Written proceedings under the CPC must take into account the rights of the parties – UNBA

The institution of written proceedings, although provided for in Articles 406 and 435 of the CPC, is rarely used in practice during the consideration of criminal cases. This is due, in particular, to the limited number of issues that can be resolved in this manner.

Members of Parliament proposed to remedy the situation by submitting to the Verkhovna Rada draft law No. 13178 of 16 April 2025 «On Amendments to the Criminal Procedure Code of Ukraine Regarding the Legal Regulation of Written Proceedings and the Performance of Certain Procedural Actions».

The document proposes to consolidate the definition of written proceedings. It will refer to the consideration and resolution of appeal or cassation proceedings or a separate procedural issue in a court of first, appeal, or cassation instance without the participation of participants in criminal proceedings and without a court hearing on the basis of criminal proceedings materials in cases established by the CPC.

It also lays the legislative groundwork for expanding its scope of application. For example, issues regarding the referral of criminal proceedings between courts of different levels and jurisdictions, including between courts of appeal, will be resolved exclusively in written proceedings. These issues will be resolved by a panel of judges of the Cassation Criminal Court of the Supreme Court upon submission by the court of appeal or at the request of the parties or the victim no later than five days from the date of such submission or request, which will be decided by a reasoned ruling.

The Verkhovna Rada Committee on Law Enforcement appealed to the Ukrainian National Bar Association to assess the legislative initiative.

Supporting the general idea of legislative regulation of the institution of written proceedings as such, which may contribute to improving the efficiency and expediency of criminal proceedings, the UNBA proposed a number of additions and clarifications.

In particular, advocates drew attention to the fact that the definition of the term «written proceedings» does not indicate the need for the consent of the participants in such proceedings. This directly contradicts the dispositive nature of criminal proceedings, within which the parties to criminal proceedings must have the right to decide independently and freely whether they wish to participate in the court hearing in person or give their consent to its conduct without their participation, on the basis of written materials.

As regards the referral of criminal proceedings between courts of different levels and jurisdictions, this entails a number of risks that may have a negative impact on the fairness of the trial. Determining jurisdiction (as well as pre-trial jurisdiction) is a key procedural tool that can significantly affect the course of criminal proceedings, the rights of the parties, and the outcome of the case.

The issue of referral of criminal proceedings often arises in situations of conflict between the parties and requires consideration of additional circumstances that cannot always be properly assessed on the basis of written documents alone.

The UNBA emphasized that conducting proceedings exclusively in writing makes it impossible or significantly limits the implementation of the principles of adversarial proceedings and disposability, and also deprives participants in the proceedings of the opportunity to respond promptly to their opponents' arguments and provide additional explanations or clarifications orally. This contradicts the principle of the rule of law and may lead to inequality of procedural opportunities.

Therefore, in order to maintain a balance between the expediency of proceedings and compliance with the principles of fair trial, the advocates proposed to provide for the possibility of considering the referral of criminal proceedings from one court to another in both written and oral proceedings, depending on the existence of objections and the will of the participants in the proceedings.

The full comments of the UNBA on draft law No. 13178 can be found at the link.