Name of Ukraine

DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of September 10, 2008 No. 15-rp/2008

On the constitutional representation of 46 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of Article 1, Article parts one 7, Articles 8, 9, 10, Article parts four 14, Articles 17, Article parts one 20, parts three of article 29 of the Law of Ukraine "About prosecutor's office" (case on powers of prosecutor's office according to Item 9 of the Section XV "Transitional provisions" of the Constitution of Ukraine)

Case No. 1-29/2008

Constitutional court of Ukraine consisting of judges:

Strizhak Andrey Andreevich - the chairman,

Baulin Yury Vasilyevich,

Brintsev Vasily Dmitriyevich - the speaker,

Vdovichenko Sergey Leonidovich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich,

Dombrovsky Ivan Petrovich,

Kamp Vladimir Mikhaylovich,

Mikhail Ivanovich's ear,

Lilak Dmitry Dmitriyevich,

Markush Maria Andreevna,

Machuzhak Yaroslava Vasilyevna,

Nikitin Yury Ivanovich,

Ovcharenko Vyacheslav Andreevich,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

Shishkin Victor Ivanovich,

considered at plenary meeting case on the constitutional representation of 46 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of Article 1, to Article part one 7, of Articles 8, of 9, of 10, of Article part four 14, of Article 17, of Article part one 20, of part three of article 29 of the Law of Ukraine "About prosecutor's office" of November 5, 1991 N 1789-XII (Sheets of the Verkhovna Rada of Ukraine, 1991, N 53, the Art. 793) with subsequent changes.

Reason for consideration of the case according to Articles 39, 40 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional representation of 46 People's Deputies of Ukraine.

The basis for consideration of the case according to article 71 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of approvals concerning illegality of the specified provisions of the Law of Ukraine "About prosecutor's office".

Having heard the judge-speaker Brintsev V. D. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation - 46 People's Deputies of Ukraine - appealed to the Constitutional Court of Ukraine with the petition to recognize not answering to the Constitution of Ukraine (unconstitutional), separate provisions of the Law of Ukraine "About prosecutor's office" (further - the Law).

As it is noted in the constitutional representation, the prosecutor's office of Ukraine after adoption of the Constitution of Ukraine which contains the exhaustive list of powers of prosecutor's office of Ukraine, continues to perform also other functions which are not determined by the Constitution of Ukraine. As significant amount of the provisions of the law, according to People's Deputies of Ukraine, is not brought into accord with regulations of the existing Constitution of Ukraine, the prosecutor's office of Ukraine remains not reformed according to its constitutional powers.

Authors of the petition bring up question of recognition unconstitutional such provisions of the Law:

- Article 1 regarding determination of concept of public prosecutor's supervision of compliance with laws of Ukraine;

- Article 7 parts one concerning prohibition of intervention of public authorities, officials, mass media in activities of prosecutor's office for supervision of compliance with laws;

- Articles 8, which establishes obligation of fulfillment of requirements of the prosecutor for all bodies, the companies, organizations, the organizations, officials and citizens;

- Article 9 regarding the right of the prosecutor to participate in meetings of state governing bodies;

- Article 10 concerning coordination by the Attorney-General of Ukraine and the prosecutors of activities for fight against crime and their powers subordinated to him in implementation of such coordination;

- Article parts four 14, by which are determined powers of the Prosecutor General's Office of Ukraine concerning system development and technique of single accounting and the statistical reporting on crime, disclosure and investigation of crimes;

- Article 17 concerning implementation of pretrial investigation on criminal cases by investigators of prosecutor's office and availability of positions of investigators in the Prosecutor General's Office of Ukraine, prosecutor's office of the Autonomous Republic of Crimea, prosecutor's offices of areas, cities and other prosecutor's offices equated to them;

- Article 20 parts one concerning powers of the prosecutor during implementation of public prosecutor's supervision;

- Article 29 parts three concerning acceptance by the prosecutor of measures to approval of actions of law enforcement agencies in fight against crime.

Referring to Articles 121, 123 Constitutions of Ukraine, People's Deputies of Ukraine specify that the given provisions of the Law establish powers of prosecutor's office of Ukraine which are not approved with the Fundamental Law of Ukraine.

2. The line items of the questions which are rather brought up in the constitutional representation stated the Chairman of the Verkhovna Rada of Ukraine, the Prosecutor General's Office of Ukraine, National legal academy of Ukraine of Yaroslav the Wise, National academy of prosecutor's office of Ukraine.

3. The constitutional court of Ukraine in the decisions repeatedly noted that according to part two of article 19 of the Constitution of Ukraine public authorities and their officials shall act only on the basis of the, within powers and method which are provided by the Constitution and the laws of Ukraine.

The exhaustive list of the constitutional functions of prosecutor's office as single system of bodies of the state is provided in article 121 of the Constitution of Ukraine, and the organization and procedure for its activities according to article 123 of the Constitution of Ukraine are determined both by the Law, and other legal acts.

4. The person of law on the constitutional representation proves illegality of provisions of article 17 of the Law which provide function of pretrial investigation in bodies of prosecutor's office and availability in the corresponding position structures of investigators by the fact that the prosecutor's office of Ukraine exceeds powers conferred to it by the Constitution of Ukraine activities in bodies of prosecutor's office of the investigative divisions and investigators subordinated to prosecutors who are the workers subordinated to the prosecutor. People's Deputies of Ukraine specify also that for this time the system of pretrial investigation is created and determined by the Code of penal procedure of Ukraine.

However systems analysis of the current legislation which normalizes activities of investigative divisions in bodies to which function of investigation of criminal offenses is assigned, testifies to incompleteness of process of creation of system of pretrial investigation and reforming of bodies of investigation of criminal offenses.

Under these conditions for the period of transition period there are bases to apply as the constitutional basis for legislative regulation of activities of investigators of prosecutor's office, the stipulated in Article 17 Laws, provisions of Item 9 of the Section XV "Transitional provisions" of the Constitution of Ukraine according to which the prosecutor's office continues to perform according to current laws function of pretrial investigation - before forming of system of pretrial investigation and enforcement of the laws which regulate its functioning.

The given constitutional regulation does not provide cancellation or restriction of rights and freedoms of man and citizen, it protects and displays the values pledged in the Constitution of Ukraine. Therefore for the period of its action provisions of article 17 of the Law are constitutional.

5. Proving illegality of other provisions of the Law (Articles 1, of Article part one 7, of Articles 8, of 9, of 10, of Article part four 14, of Article part one 20, of Article part three 29), People's Deputies of Ukraine specify that according to the disputed regulations "the prosecutor's office becomes nadvlastny that is very dangerous to development of the democratic state".

Calling in question instructions of the Law which in addition to Items 3, of the 5th article 121 of the Constitution of Ukraine regulate implementation of supervision function by prosecutor's office, the person of law on the constitutional representation refers also to their discrepancy of the special Resolution N 1244 (2001) the Parliamentary Assembly of the Council of Europe, to recommendations of the European Commission "For democracy through the right" (the Venetian Commission) and criticizes imperfection of statement of the disputed provisions of the law, including their such from the point of view of the legislative equipment and due to the lack in them additional reasons. People's Deputies of Ukraine consider also that the prosecutor's office instead of coordination actually performs management of law enforcement agencies.

According to item 4 of part two of article 39 of the Law of Ukraine "About the Constitutional Court of Ukraine" legal reasons for approvals concerning illegality of the legal act or its separate provisions shall be given in the constitutional representation. Thus, subject of consideration of the Constitutional Court of Ukraine can be the constitutional representation as which not only affirms about illegality of the laws, but also arguments in confirmation of this fact are stated (part one of article 71 of the Law of Ukraine "About the Constitutional Court of Ukraine").

However the person of law on the constitutional representation did not give legal reasons for the challenged provisions.

Therefore, lack of reasons for discrepancy of the legal act or its separate provisions of the Constitution of Ukraine according to Item 2 of article 45 of the Law of Ukraine "About the Constitutional Court of Ukraine" is the basis for refusal in opening of the constitutional production.

Identification of such bases already during consideration of the case at the following stages predetermines cessation of production in plenary meeting of the Constitutional Court of Ukraine.

6. In the constitutional representation it is also noted that "the realization of Transitional provisions concerning prosecutor's office within 11 years is not enabled that shall not be in the constitutional state at all". Dividing concern of People's Deputies of Ukraine, the Constitutional Court of Ukraine draws the attention of the Verkhovna Rada of Ukraine to need of legislative realization of Item 9 of the Section XV "Transitional provisions" of the Constitution of Ukraine.

Considering stated and being guided by Articles 147, of 150, 153 Constitutions of Ukraine, Articles 13, of 39, Item 2 of Article 45, Articles 51, of 52, of 71, 73 Laws of Ukraine "About the Constitutional Court of Ukraine", Item 1 of paragraph 51 of Regulations of the Constitutional Court of Ukraine, the Constitutional Court of Ukraine solved:

1. Recognize such which answer the Constitution of Ukraine (are constitutional), provisions of article 17 of the Law of Ukraine "About prosecutor's office" of November 5, 1991 N 1789-XII for the period of action of Item 9 of the Section XV "Transitional provisions" of the Constitution of Ukraine concerning continuation of accomplishment by prosecutor's office according to current laws of function of pretrial investigation to sformirovaniye of system of pretrial investigation and enforcement of the laws which regulate its functioning.

2. Stop the constitutional proceeedings on the constitutional representation of 46 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of Article 1, to Article part one 7, of Articles 8, of 9, of 10, of Article part four 14, of Article part one 20, of part three of article 29 of the Law of Ukraine "About prosecutor's office" based on Item 2 of article 45 of the Law of Ukraine "About the Constitutional Court of Ukraine" - discrepancy of the constitutional representation to the requirements provided by the Constitution of Ukraine, the Law of Ukraine "About the Constitutional Court of Ukraine".

3. Draw the attention of the Verkhovna Rada of Ukraine to need of legislative realization of provisions of Item 9 of the Section XV "Transitional provisions" of the Constitution of Ukraine.

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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