Reflections on the constitution of part one of article 459 of the criminal procedure code of Ukraine

Abstract

In this publication, in connection with the consideration by the Constitutional Court of Ukraine of proceedings on the constitutionality of part one of Article 459 of the CPC of Ukraine, the author's position on this issue is given. A comprehensive analysis of the legal regulation of the powers of investigating judges in judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings makes it possible to conclude that by exercising these powers, the investigating magistrate exercises the constitutional powers of the court, and all his rulings are court decisions. The investigating magistrate acts on behalf of the court as a judge – the bearer of judicial power. The exercise by the investigating judge of the powers of judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings is an integral element of the implementation of the justice function. Answering the question: "whether part one of Article 459 of CPC directly or in connection with other provisions of the Code prohibits reviewing rulings of investigating judges under newly discovered circumstances", it should be noted that part one of Article 459 of CPC does not contain a direct ban on reviewing rulings of investigating judges under newly discovered circumstances. However, there is no direct indication of the right of appeal and review. In fact, an illegal and unfair decision of the investigating magistrate enters into legal force and must be enforced. Such a situation is unacceptable, since the correction of an erroneous decision of the investigating magistrate in the form of a ruling should take place and be as close as possible in time to its review and correction of the judicial error. Deprivation of the right of access to court in the form of reviewing the ruling of the investigating magistrate under newly discovered circumstances should be considered immeasurable in relation to the goal, which indicates the inconsistency of part one of Article 459 of CPC with part 1 of Article 8 of the Constitution of Ukraine in terms of the principle of legal certainty as a component of the rule of law. And since the right of access to court was restricted in such a disproportionate way, this norm for the same reasons contradicts part two of Article 55 of the Constitution of Ukraine. The possibility of reviewing the rulings of investigating judges under newly discovered circumstances will fully comply with the principle of the rule of law and the basic principles of justice defined by the Constitution of Ukraine.