Abstract
Despite the fact that the due process of law concept is one of the most fundamental and common idea in every modern democratic constitutional state, the term of “due process of law” is a novelty in Ukrainian legislation. The aim of the research is to determine an essence and substance of an applying due process as criminal procedural objective. The methodological basis of the research was general scientific and special methods, namely dialectical, hermeneutic, teleological, logical, historical, statistical, formal legal and comparative legal methods. The author reviewed the genesis of due process concept, in particular in English and US legal systems, and as a part of some current international treaties. The author analysed Ukrainian version of due process concept (“appropriate legal procedure”) and the author's definition was derived, according to which this is an order of taking legal actions which embodies in practice the rule of law by applying to each person those legal norms that completely correspond to all important circumstances that occurred in reality and grant the unambiguously possibility to predict in advance that application and the result of legal rules enforcement. A brief overview of the regulatory provisions that make up the content of due process was provided. It was determined that the essence of due process is related to ensuring the sustainability of the social contract. Due process of law is the basic guarantee of preventing the arbitrariness of power, unlawful compulsion, coercion and pressure on natural rights and freedoms of citizens. The difference between current legally-determined criminal procedural objective “application of due process” and the criminal procedural objective of the Soviet criminal process – “ensuring the correct application of the law” was analysed. It was proposed to attribute the application of due process to assurance, “guarantee” objectives, which is aimed at limiting the general objective – to ensure prompt, comprehensive and impartial investigation and trial. The importance of applying due process in criminal proceedings, in particular, when legal lacunae or conflict of laws exist, was characterised. It was determined that the Verkhovna Rada of Ukraine, the Constitutional Court of Ukraine, the European Court of Human Rights, and the Supreme Court are the bodies, which formalise the substance of due process. The results of the study can be used both in practical activities to ensure the effective implementation of due process of law and in legal education and further scholarly activity.
Highlights
Due process of law is a procedure for the implementation of legally significant actions that the rule of law embodies by applying to each person those rules of law that are fully consistent with all important objectively existing circumstances and allow for an unambiguous and advance prediction of such application and its results
The scientific novelty of the research is that the author provided his own definition of the concept of due process, performed a comparative legal analysis of the formulations of the tasks of criminal proceedings in the context of ensuring the due process of law, proposed the division of tasks of criminal proceedings enshrined in Art. 2 of the CPC into general tasks and tasks-guarantees, the importance of the application of due process and the list of institutions, which are intended to formalise the content of the due process in criminal proceedings, were indicated
– it was found that the application of due process as a task of criminal proceedings in 2012 replaced the previous wording, which had been in force since 1961 – to ensure the correct application of the law as a task of criminal justice;
Summary
Due process of law is a procedure for the implementation of legally significant actions that the rule of law embodies by applying to each person those rules of law that are fully consistent with all important objectively existing circumstances and allow for an unambiguous and advance prediction of such application and its results. Novelties of criminal procedural law often do not fully comply with the previously established system of the relevant field of law, sometimes the latest changes directly contradict previous amendments, and in some cases, provisions that directly and unambiguously contradict the imperative norms of the Constitution of Ukraine come into force [1]. It is significant that, from December 2017 to the present, four provisions of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC) have been declared unconstitutional by the Constitutional Court of Ukraine, two of which (concerning the non-alternative determination of a precaution in the form of detention in relation to certain serious and serious crimes and the granting of pretrial investigation authority to the State Criminal Enforcement Service of Ukraine) were introduced relatively recently (in 2014 and 2016, respectively). Statistically every tenth decision of the Constitutional Court of Ukraine for the period from 2017 was one that declared the provisions of the CPC7 unconstitutional (one decision out of three in 2017, one out of 13 in 2018 and two out of 16 in 2019) [2]
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