On August 29, 2022, the Supreme Court by the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation in case No. 760/12531/16-k satisfied the cassation appeal of the lawyer, stating that if there are reasonable grounds to believe that the person who filed the appeal wants her refuse, the appellate court must postpone the trial in order for the person to have the opportunity to submit a written statement about the refusal of the appeal filed by him or to participate in the court hearing directly or via video conference and in the court hearing to refuse the appeal.
By the verdict of the district court, the person was found guilty of committing a criminal offense provided for in Part 1 of Art. 115 of the Criminal Code of Ukraine.
The appellate court decision closed the appellate proceedings due to the refusal of the defense counsel and the accused to appeal.
In the cassation appeal, the lawyer indicated that the conclusion of the court of appeals that in the court session before the start of the trial the defense lawyer submitted a motion to withdraw the appeal submitted by him is far-fetched and does not correspond to reality, since he could not withdraw his appeal at the court session due to his absence from the court session and, in addition, he did not submit any motions for refusal . He also notes that the Criminal Procedure Code does not provide for the right of the accused person to refuse the appeal of the defense counsel.
The Supreme Court annulled the decision of the appellate court and ordered a new trial in the appellate court, noting that according to the materials of the criminal proceedings, an appeal was filed by the defense counsel on behalf of the convicted woman against the verdict of the local court, and an appeal was also filed by the convicted woman.
In the court session of the court of appeal, the defender of the convicted person, a lawyer who was appointed by the court at the request of the convicted person due to the repeated non-appearance of another lawyer, indicated that her client wants to withdraw her appeal and the appeal of the defense counsel.
Guided by the provisions of Part 1 of Art. 403 of the Criminal Procedure Code of Ukraine, the appellate court noted that only the person who filed it can withdraw the appeal, and suggested that the defender call another lawyer and find out his position on this issue.
As can be seen from the log of the court session and the technical record , the defense attorney called another lawyer during the court session and, based on the results of the conversation, informed that the lawyer was withdrawing the appeal filed by him on behalf of the convicted person .
However, based on the systematic interpretation of the provisions of the Criminal Procedure Code of Ukraine, the appellate court should have postponed the trial so that another lawyer had the opportunity to submit a written statement about the rejection of the appeal filed by him, or to participate in the court session, either directly or via video conference. and at the court hearing to refuse the appeal.
Under such circumstances, the Supreme Court agreed with the arguments of the cassation appeal of the lawyer, that the court of appeal committed significant violations of the requirements of the Criminal Procedure Law, since the current Code of Criminal Procedure of Ukraine does not provide for the participation of the parties in the court proceedings in the court session in telephone mode , as the possibility to refuse in telephone mode is also not provided for from the appeal.