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.