Public and fair consideration of a case by an impartial and independent court in criminal proceedings: European standards and Ukrainian realities

Abstract

Accessible justice and public and fair consideration of the case are important achievements of humanity, but Ukraineʼs legislation does not provide all the opportunities that can allow participants in the judicial process to influence the course of pre-trial investigation and judicial proceedings, which actualises the research on the subject. The purpose of the study was a comprehensive analysis and generalisation of various aspects of the exercise by private participants in criminal proceedings of the right to a fair and impartial consideration of a case by a court. The study was conducted on the basis of a number of general scientific methods and asynchronous comparative analysis of the previous and current criminal procedure legislation and practice of Ukraine, a number of international acts, acts of a recommendatory nature, case law of the European Court of Human Rights. The analysis of the Ukrainian criminal procedure legislation, considering its compliance with the provisions of European standards of access to justice allowed stating that, in general, these standards are met and sometimes even exceeded. Therewith, there are certain omissions and shortcomings of the national legislator in relation to certain special procedures of criminal proceedings – namely, proceedings based on agreements and proceedings in private prosecution cases. Such shortcomings groundlessly block and make it impossible for both parties to the criminal conflict to actually appeal to the court: the victim (or one who considers themselves as such), the suspect/accused, and persons who are not parties to a particular criminal proceeding but the interests of whom are directly affected by the courtʼs decision. It was argued that the problems concerning the implementation of real access to justice in criminal proceedings in Ukraine have many insufficiently examined or rather controversial theoretical aspects, the legal regulation of certain provisions by the national lawmaker is far from generally recognised world and European standards and rules, and the relevant law enforcement practice is also imperfect. Therewith, it was stated that certain law enforcement, legislative, and theoretical problems still have effective solutions. The considerations and conclusions set out in the study can be used by the legislator when making changes and additions to certain regulatory legal acts and can be useful for both individuals and employees of criminal justice bodies