Paragraph 6 of Article 216 of the Criminal Procedure Code of Ukraine Declared unconstitutional
On April 24, 2018 the Constitutional Court of Ukraine adopted a decision in the case upon the constitutional petition of the Ukrainian Parliament Commissioner for Human Rights on the compliance of the provisions of paragraph 6 of Article 216 of the Criminal Procedure Code of Ukraine with the Constitution of Ukraine.
The decision concerns the settlement of issues of organisation and activities of the bodies of pre-trial investigation of crimes committed on the territory or in the premises of the bodies of the State Criminal Executive Service of Ukraine (hereinafter referred to as “the Service”).
In its decision, the Constitutional Court of Ukraine held that the state, while fulfilling its primary duty, i.e. assortment and ensuring human rights and freedoms, should not only refrain from violations or disproportionate restrictions of human rights and freedoms, but also take appropriate measures to ensure the possibility of their full implementation by everyone under its jurisdiction.
The Constitutional Court of Ukraine considers that the positive duty of the state regarding the introduction of an adequate system of protection of life, health and dignity of a person envisages ensuring an effective investigation of the facts of deprivation of life and ill-treatment, including those who are in custody under full state control.
The Constitutional Court of Ukraine, in its decision, took into account the case-law of the European Court of Human Rights. According to the Constitutional Court, Article 2 of the European Convention on Human Rights envisages that the State must ensure the provision of independent and impartial investigation that meets certain minimum standards for its effectiveness, and that the competent authorities have to act with exemplary diligence and promptness, and should initiate an investigation which is able to determine the circumstances in which the incident occurred and any deficiencies in the functioning of the regulatory system.
Investigation of ill-treatment by persons authorised by the state will be considered effective when the following general principle is observed: the persons conducting the examination of the investigation should be independent hierarchically and institutionally from anyone involved in the case, that is, investigators should be independent in practice.
Given this, the Constitutional Court of Ukraine points out that the hierarchical subordination of the investigative bodies of the Service to the highest officials of the Ministry of Justice cannot ensure compliance with the constitutional requirements regarding the independence of the official investigation of crimes committed against persons being in penitentiary institutions and investigative detention centres. Such hierarchical dependence offset the procedural guarantees of the independence of the investigator, that is, he will be to some extent biased while conducting pre-trial investigation of crimes committed against persons being in penitentiary institutions or investigative detention centres.
The Constitutional Court of Ukraine notes that the investigation of crimes committed on the territory or in the premises of the Service, established by paragraph 6 of Article 216 of the Code, in interrelation with the relevant normative regulation on the operation of investigative bodies of the Service cannot ensure an effective investigation of violations of the constitutional human rights to life and respect to dignity, which makes it impossible for the state to fulfill its main constitutional duty - to assert and ensure human rights and freedoms.
Thus, the Constitutional Court of Ukraine held to recognise as such that does not conform to the Constitution of Ukraine (unconstitutional) paragraph 6 of Article 216 of the Criminal Procedure Code of Ukraine, according to which “investigating bodies of the State Criminal Executive Service of Ukraine shall carry out pre-trial investigation of crimes committed on the territory or in premises of the State Criminal Executive Service of Ukraine”.
Paragraph 6 of Article 216 of the Criminal Procedure Code of Ukraine, declared unconstitutional, shall lose its effect three months after the date of the adoption of this Decision by the Constitutional Court of Ukraine.
The Verkhovna Rada of Ukraine shall be obliged by the Constitutional Court of Ukraine to bring the normative regulation established by paragraph 6 of Article 216 of the Criminal Procedure Code of Ukraine, which was declared unconstitutional, in accordance with the Constitution of Ukraine and this Decision.
The Decision of the Constitutional Court of Ukraine is binding, final and may not be appealed.
