July 19, 2024
On 18 July 2024, the Second Senate of the Constitutional Court of Ukraine (hereinafter, the “Court”) at its plenary session delivered the Decision in the case upon the constitutional complaints of Ruslan Onishchenko and Dmytro Havryliuk regarding the compliance of Article 615.6 of the Criminal Procedure Code of Ukraine (hereinafter, the “Code”) with the Constitution of Ukraine (case on guarantees of judicial control over the observance of the rights of persons in custody).
According to the disputed provisions of the Code, “in case of expiry of the court ruling on detention and impossibility of consideration by the court of the issue of extension of the term of detention in accordance with the procedure established by this Code, the chosen preventive measure in the form of detention shall be deemed to be extended until the relevant issue is resolved by the court, but not more than for two months”. In their constitutional complaints, the complainants raised before the Court the issue of the inconsistency of the disputed provisions with the Constitution of Ukraine.
In resolving the issues raised in the constitutional complaints, the Court proceeds from the fact that the principle of protection of human rights established by the Constitution of Ukraine (Article 3.2), which is embodied, in particular, in the guarantee of the right to freedom and inviolability of person (Article 29.1) and the right to judicial protection (Articles 55.1 and 55.2), is applicable in this case.
The Decision states that in accordance with the provisions of Article 29 of the Constitution of Ukraine, the guarantees of the right to freedom and inviolability of person expressis verbis consist primarily in judicial control (and, as a result, a reasoned court decision), which constitutionally makes it possible to keep a person in custody, and that custody may be applied only on the grounds and in the manner prescribed by law.
The Court emphasises that in the provisions of Article 29 of the Constitution of Ukraine, the legislator emphasises the role of the court and, in particular, the importance of a reasoned court decision for detention.
The legislator's implementation of the provision of Article 29.2 of the Constitution of Ukraine on the “grounds” and “procedure” for detention implies that it should streamline the relevant procedures, but such legislative regulation is systematically linked in its content to the part of this constitutional provision that establishes the need for a reasoned court decision, namely, “no one may be arrested or detained except by a reasoned court decision <...>”, and in no case may it contradict it.
The Court notes that when legislating on the issue of extending the period of detention of a person in case of expiry of the detention order, the Parliament has a constitutional obligation to introduce a regulatory construction that, until the impossibility of court deliberation on this issue is eliminated, would contain guarantees to prevent damage to the objectives of criminal proceedings.
The legislative regulation of this issue requires the specification of the concept of “impossibility of trial” directly in the context of the circumstances that arose due to the full-scale armed aggression of the russian federation against Ukraine, as well as the introduction of a requirement to resolve the issue of extending the term of detention of a person in custody immediately from the moment the circumstances are eliminated, which made a trial impossible, but in any case within a period not exceeding seventy-two hours, established by Article 29.3 of the Constitution of Ukraine, after the end of the term of detention determined by a reasoned court decision.
The Court also emphasises the constitutional role of the courts in the Ukrainian judicial system, which is due to the fact that no other body of state power is vested with the relevant powers to verify the validity of interference with the right to freedom and inviolability of person and does not have appropriate guarantees of impartiality and independence.
Referring to its previous legal positions, the Court stated that “in the absence of a reasoned court decision authorising the deprivation of liberty for the period specified in that court decision, such a person must be released immediately”.
The Court finds that the legislator in Article 615.6 of the Code did not take into account the fact that the decision to extend the period of detention should not only be taken by the court, but also requires a higher level of justification, since it is the most serious interference with the right to personal freedom.
Thus, the Court established that the legislator's regulation of the procedure for resolving the issue of extending the term of detention as a precautionary measure in a manner that does not involve the participation of a court (judge) results in a violation of the constitutional right of everyone to judicial protection (Article 55.1 of the Constitution of Ukraine) in connection with the right to freedom and inviolability of person (Article 29.1 of the Constitution of Ukraine) and the right of the accused to defence (Article 63.2 of the Constitution of Ukraine).
In the Decision, the Court notes that the detention of a person as a precautionary measure established by Article 615.6 of the Code is not a punishment for a criminal offence committed by a person; detention may be applied to a person who is only suspected of committing such an offence, and therefore its application must be exceptional and meet the requirements of the principle of presumption of innocence.
The Court emphasises that the constitutional principle of the presumption of innocence is applicable in various aspects to all stages of criminal proceedings, including at the stage of choosing and/or extending a precautionary measure for a person. Thus, the implementation of the principle of in dubio pro reo (in case of doubt – in favour of the accused) as a component of the presumption of innocence objectively establishes the need for a reasoned court decision based on the results of a trial with the participation of the accused person when extending the term of a precautionary measure in the form of detention.
The Court also emphasises that the derogation from some of Ukraine's international human rights obligations and the resulting ability of the state to restrict certain human rights and freedoms does not mean the introduction of legislative and other means that would not be consistent with the Constitution of Ukraine.
The Court finds that Article 615.6 of the Code contradicts Articles 29.1 29.2, 55.1, 55.2, 62.1, 62.2, 62.3, 63.2 of the Constitution of Ukraine, and is therefore unconstitutional.
The provisions of the Code found to be unconstitutional shall cease to be effective three months after the date of the Court's decision.
The judges-rapporteurs in the case are Vasyl Lemak and Viktor Gorodovenko.
