The Constitutional Court explained when the bail may exceed the limits established by law

The Second Senate of the Constitutional Court of Ukraine adopted a decision that defines new guidelines for the application of bail as a preventive measure. The court recognized the constitutionality of the possibility of setting bail above the maximum amounts established by the Criminal Procedure Code, but emphasized that such bail cannot be unattainable for the suspect and must remain a real alternative to detention.

The corresponding decision No. 9-р(ІІ)/2026 was adopted on July 21.

What the Constitutional Court considered

The subject of consideration was the constitutionality of the provision of paragraph five of part five of Article 182 of the Criminal Procedure Code of Ukraine, which allows the court in exceptional cases to set bail above the limits established by law – 80 or 300 subsistence minimums, depending on the category of the criminal offense.

The constitutional complaint was filed by Roman Dudin, who believed that the absence of a maximum bail limit creates risks of a subjective approach by judges and can actually deprive a person of the right to be released from custody. In his case, the amount of bail exceeded 5 million hryvnias.

Bail should not turn into a hidden arrest

The Constitutional Court emphasized that bail is not a punishment or a way to compensate for damage. Its main purpose is to ensure the proper procedural behavior of the suspect and guarantee his participation in criminal proceedings.

The Court emphasized that the right to liberty is one of the fundamental constitutional rights, and detention should be used only as an exceptional preventive measure.

That is why bail must be:

sufficiently significant to stimulate the fulfillment of procedural obligations;

at the same time, realistic for a specific person to pay;

proportionate to his property status and the circumstances of the case.

If the amount set effectively makes it impossible to post bail, it ceases to fulfill its constitutional function and is effectively equated to involuntary detention.

Judges must provide detailed justification for the amount of bail

The Constitutional Court noted that the possibility of setting bail above the limits established by law does not mean unlimited discretion of the judge.

When setting the amount of bail, courts must take into account:

the gravity of the crime charged;

procedural risks;

the property and family status of the suspect;

legitimate income and assets;

the presence of dependents;

the availability of property for posting bail;

whether assets are under arrest in the same criminal proceedings.

Each decision to set bail above the established limits must contain detailed reasoning explaining why the standard amount of bail is insufficient and why the amount set is proportionate.

The absence of an upper limit does not contradict the Constitution

The Court explained that the legislator deliberately did not set a maximum bail limit, since the property status of suspects can vary significantly. For persons with large assets, standard bail amounts may not ensure proper procedural conduct.

At the same time, even in exceptional cases, the law expressly prohibits setting bail that is knowingly excessive for a particular person.

A guideline for judicial practice

The Constitutional Court also noted that its approach is consistent with the practice of the European Court of Human Rights, according to which bail must remain a real alternative to deprivation of liberty, and not a disguised form of arrest.

Thus, the decision of the Constitutional Court does not limit the right of courts to set bail above the limits established by law, but establishes a clear constitutional standard: the amount of bail must be individually justified, proportionate and cannot deprive a person of a real opportunity to use an alternative to detention.