Name of Ukraine

DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of September 30, 2009 No. 23-rp/2009

On case on the constitutional address of the citizen Golovanya Igor Vladimirovich of rather official interpretation of provisions of article 59 of the Constitution of Ukraine (case on the right to legal assistance)

Case No. 1-23/2009

Constitutional court of Ukraine consisting of judges:

Brintsev Vasily Dmitriyevich - the chairman,

Baulin Yury Vasilyevich,

Vdovichenko Sergey Leonidovich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich,

Dombrovsky Ivan Petrovich,

Kamp Vladimir Mikhaylovich,

Mikhail Ivanovich's ear,

Lilak Dmitry Dmitriyevich,

Markush Maria Andreevna,

Machuzhak Yaroslava Vasilyevna - the speaker,

Nikitin Yury Ivanovich,

Ovcharenko Vyacheslav Andreevich,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

Shishkin Victor Ivanovich,

with the assistance of the person of law on the constitutional address Golovanya Igor Vladimirovich, the representative of the person of law on the constitutional address Nikiforov Alexander Valeriyevich, the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine Selivanov Anatoly Aleksandrovich, the head of Service of the Secretariat of the President of Ukraine on ensuring bonds with the Constitutional Court of Ukraine and Central Election Commission of Mikheenko Rostislav Mikhaylovich, head of Department of the criminal, administrative, civil law and penal institutions of the Secretariat of the Representative of the Verkhovna Rada of Ukraine for human rights Galayevsky Yury Vasilyevich, the judge of Trial chamber on criminal cases of the Supreme Court of Ukraine Gritsiva Mikhail Ivanovich, the assistant to the First Deputy Chairman of the Supreme Court of Ukraine Bortnovskaya Zoryana Petrovna, the head of department of legal support of the Prosecutor General's Office of Ukraine Burdol Evgeny Pavlovich considered case on official interpretation of provisions of article 59 of the Constitution of Ukraine at plenary meeting.

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 Golovanya Igor Vladimirovich.

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 article 59 of the Constitution of Ukraine concerning the right of everyone to legal assistance.

Having heard the judge-speaker Machuzhak Ya. V., explanations Golovanya I. V., Selivanova A. O., Mikheenka M. M., Galayevskogo YU.V., Gritsiva M. I., Bortnovskoy Z. P., Burdolya E. P. and having researched case papers, the Constitutional Court of Ukraine established:

1. Citizen Guolowan I. V. appealed to the Constitutional Court of Ukraine of rather official interpretation of provisions of part one of article 59 of the Constitution of Ukraine "everyone has the right to legal assistance" and parts two of this Article "for... provisions of legal assistance in case of the solution of cases in courts and other state bodies in Ukraine the legal profession is effective".

The author of the petition explains need for official interpretation with ambiguity of understanding and application of the specified provisions of the Fundamental Law of Ukraine by officials of bodies of prosecutor's office, in particular investigators when conducting interrogations of witnesses in criminal procedure.

Proving these approvals, the person of law on the constitutional address refers to unequal procedural acts of investigators and prosecutors in specific criminal cases concerning possibility of provision to witnesses during interrogation of legal assistance by the lawyer.

With respect thereto Guolowan I. V. in the context of provisions of article 59 of the Constitution of Ukraine asks to explain whether the citizen has the right to legal assistance of the lawyer during interrogation it as witness or in case of challenge for provision of explanations in state bodies and whether this right of one of the constitutional guarantees which gives to the citizen opportunity freely to choose as the representative or the defender in any state bodies of the lawyer - person who has the certificate on the right to occupation lawyer activities is.

The refusal of officials of investigating bodies to carry out legal proceedings with the witness in the presence of his lawyer and in provision of legal assistance to person during giving explanations in other state bodies, according to the person of law on the constitutional address, is restriction of constitutional right for legal assistance and can lead to human rights violation and the citizen.

2. The line items concerning subject of the constitutional address were stated by the President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, the Chairman of the Supreme Court of Ukraine, the Prosecutor General's Office of Ukraine, the Representative of the Verkhovna Rada of Ukraine for human rights, the Ministry of Justice of Ukraine, the Ministry of Internal Affairs of Ukraine, the Security Service of Ukraine, the Union of lawyers of Ukraine, the Kharkiv human rights group, scientists of National legal academy of Ukraine of Yaroslav the Wise, National university of internal affairs of Ukraine, National academy of prosecutor's office of Ukraine, the Odessa national legal academy.

3. Resolving the questions which are brought up in the constitutional address, the Constitutional Court of Ukraine proceeds from the following.

3.1. According to the Constitution of Ukraine approval and providing human rights and freedoms is the main debt of the state (Article part two 3).

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