Analysis of the Constitutionality of Restricting the Right of the Accused to Have Their Criminal Case Heard by a Jury During Martial Law

Abstract

The article deals with the issue of the administration of justice by a jury in criminal proceedings during martial law.
The Law of Ukraine «On Amendments to the Criminal Procedure Code of Ukraine Regarding the Improvement of Criminal Proceedings under Martial Law» of 14 April 2022 No. 2201-IX (subparagraph 14 of paragraph 1) Article 615 (Special rules of criminal proceedings during martial law) of the Criminal Procedure Code of Ukraine is set force in a new wording. Part ten of mentioned article provides that criminal proceedings in the court of first instance in respect of crimes for the commission of which punishment of life imprisonment is envisaged shall be conducted by a panel of three judges, except criminal proceedings in a case until the effective date of martial law and the entry into force of this part the composition of the court was determined with the participation of jurors.
After the compiling a new wording of Article 615 of the Criminal Procedure Code of Ukraine, the question arose about constitutionality of part ten of this norm.
The explanatory note to the draft Law of Ukraine «On Amendments to the Criminal Procedure Code of Ukraine Regarding the Improvement of Criminal Proceedings during Martial Law, State of Emergency» justifies the need to adopt the draft law by optimising the powers of investigator, prosecutor, investigating judge and chief prosecutor of a prosecutor’s office during conducting pretrial investigation during martial law or state of emergency in Ukraine or in its separate palaces, during anti-terrorist operation or measures to ensure national security and defence, repulsion and deterrence of armed aggression of the Russian Federation and/or other states against Ukraine. At the same time, there is no justification for restricting the right of accused to have their criminal proceedings heard by a jury, especially in regions (areas) without active hostilities.
When deciding on the constitutionality of part ten of Article 615 of the Criminal Procedure Code of Ukraine, the Constitutional Court of Ukraine faces the issue of not only verifying the restriction the right of accused to a jury in compliance with Article 64 of the Constitution of Ukraine, but also compliance with Article 8 of the Constitution of Ukraine, which provides for the rule of law, an integral part of which is the right to a fair trial.