PROBLEMS OF ENSURING THE RIGHT TO AN EFFECTIVE REMEDY IN CRIMINAL PROCEEDINGS IN THE COURT OF FIRST INSTANCE

Abstract

The article is devoted to the study of practical problems of exercising the right to an effective remedy in criminal proceedings in a court of first instance. An analysis of the case law of the European Court of Human Rights has made it possible to state that the right to an effective remedy is enshrined in the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, which in turn obliges the State parties to introduce mechanisms for effective legal protection of human rights and freedoms at the national level. An analysis of the domestic regulatory framework suggests that the ineffectiveness of the right to an effective remedy is due to the failure of the criminal procedure legislation of Ukraine to fulfil one of its main tasks - ensuring due process of law. The absence of proper regulation of the procedure for appealing against decisions, actions or omissions during the preparatory proceedings by the participants of the court proceedings is the main cornerstone that falls apart the entire mechanism for exercising the right to an effective remedy at this stage of the proceedings, as provided for in part 2 of Article 303 of the CPC.

Based on the theoretical works of scholars and analysing the doctrinal provisions on the interpretation of the concept of "effective remedy", the author offers her own solution to the identified gaps and shortcomings in the practical implementation of the right to an effective remedy at the stage of preparatory court proceedings and court proceedings on the merits of criminal proceedings. The first way is to regulate at least a certain list of issues which may be subject to appeal at the stage of preparatory court proceedings at the level of law, based on the analysis of case law, scientific developments, the essence of the issues which may be subject to appeal, the consequences and expediency of their resolution at this stage of proceedings, and to leave all other complaints for consideration by the court. The second way is to provide for issues that cannot be appealed at this stage of the proceedings, such as, for example, the issue of appealing against procedural actions that entail inadmissibility of evidence, since this issue will be the subject of consideration in the trial on the merits, and all other complaints filed should be considered without delay. The article also draws attention to the urgent need to address the problem of appealing against the denial of a motion to close criminal proceedings, as this leads to a violation of the rights of the accused, since he or she is unable to effectively defend his or her interests. To solve this problem, it is proposed to amend the legislation, namely: to supplement Article 380 of the CPC of Ukraine with a provision that would allow a separate appeal against the refusal to satisfy the motion to close the criminal proceedings, and to clearly define the terms and procedure for appealing against such a refusal.