Issues of property rights protection in criminal proceedings in the context of the right of access to justice

The article is devoted to study of a procedural mechanism for protection of the constitutional right to property in criminal proceedings in the context of the right to access to justice. It is stated that the European Court of Human Rights, in the light of its judgments, has repeatedly emphasized that “interference with the right to peaceful enjoyment of property must be carried out in compliance with a ‘fair balance’ between the requirements of the general interest of society and the requirements of protection of fundamental rights of an individual.” It is determined that the inviolability of property rights is one of the basic principles of criminal proceeding. The procedural mechanism of initiation or implementation of other appropriate action by an individual (an owner or a legal user of property) whose property has been temporarily seized (unless this person is a suspect) is analysed in order to protect his or her rights and freedoms, to protect his or her property. In particular, it is argued that an owner or legal user of property, who is not endowed with a different procedural status in criminal proceedings, is another individual whose rights or legitimate interests are restricted during the pre-trial investigation, and who has the right to appeal against inaction, which consists in the failure to return temporarily seized property. The author supports the view that, given the normative content of the adversarial principle, a participant in criminal proceedings, who has filed a complaint, must prove each circumstance set forth in it, and an investigator, a detective, and a prosecutor have the right, since it is not their duty to participate in the court hearing, to refute the arguments of the complaint and justify the legitimacy of their procedural behaviour, and the parties are not deprived of the right to present additional arguments in favour of their position that are not set forth in the complaint or in the contested decision. It is noted that the legislator’s restriction of a person’s right to appeal against an investigating judge’s decision may be justified only in respect of appeals against rulings which do not restrict the fundamental rights defined by the Constitution of Ukraine and the Convention for the Protection of Human Rights and Fundamental Freedoms, and do not impede access to justice. In other cases, individuals should have the right to appeal the relevant ruling of an investigating judge, as ensuring judicial control over all actions and decisions in criminal proceedings that in any way restrict the rights of a person is essential for the compliance of legislation with European standards.