Bail should not be a punishment prior to sentencing — Trunov
23 July 14:06
interview
On July 21, 2026, the Second Senate of the Constitutional Court of Ukraine issued Decision No. 9-r(II)/2026 on the constitutional complaint filed by Roman Dudin. The Court did not overturn the contested provision, but established requirements for “genuine alternative bail”: the amount must be based on evidence of the specific individual’s financial situation and an assessment of specific risks, rather than on assumptions or public outcry. On the significance of this decision, as well as unaffordable bail amounts, the pressure of high-profile cases, and the line between justice and the public’s thirst for immediate punishment "Komersant Ukrainian", spoke with Vyacheslav Trunov—a Distinguished Lawyer of Ukraine, an Honorary Employee of the Prosecutor’s Office, and an expert in business defense.
“The court should not have to prove its integrity to society by being harsh toward a person who has not yet been found guilty.”
— Under the law, bail has a clear function and established limits. Where did this system break down in actual criminal proceedings?
— The breakdown began when the amount of bail came to be perceived as a public assessment of the suspicion itself. The more high-profile the case, the higher the person’s position, or the greater the alleged damage, the more convincing the figure is supposed to appear.
But bail does not measure the degree of public outrage. Its purpose is to ensure compliance with procedural requirements. The court must answer two distinct questions: what risks exist, and what amount would be sufficient for this particular individual. When the second question is replaced by the size of the damages or the sensationalism of the headlines, bail loses its purpose.
If a person is objectively unable to pay the specified amount, there is no alternative. There is pretrial detention, to which the phrase “with the right to post bail” has been added. Legally, this sounds less harsh, but the actual result remains the same: the doors of the detention center remain closed.
— How widespread is this practice? Can we speak of a systemic issue rather than just a few high-profile errors?
— The practice of the Appeals Chamber of the High Anti-Corruption Court provides the clearest picture. Of the 408 cases it reviewed, in 299 the bail amount exceeded the standard maximum limits set by the Code of Criminal Procedure. That’s 73.3 percent—nearly three out of every four cases.
These statistics must be interpreted correctly. They do not mean that 299 bail amounts were canceled or deemed unlawful. The law does indeed allow for exceeding the standard limits. Cases involving high-level corruption may involve very wealthy suspects, complex international connections, and high risks.
But the law refers to exceptional cases. When exceeding these limits becomes standard practice in 73 percent of reviewed cases, the term “exceptional” requires very serious justification. Otherwise, the exception turns into the standard method for setting bail.
— What does not just a single ruling, but the entire trajectory of bail in a specific proceeding reveal?
— It sometimes reveals more than even the most detailed reasoning section.
In the case of Vsevolod Knyazev, the initial bail amounted to over 107 million hryvnias. It was subsequently reduced to 75, 55, 45, 35, 27, 20, and finally to 18.168 million. Seven consecutive reductions. In total, the amount was reduced by approximately 83 percent—almost sixfold. The day after the last reduction, the bail was posted, and Knyazev was released from pretrial detention.
In the case of Roman Hrynkevych, public reports show at least ten reductions: 500 million, 469, 393, 360, 302, 160, 112, 69.6, 34.8, 31.3, and 30.2848 million hryvnias. A little more than six percent of the original amount remains. The reduction amounts to nearly 94 percent—more than sixteen times.
These figures do not automatically prove that the initial resolutions were unlawful. But they do raise serious questions about them. If the initial amount was the result of a thorough analysis of the financial situation and risks, why did this analysis have to be revised seven or ten times? And when exactly did the “on paper” alternative become a reality?
— The courts might argue: over time, evidence is gathered, witnesses are questioned, and risks diminish. Where is the line between a normal revision and evidence that the initial figure was arbitrary?
— Risks are indeed not static. During an investigation, documents are seized, people are questioned, expert examinations are conducted, and assets are frozen. The opportunity to destroy evidence or influence a specific witness may disappear. Therefore, reducing bail in and of itself is standard procedural practice.
But risk and financial capacity are different categories. The risk may decrease, but a person’s financial standing should not be reduced by a factor of six or sixteen without explanation. If the court initially asserted that a specific individual was actually capable of paying 500 million, it must explain what happened to that assessment.
The scale and frequency of revisions do not constitute a definitive judgment on the initial ruling, but they are a strong indicator of the quality of its reasoning. That is precisely why the Constitutional Court’s decision requires the entire reasoning behind the figure to be presented, rather than simply announcing it.
— What specific solution did the Constitutional Court provide to this problem?
— The Court did not rewrite Article 182 of the Code of Criminal Procedure nor did it ban large bail amounts. It changed the standard for its application.
An investigating judge or court must determine a specific individual’s financial capacity, assess their legal income and assets, debts, marital status, dependents, social ties in Ukraine, and connections abroad. The court must rely on documented evidence, not on assumptions about hidden assets. The amount of potential harm may be taken into account, but it cannot automatically determine the amount of bail.
Separately, the court must explain each component of the amount: why exactly it is sufficient to prevent a specific risk and why a lower bail amount, combined with electronic monitoring, surrender of passports, and other obligations, would be insufficient.
Essentially, the Constitutional Court of Ukraine stated: a large bail amount may be set, but it must be substantiated. The figure alone can no longer serve as a sufficient argument.
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— The decision was not issued at the request of a government agency, but rather in response to a complaint filed by a single individual. How significant is this aspect?
— In my view, this is one of the most compelling aspects of this case. A specific individual did not accept how the law was applied to her, followed the prescribed procedures, and appealed to the Constitutional Court. As a result, the standard has changed not only for her, but for all courts and all future proceedings.
A constitutional complaint is not a privilege reserved for parliament, the president, or the Supreme Court. After exhausting all domestic legal remedies, an individual may challenge the constitutionality of a law that was applied in the final court decision in their case.
This is not a simple procedure, nor is it a quick path. But Roman Dudin’s example demonstrates its significance. A single persistent complaint can expose a systemic problem and force the entire law enforcement practice to return to the Constitution. For citizens, this is a very important signal: constitutional justice need not be an abstract discussion, but a real tool for protection.
— Doesn’t the requirement for substantial bail give an advantage to a wealthy suspect who can hide assets?
— A substantial bail does not mean a small, manageable, or symbolic amount. It must be significant enough that the risk of losing the funds effectively deters a person from violating their obligations.
For a very wealthy individual, bail in the tens or hundreds of millions may be lawful. The High Anti-Corruption Court’s case law includes instances where 100, 129, 200, and even 272 million hryvnias were actually posted. Therefore, the mere fact that bail was not posted does not in itself prove that the amount is excessive: a person may simply be unwilling to disclose their assets or risk losing them.
However, the court has no right to compensate for a lack of evidence with mere speculation. One cannot say: a person is suspected of embezzling 500 million, therefore they must have 500 million for bail. Suspicion does not prove the receipt of funds, their possession, or a specific individual’s ability to dispose of them.
A high bail amount remains possible. Following the Constitutional Court’s decision, it must simply be the result of evidence, not conjecture.
— Is this a purely Ukrainian attempt to correct a Ukrainian imbalance, or is it part of an established European standard?
— This is an entirely European approach. The European Court of Human Rights has long required that the amount of bail be determined on a case-by-case basis, take into account the person’s actual financial capacity, and be duly justified.
In the case of Istomina v. Ukraine, the national court set bail at 12,249,426 hryvnias—effectively at the level of probable damages and approximately 125 times higher than the usual limit for the offense in question. The applicant’s financial ability to pay this amount was not properly assessed. The ECHR found a violation: bail is intended to ensure the defendant’s appearance in court and proper conduct, not to serve as advance compensation for damages.
At the same time, the ECHR does not consider any exceptionally high bail amount to be a violation. In the case of “Manguras v. Spain,” the Grand Chamber upheld a bail of three million euros, taking into account the exceptional scale of the environmental disaster, the international context, and the ship’s captain’s connection to the shipowner and insurer, who ultimately paid the funds.
Thus, the European standard does not state that “bail must be low.” It must be individualized, reasonable, and realistic. It is precisely this formula that the Constitutional Court of Ukraine has now clearly established.
— In high-profile cases, judges often have to render decisions after law enforcement briefings, sensational headlines, and the verdict of social media. To what extent does such an “emotional storm” influence judicial discretion?
— A judge is independent by law, but he or she does not operate in a vacuum. Before the hearing, the public has already been shown photographs of money, excerpts from correspondence, and fragments of recordings. The investigation’s version of events has been repeated many times. In the public sphere, the question of guilt is often considered settled even before the trial begins.
In such cases, the judge is expected not to assess the risks, but to issue an initial punishment. And a dangerous asymmetry arises. The harshest possible decision is reputationally safe for a judge: with bail set at half a billion, almost no one will accuse him of violating human rights. A substantial bail amount or house arrest can very easily be portrayed as “releasing a criminal.”
But at this stage, there is legally no criminal yet. There is a suspect, the prosecution’s case, and evidence that must be verified. The court should not have to prove its integrity to the public by being harsh toward a person who has not yet been found guilty.
In this sense, the Constitutional Court’s decision also protects the judge himself. It provides him with a professional foundation: he does not need to bow to the intensity of public reaction; he must pass the mandatory constitutional test.
— Where is the line between legitimate public oversight of the justice system and extrajudicial punishment?
— Society has the right to know, and journalists have the right to investigate, scrutinize law enforcement, criticize the courts, and ask uncomfortable questions. Without this, there will be neither transparency nor accountability on the part of the authorities.
The line is crossed when the investigation’s version of events is presented as an established fact, the suspect is labeled a criminal, and any pretrial measure other than detention in a pretrial detention center is treated as evidence of judicial corruption. Decisions on bail are not evaluated based on grounds, evidence, and proportionality, but solely on whether they are sufficiently severe.
This plays into the hype: outrage translates well into views. But it puts direct pressure on the court and erodes the presumption of innocence.
A journalist has the right to demand explanations from a judge. He should not demand a verdict on the very day charges are filed. Sensationalism is not evidence, and public outrage is not a procedural risk.
— Is the ruling in the Dudin case an exception for the Constitutional Court itself, or does it continue an established line of precedent?
— It did not come out of nowhere. If we look at decisions on the merits under the current Code of Criminal Procedure, we can see a fairly consistent line of reasoning.
In 2017, in Decision No. 1-r/2017, the Constitutional Court of Ukraine ruled that the automatic extension of a preventive measure at a preliminary court hearing without a motion from a party was unconstitutional. In 2018, in Decision No. 3-r/2018, it prohibited a model under which crimes committed in places of deprivation of liberty were investigated by investigators organizationally linked to the same penitentiary system.
In 2019, Decision No. 4-r/2019 upheld the right to a separate appeal against the extension of pretrial detention, while Decision No. 7-r/2019 abolished mandatory pretrial detention for certain categories of crimes: the mere title of a criminal code provision cannot replace an individual risk assessment.
In 2020, in Decision No. 4-r(II)/2020, the Court upheld the right to an appellate review in a case concerning the failure to enter information into the Unified Register of Pre-trial Investigations. At the same time, in the Tatkov case (Decision No. 5-r/2020), it upheld the restrictions on separate appeals against a detention order for the purpose of bringing a suspect before a court. This is an important detail: the Constitutional Court of Ukraine does not automatically overturn any procedural restriction, but rather examines its purpose and proportionality.
In 2022, Decision No. 3-r(II)/2022 addressed the presumption of innocence when proceedings are closed due to the decriminalization of an act. In 2024, in two decisions regarding martial law, the Court distinguished between a permissible special regime and automatic deprivation of liberty: in Decision No. 7-r(II)/2024, it permitted a special procedure only subject to an individual judicial review, and in Decision No. 8-r(II)/2024, it declared the automatic extension of pretrial detention without proper judicial oversight to be unconstitutional.
In 2026, this work became particularly intensive. Decision No. 1-r(II)/2026 concerned a judge’s repeated participation in criminal proceedings; No. 3-r(II)/2026 in the Chervinsky case—the extension of pretrial detention due to the inability to hold a preliminary hearing; No. 4-r(II)/2026—mandatory pretrial detention for military personnel; No. 6-r(II)/2026—the right to review the case file; No. 7-r(II)/2026 — access to court when a preventive measure is lifted to allow for military service; No. 8-r(II)/2026 — appellate protection of the right to the return of temporarily seized property. And finally, No. 9-r(II)/2026—the genuine alternative to bail.
The common thread running through this case law is simple: when the state restricts freedom, access to the courts, the right to a defense, or property rights, it cannot act automatically. Individual assessment, evidence, judicial review, and a reasoned decision are required.
— Does this concentration of decisions in 2026 give reason to believe that the Constitutional Court is gaining momentum and returning to full-fledged operation?
— There are grounds for such a conclusion. Over the past few months, the Court has issued a series of decisions that go beyond abstract constitutional theory and directly impact the daily work of investigating judges, prosecutors, attorneys, and courts.
It is particularly important that a clear doctrine is already evident in these decisions: criminal procedure must be interpreted in light of the Constitution, and any significant restriction of rights must be tested for individuality, necessity, and proportionality.
But I would not be quick to declare the institutional restoration complete. The full-fledged work of the Constitutional Court is measured not only by the number of decisions. What matters are the timeliness of proceedings, the quality of reasoning, the consistency of positions, a stable composition of the Court, and, most importantly, the implementation of its decisions by Parliament and the ordinary courts.
Therefore, it would be more accurate to say this: The Constitutional Court is noticeably returning to the criminal justice process as an active constitutional arbiter. This is a positive and important development. Time will tell whether it is sustainable.
— By what indicators will it become clear that the decision on bail has truly taken effect?
— Not by the fact that all bail amounts will become lower. That would be an incorrect expectation.
The decision will be effective when a prosecutor, requesting one hundred or five hundred million, presents evidence of the person’s financial capacity rather than merely citing the amount of damages. When a judge explains why exactly 100 million is needed, rather than 20, and why a smaller amount, combined with other restrictions, would not eliminate the specific risk.
And when the appellate court reviews not whether the figure appears sufficiently severe, but whether it is supported by evidence.
The impact of this decision will not be measured by the number of bail amounts reduced. It will be measured by the number of rulings in which the figure is no longer arbitrarily set but is instead substantiated.
The court should not punish before a verdict is reached. And it certainly should not do so merely to appease the public.
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