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03.05.2023

On modern trends regarding the competitiveness of the parties during the court process

Judge of the Supreme Court in the Cassation Criminal Court Arkady Bushchenko noted that after the adoption of the Code of Criminal Procedure of Ukraine in 2012, there is a tendency when the parties increasingly try to transfer the opponent’s evidence to the category of inadmissible. For this, they use even formal pretexts, and this is wrong.

“Participants in the process must prove why exactly this or that action can upset the balance between the parties and harm the proceedings,” he emphasized. For example, there are often cases when the participants turn to the court with a demand to cancel the decision, indicating the presence of unconditional grounds for this, specified in the Criminal Procedure Code of Ukraine. However, in reality, this can be a formal excuse, which will only harm the case. The judge drew attention to the fact that the concept of unconditionality nevertheless involves the assessment of various circumstances of the case in order to make a final decision.

During his speech, Arkady Bushchenko talked about another problem faced by judges. Participants in the process often use as an argument in appeals that the court did not sufficiently investigate the circumstances of the case, while ignoring the fact that now the court has other functions and should not do this – it is the duty of the parties. This situation arose due to the inconsistency of the grounds for an appeal or cassation appeal with other provisions of the Criminal Procedure Code of Ukraine.

At the same time, if the parties provide evidence and the court does not accept it, then there is reason to say that the court did not create the necessary conditions for the party to fully defend its position. However, in other circumstances, such a requirement is groundless.

According to Arkady Bushchenko, judicial practice and the issue of adversarial nature of the parties cannot be simplified or unified, because every year the legal process is more and more influenced. In particular, it is necessary to take into account the practice of the European Court of Human Rights, changes in national legislation, assess its compliance with the Constitution of Ukraine, Ukraine’s international obligations and other sources of law. There are other circumstances to consider, such as war, which also affect the legal process.

During the event, the participants discussed changes in criminal law and process, features of pre-trial investigation of anti-corruption proceedings and new trends in anti-corruption justice.

The anti-corruption forum was organized by the Association of Lawyers of Ukraine.

The video of the event can be viewed at the link – https://cutt.ly/F5Kxw0W .

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