Name of Ukraine

DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of January 30, 2003 No. 3-rp/2003

On the case of the constitutional representation of the Supreme Court of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of part three of Article 120, Article parts six 234, parts three of Article 236 of the Code of penal procedure of Ukraine (case on consideration by court of separate resolutions of the investigator and the prosecutor)

Case No. 1-12/2003

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Selivon Nikolay Fedosovich - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich,

Ivashchenko Vladimir Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Mironenko Alexander Nikolaevich,

Nemchenko Vasily Ivanovich,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Timchenko Ivan Artemyevich,

Silent Vladimir Pavlovich - the judge-speaker,

Tkachuk Pavel Nikolaevich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

with the assistance of representatives of the person of law on the constitutional representation Pilipchuk Pyotr Filippovich - the vice-chairman of the Supreme Court of Ukraine, Lukashova Nadezhda Pavlovna - the chief of legal management of the Supreme Court of Ukraine; the representative of the Verkhovna Rada of Ukraine Moysik Vladimir Romanovich - the People's Deputy of Ukraine, the Chairman of Committee of the Verkhovna Rada of Ukraine concerning legislative ensuring law-enforcement activities; Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine Selivanov Anatoly Aleksandrovich; representative of the President of Ukraine on this case Pasenyuk Alexander Mikhaylovich Deputy State secretary of the Ministry of Justice of Ukraine; The permanent representative of the President of Ukraine in the Constitutional Court of Ukraine Nosov Vladislav Vasilyevich, and also recruited in consideration of the case: the representative of the Prosecutor General's Office of Ukraine Kudryavtsev Victor Viktorovich - the deputy attorney general of Ukraine; representatives of the Security Service of Ukraine of Kartavtseva Valeria Stepanovicha - the first vice rector of National academy of the Security Service of Ukraine, Ryamushkin Igor Evgenyevich - the head of department of Contractual legal department of the Security Service of Ukraine; representatives of the Ministry of Internal Affairs of Ukraine Zakharov Victor Ivanovich - the first deputy chief of the Main Investigation Department, Rostov Igor Aleksandrovich - the deputy head of department of the Main Investigation Department; director of the Center of the comparative right under the Ministry of Justice of Ukraine Shevchuk Stanislav Vladimirovich,

considered at plenary meeting case on the constitutional representation of the Supreme Court of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of part three of Article 120, to Article part six 234, of part three of Article 236 of the Code of penal procedure of Ukraine (further - the Code of Criminal Procedure of Ukraine).

The constitutional representation of the Supreme Court of Ukraine became reason for consideration of the case according to articles 39, of 41 Law of Ukraine "About the Constitutional Court of Ukraine".

The basis for consideration of the case according to Article 71, to Item 2 of Article 82, to article 83 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of matters of argument on constitutionality of provisions of part three of Article 120, of Article part six 234, of part three of article 236 Code of Criminal Procedure of Ukraine.

Having heard Silent V.P.'s judge-speaker, explanations Pilipchuka P. P., Lukashovoy N. P., Moysik V. R., Selivanova A.O., Pasenyuk O. M., Nasal V.V., Kudryavtseva V. V., Kartavtseva V. S., Ryamushkina I. E., Zakharova V. I., Rostov I.O., Shevchuk S. V. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation - the Supreme Court of Ukraine - appealed to the Constitutional Court of Ukraine with the petition for constitutionality of provisions of Article 110, of parts five, the sixth Article 234, of parts two, third Article 236, of part three of article 120 Code of Criminal Procedure of Ukraine and about official interpretation of provisions of part three of Article 8, of Article part two 55, of part one of article 64 of the Constitution of Ukraine, part four of article 12 of the Law of Ukraine "About prosecutor's office" and the concepts "acts", "decisions", "actions", "divergence" which are applied in part two of article 55 of the Constitution of Ukraine, Articles 110, of 234, of 236 Codes of Criminal Procedure of Ukraine, Article 248-3 of the Code of civil procedure of Ukraine (further - GPK of Ukraine), parts four of article 12 of the Law of Ukraine "About prosecutor's office".

2. The resolution of Board of judges of the Constitutional Court of Ukraine on the constitutional representations and addresses of December 3, 2002 open constitutional proceeedings concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of part three of Article 120, Article parts six 234, parts three of article 236 Code of Criminal Procedure of Ukraine.

3. The constitutional court of Ukraine the Resolution of December 5, 2002 refused opening of the constitutional proceeedings concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of Article 110, to Article part five 234, of part two of article 236 Code of Criminal Procedure of Ukraine and about official interpretation of provisions of part three of Article 8, of Article part two 55, of part one of article 64 of the Constitution of Ukraine, part four of article 12 of the Law of Ukraine "About prosecutor's office" and the concepts "acts", "decisions", "actions", "divergence" which are applied in part two of article 55 of the Constitution of Ukraine, Articles 110, of 234, of 236 Codes of Criminal Procedure of Ukraine, article 248-3 GPK of Ukraine, part four to article 12 of the Law of Ukraine "About prosecutor's office".

4. The Supreme Court of Ukraine in the constitutional representation specifies that "actually deadlines of pretrial investigation are not determined by article 120 Code of Criminal Procedure of Ukraine, and therefore there is question during what time the pretrial investigation can be held". Also it is noted that "according to requirements of part three of Article 8, 55, of part one of article 64 of the Constitution of Ukraine to everyone judicial protection of the right and freedoms, including the right to appeal in court of decisions, actions or divergence of public authorities, local government bodies, official and officials is guaranteed to Article part two". Therefore there was urgent need for the conclusion of the Constitutional Court of Ukraine about constitutionality of part six of Article 234, of part three of article 236 Code of Criminal Procedure of Ukraine which provide that claims to actions according to the investigator and the prosecutor are considered by Trial Court in case of preliminary consideration cases or by its consideration in fact if another is not provided by this Code.

5. In the letter of the Chairman of the Verkhovna Rada of Ukraine it is specified to the Constitutional Court of Ukraine that "in view of the fact that prolongation of term of pretrial investigation can be performed over six months only in exceptional cases and in case of making of especially dangerous crimes only by the Attorney-General of Ukraine or his deputies, and also the fact that article 55 of the Constitution of Ukraine establishes possibility of appeal in court of such solution of management officials of bodies of prosecutor's office, can be made the conclusion that provisions of part three of Article 120 of the Code of penal procedure of Ukraine answer the Constitution of Ukraine". In the letter it is also that "Article part six provisions 234, of part three of Article 236 of the Code of penal procedure of Ukraine regarding prohibition of appeal at stage of pretrial investigation of actions of the investigator and prosecutor can be acknowledged such which do not meet the requirements of the Constitution of Ukraine as such which lead to restriction of constitutional rights and freedoms of citizens, for the reasons which are not provided by the Constitution of Ukraine".

The Chief of Presidential Administration of Ukraine at the request of the President of Ukraine reported to the Constitutional Court of Ukraine that application of part three of article 120 Code of Criminal Procedure of Ukraine "does not contradict Articles 8, of 55, 64 Constitutions of Ukraine as it is provided with debt of body of inquiry, the investigator, prosecutor and court to observe the constitutional requirements which guarantee to citizens access to justice and judicial protection, considering also provisions of international legal acts which affirm the right of everyone to consideration of its case in reasonable time and without unjustifiable delay (Item 1 of article 6 of the Convention on protection of human right and fundamental freedoms, the subitem "c" of Item 3 of article 14 of the International Covenant on Civil and Political Rights". In the letter of the Chief of Presidential Administration of Ukraine it is also specified that "the challenged provisions of part six of Article 234 and part three of Article 236 of the Code of penal procedure of Ukraine do not dispute the right of the personality to appeal judicially any decisions, actions or divergence of bodies of inquiry, the investigator, prosecutor. Questions of what else solutions and actions of body of inquiry, the investigator, prosecutor, except decisions, the actions provided by articles 52-5, 99-1, 106, of 236-1, 236-5 Codes of Criminal Procedure can be appealed in court at stage of pretrial investigation, shall determine the law".

6. The Ministry of Justice of Ukraine, the Prosecutor General's Office of Ukraine, the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine, tax police of State Tax Administration of Ukraine, the Center of the comparative right under the Ministry of Justice of Ukraine consider that Article part three provisions 120, of Article part six 234, of part three of article 236 Code of Criminal Procedure of Ukraine are constitutional. The union of lawyers of Ukraine came to opposite conclusion. There is no single point of view concerning constitutionality of the disputed regulations and among scientists.

7. Consideration subject the Constitutional Court of Ukraine in this case is check on compliance of the Constitution of Ukraine (constitutionality) of provisions of part three of article 120 Code of Criminal Procedure of Ukraine about uncertainty of deadline of pretrial investigation, and also Article part six provisions 234, to part three of article 236 Code of Criminal Procedure of Ukraine which make impossible consideration by court at stage of pretrial investigation of claims to resolutions of the investigator and the prosecutor about starting criminal case of rather certain person and about attraction it as the person accused. About constitutionality of these provisions Codes of Criminal Procedure of Ukraine there was dispute in the course of general legal proceedings therefore according to article 83 of the Law of Ukraine "About the Constitutional Court of Ukraine" the constitutional proceeedings are opened.

8. Resolving issue concerning compliance of the Constitution of Ukraine (constitutionality) of provision of part three of article 120 Code of Criminal Procedure of Ukraine which does not determine deadline (duration of terms) of pretrial investigation, the Constitutional Court of Ukraine proceeds from it.

According to Item 14 parts one of article 92 of the Constitution of Ukraine legal proceedings, the organization and activities of prosecutor's office, bodies of inquiry and the investigation, and after that and terms of pretrial investigation are determined only by the laws.

In the Code of Criminal Procedure of Ukraine these terms are stipulated in Clause 120, which provides:

- the pretrial investigation on criminal cases shall be completed within two months; this term can be extended by the district, city prosecutor, the military prosecutor of army, flotilla, connection, garrison and the prosecutor equated to them in case of impossibility to finish investigation - up to three months (part one);

- in particularly complex cases the term of pretrial investigation established by part one of this Article can be continued by the prosecutor of the Autonomous Republic of Crimea, the prosecutor of the region, the prosecutor of the city of Kiev, the military prosecutor of the district, the fleet and the prosecutor equated to them or their deputies based on the motivated resolution of the investigator up to six months (part two);

- further the Attorney-General of Ukraine or his deputies (part three) can prolong the term of pretrial investigation only in exceptional cases.

Thus, the general rule is established by the law - the pretrial investigation shall be completed within two months, and prolongation of this term is exception of this rule. The adherence to deadlines of the investigation is one of conditions of accomplishment of tasks of bystry and complete disclosure of crimes.

Terms of pretrial investigation shall be agrees international agreements of Ukraine reasonable. Article 14 of the International Covenant on Civil and Political Rights of 1966 provides that everyone has the right by consideration of any criminal charge brought to him to be offender without unjustifiable delay (the subitem "c" of Item 3).

According to Item 1 of article 6 of the Convention on human rights protection and fundamental freedoms of 1950 everyone in case of the solution of question of its civil laws and obligations or in case of establishment of justification of any criminal charge brought against it has the right to fair and open treatment for reasonable time by the independent and just trial established by the law.

The concept "reasonable time of pretrial investigation" is estimative, i.e. it which is determined in each case taking into account set of all circumstances of making and investigation of crime (crimes). Determination of reasonable time of pretrial investigation depends on many factors, including amount and complexity put, the number of investigative actions, number of the victims and witnesses, need of conducting examinations and receipts of the conclusions and so forth.

But under any circumstances the term of pretrial investigation shall not exceed limits of need. The pretrial investigation shall be completed in each case without violation of the right to fair judicial review and the rights to effective remedy of protection that 13 Conventions on human rights protection and fundamental freedoms are provided by Articles 6,.

Therefore, there are no bases for recognition by it which does not answer the Constitution of Ukraine (unconstitutional) regulations of part three of article 120 Code of Criminal Procedure of Ukraine on possibility of prolongation of term of pretrial investigation only in exceptional cases.

9. Solving dispute on compliance of the Constitution of Ukraine (constitutionality) of provisions of part six of Article 234, parts three of article 236 Code of Criminal Procedure of Ukraine which make impossible consideration by court at stage of pretrial investigation of claims to resolutions of the investigator and the prosecutor about starting criminal case of rather certain person, the Constitutional Court of Ukraine proceeds from it.

According to the Code of Criminal Procedure of Ukraine:

- case can be opened only when there are sufficient data which specify availability of essential elements of offense (Article part two 94);

- in the presence of the occasions and the bases specified in article 94 of this Code, the prosecutor, the investigator or body of inquiry shall issue the decree on starting criminal case, having specified reasons and the bases for case institution, Article of the penal statute on which signs case, and also its further direction (Article part one 98) is opened;

- if at the time of starting criminal case person who committed crime is identified, criminal case shall be opened concerning this person (Article part two 98);

- the pretrial investigation is performed only after starting criminal case and according to the procedure, established by this Code (Article part one 113).

According to the Code of Criminal Procedure of Ukraine resolutions of the investigator and the prosecutor on starting criminal case of rather certain person can be appealed in court (Article part five 234, Article part two 236). But claims to these resolutions are considered by Trial Court in case of preliminary consideration cases or by its consideration on being (Article part six 234, Article part three 236).

The decree on starting criminal case of rather certain person issued with non-compliance with requirements of the Code of Criminal Procedure of Ukraine in particular provided by Articles 94-98, can generate effects which are beyond the criminal procedure relations and to do such harm to constitutional rights and freedoms owing to untimely judicial control what to recover them will be impracticable.

Impossibility of consideration by court of the claim to the resolution on starting criminal case concerning certain person on stages of pretrial investigation, adjournment of its check by court at stage of preliminary consideration of criminal case or on stage of its consideration in essence, delay of judicial control limit constitutional right of the person on judicial protection which is guarantee of all rights and freedoms of man and citizen.

Justice in essence is recognized such only provided that it meets the requirements of justice and provides effective recovery in the rights. The general declaration of human rights of 1948 provides that each person has the right to effective recovery in the rights by competent domestic courts in cases of violation of its basic rights provided to it by the constitution or the law (Article 8). The right to effective remedy of protection is affirmed also in the International Covenant on Civil and Political Rights (Article 2) and in the Convention on human rights protection and fundamental freedoms (Article 13).

The right to judicial protection is one of constitutional rights. And therefore Article part six provisions 234, of part three of article 236 Code of Criminal Procedure of Ukraine which make impossible consideration by court at stage of pretrial investigation of claims to resolutions of the investigator and the prosecutor about starting criminal case of rather certain person, limiting the human right on judicial protection affirmed by part three to Article 8, parts one, the second article 55 of the Constitution of Ukraine violate requirements of Article 3, of 21, of Article part two 22, of part one of article 64 of the Constitution of Ukraine, i.e. are unconstitutional.

Claims in court to resolutions of the investigator and prosecutor on starting criminal case of rather certain person shall be considered by court according to the current legislation according to the procedure of criminal trial. At the same time court, considering such claims to stages of pretrial investigation, checks availability of occasions and bases for adoption of the specified resolutions and shall not consider and resolve previously those issues which the court shall solve by consideration of criminal case in essence as it will be violation of the constitutional bases of justice.

10. Solving dispute on constitutionality of provisions of part six of Article 234, parts three of article 236 Code of Criminal Procedure of Ukraine according to which claims to the resolution of the investigator and the prosecutor about attraction as the person accused are considered by Trial Court in case of preliminary consideration cases or by its consideration in essence, the Constitutional Court of Ukraine proceeds from it.

According to article 64 Code of Criminal Procedure of Ukraine when implementing pretrial investigation and inquiry are subject to proof:

1) crime event (time, place, method and other circumstances of crime execution);

2) guilt of the person accused in crime execution and motives of crime;

Circumstances which influence severity of crime, and also circumstances which characterize the identity of the person accused commute 3) and toughen penalty;

4) nature and the extent of the harm done by crime and also the sizes of expenses of institution of health care on hospitalization of the victim of criminal action.

All these circumstances are established not at the same time. Some of them can be established long before the end of investigation, others - only at the end. When there are enough proofs which are specified crime execution by certain person, the motivated decree on involvement of this person as person accused (article 131 Code of Criminal Procedure of Ukraine) is issued. The main requirements to contents of this resolution are specified in article 132 Code of Criminal Procedure of Ukraine.

According to the Code of Criminal Procedure of Ukraine resolutions of the investigator and the prosecutor on attraction as person accused can be appealed in court (Article part five 234, Article part two 236). However claims to these resolutions are not considered by court at stage of pretrial investigation (Article part six 234, Article part three 236).

The pretrial investigation after pronouncement of the resolution on attraction as person accused proceeds - charge is brought (Articles 133, of 140, of 142, of 144), the person accused is interrogated (Articles 143, of 145, 146), is surely performed testimonies of the person accused, the proofs and the declared petitions submitted to them on all questions which matter for establishment of the truth in case, in particular about interrogation of witnesses, carrying out confrontation are considered, conducting examination, request and accession to case of proofs (Items 3, 4 parts one of Article 142), are taken all measures provided by the law for comprehensive, complete and objective investigation of the facts of the case, circumstances which expose or acquit the person accused, and also circumstances which mitigate and aggravate its responsibility (part one of article 22 Code of Criminal Procedure of Ukraine and so forth come to light.

Attraction as person accused is not the final conclusion of the investigator about guilt of the person accused - he does the final indictment after the termination of pretrial investigation (article 223 Code of Criminal Procedure of Ukraine. The belief of the investigator and prosecutor in committing by person of crime does not mean proof of its guilt which according to constitutionally to the established principle of presumption innocence of person can be established only by conviction of court (article 62 of the Constitution of Ukraine). The proofs of guilt of person collected by pretrial investigation are checked and estimated by court during consideration of the case in fact by results of which the court takes out justificatory or conviction, recognizing person according to the innocent or guilty of crime execution.

Check by court at stage of pretrial investigation of the resolution on attraction as person accused, considering its content, will actually mean check of sufficiency collected in the matter of proofs even before the termination of pretrial investigation and the solution of question of guilt of person in crime execution even before consideration of criminal case in essence. However according to the constitutional principle of presumption of innocence person is considered innocent in crime execution until his guilt is proved legally and established by conviction of court (part one of article 62 of the Constitution of Ukraine).

Thus, considering at stage of pretrial investigation of the claim to resolutions of the investigator and the prosecutor about attraction as person accused, the court instead of implementation of judicial control of pretrial investigation will perform function of judicial review of criminal case in essence contrary to the procedure determined by the Code of Criminal Procedure of Ukraine on the bases established by the Constitution of Ukraine (Articles 59, 61, parts one, second, third Articles 62, Article 63, Article part one 64, Item 1 of Article 121, Articles 124, 129).

Based on stated the Constitutional Court of Ukraine came to conclusion that Article part six provisions 234, of part three of article 236 Code of Criminal Procedure of Ukraine according to which claims to resolutions of the investigator, the prosecutor about attraction as the person accused are considered by Trial Court in case of preliminary consideration cases or by its consideration in essence, answer the Constitution of Ukraine (are constitutional).

Proceeding from given and being guided by Articles 147, 150 Constitutions of Ukraine, Articles 39, of 51, of 73, 83 Laws of Ukraine "About the Constitutional Court of Ukraine", the Constitutional Court of Ukraine solved:

1. Recognize such which answer the Constitution of Ukraine (are constitutional), such provisions of the Code of penal procedure of Ukraine:

1.1. Parts three of article 120 about possibility of prolongation of term of pretrial investigation only in exceptional cases;

1.2. Article parts six 234, of Article part three 236, according to which claims to resolutions of the investigator, the prosecutor about attraction as person accused are considered by Trial Court in case of preliminary consideration cases or by its consideration in essence.

2. Recognize such which do not answer the Constitution of Ukraine (are unconstitutional), Article part six provisions 234, parts three of Article 236 of the Code of penal procedure of Ukraine which make impossible consideration by court at stage of pretrial investigation of claims to resolutions of the investigator, the prosecutor concerning occasions, the bases and procedure for starting criminal case of rather certain person.

3. Article part six provisions 234, the parts three of Article 236 of the Code of penal procedure of Ukraine recognized as unconstitutional lose force from day of acceptance by the Constitutional Court of Ukraine of this Decision.

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

The solution of the Constitutional Court of Ukraine is subject to publication in "Vesnika Konstitutsiyny to Ukra§ni's Court" and in other official publications of Ukraine.

 

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