In criminal proceedings, what matters is not only the outcome sought by the State, but also the means by which it seeks to achieve that outcome.
That is why Article 2 of the Criminal Procedure Code of Ukraine includes the application of due process of law to every participant among the objectives of criminal proceedings.
Due process, however, is far more than formal compliance with a sequence of procedural steps.
Its essence is that any State interference with human rights must have a clear legal basis, be carried out by a competent authority in the form prescribed by law, pursue a legitimate aim and remain proportionate to that aim.
Put differently, the State must be able to answer not only the question 'why?', but also 'who?', 'on what legal basis?' and 'by what means?'.
This is particularly important in criminal proceedings.
Arresting a person, serving a notice of suspicion, conducting a search, seizing property, imposing a preventive measure, obtaining evidence or determining investigative jurisdiction are not merely procedural formalities. Each such action may restrict liberty, privacy, property or other fundamental human rights.
Procedure therefore serves as a mechanism for controlling State power.
Academician Vladlen Honcharenko, among others, emphasized the need for clear legal regulation of procedural actions, their proper documentation and justification, and the possibility of appeal. Modern Ukrainian criminal procedure doctrine develops this idea by linking due process with the rule of law, legal certainty, proportionality, the presumption of innocence, the right to defence and effective judicial control.
A similar approach can be seen in the case law of the Supreme Court: when assessing a procedural violation, what matters is not only a formal departure from a rule, but also the competence of the authority, the nature of the violation and its impact on the rights of the participants and on the fairness of the proceedings as a whole.
This becomes particularly significant under martial law.
The need for swift State action may justify certain restrictions of rights. Speed, expediency or public necessity, however, do not in themselves legalize arbitrary interference.
Due process does not obstruct effective justice. It establishes the boundaries within which State coercion remains lawful.
For a lawyer, procedure is therefore not a search for a formal error. It is a test of whether the State remained within the law when it used its greatest power against a particular person.
Attorneys at Law “Gromov & Gromova”