PROCEEDINGS UNDER NEWLY DISCOVERED CIRCUMSTANCES AND PROCEEDINGS UNDER EXCEPTIONAL CIRCUMSTANCES: CHARACTERISTICS, COURSE AND INTERRELATION

Abstract

This publication aims to convince opponents that in the legal situation proposed for consideration by the members of the Scientific Advisory Council at the Supreme Court, its actual content indicates the absence of certain components of the criterion for stating that an international judicial institution, whose jurisdiction is recognized by Ukraine, has established a violation by Ukraine of international obligations when deciding this case by the court. To achieve the declared goal and obtain proper results, the following set of methods was used: formal-logical, analysis and synthesis, sampling, comparative-legal, forecasting. The results of such activities are: 1) it is clarified that the current Code of Criminal Procedure of Ukraine for the appellate instance and the Supreme Court provides for “procedural opportunities” and grounds for reviewing court decisions as a whole, which were adopted (decided) as a result of considering an application for reviewing a court decision on newly discovered circumstances, from the point of view of their legality and validity, within the limits of appeal and, accordingly, cassation complaints; 2) it is stated that if the court and the participants in the proceedings took advantage of these “procedural opportunities,» but the existing violations remained not eliminated, then only having exhausted all the national mechanisms of appeal, in the end there is an opportunity for the participants to apply to the ECHR; 3) it is proved that if there was no such appeal or it is available, but as a result of its consideration by the ECHR, no violation of Article (e) ECHR (including due to the fact that the national legislation continued consideration under newly discovered circumstances, that is, in this part of the arguments of the application to the ECHR, national appeal mechanisms were not exhausted)there is no exceptional circumstance provided for by paragraph 2 of Part 3 of Article 459 of the Code of Criminal Procedure of Ukraine, which provides the Grand Chamber of the Supreme Court with a basis for reviewing court decisions and interfering with them. Conclusions: We do not believe that in the case proposed for consideration by the members of the Scientific Advisory Council at the Supreme Court there is an exceptional circumstance provided for by paragraph 2 of Part 3 of Article 459 of the Criminal Code of Ukraine and which provides the Grand Chamber of the Supreme Court with the basis for reviewing court decisions and interfering with them.