Appeals against decisions should take into account the interests of all participants – UNBA
When detailing the provisions of the Criminal Procedure Code regarding the group of court decisions that may be appealed on appeal, it is necessary to take into account the interests of all participants (parties) in the criminal process.
This was pointed out by the Committee of the Ukrainian National Bar Association on Criminal Law and Procedure following the analysis of Draft Law No. 12139 dated 21.10.2024 «On Amendments to Article 392 of the Criminal Procedure Code of Ukraine regarding the Appeal of Investigating Judge's Decisions».
The document is aimed at improving the provisions of the CPC in terms of the possibility of appealing against rulings obliging the investigator or prosecutor to close criminal proceedings due to the expiration of the pre-trial investigation. To this end, it is proposed to include such rulings in the list of court decisions contained in Article 392 of the CPC.
The UNBA drew attention to the conclusion of the Grand Chamber of the Supreme Court in case No. 237/1459/17 (resolution of 23.05.2018) that if the investigating judge issues a ruling that is not provided for by the criminal procedural rules to which the provisions of Part 3 of Article 309 of the CPC refer, the court of appeal has no right to refuse to verify its legality, referring to the provisions of Part 4 of Article 399 of the CPC. The right to appeal against such a court decision is subject to the provisions of Article 7(1)(17) and Article 24(1) of the CPC, which guarantee it.
Courts of appeal often ignore the right to appeal in order to protect their rights and interests, especially at the stage of pre-trial investigation, when the investigator abuses the right to obtain certain rulings. At the same time, the person in respect of whom the investigating judge's ruling is being enforced is deprived of the right to appeal (re-examine) its legality. In turn, this may create an imbalance in the rights of the participants (parties) to the criminal proceedings and does not comply with the principle of proportionality between the rights and obligations of the pre-trial investigation body and the interested party. This position is also supported by the decision of the Supreme Court of Ukraine in case No. 243/6674/17-k, and the decisions of the Joint Chamber of the Criminal Code of Ukraine in cases No. 569/17036/18 and No. 649/3986/19.
Therefore, despite the need to detail the construction of the provision of the Criminal Procedure Code that defines the group of court decisions that may be appealed on appeal, it is necessary to take into account the interests of all participants (parties) to the criminal proceedings.
Therefore, the proposed amendments to the article do not solve the problem of reviewing court decisions where, in the complainant's opinion, the first instance court did not comply with the principle of legality and guarantees of his/her rights and freedoms. Since there are a number of rulings that are not subject to appeal, which is not consistent with the established practice of the Supreme Court. For example, the decision to cancel the seizure of property in accordance with the CPC is not subject to appeal.
Taking into account the above, the UNBA's specialized committee proposes to supplement part 1 of Article 392 with a new paragraph that will define a group of decisions that may be appealed on appeal, namely: «rulings of the investigating judge that affect the rights, freedoms and interests of any party to the criminal proceedings at the pre-trial investigation stage or another person in respect of whom the ruling was made and that affect his or her rights and legitimate interests».
Such wording, according to the UNBA, will eliminate unequal understanding of the provisions of this article and ensure equal right of appellate review of decisions of the courts of first instance.
Popular news
European integration
A translation of the report on advocacy presented to the European Parliament has been published
A translation of a research report on the Ukrainian advocacy profession in wartime, previously presented to the European Parliament in Brussels, has been published. The document is presented as a basis for discussion on the rule of law, Ukraine's European integration aspirations, and countering Russian disinformation in the legal sphere.
Legal defence of military personnel
How to formalize discharge from military service: practical workshop
The issue of discharge from military service remains one of the most pressing and complex for Ukrainian defenders and their families. Due to constant changes in legislation, military personnel often face refusals to discharge them from service or even to consider their reports.
Legislation
The Verkhovna Rada Committee criticized the format of the government working group on advocacy
The implementation of the Roadmap on the rule of law (approved by Cabinet of Ministers Resolution No. 475-r of May 14, 2025) in relation to advocacy raises the practical question of who exactly should prepare legislative changes and how.
Self-government
The BCU demands a review of the composition of the government working group on reforming the advocacy profession
The President of the UNBA, BCU Lidiya Izovitova, appealed to the Cabinet of Ministers of Ukraine to review the composition of the working group on improving legislation in the field of advocacy and legal practice.
Guarantees of the practice of law
The President has determined, who will sign the Convention for the Protection of the Profession of Lawyer
President of Ukraine Volodymyr Zelenskyy authorized Ukraine's Permanent Representative to the Council of Europe Mykola Tochytskyi to sign the Council of Europe Convention for the Protection of the Profession of Lawyer.
Legislation
After the war amnesty for criminals or exemption from responsibility?
To ensure national reconciliation, rehabilitation of persons who have been persecuted for political reasons, restoration of justice, and establishment of lasting peace, it is proposed to introduce an amnesty after the war.
Discussion
Why lowering the age of marriage lacks legal logic
Although until 2012 there was a provision in family law that allowed children to marry from the age of 14 under certain circumstances, its return to Ukrainian law would contradict international obligations and the logic of criminal law.
European integration
Open dialogue between the UNBA and the European Commission on the path to EU
The Ukrainian National Bar Association held a working meeting in Brussels with Mr Wolfgang Nozar, Head of Unit for Governance, Rule of Law and Financial Assistance, Directorate-General for Enlargement and Eastern Neighbourhood (DG ENEST), European Commission.
Publications
Volodymyr Matsko Extradition as a systemic form of rights violations
Victoria Yakusha, Law and Business The anti-corruption vertical cannot «take care» of the Bar as an institution, - acting head of the HQDCB
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection
Sergiy Vylkov Our judicial system is so built that courts do not trust advocates
Iryna Vasylyk Advocacy in the proclamation of Independence of Ukraine