The Constitutional Court of Ukraine declared unconstitutional the provisions
of Article 307.3 of the Code of Criminal Procedure of Ukraine
On June 17, 2020, the Second Senate of the Constitutional Court of Ukraine ruled on the constitutional complaint of Vyacheslav Pleskach, declaring the provisions of Article 307.3 of the Code of Criminal Procedure of Ukraine (hereinafter - the Code) unconstitutional.
The petitioner argued that the provisions of Article 307.3 of the Code prohibit appeals against a decision of an investigating judge based on the results of a complaint against a decision, action or inaction of an investigator or prosecutor, which consists in not entering information on a criminal offense into the Unified Register of Pre-trial Investigations, violates its constitutional right to appeal in court against decisions, actions or omissions of public authorities, local governments, officials and servants, which is enshrined in the second part of Article 55 of the Basic Law of Ukraine.
In reaching its decision, the Constitutional Court pointed to the principles of the rule of law and protection of human rights enshrined in the Basic Law of Ukraine. In addition, the Constitution of Ukraine defines a person's right to judicial protection, which provides not only the possibility of a person to appeal to court, but also, in particular, the right to a reasoned court decision, including the possibility of correcting a judicial error by a court of second instance. An appellate review of a decision made by a court of first instance is important for the establishment and protection of human rights and freedoms, which, in accordance with Article 3.1 of the Constitution of Ukraine, is the main function of the state.
The Constitutional Court of Ukraine has concluded that the exercise of the constitutional right to judicial protection presupposes a possible appeal in court against decisions and actions (inaction) of state bodies. Therefore, when establishing the judicial system, appeal procedure, grounds for revocation or change of court decisions by higher courts, the legislator must proceed from the constitutional principles and values and relevant international obligations of Ukraine, in particular regarding effective judicial protection of human and civil rights and freedoms.
According to the Constitutional Court, the right to judicial protection as a guarantee of protection and restoration of the system of rights and freedoms is manifested when a person is deprived of access to court due to inaction of state bodies. Applying to the authorized state bodies with a statement, notification of a criminal offense, a person expects to protect his or her protected rights, freedoms and legitimate interests. Therefore, the lack of judicial guarantees in the issue of initiating criminal proceedings hinders the protection of his or her violated rights, which are enshrined in Article 55 of the Constitution of Ukraine.
Thus, that means that the scope of judicial protection established by the legislator in relation to the assessment of the inaction of the authorized state bodies should ensure the effectiveness of judicial control during the consideration of relevant issues in at least two courts. In addition, the scope of judicial control over the inaction of an investigator or prosecutor in connection with the failure to enter information about a criminal offense in the Unified Register of Pre-trial Investigations after receiving a statement should provide a person with the opportunity to initiate criminal proceedings and thus to give him or her real access to justice.
In view of the above, the Constitutional Court of Ukraine ruled that the provisions of Article 307.3 of the Code of Criminal Procedure of Ukraine are a restriction of the constitutional right to judicial protection in respect of guarantees of appellate review and therefore contradict the provisions of Articles 3.1, 3.2, Article 8.1, Articles 55.1, 55.2, Article 129.2.8 of the Constitution of Ukraine.
Provisions which are declared unconstitutional shall cease to be valid from the date of adoption of this Decision by the Constitutional Court of Ukraine.
In his constitutional complaint, Vyacheslav Pleskach also raised the issue of the constitutionality of the provisions of Article 309.3 of the Code of Criminal Procedure of Ukraine. However, in this part the Constitutional Court closed the proceedings on the basis of Article 62.4 of the Law of Ukraine “On the Constitutional Court of Ukraine”, namely - inadmissibility of the constitutional complaint.
The decision of the Constitutional Court of Ukraine is binding, final and may not be appealed.
