ANALYSIS OF A PARTICULAR PROVISION OF ARTICLE 615 OF THE CPC OF UKRAINE THROUGH THE POINT OF VIEW OF THE DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE. JUDICIAL CONTROL OR PROSECUTORIAL SUPERVISION?

Abstract

On February 24, 2022, in connection with the military aggression of the Russian Federation against Ukraine, martial law was introduced by Decree of the President of Ukraine No. 64/2022. The declaration of martial law in Ukraine caused significant changes in the activities of the law enforcement system and state authorities in general, in particular the prosecutor's office. Such a regime imposes special obligations and requirements on the bodies in order to ensure national security and perform tasks related to the armed conflict. In conditions of martial law, the scope of the prosecutor's office's powers increases, which is associated with the need to ensure legality and law and order in conditions of increased threat to state security, which will be examined in this scientific article.

Particular attention is focused on the significant expansion of the procedural powers of the prosecutor's office, which in conditions of armed conflict received a strengthened role in the context of changes to criminal procedural legislation. This strengthening of the positions of the prosecutor's office occurred, in particular, due to the restriction of judicial control – a key institution that ensures respect for human rights and freedoms.

An important legal reference point in this context was the decision of the Constitutional Court of Ukraine No. 8-р(II)/2024 of July 18, 2024, which recognized part six of Article 615 of the Criminal Procedure Code of Ukraine as unconstitutional. The specified norm provided for the automatic extension of the term of detention in case of impossibility of a trial, which actually removed the court from the procedural control over the application of one of the strictest preventive measures, detention.

The recognition of the unconstitutional part of the sixth article 615 of the CPC of Ukraine has a broader context than only the issue of the automatic extension of the term of detention. This decision of the Constitutional Court of Ukraine actually became a safeguard against excessive concentration of powers in the hands of the prosecutor's office during martial law, since prosecutorial supervision cannot and should not replace judicial control.

The abolition of this norm was a reaction to the imbalance between prosecutorial supervision and judicial control that arose during martial law, and confirmed the priority of judicial control as a mechanism for freedom and personal inviolability even under martial law.