Constitutional control of the judicial law in criminal proceedings: realities and prospects

The article contains the main definitions of constitutional control proposed by national researchers of constitutional law. Attention is drawn to the importance of constitutional control for law in general and for criminal proceedings in particular. In particular, the author points out that due to the gradual introduction of legal opinions and legal positions of the Supreme Court (hereinafter - SC) in criminal proceedings as binding prescriptions both during pre-trial investigation and court consideration of criminal proceedings, there is a need to study and introduce special mechanisms for checking their compliance with the Constitution of Ukraine and the Law of Ukraine. With the aim of studying constitutional control over decisions of cassation courts of general jurisdiction as one of the options for supreme courts to comply with the rule of law, ensure the right to a fair trial and achieve legal certainty in criminal proceedings, the author made an analytical and comparative study of the legislation of such countries as Ukraine, Azerbaijan, Great Britain, Germany, Poland and the USA. Based on the analysis, the countries were divided into several groups depending on those where constitutional courts have been established and those where they are absent but constitutional jurisdiction exists, and within these groups the main models of constitutional control were identified: 1) constitutional control over decisions of supreme courts is not provided for by law, 2) constitutional control over final court decisions is directly defined by the country’s fundamental law, 3) the cassation court checks the constitutionality of judicial precedent, both established by lower courts and by itself. The author analyses each model of consti­tutional control in terms of its strengths and weaknesses. The author concludes that each model has both its advantages and disadvantages. The ideal constitutional control of the judicial law, which would ensure that the supreme courts make balanced, objective and reasoned decisions aimed at achieving the unity of judicial practice and the rule of law, can be determined only if it is based on such criteria as functionality and efficiency.