Due process in code enforcement as criminal procedural task: to the issue on essence and practical use

Despite the fact that the due process of law concept is one of the most fundamental and common idea in every modern democratic constitutional state, the term of “due process of law” is a novelty in Ukrainian legislation. The aim of the research is to determine an essence and substance of an applying due process as criminal procedural objective. The methodological basis of the research was general scientific and special methods, namely dialectical, hermeneutic, teleological, logical, historical, statistical, formal legal and comparative legal methods. The author reviewed the genesis of due process concept, in particular in English and US legal systems, and as a part of some current international treaties. The author analysed Ukrainian version of due process concept (“appropriate legal procedure”) and the author's definition was derived, according to which this is an order of taking legal actions which embodies in practice the rule of law by applying to each person those legal norms that completely correspond to all important circumstances that occurred in reality and grant the unambiguously possibility to predict in advance that application and the result of legal rules enforcement. A brief overview of the regulatory provisions that make up the content of due process was provided. It was determined that the essence of due process is related to ensuring the sustainability of the social contract. Due process of law is the basic guarantee of preventing the arbitrariness of power, unlawful compulsion, coercion and pressure on natural rights and freedoms of citizens. The difference between current legally-determined criminal procedural objective “application of due process” and the criminal procedural objective of the Soviet criminal process – “ensuring the correct application of the law” was analysed. It was proposed to attribute the application of due process to assurance, “guarantee” objectives, which is aimed at limiting the general objective – to ensure prompt, comprehensive and impartial investigation and trial. The importance of applying due process in criminal proceedings, in particular, when legal lacunae or conflict of laws exist, was characterised. It was determined that the Verkhovna Rada of Ukraine, the Constitutional Court of Ukraine, the European Court of Human Rights, and the Supreme Court are the bodies, which formalise the substance of due process. The results of the study can be used both in practical activities to ensure the effective implementation of due process of law and in legal education and further scholarly activity.