DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of June 17, 2020 No. 4P (II)/2020

In the matter of the constitutional claim of Pleskacha Vyacheslav Yuryevich concerning compliance of the Constitution of Ukraine (constitutionality) of separate provisions of part three of Article 307, parts three of Article 309 of the Criminal Procedure Code of Ukraine

Case No. 3-180/2018(1644/18)

The second senate of the Constitutional Court of Ukraine as a part of judges:

Golovaty Sergey Petrovich - the chairman,

Gorodovenko Victor Valentinovich,

Kasminin Alexander Vladimirovich,

Lemak Vasily Vasilyevich – the speaker,

Moysik Vladimir Romanovich,

May Day Oleg Alekseevich,

Yurovskaya Galina Valentinovna,

considered at plenary meeting case on the constitutional claim of Pleskacha Vyacheslav Yuryevich concerning compliance of the Constitution of Ukraine (constitutionality) of separate provisions of part three of Article 307, to part three of Article 309 of the Criminal Procedure Code of Ukraine.

Having heard the judge-speaker Lemak V. V. and having researched case papers, the Constitutional Court of Ukraine

established:

1. Pleskach Vyacheslav Yuryevich with the constitutional claim concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of part three of Article 307 of the Criminal Procedure Code of Ukraine (further - the Code) concerning prohibition of appeal of the resolution of the investigative judge by results of consideration of the claim to the decision, action or divergence of the investigator or the prosecutor which consists in not entering of data on criminal offense into the Unified register of pre-judicial investigations (further - the Register), and part three of article 309 of the Code which provide that claims to other resolutions of the investigative judge are not subject to appeal appealed to the Constitutional Court of Ukraine and objections against them can be given during preparatory production in court.

The person of law specifies the constitutional claim that provisions of part three of Article 307 and part three of article 309 of the Code contradict Article part two 55, to Item 8 parts two of article 129 of the Constitution of Ukraine, and claims that provided by separate provisions of part three of article 307 of the Code he will lock appeals of the resolution of the investigative judge by results of consideration of the claim to the decision, action or divergence of the investigator or the prosecutor which consists in not entering of data on criminal offense into the Register, violates its constitutional right on appeal in court of decisions, actions or divergence of public authorities, local government bodies, official and officials which is fixed by part two of Article 55 of the Fundamental Law of Ukraine.

2. By constitutional court of Ukraine it is determined also that the Law of Ukraine "About modification of the Economic Procedure Code of Ukraine, the Code of civil procedure of Ukraine, the Code of administrative legal proceedings of Ukraine and other legal acts" of October 3, 2017 No. 2147-VIII to parts three of article 307 of the Code made changes, namely it is added with the words "About Cancellation of the Notification on Suspicion and Refusal in Grievance Settlement on the Notification on Suspicion". The specified law became effective on December 15, 2017, but the changes made to parts three of article 307 of the Code were enacted in three months after entry into force of this law. Also during consideration by the Constitutional Court of Ukraine of this case by the Law of Ukraine "About modification of the Criminal Procedure Code of Ukraine concerning enhancement of ensuring compliance with the rights of participants of criminal proceedings and other persons by law enforcement agencies during implementation of pre-judicial investigation" of September 18, 2018 No. 2548-VIII the part three of article 307 of the Code after words of "criminal proceedings" is added with words and figures "claims to refusal of the investigator, the prosecutor in satisfaction of the petition for closing of criminal proceedings on the bases, certain Item 9-1 of part one of article 284 of this Code". The constitutional court of Ukraine considers that modification by the specified laws does not influence essence of separate provisions of part three of article 307 of the Code which are subject of the constitutional control.

3. Resolving the questions which are brought up in the constitutional claim, the Constitutional Court of Ukraine proceeds from the following.

3.1. In this case are applicable enshrined in the Constitution of Ukraine the principle of supremacy of law (Article part one 8) and the principle of human rights protection (Article part two 3). These constitutional principles are in system interrelation among themselves and are realized in regulations of the Fundamental Law of Ukraine which, in particular, determine the right to judicial protection. According to the Constitution of Ukraine "rights and freedoms of man and citizen are protected by court. The right to appeal in court of decisions, actions or divergence of public authorities, local government bodies, official and officials is guaranteed to everyone (parts one, the second Articles 55). In turn, provisions of article 55 of the Constitution of Ukraine which establish the right to judicial protection are in continuous communication with provisions of the Constitution of Ukraine which determine amount of judicial protection - "providing the right to appeal reconsideration of the case and in the cases determined by the law - on cassation appeal of the judgment" (Item 8 parts two of article 129 of the Constitution of Ukraine).

3.2. The constitutional court of Ukraine repeatedly noted that "justice in essence is recognized to that only provided that it meets the requirements of justice and provides effective recovery in the rights" (the first offer of the paragraph of the tenth Item 9 of motivation part of the Decision of January 30, 2003 No. 3-rp/2003).

In the Solution of the Constitutional Court of Ukraine of June 13, 2019 No. 4-r/2019 was the legal line item by which the mechanism of realization of the right to judicial protection which includes, in particular, the right to appeal reconsideration of the case is legislatively determined is formulated, is one of the constitutional sales warranties of other rights and freedoms, their approval and protection by means of justice; the amount of the right to appeal reconsideration of the case which is determined by the law shall guarantee to person effective realization of the right to judicial protection for justice goal achievement, providing protection of other constitutional rights and freedoms of such person (paragraphs the seventeenth, eighteenth subitem 2.3 of Item 2 of motivation part).

Therefore, the right to judicial protection (parts one, the second article 55 of the Constitution of Ukraine) provides not only possibility of the appeal of person to court, but also, in particular, the right to the reasonable judgment, including possibility of correction of miscarriage of justice by court of the second instance. Appeal review of the judgment made by Trial Court is important for approval and providing human rights and freedoms which is the main obligation of the state (part two of article 3 of the Constitution of Ukraine).

Constitutional court of Ukraine, consistently formulating legal line items concerning content of the right to judicial protection, separately notes that the changes in the Constitution of Ukraine made by the Law of Ukraine "About introduction of amendments to the Constitution of Ukraine (concerning justice)" of June 2, 2016 No. 1401-VIII (became effective on September 30, 2016), reflect tendency to strengthening of the constitutional guarantees of the right to appeal reconsideration of the case and, respectively, narrowing of discretion of the legislator in this question that in the new edition article 129 of the Constitution of Ukraine was incarnate.

Based on stated the Constitutional Court of Ukraine came to conclusion that realization of constitutional right on judicial protection assumes possible appeal in court of decisions, actions or failure to act of public authorities. Though the amount of discretion of the legislator in case of establishment of system of judicial system, appellate procedure, the bases for cancellation or change of judgments by courts of the highest authorities, powers of courts of higher instances is wide, the legislator shall, performing the corresponding regulation, to proceed from the constitutional principles and values and the corresponding international obligations of Ukraine, in particular rather effective judicial protection of rights and freedoms of man and citizen.

3.3. To the given approach there correspond also the international obligations of Ukraine following from international treaties which consent to be bound is provided by the Verkhovna Rada of Ukraine.

According to Article 8 of the Universal Declaration of Human Rights of 1948 each person has the right to effective recovery in the rights by competent domestic courts in case of violation of its basic rights provided to it by the constitution or the law.

The International Covenant on Civil and Political Rights of 1966 assigns obligation to the state participating in this pact to provide everyone to person whose rights and freedoms are broken, effective remedy of legal protection even if this violation was made by persons who acted as officials, and also to develop possibilities of judicial protection (subitems of "a", "b" of Item 3 of Article 2).

Given corresponds to the Convention on human rights protection and fundamental freedoms of 1950 (further - the Convention), practice of its application by the European Court of Human Rights which, in particular, noted that the right to access to court shall be "practical and effective", but not "theoretical or illusory", and emphasized that "this reasoning acquires special relevance in the context of guarantees, stipulated in Article 6, considering place of honor which in democratic society occupies the right to fair trial" (§77 decisions in the matter of "Zubac v. Croatia" of April 5, 2018 (the statement No. 40160/12).

The European Court of Human Rights consistently accented that the right to access to court though is not absolute, its amount should be understood in the context of positive obligation of the states concerning provision of legal remedies of human rights effectively and practically in sense of article 13 of the Convention which establishes: "Everyone whose rights and freedoms recognized in this Convention are broken, has the right to effective remedy of legal protection in national authority even if such violation was made by persons who performed the official powers".

In the decision in the matter of "Aksoy v. Turkey" of December 18, 1996 (the statement No. 21987/93) the European Court of Human Rights noted that article 13 of the Convention guarantees availability at the national level of means for providing on the substance of the rights and freedoms guaranteed by the Convention in whatever form they were fixed in the national right. The investigation of Article 13, therefore, is the requirement to provide internal legal remedies for permission of "the controversial claim" in essence according to the Convention and the corresponding compensation though some freedom concerning method by means of which they fulfill the obligations on the Convention within this provision is provided to Contracting states... The amount of obligations under Article 13 varies depending on nature of the claim of the applicant according to the Convention... Nevertheless, the remedy which is required by Article 13, shall be "effective" in practice, and also in regulations; in particular, in the sense that its application shall not be unfairly complicated by actions or failure to act of bodies of the defendant state" (§95).

4. According to Item 8 parts two of article 129 of the Constitution of Ukraine one of the basic principles of legal proceedings are providing the right to appeal reconsideration of the case and in the cases determined by the law - on cassation appeal of the judgment. Applicability of this basis estimates the Constitutional Court of Ukraine in this case, despite its role and influence on efficiency of protection of essence of the human right on judicial protection guaranteed by the Constitution of Ukraine (parts one, the second Articles 55).

5. The constitutional court of Ukraine notes that the right to judicial protection as guarantee of protection and updating of system of the rights and freedoms is especially shown in case access to court for person is excluded by failure to act of public authorities.

Filing in authorized state bodies petition, the message on making of criminal offense, person is expected is within due course of law which ensuring is one of tasks of criminal trial (article 2 of the Code). Insufficiency of judicial guarantees from arbitrary behavior in question of the beginning of criminal proceedings interferes with protection of the violated human rights, in particular owing to impossibility of the judicial protection provided by parts one, the second article 55 of the Constitution of Ukraine.

Therefore, it means that the amount of judicial protection established by the legislator concerning assessment of failure to act of authorized state bodies shall provide efficiency of judicial control which shall be provided during consideration of appropriate questions at least in two degrees of jurisdiction: the legislator shall enter such amount of judicial control of failure to act of the investigator or the prosecutor who consists in not entering of data on criminal offense into the Register after receipt of the statement, message on criminal offense which would allow to exercise effective judicial control on appropriate questions and in the presence of the bases to give to person opportunity to initiate the beginning of criminal proceedings, and, therefore, to provide it real access to judicial protection.

6. Based on stated the Constitutional Court of Ukraine came to conclusion that it of provision of part three of article 307 of the Code regarding prohibition of appeal of the resolution of the investigative judge by results of consideration of the claim to divergence of the investigator or the prosecutor which consists in not entering of data on criminal offense into the Register after receipt of the statement, the message on criminal offense is restriction of constitutional right for judicial protection on guarantees for appeal reconsideration of the case, and, therefore, Article parts one 8, to parts one, the second Article 55, to Item 8 parts two of article 129 of the Constitution of Ukraine contradict Article part two provisions 3,.

7. According to part four of article 63 of the Law of Ukraine "About the Constitutional Court of Ukraine", §48 Regulations of the Constitutional Court of Ukraine the senate of the Constitutional Court of Ukraine closes the constitutional proceeedings if during the plenary meeting the bases for refusal in opening of the constitutional production, the stipulated in Article 62 presents of the law are revealed.

From the analysis of the final judgment in the matter of V. Yu. Pleskacha, namely the resolution of the Supreme Court of March 15, 2018, it is seen that provisions of part three of article 309 of the Code were not applied. So, the author of the petition in this part of the constitutional claim does not observe requirements of part one of article 55 of the Law of Ukraine "About the Constitutional Court of Ukraine" that is the basis for refusal in opening of the constitutional proceeedings in this part according to item 4 of article 62 of this law - unacceptabilities of the constitutional claim.

Considering stated and being guided by Articles 147, of 150, 151-1, 151-2, 152 Constitutions of Ukraine, based on Articles 7, of 32, of 36, of 65, of 67, of 74, of 84, of 88, of 89, of 91, of 92, 94 Laws of Ukraine "About the Constitutional Court of Ukraine" the Constitutional Court of Ukraine

solved:

1. Recognize not answering to the Constitution of Ukraine (are unconstitutional), provisions of part three of Article 307 of the Criminal Procedure Code of Ukraine concerning prohibition on appeal of determination of the investigative judge by results of consideration of the claim to divergence of the investigator, the prosecutor which consists in not entering of data on criminal offense into the Unified register of pre-judicial investigations after receipt of the statement, the message on criminal offense.

2. Provisions of part three of Article 307 of the Criminal Procedure Code of Ukraine concerning prohibition on appeal of determination of the investigative judge by results of consideration of the claim to divergence of the investigator, the prosecutor which consists in not entering of data on criminal offense into the Unified register of pre-judicial investigations after receipt of the statement the messages on criminal offense recognized as unconstitutional void from the date of acceptance by the Constitutional Court of Ukraine of this Decision.

3. Close the constitutional production in case on the constitutional claim of Pleskacha Vyacheslav Yuryevich regarding compliance of the Constitution of Ukraine (constitutionality) of provisions of part three of Article 309 of the Criminal Procedure Code of Ukraine based on item 4 of article 62 of the Law of Ukraine "About the Constitutional Court of Ukraine" - unacceptabilities of the constitutional claim.

4. The solution of the Constitutional Court of Ukraine is obligatory, final and cannot be appealed.

The solution of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine".

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