О. Oderii; I. Klechanovskyi; Yu. Klechanovska

Summary

The use of the provisions of Article 615 of the Criminal Procedure Code of Ukraine (CPC) during the pre-trial investigation showed some problems, which caused a scientific discussion. The experts expressed both positive comments on its influence on the adoption of procedural decisions during the pre-trial investigation in the anti-terrorist operation zone (ATO) and critical comments. The latter are connected with the fact that, in accordance with the current legislation, not only the prevention and combating of crime, but also the fight against terrorism, in particular in the ATO zone, must be based on the principles of legality and strict observance of human and citizen rights and freedoms, the priority of protecting life and the health of people endangered by being in the zone of terrorist activity. There has been conducted the theoretical analysis of the normative provision of Article 615 of the Criminal Procedure Code, as a result of which it was established that during the period from November 5, 2014 to December 2, 2015 there was a legal vacuum in the issue of determining the territory for conducting ATO, which is confirmed by the research of other scientists. There has been expressed the authorʼs position with respect to the provisions of Article 615 of the CPC concerning the term “relevant prosecutor”. It is determined that the judicial practice does not have a unified view of the results of using the provisions of the article mentioned, in support of which specific examples are given where the court has given the diametrically different estimates (from the defendantʼs justification and vice versa). Taking into account this fact, it is stated that the current situation is unacceptable and testifies to the imperfection of the criteria for applying Article 615 of the Criminal Procedure Code of Ukraine, which creates conditions for the restriction of human rights and freedoms. The authors draw attention to the fact that failure to comply with the provisions of international law and decisions of the Constitutional Court of Ukraine may lead in the future to appeals to the European Court of Human Rights regarding the violation of the right to a fair and public hearing of the case within a reasonable time by an independent and impartial court.