The effectiveness of criminal proceedings and trust in the justice system directly depend on the balance between the powers of the prosecution and the ability of the defense to exercise its right to defense. Procedural control during the pre-trial investigation plays an essential role in maintaining this balance. However, deficiencies in criminal procedural legislation, recent trends in law enforcement practice, and new technological challenges create systemic flaws that risk turning the right to defense into a formal declaration.
One of the most acute problems is concentrated in Article 303 of the Criminal Procedure Code of Ukraine, which establishes an exhaustive list of decisions, actions, or inaction by an investigator or prosecutor that can be appealed during the pre-trial investigation. At first glance, this provision is intended to prevent delays in the process and excessive interference in the activities of the pre-trial investigation authority. However, in practice, it creates ‘blind spots’—entire areas of potentially unlawful actions that fall outside immediate and effective judicial control. As a result, the suspect and other participants in criminal proceedings are deprived of the most crucial guarantee—the ability to promptly stop the illegal actions of the prosecution and restore their violated rights.
This situation does not contribute to achieving the objectives of criminal proceedings, leads to direct negative consequences for the pre-trial investigation itself, and creates a dangerous precedent of impunity. Aware that certain unlawful actions will not have immediate procedural consequences, an unscrupulous investigator gains the ability to manipulate the process. The situation is further complicated by the fact that new technologies, such as generating texts with references to fictitious norms or court practices using artificial intelligence, can be used to justify such actions. Without the ability for immediate judicial response to such facts, the defense finds itself in a preemptively losing position.
Timely challenging the actions of the prosecution would allow participants in criminal proceedings to stop ongoing violations of rights and procedural requirements, which may lead, among other things, to the exclusion of evidence. At the same time, it would contribute to the formation of a consistent judicial practice that would uphold the principle of legal certainty, discipline investigators and prosecutors, and establish clear consequences for failing to adhere to proper legal procedures.
Instead, currently, investigative judges, formally referring to the exhaustive list of decisions, actions, or inaction by an investigator, ignore obvious violations by the prosecution. At the same time, the current legislation offers ‘deferred’ defense: supposedly, these violations can be considered at the stage of the preparatory court session.
However, such an approach is erroneous and dangerous for several reasons.
- Firstly, as emphasized by the Supreme Court, the provisions of Article 303(2) of the Criminal Procedure Code of Ukraine do not contain an imperative requirement for the mandatory consideration of any complaints during the preparatory court session. They only indicate the possibility of such consideration, taking into account the tasks and powers of the court at this stage (Decision of the Second Judicial Chamber of the Cassation Criminal Court within the Supreme Court dated July 3, 2019, in case No. 273/1053/17).
- Secondly, and crucially, the Criminal Procedure Code of Ukraine does not empower the court at the preparatory court session to make any decisions based on the results of the review of complaints about violations committed by an investigator or prosecutor during the pre-trial investigation. Part 3 of Article 314 of the Criminal Procedure Code of Ukraine establishes an exhaustive list of decisions that the court is authorized to make. Unlike Article 307 of the Criminal Procedure Code, which provides specific tools to the investigative judge (to compel cessation of actions, perform certain actions, annul decisions), Article 314 does not empower the court during the preparatory court session to declare the actions of the investigator or prosecutor during the pre-trial investigation unlawful.
As a result, the review of complaints based on Article 303(2) of the Criminal Procedure Code of Ukraine at the preparatory court session has no direct procedural consequences and does not contribute to the restoration of violated rights, which is why this article was recognized by the European Court of Human Rights in the case ‘Denisyuk and Others v. Ukraine’ as an ineffective means of legal protection.
This problem must be addressed through legislative changes, for example: by amending Article 307 of the Criminal Procedure Code of Ukraine, expanding its scope to include the court, or by adding the right of the court in Article 315(2) of the Criminal Procedure Code of Ukraine to ‘declare decisions, actions, or inaction by an investigator, prosecutor, committed or taken during the pre-trial investigation as unlawful.’
Thus, determining the legality of the actions of the prosecution does not require an analysis of evidence collected during the pre-trial investigation and can be part of the preparation for the court hearing.
This innovation will allow separating the assessment of the legality of the actions of the prosecution from the admissibility of evidence, which will not in any way disrupt the established order of evidence examination under the Criminal Procedure Code of Ukraine. On the contrary, it will enable the court to objectively assess the compliance of the actions of the prosecution representatives with the requirements of criminal procedural legislation, without being tied to the consequences of such violations and the role of a particular piece of evidence within the existing criminal proceedings.
This approach will eliminate conditions that promote ‘prosecutorial bias,’ where any complaint about the actions of an investigator or prosecutor is considered through the prism of its impact on the evidentiary base and, as a result, will contribute to real, not formal, judicial control over compliance with human rights and the objectives of criminal proceedings at all stages. In criminal proceedings, time is an irretrievable resource, and the lost opportunity to defend oneself at the start is not compensated by any decisions in the finale.