| Article | Procedure of the Proceedings Due to Newly Discovered or Exceptional Circumstances in the Criminal Court Process of Ukraine: Issues of Legal Regulation and Law Application |
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| Authors | VASYL NOR, NAZAR BOBECHKO |
| Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
| Issue | 8 / 2018 |
| Pages | 150 - 172 |
| Annotation | Proceedings due to newly discovered or exceptional circumstances represent an essential element of the system of proceedings for court decision appeal and examination in the criminal process of Ukraine. The latest novelization of Chapter 34 of the Code of Criminal Procedure of Ukraine (hereinafter – the CCrP of Ukraine) requires thorough scientific research and comprehension. The purpose of the article is to study the procedure of the proceedings due to newly discovered or exceptional circumstances in the criminal court process of Ukraine. The right to file an application for review of a court decision due to newly discovered or exceptional circumstances is granted to court proceedings participants who appeal against the principal court decision and the rulings which resolve the issues arising in the course of factual execution of a court decision, subject to their entry into force. The system of courts authorized to conduct criminal proceedings due to newly discovered circumstances is established without due regard for the court level requirement according to which a case moves from a lower level court to a higher level court. The CCrP of Ukraine does not provide for any pre-trial examination or investigation of newly discovered or exceptional circumstances. Proceedings due to newly discovered or exceptional circumstances are to be conducted exclusively at the trial stage. If the application for court decision review due to newly discovered or exceptional circumstances is not made in the form required by the criminal procedure law, a judge or a panel of judges should rule to return it to the applicant. The regulation of such a legal situation is too harsh and is inconsistent with the legal rules governing it at the stages of appeal and cassation proceedings. In case of non-compliance with the requirements to the content of the said application, it is most appropriate to set it aside at first, pointing to the identified shortcomings and prescribing a deadline for their elimination. The legislator has not authorized a judge or a panel of judges to decide not to open relevant proceedings following an examination of the application for court decision review due to newly discovered or exceptional circumstances. However, the cases serving as the grounds for the decision not to open the proceedings due to newly discovered or exceptional circumstances are quite real. Moreover, the CCrP of Ukraine still does not contain provisions to regulate the procedure of preparing for court decision review due to newly discovered or exceptional circumstances. The authorities granted to court to pass decisions following the proceedings due to newly discovered or exceptional circumstances are unreasonably limited. Thus, even if appropriate grounds exist, a respective court is deprived of the opportunity to overturn a verdict or a ruling (including a certain part thereof) and close criminal proceedings, or to make changes to a verdict or a ruling. Based on the analysis of the procedure for the proceedings due to newly discovered or exceptional circumstances, the authors maintain that provisions of the criminal procedure legislation regulating it are far from optimal, and therefore require certain improvement. The authors believe that this procedure should primarily be exercised according to the rules of the appellate proceedings. There is a need to specify in more detail the range of court decisions subject to a review due to newly discovered or exceptional circumstances. It would be reasonable to change the approach to selecting a court which would review the criminal proceedings due to newly discovered or exceptional circumstances. Furthermore, there is a need for unification of the procedural actions and decisions made by a judge (a panel of judges) following an examination of the application for court decision review due to newly discovered or exceptional circumstances with the provisions of Chapters 31, 32 of the CCrP of Ukraine, and also a need to introduce the procedure of preparing for review of the criminal proceedings due to newly discovered or exceptional circumstances. It would also be useful to expand the powers of the court which would review a court decision due to newly discovered or exceptional circumstances, empowering this court to change and overturn the decision and close the criminal proceedings.
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| Keywords | proceedings due to newly discovered or exceptional circumstances; subjects vested with the right to apply for court decision review due to newly discovered or exceptional circumstances |
| References |
List of legal documents
Legislation
5. Kryminalnyi kodeks Ukrainy [The Criminal Code of Ukraine]: Zakon Ukrainy [the Law of Ukraine] vid 05 kvitnia 2001 р. № 2341-ІІІ. URL: http://zakon.rada.gov.ua/laws/ show/2341-14 (accessed: 02.08.2018) (in Ukrainian).
10. Ukhvala Holosiivskoho raionnoho sudu m. Kyieva vid 26 lystopada 2015 r. [Ruling of Holosiivskyi District Court of Kyiv City Dated November 26, 2015]: sprava № 752/19141/15-к, provadzhennia № 1-о/752/7/15 [Case No. 752/19141/15-к, Proceedings No. 1-о/752/7/15]. URL: http://www.reyestr.court.gov.ua/Review/53832080 (accessed: 02.08.2018) (in Ukrainian). 14. Ukhvala Novokakhovskoho miskoho sudu Khersonskoi oblasti vid 29 sichnia 2016 r. [Ruling of Novokakhovskyi Town Court of Kherson Region Dated January 29, 2016]: sprava № 661/2818/13-к, provadzhennia № 1-о/661/1/16 [Case No. 461/1041/14-к, Proceedings No. 1-о/461/22/188]. URL: http://www.reyestr.court.gov.ua/Review/55305156 (accessed: 02.08.2018) (in Ukrainian).
15. Ukhvala Solom’ianskoho raionnoho sudu m. Kyieva vid 8 hrudnia 2016 r. [Ruling of Solomianskyi District Court of Kyiv City Dated December 8, 2016]: sprava № 760/16644/13-к, provadzhennia № 1-0/760/17/16 [Case No. 760/16644/13-к, Proceedings No. 1-0/760/17/16]. URL: http://www.reyestr.court.gov.ua/Review/ 63558008 (accessed: 02.08.2018) (in Ukrainian).
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