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
Interaction
A manifesto on AI in law was presented in Europe. The UNBA has joined the initiative
On June 24, as part of European Legal Sovereignty Day, which took place in Brussels, the Manifesto for a Referential of Human Guarantee in the Legal Use of AI was presented.
Court practice
Lidiya Izovitova identified 7 challenges in administrative proceedings for advocates
The predictability of judicial practice, jurisdictional disputes, cassation filters, enforcement of judgments against the state, the burden of proof, written proceedings, and guarantees for the practice of law remain key issues in administrative justice for advocates.
Guarantees of the practice of law
Preparations for the ratification of the Convention on the Protection of the Professions of Lawyer are in the final stages
On June 9, the Verkhovna Rada Committee on legal policy held a working meeting to prepare for the ratification of the Council of Europe Convention on the Protection of the Professions of Lawyer. The Ministry of Justice and the Ukrainian National Bar Association agreed on approaches to draft laws regarding the ratification and implementation of the Convention. Participants have been given 10 days to prepare the draft laws that will be submitted for consideration.
Announcements
Internships at German law firms: IRZ is accepting applications from Ukrainians
In 2026, the German Foundation for International Legal Cooperation (IRZ) plans to organize a multilateral internship program for young advocates from partner countries. Participants will attend an introductory seminar in Bonn and complete internships at law firms in Germany.
Guarantees of the practice of law
Restrictions on the right to legal assistance in pretrial detention centers are unacceptable – statement by the BCU
The Bar Council of Ukraine has stated that it is unacceptable to restrict the right to professional legal assistance, the guarantees of legal practice, and the confidentiality of communications between advocates and clients in pretrial detention facilities operated by the State Criminal-Executive Service of Ukraine.
Legal defence of military personnel
The UNBA is expanding its legal support services for war victims
The UNBA Committee on the protection of victims of armed aggression against Ukraine, compensation mechanisms and European integration legal support for recovery continues its work on assistance programs for military personnel, veterans, their family members and businesses that have suffered damage as a result of the war.
European integration
The UNBA presented the CCBE with an overview of legal reform and challenges
Reform of the legal profession, Ukraine’s European integration commitments, guarantees of the profession’s independence, and practices of bar self-governance in European countries — these issues were the subject of discussion at the Council of Bars and Law Societies of Europe (CCBE).
Rule of Law Roadmap
The UNBA is compiling the findings of the subgroups regarding the implementation of the Rule of Law Roadmap
Today, May 28, the Ukrainian National Bar Association hosted a meeting of the Coordination Bureau of the Working Group on the implementation of the Rule of Law Roadmap regarding the reform of the advocacy profession. Following a series of meetings by thematic subgroups, the work is now moving to the stage of consolidating proposals and preparing a coordinated package of recommendations.
Publications
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
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