Current legislation provides for written appeal and cassation proceedings (Articles 406 and 435 of the Criminal Procedure Code of Ukraine); however, in practice, they are rarely used. Specifically, between 2018 and 2024, decisions based on written review were issued in only four cassation criminal proceedings. The problem lies in the limited number of cases in which written proceedings are permitted.

On April 16, 2025, the Verkhovna Rada of Ukraine registered Bill No. 13178, which proposes amendments to the CPC regarding the conduct of written proceedings, as well as the performance of certain procedural actions under martial law.

This article assesses the potential benefits and risks of the proposed amendments to the CPC.

1. The draft law proposes to supplement Part 1 of Article 3 of the CPC with paragraph 24-1, which would provide that written proceedings consist of the consideration and resolution of an appeal or cassation proceeding, or a specific procedural issue, in a court of first instance, appeal, or cassation court without the participation of the parties to the criminal proceedings and without holding a court hearing, based on the materials of the criminal proceedings in the cases established by this Code.

2. Amendments to Articles 34, 379, and 380 of the Code of Criminal Procedure provide that written proceedings shall be used to resolve issues regarding the transfer of criminal proceedings from one court to another, the correction of clerical errors and obvious arithmetic errors in a court decision, as well as the clarification of a court decision, shall be resolved in written proceedings.

• Regarding the determination of territorial jurisdiction (Article 34 of the CPC)

Paragraph 4 of Article 34 of the CPC (as amended in the draft) provides that the parties to the proceedings shall be notified of the date of consideration of a motion or petition to transfer the case to another court and have the right to submit written explanations or objections by that date. The court may request additional information from another court, and a copy of the ruling resulting from the consideration shall be sent to the parties no later than the day following its issuance.

In the proposed version, the provision does not specify a clear deadline for notifying the parties to the proceedings of the consideration of a motion or petition to transfer criminal proceedings from one court to another. This creates the risk that, in the event of untimely notification, the parties will be unable to properly prepare written explanations or objections.

In this context, it is worth noting that written proceedings do not create the necessary conditions for a full clarification of all material circumstances relevant to resolving the issue of a change in jurisdiction, as it precludes direct communication between the court and the parties, which is crucial when considering procedurally complex categories of cases. The absence of an oral hearing limits the court’s access to live arguments, clarifications, reactions, and explanations, which are necessary for a proper assessment of each party’s legal position. Without live dialogue, the parties lose the opportunity to convey informal but significant circumstances that may go unnoticed or be underestimated in written explanations or objections.

Furthermore, the current wording of the article does not prevent the court from considering issues regarding the determination of territorial jurisdiction if the parties (who have been duly notified) have not appeared to participate in the court hearing. Thus, the risk of delaying the consideration of this issue is minimal.

• Regarding the Correction of Clerical Errors (Article 379 of the Code of Criminal Procedure)

Unlike the current version, which requires that parties be notified of a hearing to consider corrections to a court decision, the draft of Part 2 of Article 379 of the CPC proposes that such matters be considered without the participation of the parties and without their prior notification, which may violate the principle of public trials.

• Regarding the clarification of a court decision (Article 380 of the CPC)

Compared to the current version, the draft establishes an obligation to send to the person who filed a motion for clarification of a court decision, as well as to the participants in the court proceedings, not only the ruling granting clarification of the court decision but also the ruling denying such clarification.

It should be noted that, as of today, the court is not precluded from considering issues regarding the correction of clerical errors and/or clarification of a court hearing without the participation of persons who were duly notified but did not appear. That is, similar to the situation regarding the determination of territorial jurisdiction, the risks of delays in considering matters of this category are lower.

However, when comparing the significance of issues regarding the determination of territorial jurisdiction with those related to the correction of clerical errors or the clarification of a court decision, it must be acknowledged that the issue of territorial jurisdiction has greater procedural significance. In this regard, the consideration of issues regarding the determination of jurisdiction should be conducted in accordance with the general procedure, with the parties to the case being summoned.

In contrast, motions that do not substantially affect the course of the proceedings (such as those concerning clerical errors or clarifications) may be considered through written proceedings.

3. To resolve the issue of transferring criminal proceedings from one court to another, it is proposed to grant the court the authority to access data from the Unified State Demographic Register.

It should be noted that, unlike civil, commercial, and administrative proceedings, criminal proceedings do not provide for the possibility of conducting criminal proceedings at the location of one of the parties to the proceedings.

The Code of Criminal Procedure stipulates that criminal proceedings are conducted by the court within whose territorial jurisdiction the criminal offense was committed. If the location where the criminal offense was committed cannot be established, criminal proceedings are conducted by the court within whose territorial jurisdiction the pretrial investigation was completed (Article 32, Part 1).

These circumstances raise doubts about the advisability of granting a court access to data contained in the Unified State Demographic Register.

However, the Code of Criminal Procedure provides for the possibility (in exceptional cases) of transferring criminal proceedings to another court based on the place of residence of the defendant, the majority of victims, or witnesses, as well as in cases where the relevant court is unable to administer justice.

Presumably, the legislature intended to grant courts access to the Unified State Demographic Register specifically to resolve the issue of transferring proceedings to another court in the exceptional cases mentioned above. However, it would be advisable to clearly specify this in the text of the draft law to avoid legal uncertainty.

4. The draft law provides that if the defendant has been called up for contract military service, the court shall suspend the proceedings against such defendant until martial law is terminated or lifted, or until the defendant is discharged from military service, except in cases where the defendant, who was conscripted for contract military service, does not object to the continuation of the trial and is able to participate in court hearings (amendments to Part 1 of Article 335 of the Code of Criminal Procedure).

The Verkhovna Rada Committee on Anti-Corruption Policy, in its opinion on draft law

No. 13178, identified a corruption-prone factor in this provision. In the Committee’s view, this provision creates the potential for abuse of procedural rights, as it allows the defendant to independently influence the course of the proceedings, in particular by expressing a desire to participate or not participate in the hearing of the case, regardless of the factual circumstances or the objective possibility of participation, including via video link. The Committee notes that the provision applies to all military personnel—regardless of whether they are engaged in combat operations or performing logistical functions—which negates the court’s ability to take an individualized approach to assessing the situation. It is also noted that the suspension of proceedings does not result in the suspension of the statute of limitations for criminal prosecution, which could be exploited to artificially delay the hearing of the case. In light of these reservations, the Committee concluded that the relevant provision of the draft law does not comply with the requirements of anti-corruption legislation.

However, it is not possible to agree with the assessment of the Verkhovna Rada of Ukraine’s Committee on Anti-Corruption Policy regarding the presence of a corruption-inducing factor in Draft Law No. 13178. The Committee views the provision on suspending court proceedings due to the defendant’s military service as one that opens the door to manipulation and delays in the proceedings. However, this interpretation fails to take into account the actual legal status of a military servicemember and the conditions of service during martial law. Upon signing a contract, an individual loses procedural autonomy—they are subject to statutory discipline and the orders of the command. As stated in paragraph 110 of the Regulations approved by Presidential Decree No. 1153/2008, the transfer of military personnel within the Armed Forces of Ukraine, including transfers to other military units, is carried out on the basis of an order and does not require the consent of the military personnel. This means that the defendant may be sent to a remote unit or to a combat zone at any time, which makes it impossible for him to participate in court hearings—even via videoconference—due to technical or physical circumstances. Such a situation is not the result of the defendant’s free will and, accordingly, cannot be considered an abuse of procedural rights. On the contrary, the provision on the suspension of proceedings ensures the defendant’s right to participate in the process, to a defense, and to adversarial proceedings, and does not eliminate judicial oversight: the court, as before, must assess the factual circumstances and render a well-reasoned decision. Regarding the extension of this provision to all military personnel—a universal approach under martial law is justified, since exceptions based on functional role (combat/logistical) are neither stable nor sufficiently predictable criteria. Overall, the proposed provision does not create preferential treatment but reflects an attempt to strike a balance between the right to a fair trial and a citizen’s duty to defend the state in the face of armed aggression.

5. The amendments to Articles 396, 403, 406, and 407 of the Code of Criminal Procedure regulate the specifics of written appellate proceedings.

The draft law proposes an amendment to Part 1 of Article 403 of the Code of Criminal Procedure, which provides for the right of a suspect, defendant, or victim to withdraw an appeal filed on their behalf by their defense counsel or representative. On the one hand, this initiative strengthens an individual’s control over the protection of their rights; on the other hand, it may limit the procedural autonomy of the defense counsel, who is obligated to use all means provided by law to ensure an effective defense. In addition, there is a risk that the withdrawal of an appeal may occur under external pressure rather than of the individual’s own free will.

The provision allowing for the consideration of closing the appellate proceedings in writing in the event of a withdrawal of the appeal prior to the commencement of the hearing also raises particular concern. This approach makes it impossible to verify the voluntary nature of the withdrawal and the individual’s understanding of its consequences.

6. It is proposed to extend the deadline for initiating cassation proceedings to 10 days from the date of receipt of the cassation appeal, and to provide that the court of cassation shall issue a ruling denying the initiation of cassation proceedings if there is a ruling closing the cassation proceedings due to the person’s withdrawal of a previously filed cassation appeal against that same court decision, or if there is a ruling dismissing the person’s cassation appeal, or a ruling refusing to initiate cassation proceedings on that person’s cassation appeal against the same judicial decision on similar grounds (amendments to Article 428 of the Code of Criminal Procedure).

7. The draft law also proposes amendments to Articles 427, 434, and 435 of the Code of Criminal Procedure and provides for the court of cassation to issue a judicial decision based on the results of written proceedings in the following cases:

• the cassation review of criminal proceedings concerning criminal misdemeanors;

• if the parties to the criminal proceedings have not expressed a desire to participate in the cassation review;

• the review of rulings of the court of first instance after they have been reviewed on appeal, and of rulings of the appellate court, as provided for in Part 2 of Article 424 of the Code of Criminal Procedure;

• the consideration of matters provided for in Part 3 of Article 34 and Articles 379 and 380 of the Code of Criminal Procedure.

In this case, I consider the most significant proposed change (a negative one) to be the review of criminal proceedings concerning criminal misdemeanors in the cassation instance through written proceedings.

Written proceedings in the cassation court, despite the possibility of submitting a written legal position, significantly limit the effectiveness of the parties’ arguments for several reasons.

First, the written format precludes oral communication between the parties and the court, making it impossible to respond directly to the court’s questions, clarify specific arguments, or provide further details regarding circumstances that may have been formulated ambiguously or incompletely in writing. In the event of a misunderstanding or a need to elaborate on certain assertions, a party lacks the procedural means to influence the court’s perception of its position.

Second, written proceedings deprive the parties of the opportunity to assess their opponent’s legal position as the case unfolds and to promptly present relevant counterarguments. Within the framework of an adversarial process, this opportunity is essential for ensuring a balance of the parties’ interests.

Third, in the absence of an open court hearing, it is impossible to assess how the court perceives the arguments set forth in the complaint, which deprives a party of the opportunity to adapt its position or draw the court’s attention to aspects that have not been considered.

Thus, while written proceedings provide a formal mechanism for presenting a position, in practice they significantly reduce the effectiveness of the parties’ procedural rights, limit the adversarial nature of the proceedings, and make it difficult for the court of cassation to fully understand and consider their arguments.

In conclusion, it should be emphasized that, in the context of written proceedings in criminal proceedings, ensuring the right to be heard is a key guarantee of a fair trial. As evidenced by the practice of the European Court of Human Rights (ECHR), including its decision in the case of “Polakh and Others v. Ukraine,” the state has an obligation to ensure that each party has the opportunity to effectively express its position, even in the absence of personal participation in the hearing. The proposed amendments to the Code of Criminal Procedure of Ukraine regarding written proceedings have the potential to improve procedural efficiency and ensure reasonable timeframes; however, they require careful legislative refinement.