The Problem of the Retroactivity of Decisions by the Constitutional Court of Ukraine in the Application of Substantive Criminal Law
Year: 2025
Type: article
Abstract: This article investigates the legal issue of retroactivity (temporal effect) of decisions rendered by the Constitutional Court of Ukraine within the framework of applying substantive criminal law.The study elucidates the legal nature of the Constitutional Court’s decisions as sources of criminal law and examines the doctrinal and normative correlation between Article 58(1) of the Constitution of Ukraine and Article 5 of the Criminal Code of Ukraine. It is emphasized that the issue of retroactive effect gained particular salience following three high-profile rulings by the Constitutional Court, which declared unconstitutional provisions establishing criminal liability for illicit enrichment, the issuance of knowingly unjust judicial decisions, and the submission of false asset declarations.The analysis reveals that the issue of the retroactive effect of the decisions of the Constitutional Court of Ukraine has been satisfactorily resolved in the draft of the new Criminal Code of Ukraine. It is further argued that the procedural mechanism for reopening criminal proceedings under exceptional circumstances cannot be regarded as a sufficient or autonomous safeguard in ensuring the implementation of the imperatives enshrined in Article 58(1) of the Constitution of Ukraine and Article 5(1) of the Criminal Code of Ukraine, which pertain to the improvement of an individual’s legal position.It is substantiated that delivering a conviction under a criminal provision subsequently found unconstitutional constitutes a breach of the principle of the rule of law. The current formulation of Article 5(1) of the Criminal Code of Ukraine (de lege lata) should be interpreted as encompassing legal provisions on criminal liability that have ceased to be in force as a result of a declaration of unconstitutionality, provided such change ameliorates the legal position of the accused. On this basis, the author formulates a set of de lege ferenda proposals aimed at enhancing legal certainty and ensuring the legislative incorporation of the advocated doctrinal approach to the retroactive effect of Constitutional Court rulings.
Author: O. Dudorov
Institution: Taras Shevchenko National University of Kyiv
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W4412499668