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DECISION OF THE SECOND SENATE OF THE CONSTITUTIONAL COURT OF UKRAINE

of June 8, 2022 No. 3-r (II)/2022

On case on the constitutional claim of Krotyuk Alexander Vladimirovich concerning compliance of the Constitution of Ukraine (constitutionality) of item 4 of part one of Article 284 of the Criminal Procedure Code of Ukraine (case on presumption of innocence)

Case No. 3-20/2021 (40/21)

The second senate of the Constitutional Court of Ukraine in structure:

Golovaty Sergey Petrovich (chairman of meeting),

Gorodovenko Victor Valentinovich (speaker),

Lemak Vasily Vasilyevich,

Moysik Vladimir Romanovich,

May Day Oleg Alekseevich,

Slidenko Igor Dmitriyevich,

Yurovskaya Galina Valentinovna,

considered at plenary meeting case on the constitutional claim of Krotyuk Alexander Vladimirovich concerning compliance of the Constitution of Ukraine (constitutionality) of item 4 of part one of Article 284 of the Criminal Procedure Code of Ukraine.

Having heard the judge-speaker Gorodovenko V. V. and having researched case papers, including line items which stated the President of Ukraine Zelensky V. A., Chairman of the Verkhovna Rada of Ukraine Stefanchuk R. A., Representative of the Verkhovna Rada of Ukraine for human rights of Denisov L. L., Attorney-General of Venediktov I. V., Chairman of the Supreme Court Knyazev V. S., and also scientists: The Kiev national university of Taras Shevchenko - the head of the department of criminal procedure and criminalistics of educational and scientific institute of the right, the associate professor, Candidate of Law Sciences Kostyuchenko A. Yu.; National legal university of Yaroslav the Wise - the head of the department of criminal procedure, professor, the doctor of jurisprudence Kaplina A. V., associate professor of criminal procedure, doctor of jurisprudence Drozdov A. N.; National university "Odessa Legal Academy" - the head of the department of criminal procedure, detective and operational search activities, professor, the doctor of jurisprudence Arkusha L. I., associate professor, doctor of jurisprudence Torbas A. A., associate professor, Candidate of Law Sciences Voloshina V. K., associate professor, Candidate of Law Sciences Stoyanov M. M., associate professor, Candidate of Law Sciences Shilin D. V., Candidate of Law Sciences Zavtur V. A.; National academy of internal affairs - the vice rector, professor, the doctor of jurisprudence Chernyavsky S. S., the leading researcher of scientific laboratory for problems of counteraction of crime of educational and scientific institute No. 1, professor, the doctor of jurisprudence A.V. Ram, the leading expert of department of analytical work and the organization of management, professor, the doctor of jurisprudence Berestova I. E., Constitutional Court of Ukraine

established:

1. Krotyuk A. V. appealed to the Constitutional Court of Ukraine with the petition to check for compliance of the Constitution of Ukraine (constitutionality) item 4 of part one of Article 284 of the Criminal Procedure Code of Ukraine (further - the Code) according to which criminal proceedings are closed if "the law which cancels criminal liability for the act which is commited by person became effective".

The author of the petition considers that the disputed instruction of article 284 of the Code does not correspond to parts one, the second article 62 of the Constitution in interrelation with part one of its Article 8, as "breaks presumption of innocence of person, allowing to close criminal proceedings concerning the suspect or the person accused without <...> proper proof and establishment of reality of the fact of primary making of the corresponding act by person, and also <...> without consent to implementation of such closing with person, in comparison with the cases of closing of criminal proceedings performed according to requirements of Item of 1 part two and part eight of article 284 Code of Criminal Procedure of Ukraine".

1.1. The president of Ukraine in the letter in the Constitutional Court of Ukraine, in particular, noted that in sense of the principle of presumption of innocence "each person, irrespective of the bases of closing of criminal proceedings concerning it or in the presence of such production, is innocent until his guilt is proved legally and established by conviction of court"; "the solution of the considered problem is obviously possible also through the corresponding law-enforcement practice, the correct application of provisions of article 284 of the Code by courts. <...> in this aspect it is told also about conformal <...> interpretation of the Code of the phrase "the act which is commited by person" used in item 4 of part one of Article 284 as the meaning act incriminated to person".

In the letter of the chairman of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine it is specified, in particular, that "the legitimate purpose of establishment by the legislator of possibility of closing of criminal proceedings according to provision of item 4 of part one of article 284 Code of Criminal Procedure of Ukraine <...> it is caused by need of application of due course of law on the immediate termination of criminal prosecution of persons in connection with cancellation of the regulation containing the bases for initiation and implementation of such prosecution"; "the final decision of the question raised by the person of law on the constitutional claim <...>, shall occur by further legislative regulation".

The representative of the Verkhovna Rada of Ukraine for human rights in the letter in the Constitutional Court of Ukraine came to conclusion that "the bases to consider provisions of item 4 of part one of article 284 Code of Criminal Procedure of Ukraine contradicting provisions of article 62 of the Constitution of Ukraine, no. However not accounting of opinion of the suspect concerning closing of criminal proceedings based on provision of item 4 of part one of article 284 Code of Criminal Procedure of Ukraine actually deprives of it opportunity to be justified in court as closing of criminal proceedings based on item 4 of part one of article 284 Code of Criminal Procedure of Ukraine is not identical to the verdict of not guilty that limits its constitutional right on effective judicial honor and dignity protection (Articles 28, 55 Constitutions of Ukraine)".

In the letter of the Attorney-General in the Constitutional Court of Ukraine it is summed up that "according to provisions of the national legal system closing of criminal proceedings on not rehabilitating basis leads to adverse effects for person. <...> the possibility of approach of such effects for person concerning whom criminal proceedings were closed according to item 4 p.1 by Art. 284 of the Code of Criminal Procedure of Ukraine actually calls into question its innocence. <...> Closing of criminal proceedings on this basis without the consent of person can limit its right of defense from accusations in making of actions which were incriminated to him and criminal liability for which was cancelled, to exclude denial of event of crime, actus reus by it in actions at the time of their making, contest of accessory and admissibility of proofs".

2. Researching the questions raised in the constitutional claim, the Constitutional Court of Ukraine proceeds from the following.

2.1. According to the Constitution of Ukraine of people, his life and health, honor and advantage, immunity and safety are recognized Ukraine the highest social value; human rights and freedoms and their guarantees determine content and orientation of activities of the state; the state answers to the person for the activities; approval and providing human rights and freedoms is the main obligation of the state (Article 3); in Ukraine the principle of supremacy of law is recognized and is effective; The Constitution of Ukraine has the highest legal force; the laws and other regulatory legal acts are adopted on the basis of the Constitution of Ukraine and shall correspond to it" (parts one, the second Articles 8).

On part one, the second article 28 of the Constitution of Ukraine everyone has the right to respect of its advantage; nobody can be subjected to tortures, the cruel, brutal or degrading its advantage address or punishment.

According to article 55 of the Constitution of Ukraine rights and freedoms of man and citizen are protected by court (part one); the right to appeal in court of decisions, actions or failure to act of public authorities, local government bodies, official and officials (part two) is guaranteed to everyone.

According to article 58 of the Constitution of Ukraine the laws and another "regulatory legal acts have no retroactive effect in time, except cases when they mitigate or cancel responsibility of person"; nobody can be responsible for acts which for the period of their making were not recognized the law as offense.

Person is considered innocent in crime execution and cannot be subjected to criminal penalty until his guilt is proved legally and established by conviction of court; nobody shall prove the innocence in crime execution; accusation cannot be based on the evidence obtained in the illegal way and also on assumptions; all doubts concerning validity of fault of person are interpreted in its advantage (parts one, second, third article 62 of the Constitution of Ukraine).

Only the laws of Ukraine determine, in particular, acts which are crimes, and responsibility for them (Item 22 parts one of article 92 of the Constitution of Ukraine).

In the Solution of the Constitutional Court of Ukraine of June 1, 2016 No. 2-rp/2016 it is specified that "the state, fulfilling the main duty - approval and providing human rights and freedoms (part two of article 3 of the Constitution of Ukraine) - shall not only abstain from violations or disproportionate restrictions of human rights and freedoms, but also take proper measures for possibility of their complete realization by everyone who is under its jurisdiction. For this purpose the legislator and other bodies of the public power shall provide effective legal regulation which meets the constitutional standards and the principles and to create the mechanisms necessary for requirements satisfaction and interests of the person" (paragraph one of Item 3 of motivation part).

The constitutional court of Ukraine also noted that "the obligation of the state follows from article 3 of the Constitution to provide protection and protection of human dignity. Such obligation is assigned to all subjects of the public power. The Verkhovna Rada of Ukraine, adopting the laws, shall guarantee proper protection and realization of human rights and freedoms that is one of conditions of ensuring human dignity as natural value. In turn courts shall interpret legal regulations so that during their application it did not do harm to human dignity" [paragraph two of subitem 2.1 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine (The second senate) of September 16, 2021 No. 6-r (II)/2021].

In the Report about pravovlastiy, accepted by the European Commission "For democracy through the right" (the Venetian Commission) at its 86th plenary meeting which took place on March 25-26, 2011, CDL-AD (2011)003rev it is specified that "the rights which are most obviously connected with pravovlastiy is the following: (1) right to access to justice; <…> (3) the right to state the line item (the right to be heard); <…> (5) the legal principle according to which the measures imposing encumbrance cannot have retroactive force; <…> (7) someone is considered innocent in crime execution until guilt is proved; and (8) the right to fair legal proceedings or - in Anglo-American tradition - the principle of natural justice or the principle of the fair legal procedure (due process) (§60).

The constitutional court of Ukraine based on stated considers that in understanding of instructions of Articles 3, of 8, of 28, of 55, of 58, of 62, of Item 22 parts one of article 92 of the Constitution of Ukraine in their interrelation the state has positive obligation to create proper national organization-legal mechanisms of attraction of person to criminal liability which are capable to guarantee comprehensive protection of human dignity, in particular, to provide functioning and completion of criminal proceedings so that the most important constitutional guarantees of protection of the personality against unreasonable criminal prosecution, namely the basic principle of supremacy of law and the related principles were observed as: presumption of innocence, irreversibility of action in time (retroactivity prohibition) of the penal statute, the principle of nullum crimen, nulla poena sine lege ("there is no law - there is no crime, there is no law - there is no penalty"), and also the rights to state the line item and the rights to fair legal proceedings.

2.2. The constitutional court of Ukraine in the solution of February 26, 2019 No. 1-r/2019 noted that "important guarantee of observance of the rights of the suspect and person accused of criminal procedure and obligatory component of fair legal proceedings is the presumption of innocence"; "element of the principle of presumption of innocence is the principle of in dubio pro reo according to which in case of assessment of proofs all doubts concerning guilt of person are interpreted for benefit of its innocence"; "the presumption of innocence of person provides that the obligation of proof of fault of person is assigned to the state" (the first offer of paragraph one, paragraphs two, third item 4 of motivation part).

The constitutional court of Ukraine notes that the constitutional principle of presumption of innocence is multidimensional, acts on all stages of criminal proceedings and even after its completion, the essence of this principle is that the presumption concerning non-participation of person in making of criminal offense has universal nature, extends to all spheres of public human life and is effective until not to confute it properly, that is, according to instructions of article 62 of the Constitution of Ukraine, legally and to conviction of court. In understanding of the specified constitutional instructions the purpose of the principle of presumption of innocence is protection of person concerning whom criminal proceedings are performed/was performed, from any revealed with respect thereto condemnation forms from the public power owing to what non-participation of such person in making of criminal offense is called in question until his guilt is proved legally and established by conviction of court. On part one of article 62 of the Constitution of Ukraine only the conviction of court is that court resolution in which guilt of person in making of criminal offense therefore other acts of the public power do not may contain any line items concerning guilt of person, even in the form of assumptions concerning such fault shall be established.

The principle of presumption of innocence which is determined in instructions of article 62 of the Constitution of Ukraine is acknowledged at the international level, in particular, is enshrined in the Universal Declaration of Human Rights of 1948 (Item 1 of Article 11), the International Covenant on Civil and Political Rights of 1966 (Item 2 of Article 14), Conventions on human rights protection and fundamental freedoms of 1950 (further - the Convention) (Item 2 of Article 6).

The constitutional court of Ukraine takes into account Item 2 of article 6 of the Convention on which everyone who is accused of making of criminal offense, consider the innocent until his guilt is not proved legally, and also understanding of this Item in practice of the European Court of Human Rights.

On §42 decisions of the European Court of Human Rights on case Grabchuk against Ukraine of September 21, 2006 ("practice of court establishes the statement No. 8599/02) whether the presumption of innocence is broken if statement of the official concerning person accused of making of criminal offense reflects opinion that person is guilty whereas the guilt was not proved according to the law. There is enough of that, even in the absence of any official approval that there is some basis to assume that the official considers this person guilty <...> The coverage of Item 2 of article 6 of the Convention is not limited to criminal proceedings which continue, it extends to the judgments made after [criminal] prosecution was stopped <...> or after justification".

The European Court of Human Rights noted that "for the purpose of providing practicality and efficiency of the right guaranteed by Item 2 of article 6 of the Convention, the presumption of innocence has also one more aspect. The common goal of presumption, in this second aspect is in protecting persons who are acquitted or concerning whom criminal proceedings are stopped, from that officials and public authorities treated them so as if they are actually guilty of those offenses of which they were accused. <...> Without protection which would provide observance of the verdict of not guilty or decision on closing of production within any other consideration the risk theoretical and illusory would threaten to become the guarantees of fair legal proceedings following from content of Item 2 of article 6 of the Convention. Besides, after completion of criminal proceedings the reputation of person and how person perceives society" [the decision in the matter of Allen v is threatened. the United Kingdom of July 12, 2013 (the statement No. 25424/09), § 94].

Constitutional court of Ukraine, characterizing the constitutional principle of presumption of innocence as universal hypothesis concerning non-participation of person in making of criminal offense, shares positions of the Constitutional Court of the Republic of Lithuania concerning understanding of this principle on which "the principle of presumption of innocence <...> it is the fundamental principle of rendering justice in criminal trial, one of the most important guarantees of rendering justice in the democratic state subordinated to right ownership, important guarantee of human rights and freedoms <...> the presumption of innocence cannot be interpreted net linguistically that is as such which concerns only implementation of justice in criminal proceedings; the presumption of innocence determined in the context of other instructions of the Constitution makes enlarged sense therefore it cannot be connected only with criminal legal relations; it is especially important that state bodies and their officials observed presumption of innocence that the last abstained from the treatment of person, as with the criminal until person is found guilty of crime execution by the judgment which took legal effect and according to the procedure established by the law" (paragraphs two, third subitem 2.3 of Item 2 of the Section II of motivation part of the Resolution of June 27, 2016 No. KT19-№10/2016).

The constitutional court also considers that according to special Research of the European Commission "For democracy through the right" (the Venetian Commission) "Right ownership criterion" "the presumption of innocence is obligatory in providing the right to fair legal proceedings. That the presumption of innocence was guaranteed, the burden of proof of fault shall be assigned to the party of accusation. Also practice of proof which is required governed shall be clear and fair. There shall not be unintentionally or intentionally influence from other branches of the power on competent judicial authority by expression of the assessment of the facts of the judgment in advance. The same concerns also certain private sources of thought, somehow media" (CDL-AD (2016)007, Item II. E.2.104).

Based on stated the Constitutional Court of Ukraine came to conclusion that instructions of Articles 1, of 3, of 8, specify 62 Constitutions of Ukraine in their interrelation positive obligation of the state to provide observance of presumption of innocence of person at all stages of criminal proceedings and after its completion up to confutation of such presumption legally by court only in conviction. It, in particular, means that person suspected of making of criminal offense after closing concerning it criminal proceedings on any bases, shall be perceived by all public power as not committing criminal offense, the treatment of him shall correspond to such perception and not cause any explicit condemnation or hint on it, not to create negative perception of such person by society, not to hurt its reputation and so forth.

2.3. In aspect of guaranteeing constitutional right on judicial protection which shall be not illusory, but this and fully implemented, the Constitutional Court of Ukraine noted that "justice in essence is recognized to that only on condition 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); "criminal trial is performed by courts of law to which powers belongs as the decision in the course of consideration of criminal case to the point about guilt (innocence) of person in crime execution, and judicial control of respecting the rule of law in activities of law enforcement agencies when conducting by them inquiry and pretrial investigation. The purpose of judicial control is timely ensuring protection and protection of rights and freedoms of man and citizen" (paragraph one of subitem 3.2 of Item 3 of motivation part of the Decision of June 30, 2009 No. 16-rp/2009).

The constitutional court of Ukraine considers that the presumption of innocence is not only obligatory element of realization of constitutional right on judicial protection without which fair legal proceedings are impossible, but also important constitutional guarantee which requires fair legal proceedings and effective judicial protection. Specified causes the need for providing to person of opportunity to state line item about the innocence, to prove this line item judicially, otherwise the basic principles of legal proceedings, in particular, determined by part two of article 129 of the Constitution of Ukraine as will be broken: equality of all participants of legal procedure before the law and court (Item 1); competitiveness of the parties and freedom in provision by them to court of the proofs and in proof before court of their persuasiveness (Item 3). The stated basic principles of legal proceedings are also general principles of criminal proceedings (Items 3, 15 parts one of article 7 of the Code).

Unreasonable criminal prosecution is infringement of the right of everyone to respect of its denomination (part one) guaranteed by article 28 of the Constitution of Ukraine therefore the state shall provide possibility of rehabilitation of person after closing of criminal proceedings, that is recovery of his honor, reputation, reputation which suffered in connection with the suspicion brought to it or charge concerning making of criminal offense, and also to guarantee check judicially to legality and justification of criminal prosecution and proceeding decisions made during its making.

The constitutional court of Ukraine considers that closing of criminal proceedings concerning person without it on that consent and effective judicial protection therefore there is doubt in innocence of person, impossibility of rehabilitation of person after such closing is violation of constitutional right on judicial protection.

2.4. The constitutional court of Ukraine noted that "The constitution of Ukraine, having fixed by part one of article 58 of regulations on inadmissibility of retroactive effect in time of the laws and other regulatory legal acts, at the same time provides their retroactive effect in time in cases when they mitigate or cancel legal responsibility of person that is the conventional principle of the right. That is on legal responsibility the new law or other regulatory legal act which mitigates is applied or cancels responsibility of person for committed offense during action of the regulatory legal act which determined concepts of offense and responsibility for it" (the second, third offers of the paragraph of third Item 2 of motivation part of the Decision of February 9, 1999 No. 1-rp/99); the criminal precept of law has retroactive effect in time, in that its part in which it mitigates or cancels responsibility of person; it concerns cases when in disposition of regulation the circle of objects of encroachment is reduced; alternative socially dangerous effects are excluded from actus reus; limited liability of person by specification towards narrowing of method of crime execution; content of the qualifying signs, etc. is narrowed (the paragraph the fourth Item 3 of motivation part of the Decision of April 19, 2000 No. 6-rp/2000); person cannot bear criminal liability for the acts made before entry into force of the law which these acts are criminalized (the paragraph the fourth Item 6 of motivation part of the Decision of February 26, 2019 No. 1-r/2019).

According to Item 1 of article 7 of the Convention "nobody can be found guilty of making of any criminal offense based on any action or failure to act which at the time of its making was not criminal offense according to the national law or international law. Also more severe penalty by what that which was subject to application for the period of making of criminal offense cannot be imposed". Similar instructions contain, in particular, in the Universal Declaration of Human Rights of 1948 (Item 2 of Article 11), the International Covenant on Civil and Political Rights of 1966 (Item 1 of Article 15).

Analyzing Item 1 of article 7 of the Convention corresponding to article 58 of the Constitution of Ukraine the Constitutional Court of Ukraine considers practice of interpretation of this Item by the European Court of Human Rights.

In the decision in the matter of Scoppola v. Italy (No. 2) of September 17, 2009 (the statement No. 10249/03) the European Court of Human Rights noted that "the guarantee, stipulated in Clause 7 Conventions which is essential element of right ownership (the rule of law) takes the outstanding place in system of protection [the human rights] under the Convention. <...> This Article shall be interpreted and applied as it follows from its subject and the purpose so that to provide effective protection against any prosecution, condemnation and punishment <...>" (§92); "Item 1 of article 7 of the Convention contains not only prohibition of retroactive effect of instructions of the criminal law to the detriment of the person accused. The principle is also realized in it that only the law can determine crime and establish punishment (nullum crimen, nulla poena sine lege). Follows from this Item not only to qualify prohibition as act offense which at the time of their making were not penal more generally he also establishes the principle according to which the penal statute cannot be interpreted loosely to the detriment of the person accused, for example, by analogy" (§93); "Item 1 of article 7 of the Convention guarantees not only the principle of prevention of retroactive effect of more stringent penal statutes, but, also, implicitly - the principle of retroactive effect of softer penal statute. This principle is realized in the rule according to which if the penal statute existing at the time of making of offense, and the penal statutes adopted later, which became effective to the resolution of final sentence have distinctions, then courts shall apply that law, which instructions the most favorable for the defendant" (§109).

The European Court of Human Rights, considering question of the right of person to review of sentence, emphasized that when the state in the legislation accurately establishes the principle of retroactive effect of the optimum penal statute, it shall give to defendants opportunity to exercise this right according to conventional guarantees [decisions in the matter of Affaire Gouarry Patte with. Andorre of January 12, 2016 (the statement No. 33427/10), §35].

The constitutional court of Ukraine considers that in understanding of instructions of Articles 3, of 8, of 58, 62 Constitutions of Ukraine in their interrelation the state shall provide completion of criminal proceedings concerning person in case of entry into force of the law which cancels criminal liability for the act which is commited by person. However the principle of presumption of innocence causes need of creation of such mechanisms of legal regulation on completion of criminal proceedings which will secure against doubts in guilt of person in making of such act which was considered as criminal offense before its decriminalization.

3. Considering instructions of Article 2, of Items 3, of 5, of 10, 14 parts one 3, of Articles 7, of 17, 284 Codes, the Constitutional Court of Ukraine notes that the item 4 of part one of article 284 of the Code determines the basis for obligatory and automatic closing of criminal proceedings at stage of pre-judicial investigation if the law which cancelled criminal liability for the act which is commited by person, in particular, by adoption by the prosecutor of the resolution on closing of criminal proceedings on the suspect became effective. That is the lawful (legitimate) purpose of the disputed instruction of article 284 of the Code is the termination of criminal prosecution concerning person for act which stopped being socially dangerous is not crime according to the legislation on criminal liability any more that by the general rule shall exclude continuation of criminal proceedings and accords with the principle of returnable action in time of softer penal statute and nullum crimen, nulla poena sine lege. At the same time, closing of criminal proceedings shall be performed with observance as the specified principles, and other constitutional principles and the rights, in particular, the principle of presumption of innocence, the rights to respect for human dignity, to judicial protection.

3.1. The constitutional court of Ukraine notes that the bases for closing of criminal proceedings taking into account the legal effects caused by them for person concerning whom there is such closing in the legal theory and law-enforcement practice can be classified as rehabilitation and not rehabilitation. However, in national legal regulation there is no such accurate classification.

At the same time the Constitutional Court of Ukraine states that in connection with not rehabilitation nature of the basis for closing of the criminal proceedings established in item 4 of part one of article 284 of the Code for persons to whom such basis is applied at the legislative level the possibility of compensation of the damage caused by illegal actions of the bodies performing operational search activities, bodies of pre-judicial investigation, prosecutor's office and court is not provided and also restrictions for such persons are determined. It is, in particular, that person concerning whom criminal proceedings on not rehabilitating bases were stopped cannot be the police officer, the employee of prospecting body (item 4 of part two of article 61 of the Law of Ukraine "About National police"; Item 6 parts two of article 31 of the Law of Ukraine "About investigation"); the certificate on the right to occupation notarial activities can be cancelled by the Ministry of Justice of Ukraine according to the decision of the Highest qualification commission of notariate made based on representation of the Ministry of Justice of Ukraine, its territorial authorities in case of closing of criminal proceedings on the notary by not rehabilitating part (the subitem "g" of Item 2 parts one of article 12 of the Law of Ukraine "About notariate").

Also Constitutional Court of Ukraine pays attention that in national court practice the basis for closing of criminal proceedings determined by item 4 of part one of article 284 of the Code can be carried to not rehabilitation bases. The Supreme Court as a part of board of judges of the Third trial chamber of Cassation criminal court considers that "considering not rehabilitating nature of this basis taking into account that its application actually states participation of person in making of penal act, person concerning whom criminal case is closed in connection with elimination by the new penal statute of crime and punishability of the act incriminated to him shall have opportunity to exercise the right to judicial protection, and court in court, in turn, - to check and estimate legality and justification of the proceeding decisions made in this production in which the suspicion of crime pushed concerning person on the basis of materials, collected both at stage of pre-judicial investigation, and at stage of legal proceedings" (the resolution of December 11, 2019 in the matter of No. 153/1289/18) is fixed. According to the Supreme Court as a part of board of judges of the First trial chamber of Cassation criminal court, "so far as concerns the rehabilitating bases of closing of criminal proceedings, it is necessary to recognize that person did not make the illegal act provided by the penal statute and as the result, has the right to rehabilitation. Those which demonstrate complete innocence of person in making of the incriminated criminal offense belong to the rehabilitating bases and attract suspicion removal, recovery of reputation, advantage and reputation" (the resolution of February 25, 2020 in the matter of No. 599/593/18).

Based on stated the Constitutional Court of Ukraine considers that the item 4 of part one of article 284 of the Code determines not rehabilitation basis for closing of criminal proceedings which in the context of the available national legal regulation and law enforcement attracts adverse effects for reputation, of honor, advantages of person concerning whom there was such closing, and it definitely specifies the attitude of the public power towards such person as to the guilty person, but without conviction of court. Therefore closing of criminal proceedings at stage of pre-judicial investigation on not rehabilitation basis determined by the disputed instruction of article 284 of the Code causes natural doubt in innocence of person concerning which criminal proceedings are in such a way closed, negatively influences its reputation, honor and advantage, and also causes contradictory perception of such person in society.

3.2. The constitutional court of Ukraine notes that the right to effective judicial protection consisting in opportunity to take a legal action on check and assessment of legality and justification accepted in proceeding decisions in which the suspicion pushed concerning person, accusation in criminal offense is fixed shall be guaranteed to person concerning whom criminal proceedings according to a certain disputed instruction of article 284 of the Code to not rehabilitation basis are closed. The court in case of establishment of the facts confirming illegality and groundlessness of criminal prosecution of person shall resolve issue of rehabilitation, that is protection of reputation, honor and advantage of the personality which were shamed by illegal suspicion, accusation, recovery of its violated rights, compensation of damage suffered.

The code does not contain the mechanism which would allow to confute doubts in innocence of person concerning whom criminal proceedings based on item 4 of part one of article 284 of the Code are closed, and obliges the prosecutor to make such closing without the consent of the specified person even if it is in the status of the suspect, and without allowing continuation of criminal proceedings in any circumstances.

According to the Constitutional Court of Ukraine, according to the principle of supremacy of law provision of consent by person to closing concerning it criminal proceedings in connection with decriminalization of act is obligatory as it is condition of implementation of its right to state the line item to rather own innocence. Lack of such opportunity does not provide respect for the basic constitutional principles which extend also to criminal proceedings, namely equalities before court and the law, competitivenesses of the parties and freedom in representation by them to court of the proofs and in proof before court of their persuasiveness, and, therefore, leads to violation of the right to judicial protection.

At the same time settlement in the Code (the Item 16 parts three of Article 42, of Article 303, of 304) of question of appeal of the decision, actions and failure to act of the prosecutor does not guarantee protection of presumption of innocence and rehabilitation of the suspect concerning whom criminal proceedings in connection with act decriminalization as such settlement though allows judicial appeal of the decision of the prosecutor on closing of criminal proceedings according to the disputed instruction of article 284 of the Code were closed, however does not give opportunity to perform the specified appeal on the basis of such closing that there was no doubt left in non-participation of person concerning which it occurred, before making of the decriminalized act.

3.3. Based on stated the Constitutional Court of Ukraine came to conclusion that the item 4 of part one of article 284 of the Code on which criminal proceedings are closed if "the law which cancels criminal liability for the act which is commited by person" became effective recreates constitutionally the caused basis for closing of such production which corresponds to the fundamental principles of retroactive effect in time of softer penal statute and nullum crimen, nulla poena sine lege. Considering irreversible negative effects for the reputation, honor and advantage of person owing to closing concerning it criminal proceedings on not rehabilitation bases determined by the disputed instruction of article 284 of the Code, the Constitutional Court of Ukraine considers that the phrase "commited by person" which contains in this instruction actually specifies unconditional guilt of such person in making of act which before its decriminalization was considered as criminal offense. Thereby at the legislative level violation of presumption of innocence of person as decriminalization of act does not confute participation of such person in making of criminal offense in the past is provided and does not eliminate natural threats of its reputation, honor and to advantage.

The constitutional court of Ukraine states that the question of compliance of the Constitution of Ukraine of item 4 of part one of article 284 of the Code is caused first of all by use of the phrase "commited by person" in it. However this phrase is component of legal design which reproduces the complete procedural instruction of the specified Code Item as the basis for closing of criminal proceedings which in the current version does possible closing of such production in connection with decriminalization of act with simultaneous emergence of doubts in innocence of person concerning which there is such closing. Therefore the item 4 of part one of article 284 of the Code is in general to the contradicting Articles 3, of 8, of 28, of 55, 62 Constitutions of Ukraine as realizes the principle of nullum crimen, nulla poena sine lege, but does not provide respect for constitutional rights on respect of human dignity, protection, the principle of presumption of innocence.

4. According to part two of article 152 of the Constitution of Ukraine, article 91 of the Law of Ukraine "About the Constitutional Court of Ukraine" the laws, other acts or their separate provisions recognized as unconstitutional lose force from the date of acceptance by the Constitutional Court of Ukraine of the decision on their illegality if other is not established by the decision, but not earlier than day of its acceptance.

Having established discrepancy of the Constitution of Ukraine (constitutionality) of item 4 of part one of article 284 of the Code, the Constitutional Court of Ukraine considers it expedient to delay loss of force this Item for three months from the date of acceptance by the Constitutional Court of Ukraine of the decision on its illegality.

Due to given the Verkhovna Rada of Ukraine shall give normative regulation, stipulated in Item 4 parts one of article 284 of the Code which is acknowledged unconstitutional, in compliance with the Constitution of Ukraine and this decision.

Considering stated and being guided by Articles 147, of 150, 151-1, 151-2, 152, 153 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

decided:

1. Recognize not answering to the Constitution of Ukraine (is unconstitutional), item 4 of part one of Article 284 of the Criminal Procedure Code of Ukraine.

2. The item 4 of part one of Article 284 of the Criminal Procedure Code of Ukraine recognized as unconstitutional loses force in three months from the date of acceptance by the Constitutional Court of Ukraine of this Decision.

3. To the Verkhovna Rada of Ukraine to give normative regulation, stipulated in Item 4 parts one of Article 284 of the Criminal Procedure Code of Ukraine which is acknowledged unconstitutional, in compliance with the Constitution of Ukraine and this decision.

4. The solution of the Constitutional Court of Ukraine is obligatory, final and such which 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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