Conducting criminal proceedings under martial law: practice of the ECHR and the Supreme Court

In the article, the author notes that during the martial law period in Ukraine, amendments and additions are made to the provisions of the current legislation governing the investigation procedures in criminal proceedings. According to the Constitution of Ukraine, a person, his or her life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value. The rights and freedoms provided for in Article 63 of the Constitution of Ukraine may not be restricted, including in the conditions of martial law or a state of emergency (part 2 of Article 64 of the Constitution of Ukraine). At the same time, the introduction of martial law throughout Ukraine and the introduction of amendments to the CPC of Ukraine regarding the special regime of pre-trial investigation and court proceedings under such conditions does not automatically mean the application of “special provisions” throughout Ukraine. The author notes that in practice, many issues arise when implementing the rules of criminal procedure under martial law and ensuring effective pre-trial investigation. This topic is relevant and requires further research. It is noted that pre-trial investigation of criminal offenses committed in the context of armed conflict can take a long time, and therefore it is important to take measures to preserve information, primarily the testimony of victims and witnesses. At the same time, the constitutional rights and freedoms of citizens must be respected. Legal certainty on the issue of the special regime of criminal proceedings under martial law is very important. The legal opinions of the Supreme Court play a significant role in this regard, as they are binding on all public authorities that apply a legal act containing the relevant rule of law in their activities. The changes made to the regulatory legal acts of Ukraine during the period of martial law, in a difficult time for our country, should ensure the stable functioning of the criminal procedure system. The article analyzes certain provisions set out in the judgments of the ECHR and legal opinions of the Supreme Court and states that the essential requirements of the criminal procedure law were violated when deciding to conduct a trial during martial law by videoconference without the personal participation of the accused.