Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
Recibido el 03/05/23 Aceptado el 14/08/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 79 (2023), 78-92
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Institute of appeal in the mechanism of
protection and restoration of rights and
legitimate interests
DOI: https://doi.org/10.46398/cuestpol.4179.05
Mark Makarov *
Liliia Matiiek **
Dmytro Smotrych ***
Nataliia Radanovych ****
Iryna Bovnehra *****
Abstract
In this research article, based on the analysis of procedural
legislation and the practice of its application, with the help
of general and special scientic methods, the question of the
functioning of the institute of appeal in the mechanism of
protection and renewal of rights is addressed and, at the same
time, the legitimate interests of the individual in Ukraine are investigated. It
is noted that the appeal is an independent interdisciplinary institution, and
the realization of the right of appeal in criminal, administrative, civil and
economic proceedings has material-legal and procedural-legal expression.
Among the contributions of the work, the peculiarities of legal relations
during the appeals and cassation appeals are determined. It is concluded
that the proposals to the procedural legislation are reasonable in order to
make it impossible for the participant in the criminal process to abuse the
right to appeal any decision or action of the investigating body.
Keywords: judicial power; individual rights; complaint; institute of
appeal; preliminary investigation.
* Doctor of Law, Associate Professor, Head at the Department of Criminal Procedure of National
Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0003-4515-5033.
Email: dok.mkmakarov@gmail.com
** Prosecutor of the Department of Procedural Guidance in Criminal Proceedings of Investigators of the
Territorial, Department of the State Bureau of Investigation of the Ternopil Regional Prosecutor's
Oce, Ternopil, Ukraine. ORСID ID: https://orcid.org/0000-0002-1277-8894. Email: matiiek@ukr.
net
*** Doctor of Philosophy, Associate Professor, Professor of the Department of Administrative and
Informational Law of the Educational-Scientic Institute of Jurisprudence, Psychology and Innovative
Education, Lviv Polytechnic National University, Ukraine, Lviv, Ukraine. ORСID ID: https://orcid.
org/0000-0001-6087-9553. Email: smotrych.loda@gmail.com
**** Candidate of Law Sciences, Associate Professor, Associate Professor at the Department of Theory and
philosophy of law of Ivan Franko National University of Lviv, Lviv, Ukraine. ORСID ID: https://orcid.
org/0000-0003-0126-6188. Email: radanovych_n@ukr.net
***** Administrator partner of Lawyers' union «Buklers», Postgraduate student at the Department of
Criminal Procedure in National Academy of Internal Aairs, Lviv, Ukraine. ORСID ID: https://orcid.
org/0000-0002-9816-3259. Email: ibovnegra2@gmail.com
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Vol. 41 Nº 79 (2023): 78-92
Instituto de apelación en el mecanismo de protección y
restauración de derechos e intereses legítimos
Resumen
En este artículo de investigacion, basado en el análisis de la legislación
procesal y en la práctica de su aplicación, con la ayuda de métodos cienticos
generales y especiales, se abordo la cuestión del funcionamiento del instituto
de apelación en el mecanismo de protección y renovación de los derechos
y, al mismo tiempo, se investigan los intereses legítimos de la persona en
Ucrania. Se advierte que la apelación es una institución interdisciplinaria
independiente, y la realización del derecho de apelación en los procesos
penales, administrativos, civiles y económicos, tiene expresión material-
jurídica y procesal-jurídica. Entre los aportes del trabajo, se determinan las
peculiaridades de las relaciones jurídicas durante los recursos de apelación
y casación. Se concluye que son razonable las propuestas a la legislación
procesal con el objetivo de imposibilitar que el participante en el proceso
penal, abuse del derecho a apelar cualquier decisión o actuación del órgano
de instrucción.
Palabras clave: poder judicial; derechos individuales; denuncia;
instituto de apelación; instrucción previa.
Introduction
In a modern democratic society, human rights are an important
institution that regulates the legal status of a person, determines the ways
and means of inuencing him, the limits of interference in the sphere of
personal life, and establishes legal and other guarantees for the protection
and realization of rights and freedoms. Article 3 of the Constitution of
Ukraine declares that a person, his life and health, honor and dignity,
inviolability and security are recognized as the highest social value, and
the establishment and provision of his rights and freedoms are the main
duties of the state. The state is responsible to the people for its activities.
Armation and provision of human rights and freedoms is the main duty
of the state (Constitution Of Ukraine, 1996). The course to build such a
state in Ukraine involves determining the eective mechanisms of this
process (Kulyanda, 2021).
The protection of the rights and freedoms of a person and a citizen is a
dening constitutional function of the judicial power, and therefore is one
of the prerequisites for ensuring the state of compliance with the rule of law
and legality. At the same time, according to Article 55 of the Basic Law, the
rights and freedoms of a person and a citizen are protected by the court.
80 Mark Makarov, Liliia Matiiek, Dmytro Smotrych, Nataliia Radanovych y Iryna Bovnehra
Institute of appeal in the mechanism of protection and restoration of rights and legitimate interests
Everyone is guaranteed the right to appeal in court decisions, actions
or inaction of state authorities, local self-government bodies, ocials
and ocials. At the same time, Article 124 of the Constitution of Ukraine
establishes that justice in Ukraine is administered exclusively by courts,
and Article 129 enshrines, in particular, provisions on ensuring the right to
an appellate review of the case and, in cases specied by law, to a cassation
appeal of a court decision (Constitution Of Ukraine, 1996).
Improvement of legislation in the context of Article 55 of the Constitution
of Ukraine should be a gradual trend aimed at expanding judicial
protection of human rights and freedoms, in particular judicial control
over the legality and reasonableness of decisions, actions and inaction of
authorized subjects during judicial proceedings. It should be understood
that the Constitution of Ukraine enshrines not only the absolute right to
appeal, but also establishes the duties of a person not to violate the rights
and freedoms of other persons, not to abuse the corresponding rights. The
balance between rights and duties must be unshakable, as an increase in
the scope of rights requires the legislator to increase the scope of duties to
ensure them.
1. Methodology of the study
The methodological basis of the scientic article was made up of the
provisions of dialectics as a general scientic method of learning the
phenomena of objective reality, other general scientic and special
methods. Their application is determined by a systematic approach, which
makes it possible to investigate problems in the unity of their social content
and legal form, to analyze the institution of appeal in the criminal civil,
economic and administrative process.
Thus, the dialectical method of learning the processes that take place
during the implementation of an appeal in criminal proceedings, in the
resolution of civil and economic disputes, cases of administrative oenses,
helped to consider it in its development and interrelationship, to identify
established trends and regularities in general. The formal-logical method
was used in the analysis of the concepts of «appeal», «complaint», «subject
of appeal», determining the content of the constitutional right to appeal, the
characteristics of the structural elements of the appeal process, formulating
proposals for improving legislation in this area.
2. Analysis of recent research
The eectiveness and quality of judicial proceedings directly depend on
the proper regulation of appeal procedures, including decisions, actions or
inaction of bodies and ocials who conduct judicial proceedings.
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The presence of a relevant interdisciplinary institute, on the one hand,
is a guarantee of the realization of the rights and legitimate interests
of individuals and legal entities, on the other hand, it should not create
unnecessary obstacles to the completeness and speed of resolution of
disputes on the merits of criminal, civil, economic and administrative
proceedings. Therefore, consideration of urgent problems regarding
its development and improvement should remain in the eld of view of
scientists and practitioners.
In the article, based on the analysis of regulatory acts, scientic
literature, investigative and judicial practice, we aim to determine the
characteristic features of the formation of the appeal institution within the
framework of the Ukrainian judiciary, outline the procedural measures that
ensure consideration of the complaint, determine directions for optimizing
the protection of the rights and legitimate interests of participants in pre-
trial criminal proceedings proceedings, as well as court proceedings in the
courts of the rst, appeal and cassation instances.
3. Results and discussion
In the modern conditions of reforming the judicial system in Ukraine, the
problem of judicial control over the observance of the constitutional rights,
freedoms and interests of individuals, especially in the eld of criminal
procedural law, is becoming increasingly important, the implementation
of which tasks is impossible without a system of measures and actions that
provide for their limitations. The right to appeal is an absolute subjective
right, the grounds for its implementation arise in the presence of certain
legal facts with which the emergence of legal relations is connected.
The appeals institution acts not only as an important tool for protecting
the personal rights of participants in criminal proceedings, observing public,
state and private interests, but also as a guarantee of the eective operation
of the entire criminal justice system (Klepka, 2019). Guaranteeing judicial
protection of rights and freedoms requires the legislator to introduce an
eective appeal mechanism into the law.
In the Ukrainian criminal process, Article 24 of the Criminal Procedure
Code of Ukraine guarantees everyone the right to appeal the procedural
decisions of the court in the manner prescribed by law (Criminal Procedure
Code Of Ukraine, 2012). Guided by the principle of ensuring access to
justice, the only criterion that makes it possible to determine which court
decisions can be appealed to the court and who exactly has the right to
such an appeal should be the restriction of the constitutional rights and
freedoms of citizens (Yanovskaya, 2013). For example, consideration of
relevant complaints at the pre-trial investigation stage is entrusted by the
82 Mark Makarov, Liliia Matiiek, Dmytro Smotrych, Nataliia Radanovych y Iryna Bovnehra
Institute of appeal in the mechanism of protection and restoration of rights and legitimate interests
criminal procedural legislation of Ukraine to the investigating judge as the
authorized person to exercise judicial control over the protection of the
rights, freedoms and legitimate interests of the participants in criminal
proceedings.
The Criminal Procedure Code of Ukraine denes the procedure and
conditions for consideration of individual complaints in Chapter 26
«Appeal of decisions, actions or inaction during pre-trial investigation»
regulates the powers of the investigating judge, which can be exercised by
him based on the results of such a review (Criminal Procedure Code Of
Ukraine, 2012). A complaint against the decision, actions or inaction of
an investigator or prosecutor during a pre-trial investigation must be in
writing, contain all the necessary details and be presented in the sequence
in which the complainant considers it necessary, but with a mandatory
statement of justication in accordance with the law.
In Part 1 of Art. 303 of the Criminal Procedure Code of Ukraine denes
a list of cases in which the decisions, actions or inaction of an investigator
or prosecutor may be challenged during pre-trial proceedings – such as the
inaction of an investigator or prosecutor, which consists in not entering
information about a criminal oense into the Unied Register of Pre-
Trial Investigations after receiving a statement or notication of criminal
oence, failure to return temporarily seized property in accordance with
the requirements of Art. 169 of the Criminal Procedure Code of Ukraine, as
well as in failure to perform other procedural actions, which he is obliged
to perform within the period specied by the Criminal Procedure Code of
Ukraine; the decision of the investigator, the prosecutor to stop the pre-trial
investigation; the investigator’s decision to close the criminal proceedings;
prosecutor’s decision to close criminal proceedings and / or proceedings
against a legal entity, etc., (Criminal procedure code of Ukraine, 2012).
Also in accordance with Part 2 of Art. 303 of the Criminal Code of Ukraine,
complaints about other decisions, actions or inaction of the investigator
or prosecutor are not considered during the pre-trial investigation and
may be considered during the preparatory proceedings in court (Criminal
procedure code of Ukraine, 2012).
Recently, there have been frequent proposals to improve the legislative
regulation of criminal proceedings in terms of challenging the decisions
and actions of the investigator and prosecutor at the pre-trial investigation
stage. To date, the Criminal Procedure Code does not establish a proper
and clear procedure for challenging the decisions, actions and inactions of
investigators and prosecutors at the pre-trial investigation stage.
The stage of the pre-trial investigation of criminal proceedings consists
of several stages, in particular, entering information into the Unied register
of pre-trial investigations, notifying the person of suspicion, completion
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and termination of the pre-trial investigation. Each of these stages, in turn,
requires the pre-trial investigation body to fulll its tasks by conducting
separate procedural actions and making procedural decisions.
Any procedural action or set of actions during criminal proceedings
must be performed by the investigator and the prosecutor without undue
delay and in any case no later than the time limit determined by the relevant
provision of this Code (Part 2 of Article 113 of the Criminal Procedure
Code of Ukraine). Article 219 of the Criminal Procedure Code of Ukraine
establishes the terms of a pre-trial investigation for making one of the
following decisions in a case - an appeal to the court with an indictment, a
request for the application of coercive measures of a medical or educational
nature, a request for the release of a person from criminal responsibility or
a decision to close (Criminal procedural code of Ukraine, 2012).
Due to their legal nature, procedural terms act as temporal conditions
for the realization of subjective rights and legal obligations of participants
in criminal procedural legal relations. Unjustied appeal by the participants
of the criminal proceedings of the decisions and actions of the pre-trial
investigation body leads to the prolongation of the process and violation of
reasonable terms.
According to the current judicial practice, the defense party usually
initiates the ling of complaints of the specied category in order to delay
the process, with the aim of avoiding criminal liability for the suspect.
In addition, by groundlessly challenging the decisions and actions of
the pre-trial investigation body, the participants in the proceedings create
articial obstacles to make it impossible for the pre-trial investigation
body to fulll the tasks of the criminal proceedings - to properly protect
the person, society and the state from criminal oenses, protect the rights,
freedoms and legitimate interests of the participants in the criminal
proceedings, and to ensure a prompt, full and impartial investigation and
trial so that everyone who commits a criminal oense is held accountable
to the extent of his guilt, no innocent person is charged or convicted, no
person is subjected to unreasonable procedural coercion and that due
process of law was applied to each participant in the criminal proceedings.
The European Court of Human Rights in its decisions, in particular in
the case of «Union Alimentaria v. Spain» dated July 7, 1989, indicates the
inadmissibility of disobeying the key principle – the rule of law in cases
where the behavior of the participants in the court session indicates the
deliberate nature of their actions, aimed at unjustied delay of the process
or abuse of his procedural right» (ECtHR decision in the case «Union
Alimentaria Sanders v. Spain», 1989).
Along with this, the Criminal Court of Cassation of the Supreme Court
in the ruling dated 09.04.2019 in case No. 306/1602/16-k notes that the
84 Mark Makarov, Liliia Matiiek, Dmytro Smotrych, Nataliia Radanovych y Iryna Bovnehra
Institute of appeal in the mechanism of protection and restoration of rights and legitimate interests
procedural law ensures compliance with the rights of individuals, and not
their use for abuse (Decision of the Criminal Court of Cassation of the
Supreme Court No. 306/1602/16-k, 2019).
It should be emphasized that to date, the Criminal Code of Ukraine
does not provide for a general provision on the prohibition of the abuse
of procedural rights of a party and does not dene the mechanism of
responsibility for the violation of the obligations dened by the criminal
procedural law, therefore granting a party the right to an absolute appeal
against any decision or action of a pre-trial investigation body will lead to
the violation of the rights of other participants in the process (the victim,
witnesses, translators, representatives).
In our opinion, when deciding on the list and scope of the right of
participants to appeal the decisions and actions of the pre-trial investigation
body, one should proceed from the balance of the state’s positive obligations
to the person and without appeal accept for consideration the statement that
the pre-trial investigation body violated conventional and/or constitutional
rights and human freedom – torture and inhumane treatment (Article 3
of the Convention, Part 1 of Article 28 of the Constitution of Ukraine), the
rights of the suspect, the accused to protection, including professional legal
assistance (paragraph «c» of Part 3 of Article 6 of the Convention , Article
59 of the Constitution of Ukraine), to participate in the examination of
witnesses (clause «d» part 3 of Article 6 of the Convention) (Convention for
the protection of human rights and fundamental freedoms, 1950), human
rights to respect for one’s private life, inviolability housing (Article 8 of
the Convention), on refusal to testify about oneself, one’s family members
and close relatives (Part 1 of Article 63 of the Constitution of Ukraine)
(Constitution of Ukraine, 1996).
In view of the above, we consider it necessary to add paragraph 11, part 1
of Article 303 of the Criminal Procedure Code of Ukraine with the following
content: «decisions, actions or inaction of the investigator or prosecutor
during the pre-trial investigation, which violate the essential rights of the
participant in the proceedings, are subject to appeal to the investigating
judge.»
The exercise of the right to appeal the decisions, actions or inaction of
the specied subjects must meet the requirement of access to justice in the
form of an appeal. In this regard, S. Slynko gives enough arguments that
the provisions of the Criminal Procedure Code of Ukraine regarding the
appeal not only of the decisions, actions or inaction of the investigator and
prosecutor, but also of the investigating judge are fully democratic. The
peculiarity of this procedure is that it is carried out only on appeal (Slynko,
2014).
In this case, we consider the addition of articles 307 and 309 of the
Criminal Procedure Code of Ukraine to be fully justied with the following
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content: «the decision of the investigating judge based on the results
of the review of complaints against the decision, actions or inaction of
the investigator or prosecutor, which violate the essential rights of the
participant in the proceedings, may be appealed in the court of appeal».
At the same time, in order to minimize abuse by the participant of
the right granted to him to challenge the decisions and actions of the
investigator and the prosecutor, it is necessary to establish at the legislative
level the obligation for him to bear responsibility for the incurred expenses
to the state budget.
It is worth noting that in the practice of the ECtHR, consideration of
complaints regarding violations of the rights of individuals during criminal
proceedings prevails. In international law, a complaint is generally
considered the most common means of legal protection (Korobko, 2016).
In particular, the case «Amann v. Switzerland» states that the Convention
for the Protection of Human Rights requires that anyone who considers
himself aggrieved by a measure which, in his opinion, contravenes the
Convention, has the right to a remedy before the appropriate national
authority to resolve his grievance. dispute, and in the case of a positive
decision – to receive damages (ECtHR decision in the case «Amannv.
Switzerland», 2000).
Adoption of legal and substantiated judicial acts is ensured by valid
economic procedural legislation, the procedure for organizing the activity
of economic courts and a high level of professional training of judges. A
special place in the implementation of this right is provided by the economic
procedural legislation, the possibility of individuals and legal entities to
appeal the decisions made by the courts of the rst instance.
Appealing the decisions of the court of rst instance ensures the renewal
of the violated procedural rights and interests of the participants in the
court process. This is one of the conditions for a fair, impartial and timely
resolution of a legal dispute.
In accordance with Part 1 of Art. 254 of the Economic Procedural Code of
Ukraine, participants in the case, persons who did not take part in the case,
if the court decided the issue of their rights, interests and (or) obligations,
have the right to le an appeal against the decision of the court of rst
instance (Economic procedure code of Ukraine, 1991). O. Solovyov notes
that the appellate court reviews the case based on the evidence available in
it and additionally submitted and checks the legality and reasonableness of
the decision of the court of rst instance within the limits of the arguments
and requirements of the appeal (Soloviev, 2020).
On the basis of the above, it can be argued that the stage of review
of economic cases by the appellate court is an important guarantee of
compliance with the rights of the participants in the process to an objective,
86 Mark Makarov, Liliia Matiiek, Dmytro Smotrych, Nataliia Radanovych y Iryna Bovnehra
Institute of appeal in the mechanism of protection and restoration of rights and legitimate interests
comprehensive and legal trial. The presence of appellate proceedings
indicates the development of economic procedural legislation, which was
reected in the current legislation.
Based on the results of the case review, the appellate court, after listening
to the explanations of the participants in the court process, examining the
case materials, makes a decision in the form of resolutions in accordance
with the requirements established by Art. 34 and Chapter 9 of Chapter III
of the Economic Procedural Code of Ukraine (Economic procedural code of
Ukraine, 1991).
Summing up, we note that one of the positive features of the
interdisciplinary institute of appeal, regardless of the eld of judicial
proceedings, is its psychological role. The vast majority of decisions of the
court of rst instance are not nal and can be reviewed by experienced and
qualied judges within the framework of appeal and cassation proceedings.
The presence of such a legally dened procedure has a calming eect
both on the persons involved in the case and on society in general.The right
to appeal the decision of the court of rst instance by ling an appeal and
submitting a submission to it by the prosecutor is an opportunity provided
by law to disrupt the functional activity of the court of appeal for a new
(re) consideration of a civil case and to check the decisions and resolutions
passed on it for compliance with the requirements of legality and validity.
The right to le an appeal is granted to the parties and other persons
who participated in the consideration of the case, and the right to le an
appeal is granted to the prosecutor who participated in the consideration of
the case (Article 290 of the Civil Procedure Code of Ukraine).
According to Art. 292 of the Civil Procedure Code of Ukraine, parties
and other persons participating in the case, as well as persons who did not
participate in the case, if the court decided the issue of their rights and
obligations, have the right to appeal the decision of the rst instance court
fully or partially (Civil procedure code of Ukraine, 2004).
The issue of renewing the missed deadline for appealing a court decision
is problematic in civil proceedings. Parts 3 of Art. 297 of the Civil Procedure
Code of Ukraine establishes that an appeal remains inactive if it is led
after the deadline. But the person who submitted it can raise the issue of
renewing this term. If the reasons specied by the person in the application
are found to be invalid, the appellate court also issues a decision to leave the
application without movement. On the basis of Part 3 of Art. 297 of the Civil
Procedure Code of Ukraine, it is possible to resolve the issue of the validity
of the reasons for missing the deadline for an appeal and the opening of
appeal proceedings in the case only when the appeal is led.
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However, the person is given a «second chance», and within 30 days
from the date of receipt of the decision, he has the right to apply to the Court
of Appeals for an extension of the terms or to indicate other reasons for
the extension of the term. If the application is not submitted by the person
within the specied period or the reasons given by him for the renewal of
the appeal period are deemed invalid, the reporting judge refuses to open
the appeal proceedings. At the same time, regardless of the seriousness
of the reason for missing the appeal period, the appeal court refuses to
open appeal proceedings if the appeal of the prosecutor, state authority
or local self-government body is led after one year has passed since the
announcement of the contested court decision (Civil Procedure Code Of
Ukraine, 2004).
Cassation proceedings in civil proceedings should be understood as the
procedural and procedural activity of the court of cassation, which is carried
out in the order and manner prescribed by law, by checking the decisions
of lower courts for violations of substantive and procedural law, identifying
and eliminating such violations for the purpose of protection and renewal
rights of the parties.
The subject of a cassation appeal is a court decision, which is appealed
by the plainti in connection with the presence in its content, in the opinion
of the plainti, of signs of incorrect application of the norms of substantive
law by the court or violation of the norms of procedural law, which violates
his rights and legitimate interests (or rights and legitimate interests the
person on whose behalf the cassation appeal is led), on the basis of which
the cassation instance court conducts a cassation review of the relevant
cassation appeal (Pomazanov, 2019).
Therefore, taking into account the above classications of appeal
methods in civil proceedings, we can conclude that an appeal is a common
(ordinary) reformation method of appeal and review of court decisions
that have not entered into legal force, which causes a devolution eect on
the court case (transfer of powers to consider the case from a lower to a
higher court) and a suspensive eect (stops the execution of contested court
decisions) on the contested court decision.
Cassation in a civil process is an extraordinary extraordinary way of
appeal and review of court decisions that have entered into legal force,
which causes a devolving eect on the court case and, as a general rule, does
not cause a suspensive eect on the court decision under appeal. Similar
conclusions can be drawn regarding other types of judicial proceedings.
The proper implementation of the right to appeal decisions, actions or
inaction in relations between public authorities and private individuals
becomes important. It is through the appeal mechanism that private
individuals who are or may be in legal relations with state authorities and
88 Mark Makarov, Liliia Matiiek, Dmytro Smotrych, Nataliia Radanovych y Iryna Bovnehra
Institute of appeal in the mechanism of protection and restoration of rights and legitimate interests
local self-government bodies, their ocials, other subjects of authority,
are able to achieve the cancellation or recognition of illegality of a certain
decision, action or inaction.
In turn, the inuence exerted by private individuals on the subjects of
public authorities through the appeal mechanism has a wider signicance.
In particular, with its help, there is a «reverse» relationship between
society and the state, certain decisions of subjects of public authorities are
corrected, their law enforcement practice, which contributes to ensuring
the rule of law and democracy in the country.
The right to appeal decisions, actions or inaction of subjects of public
authority as an element of the appeal mechanism – is a human right
and, at the same time, a subjective right of a participant in the relevant
legal relationship. Characteristic features of the right to appeal within the
framework of administrative proceedings are naturalness, inalienability
and inalienability, the obligation of the state to guarantee such a right
within the limits of international standards, etc. The subjective right, the
right to appeal, consists of a number of powers. Such a right corresponds
to legal obligations, compliance with which enables the exercise of the right
and prevents abuse of the latter (Luchenko, 2017).
In our opinion, the state’s obligations in the eld of guaranteeing the
right to appeal decisions, actions or inaction of subjects of public authority
include: creation of the necessary legislation, as well as institutions necessary
for the exercise of the right to appeal; ensuring timely consideration of
complaints and administrative lawsuits; ensuring the implementation of
decisions made as a result of the appeal; ensuring, in necessary cases, the
prosecution of subjects of public authorities whose decisions, actions or
inaction were successfully challenged; informing together with civil society
institutions of citizens about the methods and procedure of exercising the
right to appeal.
It should also be emphasized that the right to appeal is one of the channels
of communication between private individuals and bearers of public
authority, the state as a whole. As D. Luchenko rightly points out, thanks to
the appeal, not only the rights and legitimate interests of private individuals
are protected, but also the rule-making and law-enforcement practice of
the subjects of public-authority powers are corrected for the future, the
subjective and inconsistent with the content of the legal norms of the
interpretation of the latter are eliminated, as well as issuance of individual
legal acts that contradict the legislation, attempts at sub-legal rule-making
aimed at leveling the meaning of the law or ignoring its provisions are
stopped and prevented. As a result, the appeal serves as a factor to ensure
the democratic nature of rulemaking, control and accountability of public
authorities (Luchenko, 2017).
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Analyzing the peculiarities of the implementation and provision of the
right to appeal in the relations between subjects of public authority and
private persons, we note that the functions of appealing decisions, actions
or inaction of subjects of public authority should be connected with three
basic European legal values, which determine the essence of European legal
systems: human rights, rule of law and democracy. The appeal is a way to
ensure the implementation of the mentioned values in real legal (normative,
law enforcement, control, etc.) practice. Without an appeal, the rule of law
cannot be ensured, and in the absence of the right to appeal, the democratic
character of the state itself looks doubtful.
Taking into account the strengthening of Ukraine’s position in the
international arena, the development of mechanisms for ensuring the
realization of the rights of a person involved in the administrative-delict
sphere, during the proceedings of which everyone can evaluate the activity
of an administrative body (ocial) and the court in terms of its legality and
eectiveness, is of particular relevance. The evolution of the legal system
in Ukraine and in foreign countries proves that the consideration and
resolution of a jurisdictional case by one body (ocial) - one instance leaves
room for mistakes, which leads to the ineciency of the judiciary and, as a
result, a decrease in trust in state authorities, faith in justice.
It is worth noting that the administrative-delict process in Ukraine
remains a complex phenomenon due to its contradictory legal nature
and the presence of dierent scientic views on the understanding of its
institutions. However, it is indisputable that the institution of appeal in
cases of administrative oenses is an important guarantee of ensuring
compliance with the constitutional rights of a person, a manifestation of
essential features of a democratic legal state, especially in areas related to
the use of coercion.
In general, the institution of an appeal in an administrative-delict
process must be considered as a completed process consisting of certain
stages that develop over time: drawing up a complaint; its presentation;
registration; preliminary examination; verication of the circumstances
stated in the complaint; consideration on the merits, decision-making on
the complaint; implementation of this decision.
The essence of the appeal can be seen in the dialectical unity of the
stages of its implementation and functions. they are characterized by
normative-legal consolidation, prevalence in the administrative-legal
sphere, being determined by the legal status of the subject of the appeal,
limited by the tasks of administrative-delict proceedings. The results of
the study of scientic approaches to the classication of appeal functions
gave grounds to assert that their varieties in the administrative-tort process
are: social, regulatory, rights-restoring, rights-enforcing, control (control-
supervisory), preventive (warning).
90 Mark Makarov, Liliia Matiiek, Dmytro Smotrych, Nataliia Radanovych y Iryna Bovnehra
Institute of appeal in the mechanism of protection and restoration of rights and legitimate interests
If we talk about the consequences of appealing a resolution, they depend
on the stage of the appeal: the ling of a complaint leads to the suspension
of the implementation of the resolution (except for cases specied by
law); making a decision on a complaint results in leaving the resolution
unchanged, canceling it, closing the case, drawing up a new resolution,
sending the case for a new consideration, changing the administrative
ne, compensation for property damage; announcing the decision on the
complaint and sending its copies to the interested persons ensures the
implementation of the complaint.
Conclusions
Based on the results of the study of the functioning of the appeal institute
in Ukraine in the mechanism of protection and renewal of the rights
and legitimate interests of individuals, we can formulate the following
conclusions.
The right to appeal is an absolute subjective right of every person and
represents an opportunity given by the state to a participant in the proceedings
at his discretion to satisfy the interests provided for by objective law. This
approach in Ukrainian legislation reects world standards in the eld of
protection of the rights, freedoms and legitimate interests of individuals in
a democratic society. Appeal is a multifaceted phenomenon with social and
legal content and an independent interdisciplinary institution.
This is a set of legal norms that regulate social relations, which arise
due to the subjective right of a person to appeal and are characterized by
specic rights and obligations of the parties to such legal relations. The
implementation of the right to appeal in criminal, administrative, civil and
economic proceedings has material-legal and procedural-legal expression.
Thanks to the appeal, the right to protection of the person is realized, the
right to access to justice is ensured.
The analysis of the methods of appeal in criminal, civil, economic
and administrative proceedings led to the conclusion that the appeal is a
common ordinary method of appeal and review of court decisions that have
not entered into legal force, which causes a devolving eect on the court
case and a suspensive eect on the contested court decision. Cassation
in procedural law is an extraordinary way of appeal and review of court
decisions that have entered into legal force, which causes a devolving eect
on the court case and usually does not cause a suspensive eect on the court
decision under appeal.
Currently, the criminal procedural legislation of Ukraine does not
contain a general provision on the prohibition of the abuse of procedural
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rights of a party and does not dene the mechanism of responsibility for the
violation of obligations dened by the criminal procedural law, therefore
granting a party the right to an absolute appeal against any decision or
action of a pre-trial investigation body will lead to a violation of the rights of
such participants in the process, such as the victim, witnesses, interpreters,
representatives.
When resolving questions regarding the list and scope of the right of
participants to appeal the decisions and actions of the pre-trial investigation
body, one should proceed from the balance of the state’s positive obligations
to the person and accept without appeal the application for consideration
of the pre-trial investigation body’s violation of conventional and/
or constitutional human rights and freedoms. In view of the above, it is
proposed to make appropriate changes to Part 1 of Art. 303, Articles 307
and 309 of the Criminal Procedure Code of Ukraine.
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Esta revista fue editada en formato digital y publicada
en octubre de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79
