ÏÐÎÁËÅÌÈ ÒÀ ÑÓÄÆÅÍÍß

UDC 343.131

Yu. Alenin,
Doctor of Law, Professor,
Professor of the Department of Criminal Procedure
National University “Odessa Law Academy”

V. Voloshyna,
Candidate of Science, Associate Professor
Associate Professor of the Department of Criminal
Procedure
National University “Odessa Law Academy”

DETERMINING THE PRINCIPLE

OF PROPORTIONALITY IN CRIMINAL PROCEEDINGS
There is no single approach In
principle and comes from it, as it was
Ukraine as of today to understanding
already noted in 1965 by the Consti-
of nature and requirements of the prin-
tutional Court of the Federal Republic
ciple of proportionality and its place in
of Germany. The Constitutional Court
the modern legal system. The principle
of Germany and the European Court
of proportionality is a new provision for
of Human Rights applied the principle
legal literature, but certain attention
of proportionality in many cases con-
was paid to it in the works of such
cerning the restriction of certain rights,
scientists as S.L. Derevyankin, M.I.
linking it with the lawfulness of such
Kozyubra,
restrictions. It seems that the court
S.P. Pogrebnyak, V.M. Tertishnik, forms its assessment of the legality of
V. Uvarov, S. Shevchuk and others. The certain restrictions with due respect to
foreign scientists gave even more atten- this principle [1, p. 479].
tion to this principle. However, as of to-
Developed in the German public
day, in connection with the integration
law and continued its evolution in
of Ukraine into the European
Europe- an law, the principle of
community, as well as the development
proportionality provides for a
of the state in the framework of the
consistent solution to such questions:
expansion of hu- man rights, the
1) whether the interfer- ence of state
solution of defining this principle as a
bodies in the realization of individual
separate general legal one is a matter of
rights (freedoms) took place;
urgent necessity.
2) whether such interference was pro-
The purpose of the article: to de- vided by domestic law; 3) Whether the
termine the principle of proportionality purpose of the intervention is legiti-
as an independent principle of criminal
mate; 4) Whether the desired goal was
proceedings, to define it as a general le- achieved using this method of
gal principle in the system of principles,
interven- tion, in other words, were
to disclose the content, and also to con- the means used to achieve the goal
sider certain aspects of its manifestation
were appropri- ate; 5) Whether the
in criminal procedural activity. means used were necessary to achieve
Presentation of the basic materi- the legitimate goal; 6) Whether the
al. The principle of proportionality is a means used were appropriate
necessary component of the rule of law (proportional in the narrow

© Yu. Alenin, V. Voloshyna, 2018 27

ЮРИДИЧНИЙ ВІСНИК,
2018/2
sense), in other words proportionally The
(proportionally) with the indictment of application of
the individual in pursuit of the goal and the principle
achieve the benefits for the whole so- of
ciety. proportionalit
It should be noted that the princi- y could be
ple of proportionality is reflected in the found in cases
constitutional acts such as the Federal
Constitution of the Swiss Confederation
(Article 36); The Constitution of the Re-
public of Croatia (Articles 16, 17); Con-
stitution of the Republic of Poland
(Arti- cle 31); The Constitution of the
Republic of Portugal; Constitution of
the Republic of Moldova; Constitution
of the Russian Federation (Part 3 of
Article 55).
The ambiguous viewpoint so far
had being firmly established in the
practice of the European Court of
Human Rights (ECtHR) and is actively
used by the latter to determine the
admissibility of restrictions on the
rights and freedoms envisaged by the
1950 Convention for the Protection of
Human Rights and Fundamental
Freedoms. It should have being
emphasized that the concept of
proportionality is already expressed in
the first decisions of the ECtHR, in-
cluding in the ruling of July 1, 1961, in
the “Lawless vs Ireland case”. Among
the decisions aimed at forming the
con- cept of proportionality in the
practice of the ECtHR, its resolution of
July 23, 1968 on the case about the
languages in Belgium, in which the
ECtHR noted that the principle of
equality had being violated, if the
difference has no objec- tive and
reasonable justification. The existence
of such justification has to be assessed
in relation to the purpose and results
of the event under consid- eration,
taking into account the princi- ples.
The difference in application when
exercising any right established by the
Convention should not only pursue a
legitimate aim – Article 14 is also vio-
lated when it is clearly established that
there is no reasonable ratio of propor-
tionality between the means used and
the sought goal [2, p. 111].

28
 ПРОБЛЕМИ ТА
concerning the right to freedom of ex- pression guaranteed
СУДЖЕННЯ by
Article 10 of the Convention (“Tammer v. Estonia”, “Bar- fod v.
Denmark” and others).
It should be noted that in cases where there are restrictions on
certain rights and freedoms, the European Court of Human
Rights always draws attention to the following aspects: namely,
the exist- ence of legal grounds for limiting rights and freedoms
(rights and freedoms may be limited only in the manner
prescribed by law); the existence of a legitimate aim for the
application of restrictions; propor- tionality of measures taken by
the state to restrict rights and freedoms in view of the legitimate
aim that the state has been trying to achieve.
In the case of “Serhiy Volosyuk v. Ukraine”, the Court found
violations of Article 8 of the Convention in connection with the
applicant’s being brought to dis- ciplinary responsibility for the
transfer of a letter from the pre-trial detention center outside the
control of the admin- istration. As the ECtHR noted, “this let- ter
did not endanger the risk of impeding the law-making of the
applicant or any potential risk <...> In addition, the ap- plicant
was detained for a relatively mi- nor offense, while he was
sentenced to strict disciplinary punishment for this. In these
circumstances, the Court con- siders that in the present case,
even tak- ing into account the usual and substan- tiated
requirements of the detention, the officials concerned went
beyond the dis- cretion they had being granted and that the
interference was not proportionate” [3, paras. 91–92].
Any measures taken to restrict hu- man rights and
fundamental freedoms must be justified by the existence of a le-
gitimate aim. In most cases, the absence of such a goal is very
difficult to prove, therefore, this requirement generally ex- cludes
the application of restrictions that had not being at all connected
with the legitimate aims defined by the Conven- tion, and doubts
about the existence of a legitimate aim may arise except in cases
of apparent inconsistency. In this regard,

29
the European Court of Human Rights the citizen;
pays the greatest attention to verifying – all permissions need to be inter- preted either literally or
the proportionality of the measures extensively,
taken and the objective pursued.
The functional role of the principle
of proportionality consists in regulating
the boundaries of rights and freedoms,
which makes it possible to attribute it to
gen- eral legal principles, which operate
both in the sphere of material and
procedural law. Given these roles and
other con- tent of the principle of
proportionality in the literature and law
enforcement it is used as – the
dependency principle [4], or more
specifically, the principle of pro-
portional (dimensional) restricting rights
and freedoms.
It is necessary to agree with the re-
quirements of the principle of proportion-
ality expressed in the literature and
prac- tice of the European Court of
Human Rights and national courts:
– any restrictions on fundamental
rights and freedoms are possible only
on the basis of the law provided by the
con- stitution (or international legal
instru- ments) for the purposes and
only to the extent that is necessary for
the proper functioning of a democratic
society;
– such restrictions should apply
only in cases where there are no less
burden- some measures (means and
methods) for preventing violations of
the rights and freedoms of others and
securing public interests;
– the effects of measures that
restrict the exercise of rights and
freedoms must not be excessive and
strictly conditioned by the objective
pursued;
– rights and freedoms cannot be
lim- ited by interpretation in the
process of law enforcement practice.
Interpretation cannot lead to a
narrowing not only the scope and
content of rights and free- doms, but
also the understanding of their essence;
– all doubts that arise in
interpreting the norms governing the
relations be- tween the state and the
citizen must be interpreted in favour of
but not in Human Rights (bear- ing in mind the
any way provisions of Article 32 of the
restrictive. Convention that defines the limits of
Restric- the jurisdiction of the Court), the
tions on principle of proportionality refers to
permission the main factors that should be tak- en
s are an into account when interpreting the
exclusive Convention.
area of It is necessary to point out to the
lawmakers, fact that the Constitution of Ukraine
not judicial also reflects the provision of the princi-
interpre- ple of proportionality, namely: Ukraine
tation [5]. is a law-governed state, where the prin-
Taking ciple of the priority of human rights
the above and the rule of law operates, and their
into re- alization is fully possible provided
account, it the principle of proportionality were
can be ob- served. The application of the
concluded principle of proportionality could also
that any being seen in the practice of the
restriction Constitutional Court of Ukraine [6].
of rights After analysing the provisions of
and some normative legal acts, it is
freedoms necessary to point out that the principle
must of propor- tionality extends both to
necessari- public and pri- vate law, both material
ly be and procedural law, and therefore has a
proportion general legal nature. Namely, the Code
ally of Administra- tive Procedure has a
correlated direct indication of compliance with the
with the principle of propor- tionality (Part 3 of
legitimate Article 2); from para- graph 3 of clause
aim, even 1, 2 of Article 65 of the Criminal Code of
if law Ukraine also follows the provisions of
expressly this principle, which establishes the
provides obligation of the courts in each criminal
for such case to motivate the appointment of a
restriction. sentence on its basis. In civil
Since the proceedings, the adherence to the
establishm principle of proportionality also explicitly
ent of
specific
standards
for the
enforceme
nt of
convention
al norms is
ultimately
the
prerogative
of the Eu-
ropean
Court of
provides for certain rules of material stances of the
and procedural law (Chapter 82 of the applicant’s
Civil Code). It is imperative that courts case [7].
ob- serve the principle of Failure to
proportionality and apply the rules of comply with
civil procedural law, for example, in the the principle
application of meas- ures to secure a of propor-
claim provided for in Articles 151, 152 of tionality is
the Civil Procedural Code of Ukraine. also observed
That is, its multifaceted sectoral when
distribution testifies to the uni- extending
versality of this principle. detention
Consequently, the principle of periods. Thus,
proportionality is used to determine the in the
limits of possible re- strictions of judgment
human rights and freedoms, to regulate
the powers and balance of various
bodies of state power, to prevent the
abuse of discretionary powers and to
establish the limits of freedom of
discre- tion, in resolving issues of
compliance with the crime and
punishment, Labor and remuneration
and so on.
The application of this principle in
criminal proceedings helps to ensure
the implementation of the objectives of
criminal proceedings in general and the
tasks of the individual stages of
criminal proceedings. Thus, the CPC in
Section 2 provides the purpose and
grounds for the application of measures
to ensure criminal proceedings. The
purpose of these measures is to ensure
the effective- ness of criminal
proceedings, they are of an exceptional
nature. However, as the generalization
of judicial practice shows, the
justification of decisions on the appli-
cation of preventive measures is formal,
consists of standard sentences and does
not contain specific data. This is also in-
dicated by the judgment of the
European Court of Human Rights
against Ukraine, according to which the
lawfulness of the applicant’s detention
was considered by the national courts
several times, but each and every time
the court decisions repeated the
standard list of grounds for the
applicant’s detention, without any
investigation of the probability of these
grounds, given the specific the circum-
of the European Court of Human Rights in the case of “Buryag v.
Ukraine” of 15 July 2010, the Court noted that the extension of
the period of detention may be justified in one or another case
only if there are specific indications that this is required by true
needs of public inter- est, which, despite the existence of a pre-
sumption of innocence, outweighs the re- quirement of respect
for personal liberty. While continuing the applicant’s deten- tion,
the prosecutors and the courts pro- vided the same grounds
based on which this preventive measure was chosen or did not
give reasons in their decisions, but merely referred to the fact
that they were elected. In addition, the national au- thorities have
never considered the pos- sibility of choosing another preventive
measure, alternative detention, and, rely- ing mainly on the severity
of the charges, prolonged the applicant’s detention on grounds
which could not be considered “adequate and sufficient” [8].
Article 246 of the CCP provides that clandestine investigative
actions might be conducted if information about the crime and
the person who committed it cannot be obtained in any other
way. That is, to achieve the objectives of criminal proceedings
clandestine investigative ac- tions might be conducted. Analysing
the practice of the ECtHR (“Smirnov vs Rus- sia”, “Uzun v.
Germany” and others), it can be concluded that the conduct of in-
vestigative and secret investigative (in- vestigatory) actions,
without sufficient justification, is an intervention that can- not be
disproportionate, since there is no legitimate aim for such
interference, and the evidence obtained as a result of such actions
is considered inadmissible.
We believe that the principle of pro- portionality is one of the
essential require- ments that the state must observe when restricting
human rights, and a mandatory assessment criterion for the court
when de- termining the legality of such restrictions. The purpose of
the principle of proportion- ality is to balance public and private
inter- ests and prevent unlawful restrictions on the rights of
individuals.
 The foregoing indicates the need to ÿêî¿ äîòðèìóºòüñÿ îäíà ç íàéâàæëèâ³øèõ ôóíêö³é – çàõèñò ³
respect the principle of proportionality çáåðåæåííÿ ïðàâ
in some state which has positioned it-
self as a legal, giving priority to human
rights and consolidation of this
principle among the major acts such
countries as the common principle.
Conclusion. The principle of pro-
portionality can be defined as a sepa-
rate general legal principle of criminal
proceedings, according to which the
purpose of procedural actions should
be socially significant, and the means
of its achievement least burdensome in
specific conditions, interference in the
field of human rights and freedoms,
the application of measures for
ensuring criminal proceedings,
including preven- tive measures, may
be allowed only in cases of extreme
necessity, in order to ensure the
effective realization of the tasks of
criminal proceedings, en- shrined in
Article 2 of the CPC, and the tasks of
individual stages of criminal
proceedings.

Key words: principle,

proportionality, criminal procedure,
rule of law.
Proportionality is a component of
the rule of law with the help of which
one of the most important functions is
maintained – the protection and pres-
ervation of human rights and freedoms.
At the present stage of building a dem-
ocratic state and reforming power in
Ukraine, the principle of proportional-
ity acquires special significance. Con-
sequently, there is a need for its norma-
tive consolidation in the legislation. The
article explores the issues of determin-
ing proportionality as an independent
principle of the criminal process and
the need to reflect it in the system of
gener- al principles of criminal
proceedings. It reveals its content and
manifestation in criminal procedural
activity.
Ïðîïîðö³éí³ñòü – öå ñêëàäîâà
âåð- õîâåíñòâà ïðàâà, çà äîïîìîãîþ
òà ñâîáîä ºòüñÿ éîãî çì³ñò ³ âèðàæåííÿ ó
ëþäèíè. Íà êðèì³íàëü- í³é ïðîöåñóàëüí³é
ñó÷àñíîìó ä³ÿëüíîñò³.
åòàï³
ïîáóäîâè Ïðîïîðöèîíàëüíîñòü – ýòî ñî-
äåìîêðàòè ñòàâëÿþùàÿ âåðõîâåíñòâà ïðàâà, ñ
÷íî¿ äåð- ïîìîùüþ êîòîðîé ïîääåðæèâàåòñÿ
æàâè òà îäíà èç âàæíåéøèõ ôóíêöèé – çàùè-
ðåôîðìóâà òà è ñîáëþäåíèå ïðàâ è ñâîáîä
ííÿ âëàäè ÷åëî- âåêà. Íà ñîâðåìåííîì ýòàïå
â Óêðà- ïîñòðî- åíèÿ äåìîêðàòè÷åñêîãî
¿í³ ïðèíöèï ãîñóäàðñòâà è ðåôîðìèðîâàíèÿ
ïðîïîðö³éíî âëàñòè â Óêðàèíå ïðèíöèï
ñò³ ïðîïîðöèîíàëüíîñòè ïðè- îáðåòàåò
íàáóâຠîñîáîå çíà÷åíèå. Ñëåäîâà- òåëüíî,
îñîáëèâîãî âîçíèêàåò íåîáõîäèìîñòü åãî
çíà÷åííÿ. íîðìàòèâíîãî çàêðåïëåíèÿ â çàêîíî-
Îòæå, äàòåëüñòâå. Â ñòàòüå
âèíèêຠèññëåäîâàíû âîïðîñû îïðåäåëåíèÿ
íåîáõ³äí³ ïðîïîðöèîíàëü- íîñòè â êà÷åñòâå
ñòü éîãî ñàìîñòîÿòåëüíîãî ïðèíöèïà
íîðìàòèâíî óãîëîâíîãî ïðîöåññà è íåîá-
ãî çà- õîäèìîñòè åãî îòðàæåíèÿ â ñèñòåìå
êð³ïëåííÿ îáùèõ ïðèíöèïîâ óãîëîâíîãî ïðîèç-
â âîäñòâà. Ðàñêðûâàåòñÿ åãî ñîäåðæà-
çàêîíîäàâ íèå è âûðàæåíèå â óãîëîâíîé
ñòâ³. Ó ïðîöåñ- ñóàëüíîé äåÿòåëüíîñòè.
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