Yuriy Zhovtan, Partner at BARRISTERS JSC, on the Existing Conflict Regarding the Possibility of Appealing a Notice of Suspicion

The provisions of the final provisions of Law No. 2147-VIII, which prohibit the retroactive application of amendments made to the Code of Criminal Procedure, create a legal conflict when two mutually exclusive provisions are in effect simultaneously. Clause 4 of Paragraph 2 of Section 4 of the final provisions of Law No. 2147-VIII contradicts Part 5 of the Criminal Procedure Code of Ukraine, which in this case takes precedence, as it directly defines the rules governing the temporal application of procedural law.

The existence of two mutually exclusive provisions is not only illogical but also unlawful, as it violates a fundamental legal principle. Therefore, based on the general principles of criminal procedure, when deciding on the possibility of appealing a notice of suspicion in criminal proceedings that were pending at the time subparagraphs 11–27, 45 of paragraph 7 of Section 1 of Chapter 4 of the final provisions of Law No. 2147-VIII, one must be guided precisely by Article 5 of the Criminal Procedure Code of Ukraine, which expands human rights.

Thus, the provisions of the final provisions of Law No. 2147-VIII, which prohibit the retroactive application of amendments made to the Criminal Procedure Code, are inconsistent with the provisions of Article 5 of the CPC of Ukraine, which stipulate that the procedural law in force at the time an action is initiated or a decision is made must be applied. In such a situation, one can confidently refer to Part 6 of Article 9 of the CPC: in cases of ambiguous or contradictory regulation of matters of criminal procedure, the general principles of criminal procedure take precedence, including, in particular, the principle of legality and the priority of the provisions of the Criminal Procedure Code of Ukraine over other laws.