Consideration of an appeal after the expiration of the investigative judge’s order as grounds for reviewing a court decision based on newly discovered circumstances

Many attorneys practicing criminal law have encountered situations where a well-founded appeal filed in a timely manner—for example, against a decision on the imposition of a preventive measure, cannot be considered within the validity period of the ruling because the case file is not forwarded to the appellate court or because the prosecutor fails to appear at court hearings on several occasions, citing a heavy workload.

The reasons for this include both objective factors (the heavy workload of the judges’ assistants and court clerks in the court of first instance) as well as, in the author’s opinion, subjective ones, where the prosecution has no interest in the appellate proceedings and delays them in every possible way, despite the presence of several staff members in the prosecution team.

However, these shortcomings clearly violate the right of every person to a fair trial, guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter—the Convention), which provides that everyone is entitled to a fair trial, meaning that everyone has the right to a fair and public hearing of their case within a reasonable time by an independent and impartial tribunal, as provided by law, which will resolve a dispute concerning their civil rights and obligations or determine the validity of any criminal charge brought against them.

In such cases, judges say that they understand everything and agree that this constitutes a violation, but that there is nothing they can do because the ruling’s validity period has expired and there is nothing left to appeal. Therefore, defense attorneys quite often withdraw their filed appeals, and appellate judges generally treat the consideration of such appeals as a mere formality or decide to dismiss the appeal proceedings, since the validity period of the ruling being challenged has expired and the preventive measure has already been extended by another ruling.

However, one cannot agree with this position taken by judges and defense attorneys, since the consideration of an appeal—even after the expiration of the order being challenged—directly safeguards the suspect’s rights and promotes the right to a fair trial as an effective means of legal protection.

Article 13 of the Convention provides that everyone whose rights and freedoms, as recognized in this Convention, have been violated has the right to an effective remedy before a national authority, even if such a violation was committed by persons acting in an official capacity.

And the law does indeed provide for such an effective remedy. Specifically, Chapter 34 of the Code of Criminal Procedure of Ukraine provides for the possibility of reviewing court decisions based on newly discovered circumstances.

Pursuant to paragraph 3 of Part 2 of Article 459 of the Code of Criminal Procedure of Ukraine, the reversal of a judicial decision that served as the basis for the ruling to be reviewed is recognized as a newly discovered circumstance.

Thus, the appellate court’s reversal of an investigating judge’s ruling—even after the expiration of its term—may serve as grounds for filing a motion to review subsequent decisions, such as those regarding the extension of a preventive measure or removal from office.

Of course, some readers may object that Chapter 34 of the CPC of Ukraine refers exclusively to court decisions, which, pursuant to Article 369 of the CPC of Ukraine, are judgments and rulings issued by a court, not by an investigating judge; however, upon analyzing the provisions of Articles 379 and 380 of the CPC of Ukraine (correction of clerical errors and clarification of judicial decisions), it can be seen that they also refer to judicial decisions; however, judicial practice has developed such that these circumstances do not preclude the consideration of issues regarding the correction of clerical errors and the clarification of rulings by investigating judges; the Unified State Register of Judicial Decisions contains many examples of such decisions being issued.

At the same time, in this case, it is important to remember that when the provisions of the CPC do not regulate or ambiguously regulate issues of criminal proceedings, the general principles of criminal proceedings apply.

One such principle is enshrined in Article 8 of the CPC of Ukraine and holds that criminal proceedings must be conducted in accordance with the principle of the rule of law. The principle of the rule of law in criminal proceedings is applied in light of the case law of the European Court of Human Rights.

Furthermore, the principle of the rule of law is inextricably linked to the principles of legal certainty and legality, which enshrine the criteria of predictability and the “quality” of the law.

In this regard, it is worth recalling that the requirement of “predictability” was formulated by the European Court of Human Rights (see the judgment in Malone v. United Kingdom dated August 2, 1984, para. 67; the judgment in Amann v. Switzerland, Application No. 27798/95, para. 56, ECHR 2000-II) and is as follows: a legal provision is “foreseeable” if it is formulated with sufficient clarity to enable any individual, if necessary with appropriate advice, to regulate their conduct.

Consequently, a violation of this requirement constitutes a violation of the principle of the rule of law; to prevent such a violation, judges must adopt an interpretation of the legal provision that best safeguards the applicant’s rights.

Notwithstanding the validity period of investigative judges’ rulings during their review by the appellate court, judges must scrupulously verify the legality of the contested decisions, as this will ensure individuals’ right to an effective remedy and a fair trial.