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SOLUTION OF THE CONSTITUTIONAL COURT OF UKRAINE

of June 11, 2020 No. 7-r/2020

On case on the constitutional representation of 55 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of article 375 of the Criminal code of Ukraine

Case No. 1-305/2019(7162/19)

Big chamber of the Constitutional Court of Ukraine as a part of judges:

Tupitsky Alexander Nikolaevich - the chairman,

Golovaty Sergey Petrovich,

Gorodovenko Victor Valentinovich,

Zavgorodney Irina Nikolaevna,

Kasminin Alexander Vladimirovich,

Kolesnik Victor Pavlovich,

Krivenko Victor Vasilyevich,

Lemak Vasily Vasilyevich,

Litvinov Alexander Nikolaevich,

Moysik Vladimir Romanovich,

May Day Oleg Alekseevich,

Sasa of Sergey Vladimirovich,

Filyuk Pyotr Todosyevich,

Yurovskaya Galina Valentinovna - the speaker,

considered at plenary meeting case on the constitutional representation of 55 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of article 375 of the Criminal code of Ukraine.

Having heard the judge-speaker Yurovskaya G. V. and having researched case papers, the Constitutional Court of Ukraine

established:

1. The person of law on the constitutional representation of 55 People's Deputies of Ukraine - appealed to the Constitutional Court of Ukraine with the petition to recognize not answering Constitution of Ukraine (is unconstitutional) article 375 of the Criminal code of Ukraine (further - the Code), according to which:

"Article 375. Removal by the judge (judges) obviously miscarriage of justice, decision, determination or resolution

1. Removal by the judge (judges) obviously miscarriage of justice, decision, determination or resolution

it is punished by restriction of freedom for a period of up to five years or imprisonment for a period of two up to five years.

2. The same actions which entailed heavy consequences or made from mercenary motives in other private interests or for the purpose of preventing of legal professional activity of the journalist,

are punished by imprisonment for a period of five up to eight years".

Authors of the petition consider that the combination of words "obviously illegal" is estimative, its content is legislatively not determined that does not provide prediscretion of application of article 375 of the Code. According to People's Deputies of Ukraine, article 375 of the Code contradicts the principle of supremacy of law, namely its such elements as legal definiteness and legitimate expectations that violates requirements of part one of Article 8, of part one of article 24 of the Constitution of Ukraine, and also influences independence and immunity of judges that contradicts part two of Article 126 of the Fundamental Law of Ukraine.

2. Resolving the question raised in the constitutional representation, the Constitutional Court of Ukraine proceeds from the following.

2.1. By the constitution of Ukraine it is determined that in Ukraine the principle of supremacy of law (Article part one 8) is recognized and is effective; the government in Ukraine is performed on the basis of its separation on legislative, executive and judicial (Article part one 6).

The constitutional court of Ukraine in the Solution of July 8, 2016 No. 5-rp/2016 noted that "the purpose of functional separation of the government on legislative, executive and judicial is, in particular, differentiation of powers between various public authorities that means independent execution by each of them of the functions and implementation of powers according to the Constitution and the laws of Ukraine" (paragraph two of subitem 2.1 of Item 2 of motivation part).

According to the Fundamental Law of Ukraine bodies of legislative, executive and judicial authority perform the powers in the limits set by the Constitution of Ukraine and according to the laws of Ukraine (Article part two 6); public authorities and local government bodies, their officials shall act only on the basis, within powers and method which are provided by the Constitution and the laws of Ukraine (Article part two 19); rights and freedoms of man and citizen are protected by court (Article part one 55); justice in Ukraine courts perform only; delegation of functions of courts, and also assignment of these functions by other bodies or officials are not allowed (parts one, the second Articles 124); the judge cannot be made responsible for the judgment made by it, except for crime execution or minor offense (Article part four 126).

Systems analysis of provisions of Articles 6, of 8, of 19, of Article part one 55, of Articles 124, 126 Constitutions of Ukraine gives the grounds to consider that the public relations are in the sphere of justice under the constitutional protection not to allow actions which contradict the justice purpose, and to prevent adjudication which in essence cannot be the act of justice.

2.2. Article 375 of the Code establishes criminal liability for removal by the judge (judges) of "obviously illegal" sentence, the decision, determination or the resolution.

The analysis of this article of the Code gives the grounds to claim that the combination of the words "obviously illegal" is borrowed from article 176 of the Criminal code of the Ukrainian SSR of 1960 (later - the Criminal code of Ukraine) in which responsibility for removal by judges from mercenary motives or other personal interest of "obviously illegal" sentence, the decision, determination or the resolution was established.

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