DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of December 11, 2007 No. 11-rp/2007

On case on the constitutional address of the citizen Kasyanenko Boris Pavlovich of rather official interpretation of provisions of Item 8 parts three of article 129 of the Constitution of Ukraine, parts two of Article 383 of the Code of penal procedure of Ukraine

Case No. 1-33/2007

NAME OF UKRAINE

Constitutional court of Ukraine consisting of judges:

Strizhak Andrey Andreevich - the chairman,

Brintsev Vasily Dmitriyevich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich,

Dombrovsky Ivan Petrovich,

Kamp Vladimir Mikhaylovich,

Mikhail Ivanovich's ear - the speaker,

Markush Maria Andreevna,

Machuzhak Yaroslav? Vasilyevna,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

Shishk? on Victor Ivanovich,

Reason for consideration of the case according to Articles 42, 43 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional address of the citizen Kasyanenko Boris Pavlovich.

The basis for consideration of the case according to article 94 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of ambiguous application of provisions of Item 8 parts three of article 129 of the Constitution of Ukraine, parts two of Article 383 of the Code of penal procedure of Ukraine the Supreme Court of Ukraine that led to violation of constitutional rights and freedoms of the person of law on the constitutional address.

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

1. The citizen Kasyanenko B. P. appealed to the Constitutional Court of Ukraine with the petition to give official interpretation of provisions of Item 8 parts three of article 129 of the Constitution of Ukraine, parts two of Article 383 of the Code of penal procedure of Ukraine (further - the Code).

Need for official interpretation of the specified regulations the author proves the petition by the fact that the Supreme Court of Ukraine differently applies them by consideration of writs of appeal on decisions of local and Appeal Courts in cases concerning appeal of resolutions on refusal in initiation of legal proceedings.

According to Kasyanenko B. P., ambiguous application by the Supreme Court of Ukraine of provisions of Item 8 parts three of article 129 of the Constitution of Ukraine, parts two of article 383 of the Code led to restriction of its constitutional right for cassation appeal of the judgment.

2. The constitutional court of Ukraine researched and analyzed line items of the Supreme Court of Ukraine, the Kiev national university of Taras Shevchenko, the Lviv national university of Iván Franco, National university "Ostrozhsky Academy", National legal academy of Ukraine of Yaroslav the Wise, the Odessa national university of name I.I. Mechnikova and the International Solomonovy university, stated concerning the questions which are brought up in the constitutional address.

3. Resolving issue of rather official interpretation of provisions of Item 8 parts three of article 129 of the Constitution of Ukraine, parts two of article 383 of the Code, the Constitutional Court of Ukraine proceeds from the following.

3.1. According to the Constitution of Ukraine Ukraine is the democratic, social, constitutional state (Article 1); the person, his life and health, honor and advantage, immunity and safety are recognized Ukraine the supreme social value, and human rights and freedoms and their guarantees determine content and orientation of activities of the state which main obligation is approval and providing human rights and freedoms (Article 3); bodies of legislative, executive and judicial authority perform the powers in the borders established by the Constitution of Ukraine and according to the laws of Ukraine (Article 6); in Ukraine the principle of supremacy of law is recognized and is effective, the Constitution of Ukraine has the highest legal force, the laws and other regulatory legal acts are adopted based on the Constitution of Ukraine and shall answer it, regulations of the Constitution of Ukraine are regulations of direct action, appeals to the court for protection of constitutional rights and freedoms of man and citizen based on the Constitution of Ukraine is guaranteed (Article 8).

In the Constitution of Ukraine it is determined that rights and freedoms of man and citizen are protected by court, the right to appeal in court of decisions, actions or divergence of public authorities, local government bodies, official and officials is guaranteed to everyone (parts one, the second Articles 55).

Realization of the right of the personality to judicial protection is the possibility of appeal of judgments in courts of appeal and cassation instances. Review of judgments in appeal and cassation procedure guarantees recovery of the violated rights and interests of man and citizen protected by the law.

3.2. The Item provision 8 parts three of article 129 of the Constitution of Ukraine which sets one of the basic principles of legal proceedings - ensuring appeal and cassation appeal of the judgment except the cases established by the law needs to be understood as it which grants the right to check in cassation procedure for the decision of local and Appeal Courts concerning resolutions on refusal in raising of criminal case, except as specified, determined by the law.

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