Oleksandr Tananakin spoke at the Y. L. Bronz Forum on Criminal Law and Procedure

The Yosyp Lvovych Bronz Forum on Criminal Law and Procedure is taking place in Odesa, bringing together representatives of the bar, the judiciary, and the legal community to discuss current issues facing the legal profession. One of the speakers at the event was Oleksandr Tananakin, managing partner of Barristers Law Firm and deputy chair of the Committee on Criminal Law and Procedure of the National Bar Association of Ukraine.

Before moving on to the main topic, Oleksandr Tananakin raised two procedural issues that arise in practice. The first concerned situations where, while an appellate court is determining territorial jurisdiction, the term of a pretrial detention order simultaneously expires. According to the attorney, there have been instances in practice where appellate courts, while considering the transfer of a case to another court, simultaneously extended the period of a person’s detention, even though the issue of extending the pretrial measure was not directly within the scope of such proceedings.

In his view, this raises the question of whether an appellate court has the right to extend a pretrial measure, effectively deciding an issue that is not the subject of the proceedings, as well as how, in such a case, the person’s right to an appellate review of the relevant decision is ensured. Separately, he drew attention to a practical problem: if the appellate court simultaneously determines the jurisdiction over the case and extends pretrial detention, the person may effectively be deprived of the opportunity to appeal such a decision to a higher court. During the discussion, representatives of the judiciary noted that there is no uniform approach to such situations, and that the problem itself requires the identification of an appropriate procedural mechanism.

The CEO of Barristers raised a second issue related to the procedure for special judicial proceedings and the concept of a person’s “appearance” in court. He drew attention to the absence of a clear definition of this concept in criminal procedural law and asked whether the participation of a defendant or suspect in a court hearing via videoconference could be considered a voluntary appearance. In his opinion, a person’s mere participation via video link should not automatically be equated with their actual appearance in court.

Tananakin emphasized that the use of such a mechanism could have significant procedural consequences for the individual. In particular, he cautioned attorneys against recommending that clients participate in hearings remotely without explaining the possible consequences for future appeals of the verdict and the right to a retrial after the person’s actual arrival in Ukraine. According to him, even if a person participates in a hearing via videoconference, this does not automatically preclude all grounds provided by law for a special judicial proceeding, especially if the person continues to remain outside Ukraine’s jurisdiction.

Moving on to the main topic of his speech, Oleksandr Tananakin drew attention to the problem of the seizure of joint marital property in criminal proceedings pending before the High Anti-Corruption Court. According to him, over the past two to three years, there has been an increase in cases—in the practice of investigating judges of the High Anti-Corruption Court and its Appeals Chamber—where a seizure is imposed not only on the suspect’s share of the property, but on all of the couple’s joint property—on the grounds that the shares between the spouses have not been delineated and that the seizure is necessary to ensure possible forfeiture. In the attorney’s opinion, this approach directly affects the rights of the other spouse, who is not a suspect in the criminal proceedings but may be deprived of the ability to dispose of their share of the property for years. This applies not only to real estate or vehicles, but also to cash, income from business activities, wages, securities, and income derived therefrom.

Separately, Mr. Tananaikin drew attention to the inconsistency in judicial practice regarding the method of protecting the rights of the other spouse. According to him, for some time, the courts assumed that the issue of ownership shares in joint property should be resolved through civil proceedings: a person had to file a claim with a court of general jurisdiction to divide the property or allocate a share, and only then could they seek to lift the seizure. At the same time, in practice, such claims were either dismissed or the relevant decisions were overturned on the grounds that the property was already under seizure by the High Anti-Corruption Court.

As a result, as the speaker noted, a vicious cycle arises in which the individual is effectively deprived of an effective mechanism to have their share released from seizure. However, in 2024, the Appeals Chamber of the High Anti-Corruption Court issued rulings stating that, to ensure potential confiscation, the seizure must apply specifically to the suspect’s share, rather than to the entire jointly owned property.

The expert supported this approach, emphasizing that the mere fact that property is held in joint ownership cannot be sufficient grounds for restricting the rights of the other spouse. In his view, the key to this issue lies in understanding the purpose of the seizure. If a seizure is imposed to secure a potential confiscation as a form of punishment, there are no legal grounds to extend it to property that cannot subsequently be confiscated. The speaker noted that in the event of a conviction, confiscation cannot automatically cover all of the spouses’ joint property; therefore, the seizure of the entire asset effectively goes beyond the purpose for which this measure is applied. He also distinguished between the seizure of a share of property to secure a potential confiscation and the seizure of the entire property in cases involving special confiscation, emphasizing that these are situations of different legal nature. In his view, the lack of a unified approach creates the risk that seizure will be used not only as a procedural tool but also as a means of exerting de facto pressure on the suspect and his or her family.

The speaker identified as a separate problem situations where, when deciding on the seizure of property in criminal proceedings, the court is effectively forced to determine who exactly owns the property—the suspect or the other spouse. Mr. Tananaikin questioned the appropriateness of having an investigating judge resolve such property disputes within criminal proceedings, since the subject matter of such proceedings involves entirely different procedural issues. At the same time, he emphasized the presumption of equal shares for spouses in joint property, which, he said, has been confirmed by the practice of the Cassation Criminal Court. At the same time, there is still no consistency in the practice of the High Anti-Corruption Court and its Appeals Chamber: one can find both decisions to seize one-half of the property and decisions to seize all of the joint property. Therefore, this category of cases requires the systematization of judicial practice and clear rules that would simultaneously ensure the possibility of confiscation without imposing unreasonable restrictions on individuals who are not parties to the criminal proceedings.