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Victor GORODOVENKO,

Judge of the Constitutional Court of Ukraine, Doctor of Law, Associate Professor, Honored Lawyer of Ukraine

INTERNATIONAL STANDARDS IN ENSURING THE RIGHT TO APPEAL (CRIMINAL-PROCEDURAL ASPECT)

Today the understanding of the basic principle of the judiciary – the provision of the right to appeal the case, enshrined in the para 8 of the second part of the Article 129 of the Constitution of Ukraine remains uncertain, because the aspects of the scope of this right are unintelligible. The international standards for providing the right to appeal are analysed in the article. Which ones, although related to a greater degree in criminal cases, may serve as a guide for understanding the aspects of the constitutional right to appeal the case.

At least, the analysed in the article international standards for ensuring the right to appeal indicate that this right is mandatory in criminal cases, and not in every case. At the same time, the para 5 of the Article 14 of the International Covenant on Civil and Political Rights (1966) sets out more stringent requirements for such a revision than those provided for in Article 2 of the Protocol No. 7 to the Convention for The Protection of Human Rights and Fundamental Freedoms (1950). The para 5 of the Article 14 of the International Covenant on Civil and Political Rights (1966) does not contain the exceptions which the aforementioned convention contains, and The United Nations Human Rights Committee understands this paragraph as a need for a revision in criminal matters on law and fact, whereas, as the European Court of Human Rights assumes that the review of the judgements in criminal cases can be only on law matters.

Both of these international legal instruments are ratified by Ukraine, and therefore their standards in ensuring the right to appeal, including on review in criminal cases, can be used as benchmarks in the sense of the para 8 of second part the of Article 129 of the Constitution of Ukraine on «ensuring appeal against a court decision».

In view of this, the following points are expressed in the article: Does the para 8, of second part the of Article 129 of the Constitution of Ukraine on «ensuring appeal against a court decision» increases the level of judicial protection of a person in comparison with international standards in ensuring the right to appeal, defining a mandatory review every case; does this constitutional constitution prohibit the exceptions permitted by provided for in Article 2 of the Protocol No. 7 to The Convention, and lays down more stringent standards for review, such as that contained in para 5 of the Article 14 of the International Covenant on Civil and Political Rights, that is, the need to review a court of appeal adopted on the basis of the consideration of the case, a court decision on the subject of its legality and validity, given the correctness of the establishment of facts in it and the application of material and procedural rules of law; or, conversely, in the understanding of the design, it is necessary to abide by the convention, which, in particular, allows for exceptions to the right to review in criminal cases, margin of appreciation to implement such a review in order to ensure that the appellate court receives proper cases, which indeed need to be considered in the appellate court order, and unloading of courts for the implementation of high-quality justice.

Key words: the enforcement of a right, appeal against a court decision, the right to appeal, international standards.

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