A Convicted Person’s Withdrawal of a Defense Counsel’s Appeal: The Code of Criminal Procedure vs. the Law on the Bar

Take this position into account

On February 21, 2021, the Joint Chamber of the Criminal Cassation Court of the Supreme Court (Case No. 481/1754/18, Proceeding No. 51-1579 KMO 20) concluded in its ruling:

“In accordance with the provisions of paragraph 1 of Part 1 of Article 393 and paragraph 1 of Part 1 of Article 425 of the Code of Criminal Procedure, a defense attorney, in particular, has the right to file an appeal or a cassation complaint against court decisions—insofar as they concern the interests of the accused or the convicted person.

Pursuant to Articles 403 and 432 of the Code of Criminal Procedure, a person who has filed an appeal or a cassation petition has the right to withdraw it before the conclusion of the appellate or cassation proceedings.

Thus, the right to withdraw a defense counsel’s appeal or cassation petition filed in the interests of a suspect, defendant, or convicted person belongs exclusively to the person who filed it, that is, the defense counsel. A suspect, defendant, or convicted person does not have the right to withdraw a defense counsel’s appeal or cassation petition.

If a suspect, defendant, or convicted person disagrees with the defense counsel’s appeal or cassation petition (including its grounds, reasoning, or claims), they have the right to state this before or during the court hearing, and the court has the right to take their position into account when ruling on the petition».

The grounds for the joint chamber’s consideration of the criminal proceedings, as stated in the cited ruling, were the differing legal positions regarding the application by the panels of judges of both the First and Second Judicial Chambers of the Court of the provisions of Part 1 of Article 403 and Article 432 of the Code of Criminal Procedure. Thus, the panel of judges of the Second Judicial Chamber, in its ruling of May 10, 2018 (Case No. 462/4125/16-k, Proceedings No. 51-357km17) concluded that, pursuant to the requirements of Part 1 of Article 403 and Article 432 of the Code of Criminal Procedure, a convicted person’s motion to withdraw the defense counsel’s cassation appeal cannot be considered by the court of cassation, since the motion was filed by a person other than the one who filed the appeal. At the same time, in its ruling of July 3, 2018 (Case No. 448/208/15-k, Proceedings No. 51-3132km18), the panel of judges of the First Judicial Chamber reached the opposite conclusion, specifically, that a suspect, defendant, or convicted person has the right to take procedural actions and withdraw a complaint filed on their behalf, except in cases where the participation of a defense attorney is mandatory or the person is in such a vulnerable position that it gives grounds to question the voluntariness of such actions. In this regard, when deciding the issue

regarding the possibility of terminating cassation proceedings based on a defense counsel’s appeal that the convicted person had withdrawn, the Court proceeded from the need to balance the interests of justice—which entail, among other things, the rule of mandatory legal representation—with respect for the will of the individual, whose legal capacity is not deprived even upon conviction for the most serious crime. In addition, the Court referred to the provisions of paragraph 3 of Part 2 of Article 21 of the Law of Ukraine “On the Bar and the Practice of Law,” which prohibit an attorney from taking a position in a case contrary to the client’s will. The panel of judges also noted that, based on the right to freely choose a defense attorney, it is impossible to deny the right of any party to the proceedings to refuse to take procedural actions aimed at defending their own interests. Similar legal positions were expressed by the Court in its rulings of September 25, 2018, and August 27, 2020 (Case No. 263/13569/13-k, Proceedings No. 51-3780km18, and Case No. 752/16038/15-k, proceeding No. 51-9202km18, respectively). However, the panel of judges of the Second Judicial Chamber did not agree with these

positions, since, based on the literal wording of Article 403 of the Code of Criminal Procedure, procedural actions regarding the withdrawal, amendment, or supplementation of an appeal or cassation complaint are, as a general rule, carried out only by the person who filed it, and therefore considers the legal position set forth in the Supreme Court’s ruling of May 10, 2018 (Case No. 51-357km17) to be correct.

It is our firm conviction, which we expressed in our joint opinion, that this conclusion of the Plenum of the Criminal Chamber of the Supreme Court is correct, although it is not difficult to foresee criticism of it within the professional community.

Therefore, we will present additional arguments on this issue that confirm the correctness of the conclusion reached by the Pre-Trial Chamber of the Supreme Court.

The Constitutional Dimension

The decision of the Constitutional Court of Ukraine No. 16-rp/2012 dated August 29, 2012, states that one of the fundamental principles of judicial proceedings is ensuring the right to appeal and cassation review of a court decision, except in cases established by law (paragraph 8 of part three of Article 129 of the Constitution

of Ukraine). The wording of this provision indicates that, in courts of general jurisdiction, the law establishes a procedure for hearing cases that ensures the right to appeal and cassation review of court decisions, except in cases established by the legislature through the definition of specific categories of cases in which such appeals are not provided for.

Paragraph 8 of Part Three of Article 129 of the Constitution of Ukraine does not contain specific requirements regarding the grounds for establishing, by law, cases in which appeals and cassation appeals against decisions of courts of general jurisdiction are not provided for. The Constitutional Court of Ukraine holds that, in such cases, in order to ensure human and civil rights and freedoms, the legislative regulation of these issues must comply with the requirements of the Basic Law of Ukraine, first and foremost the principle of the rule of law, including such components as the balance between the interests of the individual and society, as well as the fairness, reasonableness, and logical consistency of the law, etc. (the fourth paragraph of subparagraph 5.1 and the first paragraph of subparagraph 5.2 of paragraph 5 of the reasoning

section).

It should be noted that, in the context of the provisions of the first and second parts of Article 55 and paragraph 8 of the third part of Article 129 of the Constitution of Ukraine, the right to appeal court decisions is an integral part of everyone’s right to access the courts.

In considering the provisions of paragraph 8 of Part 3 of Article 129 of the Constitution of Ukraine, the Constitutional Court of Ukraine concluded that an appeal against a court decision is possible in all cases except those where the law prohibits such an appeal (the fourth paragraph of subparagraph 3.1 and the second paragraph of subparagraph 3.2 of paragraph 3 of the reasoning section of Decision No. 3-rp/2010 of the Constitutional Court of Ukraine dated January 27, 2010).

The Decision of the Constitutional Court of Ukraine No. 11-rp/2012 dated April 25, 2012, states that the right to appeal court decisions in courts of appeal and cassation is an integral part of an individual’s constitutional right to judicial protection. It is guaranteed by the fundamental principles established by the Constitution of Ukraine

of judicial proceedings, which are binding on all forms of judicial proceedings and courts, in particular the guarantee of the right to appeal a court decision in the appellate and cassation instances, except in cases established by law (paragraph 8 of part three of Article 129).

The constitutional principle of ensuring the right to appeal and cassation review of court decisions, except in cases established by law, guarantees the right to file a complaint with a court through the appellate or cassation process, which must be ensured, except where such appeals are prohibited by law (first and third paragraphs of subparagraph 3.2 of paragraph 3 of the preamble).

An individual’s right to judicial protection may also be exercised through an appeal against decisions of courts of first instance, since their review in this manner guarantees the restoration of violated human and civil rights. Thus, the right to appeal court decisions in the context of the first and second parts of Article 55 and paragraph 8 of the third part of Article 129 of the Constitution of Ukraine is an integral part of the right

everyone’s right to appeal to a court of any instance in accordance with the law. (Second paragraph of subparagraph 2.1 of paragraph 2 of the reasoning section of Decision No. 18-rp/2010 of the Constitutional Court of Ukraine dated July 8, 2010).

In its Opinion dated January 20, 2016, regarding the request by the Verkhovna Rada of Ukraine for an opinion on the compliance of the draft law on amendments to the Constitution of Ukraine (regarding the judiciary) with the requirements of Articles 157 and 158 of the Constitution of Ukraine No. 1-v/2016, the Constitutional Court of Ukraine notes that the wording of paragraph 8 of part two of Article 129 of the Constitution of Ukraine proposed by the draft law enshrines guarantees of the right to an appellate review of a case and also provides that the grounds for cassation appeals against court decisions are defined by law.

The Constitutional Court of Ukraine proceeds from the premise that a person must be guaranteed the right to have their case reviewed by a court of appeals. Following the appellate review of the case, the parties to the proceedings may be granted the right to appeal the decisions of the courts of first and appellate instances to the

the court of cassation in cases specified by law, which will help ensure the implementation of the principle of the rule of law (the first and second paragraphs of subparagraph 3.6.3 of paragraph 3 of the explanatory memorandum).

Public interests regarding the fulfillment of relevant tasks are safeguarded not only by establishing and enforcing legal liability for infringements upon relevant legal objects, but also by respecting the rights of persons held liable. Thus, public interests regarding the inevitability of liability for committing an offense are safeguarded by the Constitution of Ukraine, in particular through the binding nature of court decisions (paragraph 9 of Part 2 of Article 129 and Part 1 of Article 1291 of the Constitution of Ukraine), while individual rights and interests are safeguarded through the possibility of appealing such a decision to a higher court (Article 129, Part 2, Paragraph 8 of the Constitution of Ukraine). A fair balance between public interests and individual rights and interests lies, among other things, in compliance with the rule specified by procedural law, according to which the decision of the local

general court regarding the determination of the penalty for committing an offense becomes final and enforceable upon the expiration of the deadline for appealing it (Part 1 of Article 294 of the Code, Part 1 of Article 532 of the Criminal Procedure Code of Ukraine) (the third through fifth sentences of the fifth paragraph of subparagraph 2.5 of paragraph 2 of the reasoning section of Decision No. 10-r/2018 of the Grand Chamber of the Constitutional Court of Ukraine dated November 23, 2018)

Thus, the right to an appellate review of a case, provided for in paragraph 8 of Part 2 of Article 129 of the Constitution of Ukraine, is a guaranteed right to have a case, which has been considered on its merits by a court of first instance, reviewed by a court of appellate instance. At the same time, this constitutional provision does not deprive the legislature of the authority to provide for the possibility of appealing any decision rendered by a court during the consideration of a case but which does not resolve the case on its merits, or to establish restrictions or prohibitions on appealing certain procedural court decisions

decisions that do not resolve the case on its merits (eighth paragraph of subparagraph 2.2 of paragraph 2 of the reasoning section of Decision No. 5-r/2020 of the Constitutional Court of Ukraine (Grand Chamber) dated March 17, 2020).

An analysis of the aforementioned legal positions of the Constitutional Court of Ukraine leads to the conclusion that ensuring the right to appeal and cassation review of court decisions in criminal proceedings is one of the fundamental principles of the judicial process and contributes to the realization of the principle of the rule of law.

In turn, the right to appeal court decisions in courts of appeal and cassation is an integral part of an individual’s constitutional right to judicial protection in criminal proceedings and is aimed at safeguarding individual rights and interests. An individual’s right to judicial protection during criminal proceedings may also be exercised through an appeal or cassation appeal against the relevant court decisions, and their review in appeal or cassation proceedings must

ensure the restoration of violated human and civil rights.

At the same time, the constitutional principle of ensuring the right to appeal a court decision on appeal or cassation, except in cases established by law, guarantees the right to file a complaint with the court in appeal or cassation proceedings, which must be ensured, except where such an appeal is prohibited by law. However, in order to ensure human and civil rights and freedoms, the legislative regulation of these issues must comply with the requirements of the Basic Law of Ukraine, first and foremost the principle of the rule of law, including such components as the balance between the interests of the individual and society, as well as the fairness, reasonableness, and logical consistency of the law, etc.

Therefore, any restrictions on the right to file a complaint with a court in an appellate or cassation proceeding during criminal proceedings (such as the refusal of a defendant or convicted person to allow a defense attorney to file an appellate or cassation complaint on their behalf, since such

refusal effectively prevents the review of the relevant case through criminal procedural channels, which is an inherent component of such a fundamental principle of judicial proceedings as ensuring the right to appeal and cassation against a court decision) must be clearly defined in the Code of Criminal Procedure, taking into account the requirements of the rule of law.

Criminal Procedure: General Principles

In legal doctrine, Ukrainian criminal procedural law is understood as a branch of legislation consisting of normative legal acts containing the norms of Ukrainian criminal procedural law. Through the lens of the rule of law, the existence of multiple sources of Ukrainian criminal procedural law is justified (Drozdov, O.M. Criminal Procedural Law of Ukraine. / Vol. 19 of the Great Ukrainian Legal Encyclopedia: Criminal Procedure, Judicial System, Prosecutor’s Office, and Bar / Ed. by V. T. Nor (Chair) et al.; National Academy of Legal Sciences of Ukraine; V. M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine

Koretsky Institute of the National Academy of Sciences of Ukraine; Yaroslav Mudryi National Law University. 2020. p. 412).

The right of anyone found guilty by a court of a criminal offense to have the finding of guilt or the sentence imposed reviewed by a higher court is enshrined in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 2 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 14(5) of the International Covenant on Civil and Political Rights.

In the field of criminal procedure, “appeal proceedings” are understood to refer to a type of judicial proceeding whose essence lies in the review (reviewing) by a court of appeal the decisions of a court of first instance that have not yet become final, with regard to their legality, soundness, and reasoning, with the possibility of examining evidence in a court proceeding that begins upon the filing of appeals by participants in criminal proceedings and concludes with the rendering of a decision by the court of appeal. The ability to appeal court decisions in court

of the appellate court constitutes the realization of an individual’s right to judicial protection (Mariniv, V. I. “Appellate Proceedings.” / Vol. 19 of the Great Ukrainian Legal Encyclopedia: Criminal Procedure, Judicial System, Prosecutor’s Office, and Bar / Editorial Board: V. T. Nor (Chair) et al.; National Academy of Legal Sciences of Ukraine; V. M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine; Yaroslav Mudryi National Law University. 2020. p. 27).

There is also a prevailing view in the academic community that cassation proceedings should be understood as the stage of criminal procedure that regulates the activities of participants in judicial proceedings and other interested parties regarding appeals against decisions of the court of first instance—which have become final after review on appeal— the decisions of the appellate court regarding them, preparation for cassation review, as well as the review by the court of cassation of the materials of the criminal proceedings from the perspective of the correct application by the courts of first and appellate instance of the provisions of the Law of Ukraine on Criminal Liability and/or the Criminal Procedure Code, and its resolution of the issue of the fairness

(unfairness) of the contested judgment or ruling. Domestic criminal procedural legislation is based on the concept of cassation in the interests of the parties, according to which the court of cassation is entrusted with correcting and preventing judicial errors while determining the subsequent fate of both the contested judicial decision and the criminal proceedings themselves, which has direct practical significance. The fulfillment of public-law objectives in cassation proceedings also allows for the fulfillment of private-law objectives in the form of protecting and restoring an individual’s violated rights and freedoms (Bobechko, N.R. Cassation Proceedings. / Vol. 19 of the Great Ukrainian Legal Encyclopedia: Criminal Procedure, Judicial System, Prosecutor’s Office, and Bar / Edited by V. T. Nor (Chair) et al.; National Academy of Legal Sciences of Ukraine; V. M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine; Yaroslav Mudryi National Law University. 2020. pp. 369, 370).

The current Code of Criminal Procedure of Ukraine regulates the issue of withdrawing an appeal or cassation complaint. Thus, a person who has filed an appeal has the right to withdraw it before the end of

appeal proceedings. The defense counsel for a suspect or defendant, or the representative of a victim, may withdraw an appeal only with the consent of the suspect, defendant, or victim, respectively (Part 1 of Article 403 of the Code of Criminal Procedure of Ukraine). Withdrawal of a cassation appeal, as well as amendments or additions to a cassation appeal during cassation proceedings, are carried out in accordance with the provisions of Article 403 of this Code (Part 1 of Article 432 of the Code of Criminal Procedure of Ukraine). Thus, there are no specific provisions regarding the withdrawal of an appeal by a defense attorney at the request of their client.

It should be noted that these provisions differ from those that existed in the 1960 Code of Criminal Procedure. The 1960 Code of Criminal Procedure provided that, prior to the commencement of proceedings in the appellate court, the person who filed the appeal had the right to supplement, amend, or withdraw it, as well as to file objections to another party’s appeal. The defense counsel for a convicted or acquitted person may withdraw their appeal only with the consent of the client and the client’s legal representative. A defense counsel who joined the case during the appellate proceedings may amend or supplement

the appeal filed by the defense counsel who participated in the trial before the court of first instance only with the consent of the convicted or acquitted person and their legal representatives. A convicted or acquitted person has the right to withdraw their own appeal, as well as their defense counsel’s appeal, except in the cases provided for in paragraph one of Article 45 of this Code. An appeal filed by the victim’s representative may be withdrawn by that representative only with the consent of the victim, and may also be withdrawn by the victim themselves (Art. 355). Prior to the commencement of proceedings in the court of cassation, the person who filed the complaint and the persons specified in Part 4 of Article 384 of this Code—with respect to a complaint filed by a prosecutor within the scope of the prosecutor’s position—have the right to supplement, amend, or withdraw it, as well as to file their objections to the appeal of another participant in the proceedings, while complying with the requirements of Article 355 of this Code (Article 390). Thus, the 1960 Code of Criminal Procedure separately provided for the right of a convicted or acquitted person to withdraw their defense counsel’s appeal, except in cases of mandatory participation of defense counsel.

At the same time, there is a view that under the 2012 Code of Criminal Procedure, a suspect or defendant has the right

to waive their defense counsel’s appeal, except in cases where the participation of defense counsel is mandatory (Criminal Procedure Code of Ukraine: Scientific and Practical Commentary / Edited by Professors V.G. Goncharenko, V.T. Nora, M.E. Shumyl.  Kyiv: Justinian, 2012.  p. 841).

The Issue of Withdrawing a Cassation Appeal: The Balance Between the Legal Options of the Client and the Attorney

In the absence of specific provisions regulating whether an accused or convicted person may or may not waive their defense counsel’s right to file an appeal or cassation appeal, one must rely on the general provisions of criminal procedural law, legislation governing the bar and the practice of law, the rules of legal ethics, and the case law of the European Court of Human Rights.

It should be noted that Article 6(3)(c) (Right to a Fair Trial) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”) provides that every person charged with a criminal offense

shall have, at a minimum, the following rights: in particular, to defend himself in person or through legal counsel of his own choosing, or—if he does not have sufficient means to pay for legal counsel—to be provided with such counsel free of charge when the interests of justice so require.

Article 6, paragraph 3(c), of the Convention is a specific aspect of the right to a fair trial guaranteed by paragraph 1 («Dvorski v. Croatia» [GC], § 76; “Correia de Matos v. Portugal” (dec.); “Foucher v. France,” § 30). It ensures that proceedings against an accused person are not conducted without proper representation for the purpose of defense (“Pakelli v. Germany,” Commission’s report, § 84). This provision encompasses three distinct rights: 1) the right to defend oneself in person, 2) the right to be assisted by a defense counsel of one’s own choosing, and 3) the right to have a defense counsel appointed free of charge (“Pakelli v. Germany,” § 31) (Guide to Article 6

European Convention on Human Rights. The Right to a Fair Trial (Criminal Procedure Aspect).

Thus, a defense attorney in criminal proceedings is an independent participant in the criminal process and provides professional legal assistance within the framework of a specific convention right—namely, the right of an individual to be assisted by a defense attorney of their own choosing.

At the same time, doubts do indeed arise regarding the defense attorney’s full procedural independence, since the attorney is required in every instance to coordinate their defense strategy with the defendant so as not to cause the latter any harm. In choosing a defense strategy—and thus in exercising their procedural rights—the attorney does not enjoy complete independence. The defense attorney’s procedural autonomy is limited by the law itself, which grants the defendant the right at any stage of the proceedings to dismiss a specific defense attorney or to waive the right to a defense attorney altogether (Pogoretsky, M. A., & Yanovska, O. G. The Bar in Ukraine: A Textbook. Kyiv: Yurinkom Inter, 2014. p. 250).

A defense attorney is obligated to use the means of defense provided for by this Code and other laws of Ukraine, in order to ensure respect for the rights, freedoms, and legitimate interests of the suspect or accused and to establish circumstances that refute the suspicion or charge, mitigate or exclude the criminal liability of the suspect or accused (Part 1 of Article 47 of the Criminal Procedure Code of Ukraine). A defense attorney enjoys the procedural rights of the suspect or accused whom he or she represents, except for those procedural rights that are exercised directly by the suspect or accused and cannot be delegated to the defense attorney (Part 4 of Article 46 of the Code of Criminal Procedure of Ukraine). We agree with the view that the defense attorney has a special procedural status, which is manifested, on the one hand, in his dependence on the client, and on the other - in the fact that they are granted such broad procedural rights that it is reasonable to assert that they are independent participants in criminal proceedings (Pogoretsky, M. A., & Yanovska, O. G. The Bar in Ukraine: A Textbook. Kyiv: Yurinkom Inter, 2014. pp. 249–250).

A lawyer must remain independent of his or her client. At the same time, while adhering to the principle of legality, a lawyer is obligated in his or her professional activities to prioritize the client’s interests (Art. 8 of the Rules of Attorney Ethics). Undoubtedly, these provisions are also applied during the defense and are consistent with the requirement of the Criminal Procedure Code of Ukraine to “use the means of defense provided for by this Code and other laws of Ukraine to ensure the observance of the rights, freedoms, and legitimate interests of the suspect or accused and to clarify circumstances that refute the suspicion or accusation, mitigate or exclude the criminal liability of the suspect or accused.” In criminal proceedings, the specific nature of the defense attorney’s role lies in the fact that the defense attorney represents the interests of the accused (suspect) in the criminal process. The specific nature of this type of representation is determined primarily by the characteristics of the subject being defended, as well as by the purpose and role of the parties carrying it out (Pogoretsky, M. A., & Yanovska, O. G. The Bar in Ukraine: A Textbook. Kyiv: Yurinkom Inter, 2014. p. 250).

At the same time, the fact that the defense attorney is not entirely bound by the will of the defendant in his or her actions and determines the defense strategy in accordance with the objectives of the attorney’s participation in criminal proceedings—and thus occupies, to some extent, an independent position vis-à-vis the accused (suspect)—merely means that the defense attorney, in performing his or her duties& cannot employ defense tactics prohibited by law, is not obligated to unconditionally comply with all of the client’s wishes, or to defend all of the client’s interests, including those not protected by law (Pogoretsky, M. A., & Yanovskaya, O. G. The Bar in Ukraine: A Textbook. Kyiv: Yurinkom Inter, 2014. p. 252).

The independence of a defense attorney, including in criminal proceedings, is underscored by the prohibition against equating the defense attorney with the client, as provided for in Art. 23 of the Law of Ukraine “On the Bar and the Practice of Law,” which is explained in detail in Decision No. 49 of the Bar Council of Ukraine dated August 5, 2020. The prohibition set forth in Article 23 of the Law of Ukraine “On the Bar and the Practice of Law” is aimed primarily at ensuring the unimpeded provision of professional

legal assistance and ensuring a high level of quality and effectiveness in the provision of professional legal assistance, and is one of the guarantees of everyone’s right to a fair trial (Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms). This guarantee of the practice of law is aimed specifically at ensuring that lawyers’ clients receive effective legal assistance and serves as a state-guaranteed safeguard against any outside influence that could diminish the quality and effectiveness of such assistance. Given the special status of a lawyer as an independent, uncontrolled entity, without whom the realization of the right to an effective defense is impossible, the Ukrainian Bar Association clarifies that the use of lawful means to protect clients’ rights and legitimate interests in court proceedings constitutes the fulfillment of a lawyer’s professional duties; a lawyer may not be identified with a client (or the client’s actions or beliefs) in any respect; in particular, it is impermissible to attribute the client’s intent to the defense counsel; equating a lawyer with a client constitutes interference with the lawyer’s legal position and the exertion of pressure on the lawyer.

Therefore, taking into account the independent status of the defense attorney and the provision of Part 1 of Article 403 of the Code of Criminal Procedure of Ukraine— “A person who has filed an appeal has the right to withdraw it before the conclusion of the appellate proceedings”—this provision must be interpreted literally, and in a situation where the defense attorney files an appeal (which he may do only in the client’s interests), the client cannot withdraw that appeal. The current legislative wording stating that “The defense counsel for a suspect or defendant, or the representative of a victim, may withdraw an appeal only with the consent of the suspect, defendant, or victim, respectively” — is an expression of the general rule regarding the primacy of the client’s interests (Article 8 of the Rules of Attorney Ethics) and a clarification of the defense attorney’s duty to utilize the defenses provided for by the Code of Criminal Procedure of Ukraine and other laws of Ukraine, with the aim of ensuring respect for the rights, freedoms, and legitimate interests of the suspect or defendant and of clarifying circumstances that refute the suspicion or charge, mitigate, or exclude the criminal liability of the suspect or defendant.

This interpretation

takes on particular significance in proceedings where the participation of a defense attorney is mandatory. If a client had the right to dismiss their defense attorney, their right to legal assistance would be illusory rather than real, especially in situations where the client is vulnerable (in custody, a minor, has mental disabilities, etc.). Furthermore, if such a client—acting under the influence of threats, persuasion, etc.—waives their defense counsel’s appeal or cassation petition, that suspect or defendant may ultimately deprive themselves of the opportunity to subsequently appeal to the European Court of Human Rights.

The above literal interpretation of Article 403 of the Code of Criminal Procedure of Ukraine in no way contradicts the inalienable right of an accused or convicted person to independently, in the cases provided for by law, determine their legal position and the manner of defending it, since they have the right and opportunity to state that they do not support their defense counsel’s complaint, as well as to file their own complaint.

The defense counsel must, without a doubt, inform the client of their intention to file a complaint and of the fact that the complaint has been filed.

Current legislation and the rules of attorney ethics do not require the attorney to obtain the client’s consent (in writing or via audiovisual means) for such a filing.

It is indisputable that the defense attorney must comply with Article 8 of the Rules of Professional Conduct and act in the best interests of the client. The ECHR’s position boils down to the fact that, given the independence of the legal profession from the state, the defense attorney’s conduct primarily concerns the accused and his or her attorney: the State Party should intervene only when the public defender’s incompetence becomes evident, or if this is duly reported in another manner (“Imbrioscia v. Switzerland,” § 41; “Daud v. Portugal,” § 38). State liability may arise when a lawyer simply ceases to act in the defendant’s best interests (“Artico v. Italy,” §§ 33 and 36) or fails to comply with a purely formal requirement, provided that this cannot be regarded as erroneous conduct or a mere deficiency in the argumentation (“Czekalla v. Portugal,” §§ 65 and 71) (Commentary on Article 6 of the European

the Convention on Human Rights. The right to a fair trial (criminal procedure aspect). In the case law of the Supreme Court, there are examples of responses to such conduct, in particular: “From the case file and the audio recording of the court hearing, it appears that the attorney … while defending the interests of PERSON_1, during the court hearing on the prosecutor’s appeal—contrary to the defendant’s position—expressed the opinion that the prosecutor’s appeal, which worsens the defendant’s situation, should be granted. In light of the foregoing, the arguments in the prosecutor’s cassation appeal regarding the violation of PERSON_1’s right to defense are well-founded» (Resolution of the Cassation Chamber of the Supreme Court dated November 8, 2018, Case No. 489/3209/16-k).