On June 8, 2022, the Second Senate of the Constitutional Court of Ukraine deliberated the case upon the constitutional complaint of Oleksandr Krotiuk regarding the constitutionality of paragraph 4 of Article 284.1 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the Code) and delivered a Decision declaring the impugned provision of the Code unconstitutional.
According to paragraph 4 of Article 284.1 of the Code, criminal proceedings shall be closed if “a law took effect by which criminal liability for the action committed by the person concerned, has been abolished.”
The claimant considers that the impugned provision violates the presumption of innocence of a person, allowing criminal proceedings against a suspect or accused to be closed without proper proof and establishment of the relevant act by the person, or closing such proceedings without the consent of the person, compared to cases of closure of criminal proceedings carried out in accordance with the requirements of paragraph 1 of part two and part eight of Article 284 of the CPC of Ukraine.
Article 284 of the Code provides an exhaustive list of grounds for closing criminal proceedings. They, in turn, are classified according to several criteria. All grounds for closing criminal proceedings are divided into rehabilitative and non-rehabilitative. Accordingly, the abolition of a certain corpus delicti in the legislation as a ground for closing the proceedings is not a rehabilitative circumstance. Thus, the closure of criminal proceedings on non-rehabilitative grounds actually presupposes a statement of the fact that a person has committed a criminal offense, which leads to adverse consequences for such a person, in particular, calls into question his/her innocence. At the same time, the closure of criminal proceedings without the consent of the person restricts his/her right to protection from accusations of committing the acts incriminated in him/her. Thus, it may happen that a person will be considered to have been prosecuted, even though the very fact of committing the relevant act and its investigation may not have taken place.
At the same time, the wording of paragraph 4 of Article 284.1 of the Code “committed by a person” actually indicates the indisputable guilt of such a person in committing an act, which was considered a criminal offense before its decriminalization. In such cases, a person may be condemned, negatively perceived by society, lose his or her business reputation and have a negative impact on professional activities.
In fact, this provision of the Code violates such principles as the presumption of innocence, irreversibility of time (prohibition of retroactivity) of criminal law, the principle of nullum crimen, nulla poena sine lege (“no law - no crime, no law - no punishment”), as well as the right to state one's position and the right to a fair trial, as the person in respect of whom criminal proceedings have been closed is deprived of the opportunity to prove his/her innocence legally.
Delivering its decision, the Constitutional Court of Ukraine took into account its own legal positions, international human rights acts and the case law of the European Court of Human Rights and the position of the Constitutional Court of the Republic of Lithuania concerning the most important guarantees of protection of the person from unjustified criminal prosecution.
It should be noted that the Constitutional Court in its previous decisions also stressed that public authorities and their officials must respect the presumption of innocence and ensure the protection of a person against whom criminal proceedings are or have been conducted against any detected forms of condemnation by public authorities, which could call into question the non-involvement of such a person in the commission of a criminal offense until his/her guilt is legally proven and established by a court conviction. This means, in particular, that a person suspected of having committed a criminal offense, after the criminal proceedings against him or her have been closed for any reason, must be perceived by all public authorities as having not committed a criminal offense.
The Court also took note of the provisions of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and the judgments of the European Court of Human Rights in the cases of “Grabchuk v. Ukraine”, „Allen v. the United Kingdom“, „Scoppola v. Italy“ (№ 2), „Affaire Gouarré Patte c. Andorre“.
Thus, in the case of “Grabchuk v. Ukraine” of 21 September 2006, it was stated that the presumption of innocence was violated if an official's allegation against a person accused of a crime reflected a person's guilt when it was not established in accordance with the law. That is enough, even in the absence of any formal conclusion that there is any reason to believe that the official is to blame.”
A special study by the European Commission for Democracy through Law (Venice Commission) “The Rule of Law” also states that “the presumption of innocence is conclusive in ensuring the right to a fair trial. In order to guarantee the presumption of innocence, the burden of proof must be placed on the prosecution…”
In its decision, the Constitutional Court of Ukraine postponed the repeal of paragraph 4 of Article 284.1 of the Code, which was declared unconstitutional, for three months from the date of the Constitutional Court's decision, and also established the Verkhovna Rada of Ukraine to bring the normative regulation envisaged by paragraph 4 of Article 284.1 of the Code, which was declared unconstitutional, in accordance with the Constitution of Ukraine and this Decision.