Analytics

"<…>

3. Legal certainty is one of the main elements of the rule of law principle stipulated in part 1 of Article 8 of the Ukrainian Fundamental Law. The Constitutional Court of Ukraine underlined the importance to demand the certainty, clarity and unambiguousness of the legal provision, since otherwise cannot provide its equal application and does not eliminate an undefined interpretation within the law enforcement practice, and inevitably leads to the iniquity (paragraph 2 of subpara. 5.4 of para. 5 of the analytical part of Ruling as of September 22, 2005 in case No. 5-рп/2005).

The European Court of Human Rights in its judgement in case of Soldatenko v. Ukraine as of October 23, 2008 stated, that when it comes to liberty deprivation - the extremely important condition is the provision of legal certainty general principle, and also emphasized, that para. 1 of Article 5 of the European Convention on Human Rights as of 1950 does not just give the reference to the national law, but relates to the "law quality", requiring the law to comply with the rule of law principle; herewith, the "law quality" means, that when the national law foresees the possibility of liberty deprivation, such a law shall be sufficiently available, precise and foreseeable in its application for the purpose of elimination of the any risk of iniquity (para. 111).

Meeting the requirements of clarity and unambiguousness of legal provisions, that provide criminal responsibility, is particularly important in terms of the special nature of a criminal law and consequences of bringing to criminal responsibility, since bringing to such a kind of criminal responsibility is related to possible significant restrictions of human rights and freedoms.

<…>

… criminal charges cannot be based on illegally gathered evidences, as well as on assumptions; all and any assumptions related to proof of an individual’s guilt shall be interpreted in an individual’s favor (part 1, 2, 3 of Article 62 of the Constitution of Ukraine).

5.

<…>

Given the above, the Constitutional Court of Ukraine concluded that Article 368² of the Criminal Code of Ukraine does not comply with requirements of clarity, precision and unambiguousness, therefore, it contradicts to the legal certainty being a part of rule of law principle stipulated in Article 8 of the Constitution of Ukraine.

<…>

7. While solving this case the Constitutional Court of Ukraine proceeds from the fact that the legislative definition of the features of illegal enrichment, given in Article 368² of the Criminal Code of Ukraine, does not comply with a legal certainty principle.

Ukraine, as a state governed by the rule of law according to Article 1 of the Constitution of Ukraine, shall provide crime prevention exclusively by legal means with the strict compliance with human rights and freedoms. This fully applies to the implementation of the exclusive legislative function of the Verkhovna Rada of Ukraine in terms of legal determination of actions deemed to be criminal offences (para. 22 of part 1 of Article 92 of the Constitution of Ukraine). In such events, when the law foresees the criminal responsibility, the requirement of clarity and unambiguousness of such a law is crucial in determining its compliance with a legal certainty.

Therefore, the Constitutional Court of Ukraine concluded, that Article 368² of the Criminal Code of Ukraine does not comply with the requirement of a legal certainty being a part of rule of law constitutional principle (part 1 of Article 8 of the Constitution of Ukraine), since the description of this legal provision is not clearly formulated and allows for ambiguous understanding, interpretation
and application".