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DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of July 8, 2003 No. 14-rp/2003

On case on the constitutional representation of 50 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provision of Article 150 of the Code of penal procedure of Ukraine concerning weight of crime (case on accounting of weight of crime in case of application of measure of restraint)

Case No. 1-23/2003

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Selivon Nikolay Fedosovich - the chairman,

Voznyuk Vladimir Denisovich,

Ivashchenko Vladimir Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Mironenko Alexander Nikolaevich,

Nemchenko Vasily Ivanovich - the judge-speaker,

Wheaten Valery Grigoryevich,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Timchenko Ivan Artemyevich,

Silent Vladimir Pavlovich,

Tkachuk Pavel Nikolaevich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

Reason for consideration of the case according to Articles 39, 40 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional representation of 50 People's Deputies of Ukraine.

The basis for consideration of the case according to article 71 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of dispute on compliance of the Constitution of Ukraine (constitutionality) of the specified provision of Article 150 of the Code of penal procedure of Ukraine.

Having heard the judge-speaker Nimchenko V. I. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation - 50 People's Deputies of Ukraine - appealed to the Constitutional Court of Ukraine with the petition to recognize such which does not answer the Constitution of Ukraine (is unconstitutional), provision of Article 150 of the Code of penal procedure of Ukraine according to which in case of the solution of question of application of measure of restraint along with other circumstances weight of crime of which making person is suspected, accused is considered.

Affirms as the constitutional representation that the specified regulation is unconstitutional as such measure of restraint as taking prisoner, only for "motive of weight of crime of which person is accused" can be applied to person who is suspected or accused of crime execution which prescribes custodial sanction. It contradicts the Constitution of Ukraine according to which person is considered innocent in crime execution and cannot be subjected to criminal penalty until his guilt is proved legally and established by conviction of court, and the measure of restraint - detention - can be applied only in case of urgent need to prevent crime or to interrupt it (Articles 29, 62 Constitutions of Ukraine).

Authors of the petition also consider that the provision of Article 150 of the Code of penal procedure of Ukraine contradicts also article 5 of the Convention on the human rights protection and fundamental freedoms of 1950 ratified by the Law of Ukraine of July 17, 1997 which "does not contain such basis for arrest".

2. The chairman of the Verkhovna Rada of Ukraine in the letter in the Constitutional Court of Ukraine noted that application of measure of restraint is not measure of criminal penalty and consequently, election of measure of restraint according to the circumstances determined in Article 150 of the Code of penal procedure of Ukraine does not break at all the principle of presumption of innocence which is provided by part one of article 62 of the Constitution of Ukraine. In his opinion weight of the committed crime is not the independent basis for election of measure of restraint and is subject to accounting in total with other circumstances which characterize person concerning whom the issue of application of measure of restraint according to requirements of the Code of penal procedure of Ukraine is resolved.

According to the conclusions of the Ministry of Justice of Ukraine, the Ministry of Internal Affairs of Ukraine, the Security Service of Ukraine, specialists of National academy of the Security Service of Ukraine and Center of the comparative right under the Ministry of Justice of Ukraine Article 150 of the Code of penal procedure of Ukraine provides not the bases for application of measure of restraint, but circumstance which are considered in case of the solution of question about applications of measure of restraint and its type. Among such circumstances also weight of crime of which making person as this circumstance is the constituting characteristic of public danger committed and persons who is suspected or accused is suspected, accused is provided.

3. Solving dispute over the question which is brought up in the constitutional representation, the Constitutional Court of Ukraine proceeds from the following.

The constitution of Ukraine provides possibility of application of arrest or detention only on the motivated judgment both only on the bases and according to the procedure, established by the law (Article part two 29).

According to part three of article 29 of the Constitution of Ukraine to which the authors of the petition authorized by the law bodies refer can apply content of person under guards as temporary measure of suppression in case of urgent need to prevent crime or to interrupt it.

Therefore the reference of the person of law to the constitutional representation to part third of article 29 of the Constitution of Ukraine as on legal reasons for illegality of the challenged provision of Article 150 of the Code of penal procedure of Ukraine is groundless.

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