The Plenipotentiary of the Verkhovna Rada of Ukraine for Human Rights Lutkovskaya VV appealed to the Constitutional Court of Ukraine with a petition to declare the sixth part of Article 216 of the Code of Criminal Procedure of Ukraine (hereinafter - the Code) with the request to declare the sixth part of Article 216 of the Code of Criminal Procedure of Ukraine (hereinafter referred to as the "Code") not corresponding to the first part of Article 3, part one of Article 8, parts one and two of Article 27, part two of Article 28 of the Constitution of Ukraine (unconstitutional).

According to part six of Article 216 of the Code, investigators of the bodies of the State Penitentiary Service of Ukraine (hereinafter - the Service) carry out pre-trial investigation of crimes committed in the territory or premises of the Service.
According to Article 3 of the Constitution of Ukraine, a person, his life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value (part one); human rights and freedoms and their guarantees determine the content and direction of the state's activities, which is responsible to the person for their activities, and the assertion and maintenance of human rights and freedoms is the main duty of the state (part two).

As the Constitutional Court of Ukraine noted in Decision No. 2-рп / 2016 of June 1, 2016, the state, fulfilling its main duty - to assert and secure human rights and freedoms - should not only refrain from violations or disproportionate restrictions on human rights and freedoms, but also take appropriate measures to ensure their full implementation by everyone who is under its jurisdiction for this purpose, the legislator and other public authorities must ensure effective legal regulation that corresponds to constitutional norms and principles, and to create the mechanisms necessary to meet the needs and interests of the individual; while increased attention should be focused on particularly vulnerable categories of persons (paragraph 1 of paragraph 3 of the reasoning part).

The Constitutional Court of Ukraine considers that the positive duty of the state to implement an adequate system for protecting the life, health and dignity of a person is to ensure the effective investigation of the facts of deprivation of life and improper treatment, including against persons in places of deprivation of liberty under the full control of the state. The effectiveness of such an investigation is measured by its completeness, comprehensiveness, speed, independence and the like. Independence of the investigation of violations of human rights to life and respect for its dignity in places of deprivation of liberty means, in particular, that from the point of view of an impartial observer there should be no doubt about the institutional (hierarchical) independence of a state body (its officials) authorized to carry out an official investigation of such violations. In this respect, independence of the investigation can not be achieved if the competent state body (its officials) is institutionally dependent on the body (its officials) to whom the system of places of deprivation of liberty is subordinated and which is responsible for its functioning.

Thus, on the basis of the first part, the second part of Article 27, the first part, second part of Article 28 of the Constitution of Ukraine, in a systematic connection with its Article 3, the state should introduce legislation that would ensure the effective investigation of applications, reports of violation of the constitutional human rights to life and respect for his dignity in places of deprivation of liberty by a competent state body (his officials) is not in institutional or hierarchical dependence on the state body ( its officials) to which the system of places of imprisonment is subordinated and which is responsible for its functioning.

As the European Court of Human Rights noted, the system to be established in accordance with Article 2 of the Convention should ensure that an independent and impartial investigation is carried out, meets certain minimum standards for its effectiveness; competent authorities should act with exemplary thoroughness and promptness, and should initiate an investigation that is able, firstly, to establish the circumstances under which the incident occurred and any deficiencies in the functioning of the regulatory system, and secondly, to identify the officials involved in this or bodies of state power (paragraph 187 of the judgment in the case "Salakhov and Islyamova v. Ukraine" of 14 March 2013); as a general rule, it is considered necessary for the persons responsible for the investigation and for carrying out it to be independent of those who are involved in the relevant events (paragraph 42 of the decision in the Mikhalkov and Others v. Ukraine case of January 13, 2011).

According to Article 3 of the Convention and the position of the European Court of Human Rights in the event that a person claims a groundless complaint that she has received improper treatment from state-authorized persons in violation of Article 3 of the Convention, an effective formal investigation is necessary, to ensure the identification and punishment of those responsible persons; otherwise, the general legal prohibition of torture and inhuman or degrading treatment or punishment, despite their fundamental importance, would be ineffective in practice, and in some cases the persons authorized by the State would be able to abuse the rights of those under their control with impunity (para. 276 decisions on the case "Davydov and Others v. Ukraine" of July 1, 2010).

The Constitutional Court decided to admit that part 6 of Article 216 of the Code of Criminal Procedure of Ukraine is not in compliance with the Constitution of Ukraine (unconstitutional), according to which "investigators of the bodies of the State Penitentiary Service of Ukraine carry out pre-trial investigation of crimes committed in the territory or in the premises of the State Penitentiary Service Ukraine ".