified decision by the Court, he had sent requests to state authorities and scientific establishments in order to clarify scientific positions and scientific approaches to resolving the issues raised in the constitutional proceedings. The judges will be informed of the content of the positions expressed in the in-camera part of the plenary session.
After examining the case materials in the public part of the plenary session, the Court proceeded to the in-camera deliberations for a decision.
