Appeals against decisions should take into account the interests of all participants – UNBA

Advocacy
11:57 Fri 22.11.24 97 Reviews
Print

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

The process of signing the Convention on the protection of the profession of advocate was taken under control by the Verkhovna Rada

Guarantees of the practice of law

The process of signing the Convention on the protection of the profession of advocate was taken under control by t…

The Ministry of Justice sent the text of the translation of the Council of Europe Convention on the protection of the advocate to the Ministry of Foreign Affairs «for review and approval». The main legal authority also expressed its support for the Ministry of Foreign Affairs regarding the signing and ratification of this Convention.

16:49 Wed 03.09.25 137
Statement by the UNBA Committee on the «National Police investigation»

Guarantees of the practice of law

Statement by the UNBA Committee on the «National Police investigation»

The media is spreading news that the National Police of Ukraine is allegedly investigating a criminal offense committed by the leadership of the Ukrainian National Bar Association.

13:35 Wed 03.09.25 108
Without the protection of advocates, there will be no fair trials in Ukraine — forum in Odesa

Discussion

Without the protection of advocates, there will be no fair trials in Ukraine — forum in Odesa

Identifying an advocate with their client undermines the foundations of justice, as it deprives individuals of the opportunity to exercise their right to defense, forces advocates to avoid participating in high-profile cases, and ultimately renders procedural guarantees meaningless. Without this, fair trial is impossible.

14:42 Fri 29.08.25 114
The number of cases where advocates are identified with their clients is growing – UNBA report

Guarantees of the practice of law

The number of cases where advocates are identified with their clients is growing – UNBA report

Advocates are increasingly being held hostage to political processes, with them being equated with their clients. Such actions undermine the independence of the profession and create an atmosphere of intimidation, as a result of which Ukrainian citizens are deprived of their right to defense.

13:19 Thu 28.08.25 112
What data is sufficient to initiate an investigation – UNBA comments on draft law No. 12439

Legislation

What data is sufficient to initiate an investigation – UNBA comments on draft law No. 12439

The problem of law enforcement pressure on business remains one of the most acute for the Ukrainian economy. The lack of regulation of certain procedures in the Criminal Procedure Code leads to abuses, as a result of which entrepreneurs find themselves in a state of legal uncertainty.

19:41 Fri 22.08.25 116
Law on advocacy and the Council of Europe Convention: the UNBA assessed compliance (comparative table)

Guarantees of the practice of law

Law on advocacy and the Council of Europe Convention: the UNBA assessed compliance (comparative table)

The Ukrainian National Bar Association has prepared and published a comparative table showing the extent to which Ukrainian legislation complies with the provisions of the Council of Europe Convention on the protection of the profession of advocate.

14:58 Fri 22.08.25 114
The Verkhovna Rada is waiting for the Minister of Justice to take action on signing the Convention on the protection of the profession of advocate

Guarantees of the practice of law

The Verkhovna Rada is waiting for the Minister of Justice to take action on signing the Convention on the protection of t…

Ukraine, which was directly involved in the preparation of the world's first Council of Europe Convention on the protection of the profession of advocate, has still not signed it. There appear to be no formal objections, but no real steps have been taken towards accession either.

13:51 Thu 21.08.25 150
Australian advocate apologizes in court for fake AI quotes

Abroad

Australian advocate apologizes in court for fake AI quotes

In Australia, a royal advocate apologized to a judge for submitting documents in a criminal case against a teenager accused of murder that contained fabricated quotes and non-existent court decisions generated by artificial intelligence.

13:46 Tue 19.08.25 119

Надішліть файл із текстом публікації у форматі *.doc, фотографію за тематикою у розмірі 640х400 та Ваше фото.

Оберіть файл