With the outbreak of the full-scale war, the judicial system in Ukraine faced unprecedented challenges, especially in communities adjacent to a frontline where courts ceased to operate. In response, an ad hoc procedure was introduced for the duration of the war which stipulates the suspension of periodic judicial reviews of detention legality and its automatic prolongation.
Following the appeal by two suspects in criminal investigations to consider the constitutionality of their detention without judicial review, the Constitutional Court, requested that the OSCE provide an amicus curiae, a consultative opinion from international expert Alexandru Tanasie on the case. Following this, the Court declared unconstitutional the ad hoc procedure, thus invalidating relevant provisions of the Criminal Code of Ukraine. The ruling comes into force on 18 October 2024.
"Every human being is bestowed with inalienable dignity as part of his or her human nature. His or her dignity may not be denied even in cases when he or she is suspected of committing criminal wrong - in no case can a person be treated as an instrument in pursuit of however compelling public interest commend the opinion delivered in this case with the OSCE support by my eminent colleague Alexandru Tanase. Such instruments, like this amicus, offered by the OSCE within our project co-operation are effective and practical; they enrich our case law and help persuade. Thus, they have a lasting impact on human rights protection," said Vasyl Lemak, the Constitutional Court's judge-rapporteur on the case.
"We are pleased, that our help has such a noticeable impact, and our assistance is being used by our Ukrainian partner to prove in practical terms, that even in the duress of war Ukraine keeps human rights defense high on its agenda," noted Pierre Baussand, the Chief of Operations of the OSCE Support Programme for Ukraine.
The tool of constitutional complaint, used in this case, was introduced by the 2016 Constitutional reform and put into operation in 2017, when changes to the Law on the Constitutional Court of Ukraine developed with the OSCE's support were approved by the Parliament. The OSCE comprehensive support in this area also involved training courses for human rights defenders on how to use constitutional complaints and capacity-building for the Court's Secretariat's staff to enable swift processing of submissions.
