1. КРИМІНАЛЬНЕ ПРОВАДЖЕННЯ ЗА НОВОВИЯВЛЕНИМИ АБО ВИКЛЮЧНИМИ ОБСТАВИНАМИ: НОВІ ВИМІРИ ЗА ЄВРОПЕЙСЬКИМИ СТАНДАРТАМИ.
- Author
-
Дроздов, Олександр
- Subjects
CRIMINAL procedure ,RES judicata ,DOUBLE jeopardy lawsuits ,CONSTITUTIONAL law - Abstract
Criminal proceedings upon discovery of new or exceptional circumstances should be conducted under such principles as res judicata, non bis in idem, with due regard for the case law of the European Court of Human Rights and the decisions of the Constitutional Court of Ukraine and the Supreme Court. Ongoing updates to criminal procedure laws with regard to the represented extraordinary form of judicial proceedings for revision of court decisions give rise to the need for respective theoretical comprehension. The article is aimed at providing a general theoretical description of the legal nature of the proceedings upon discovery of new or exceptional circumstances in criminal process from the perspective of the European human rights standards. This article is one of the first general theoretical research papers focused on the updated criminal procedure legislation of Ukraine regulating the judicial proceedings upon discovery of new or exceptional circumstances which describes certain essential features of these proceedings using modern methods of cognition, with due regard for the latest achievements in the science of criminal process and also from the perspective of the European standards. Judicial proceedings upon discovery of new or exceptional circumstances are classified as extraordinary because the review of court decisions requires adherence to the principle of res judicata. With a view to complying with the principle of res judicata, it seems reasonable that the right to apply for the review of a court decision, which is adopted by a court of any instance and becomes fully binding and effective, upon discovery of new or exceptional circumstances should be granted only to the parties of the criminal proceedings and to the victim, his/her counsel and legal representative, and a representative of the legal entity which the proceedings affect. The civil claimant, his/her counsel and legal representative, and civil defendant and his counsel should be entitled to file the said application only with regard to the civil claim. It is noted that due process of law should be established by law of criminal procedure. This may be regarded as available if there are laws of appropriate quality and relevant case law (international and national), and provided that the imperfections of laws with inappropriate quality are, so to say, adjusted by high-quality case law. And, visa versa, due process of law should be regarded as unavailable if there are no laws of appropriate quality and relevant case law or when provisions of laws of appropriate quality are not supported by the unity and consistency of case law. For the Grand Chamber of the Supreme Court as a body intended to ensure uniform administration of law by courts, the Criminal Procedure Code of Ukraine should establish due process of law for reviewing of final court decisions which are adopted during pre-trial investigation and enter into force in the course of the proceedings. To mitigate the risk of non-observance of the principle non bis in idem, the legislator should incorporate into this process a number of restrictions relating not only to the scope of circumstances but also to the scope of requirements to the application for review of a court decision upon discovery of new or exceptional circumstances etc. [ABSTRACT FROM AUTHOR]
- Published
- 2018