The Rule of Law as a Rudiment of Criminal Proceedings

Oleksandr Babikov

Managing Partner of DEFENSORES Law Firm, Doctor of Law, Associate Professor

Ihor Fedorenko

Senior Partner of DEFENSORES Law Firm, Candidate of Law Sciences

Olena Babikova

Director of the Research Institute of Pre-Trial Investigation Problems

Doctor of Law, Professor

The rule of law is regarded by legal scholars as a fundamental and universal principle of a democratic legal system that guarantees compliance with and implementation of other fundamental principles: legality (which in Ukraine is identical to the inviolability of the principle of the highest legal force, other norms and principles of the Constitution of Ukraine), legal certainty, equality before the law, access to justice, respect for human rights, etc., aimed at preventing arbitrariness by officials of government bodies.

The principles of the rule of law, the supremacy of law, and the highest legal force of the Constitution of Ukraine (hereinafter - the principles of the rule of law) are established by the Constitution of Ukraine at the highest legal level in the world; courts often refer to them and to the precedent decisions of the European Court of Human Rights (ECtHR), but... even more often ignore them.

Let us provide examples of violations of the key principles of the rule of law in criminal proceedings, which have already gained significant publicity among specialists in this field.

Quote from the ruling of the High Anti-Corruption Court (HACC): “The formulated and presented accusation against the Person for committing a criminal offense under Part 4 of Article 27, Part 3 of Article 369 of the Criminal Code of Ukraine literally does not reproduce the content of the disposition of Part 3 of Article 369 of the Criminal Code of Ukraine (it has a different word order than that set out in the article), but contains references to the factual circumstances...” In this example, the court violates one of the main principles of criminal proceedings – the prohibition of applying criminal law by analogy. The court states that the elements of the crime formulated in the Criminal Code of Ukraine are not mandatory and may be arbitrarily changed by the prosecution side as necessary to “adapt the law” to the factual circumstances, which is a direct disregard of the principles of legality (law) and legal certainty.

In the same ruling, when interpreting criminal legislation, the court also notes: “a literal interpretation of the cited legislative wording... practically makes it impossible to incriminate this qualifying feature,” “due to the failure to take legislative measures to modify the qualifying features, problematic issues have arisen related to the application of Part 3 of Article 369 of the Criminal Code of Ukraine... this is a legislative error, not a conscious establishment of an indication regarding the act to which such a feature relates.”

Here, the HACC not only criticizes the legislator for what it considers poorly applied legislative technique that hinders the strengthening of judicial repression but also assumes the functions of the Constitutional Court of Ukraine and ignores the principle of in dubio pro reo (“any doubts are interpreted in favor of the accused”), which is the basis of the presumption of innocence guaranteed by Article 62 of the Constitution and Article 17 of the Criminal Procedure Code (CPC), and in the presence of what it considers legal uncertainty, applies the criminal law to the defendant in the harshest form.

That is, it follows the opposite principle – “all doubts are interpreted to the detriment of the accused.”

Can a court allow itself to go beyond the limits, manner, and procedure defined by law and guaranteed by Article 19 of the Constitution?

From a procedural aspect, the principles of legality and legal certainty are guaranteed by Article 1 of the CPC of Ukraine and imply that the procedure of criminal proceedings is determined only by the criminal procedural legislation of Ukraine, which consists of the relevant provisions of the Constitution of Ukraine, international treaties whose binding consent has been given by the Verkhovna Rada of Ukraine, this Code, and other laws of Ukraine. Amendments to the criminal procedural legislation of Ukraine can be made exclusively by laws amending this Code and/or legislation on criminal liability, and/or legislation of Ukraine on administrative offenses.

According to the second part of Article 19 of the Constitution of Ukraine, government bodies and their officials are obliged to act only on the basis, within the powers, and in the manner prescribed by the Constitution and laws of Ukraine. These are imperative norms that the court, like all other government bodies, has no right to violate.

Now an example. The panel of judges of the HACC Appeals Chamber, recognizing that the norm provided for in Article 98 of the CPC of Ukraine defines clear criteria for classifying material objects as physical evidence, formulated in categorical form as an exhaustive list, states: “on the one hand, indeed, formulated in categorical form, and the specified conditions must be met to recognize certain things as physical evidence. At the same time, one should consider the stage of criminal proceedings...”

Here, the HACC Appeals Chamber openly ignores imperative, categorically formulated norms of current legislation, directly contrary to the second part of Article 19 of the Constitution of Ukraine, the principles of legality and legal certainty, understanding that the seized object does not meet the criteria of physical evidence and therefore should be returned to the owner, justifies the possibility of restricting property rights without the grounds provided by law – for “reasons” that the material object may in the future acquire the characteristics of physical evidence.

In several following examples, we will analyze the implementation of the principles of equality before the law, access to justice, and respect for human rights, aimed at preventing arbitrariness by government bodies.

From the HACC court decision: “The CPC operates with concepts corresponding to several different standards of proof (conviction) – the standard of “reasonable suspicion,” conviction (proof) “beyond a reasonable doubt,” and standards of “sufficient grounds (evidence).” Along with the absence in the CPC of both definitional norms and others that provide for the above standards of proof, a painful question arises as to in which cases, regarding which persons or categories of criminal offenses, certain standards should be applied. At the same time, none of these standards presupposes the presence of evidence that is relevant and admissible. “Reasonableness of suspicion,” “beyond a reasonable doubt,” “sufficient grounds” without clear criteria of their content and conditions of application, in our opinion, remain only slogans with which the prosecution and the court try to conceal the lack of evidence or absence of grounds for criminal prosecution and use to avoid assessing evidence for admissibility.

In the same decision, an original “basis” is used to justify conclusions – “...the position is established in the practice of the HACC Appeals Chamber.” The principle of legality and the sources of criminal procedural law defined in Article 9 of the CPC of Ukraine do not provide for such a source as “established position in the practice of the HACC Appeals Chamber.” Regarding the application of judicial practice, part 5 of this article refers only to the application of ECtHR practice. Part 4 of Article 442 of the CPC of Ukraine provides that conclusions on how exactly a legal norm should be applied may be contained in rulings of the united chamber, the Grand Chamber of the Supreme Court, but does not provide for a similar approach to the use of decisions of the HACC Appeals Chamber.

Can a court decision be considered lawful and justified if the court refers to its own practice in such cases? Are courts of general jurisdiction also obliged to use the conclusions of the HACC Appeals Chamber in their practice, and would such application comply with the principles of legality?

Now about the principles of concluding agreements in criminal proceedings and sentencing in the context of guaranteeing access to justice.

This guarantee is primarily related to the availability of effective means of protection, the possibility to prove one’s position to an impartial and unbiased court and to be heard. We do not consider access to justice as a formal possibility to file a claim or appear before a court (investigating judge), but exclusively as the state’s obligation to ensure a fair trial, effective means of protection, non-discriminatory treatment of the person, adoption of court decisions capable of restoring violated rights, ensuring a balance of interests of criminal proceedings and human rights and freedoms, and applying fair punishment.

The most problematic issues of judicial consideration in cases of this category, in our opinion, are the examination of signs of crime provocation and the conditions for concluding agreements. Crime provocation is simultaneously a criminal offense and a widespread investigative method for corruption-related criminal offenses. The fine line between lawful control over the commission of a crime and unlawful provocation has been studied in thousands of court decisions, criteria based on ECtHR practice are applied, but... In the ruling of the Criminal Cassation Court of the Supreme Court in case 404/2286/21 dated April 2, 2026, as grounds for refuting claims of provocation, the court noted the fact that the accused himself determined the amount of money to be transferred. But is this sufficient to conclude that the actions preceding such statements were passive? An objective assessment of whether the crime would have occurred without the actions of law enforcement, how persistent, initiative, and active the actions of officers and persons involved by them were, is possible only if the court is provided with the entire array of information concerning the actions and conversations preceding the proposal, promise, or provision/receipt of unlawful benefit.

Are such conditions provided for by procedural legislation? Formally yes, but in essence – no. The prosecution has the opportunity at its discretion to provide fragmented materials of covert measures, removing those fragments that would indicate provocation. The example given indicates an approach where the assessment is given exclusively to the actions of the person under investigation, while the circumstances preceding them mostly “remain off-screen.” Among the means used by courts to assist the prosecution in avoiding exposure of provocation are two main ones: 1) refusal to verify the presence of signs of provocation in cases where the person refuses to admit guilt in receiving unlawful benefit; 2) refusal of the court to examine video or audio recordings for authenticity, signs of forgery, completeness of the provided materials.

A rhetorical question: does the court have the right to restrict the accused in choosing a defense strategy? To impose “either-or” frameworks? Does this not fall under signs of interference with the defense activity, restriction of the right to defense?

And how can video or audio recordings be taken at face value in conditions of active use of AI, which allows even untrained users to create videos of the “desired content”?

Another acute issue is selective justice and the “motivated” nature of courts, especially specialized anti-corruption ones, which we will consider on the example of the “case” of the People’s Deputy of Ukraine of the VIII convocation A.O. Kornatskyi, to which we have access.

This “case” (about the alleged illegality of the deputy’s use of official housing during his powers in the Verkhovna Rada of Ukraine) was investigated by NABU since 2018. During 2019-2020, necessary documents were seized, expert examinations conducted, Kornatskyi was interrogated, and all circumstances clarified.

After that, until April 2024, the “case” was practically not investigated. Only after more than four years of “shelving” was it “restarted,” which raises reasonable questions: why was the case inactive for such a long time; who and based on what criteria chose the “victim of justice” and the time of the attack on him?

Then numerous “legal curiosities” began in the “Kornatskyi case.”

First. Despite the fact that Kornatskyi is accused of committing a crime during his powers as a People’s Deputy of Ukraine, the investigation against him was initiated not by the Prosecutor General, as it should have been according to the law, but by a NABU detective, i.e., grossly contrary to the imperative provision of Article 482-2 of the CPC of Ukraine.

Second. The HACC, forming the panel of judges to consider the “Kornatskyi case,” simultaneously recognizes his special status as a People’s Deputy of Ukraine (which also determines the jurisdiction of NABU and the competence of the HACC) and does not recognize such status... “ignoring” such a “detail” as the start of the investigation by an unauthorized person.

The consequence of which, we remind, is the illegality of the criminal proceedings as a whole, all investigative and other procedural actions, procedural decisions, suspicion, as well as the inadmissibility of all evidence – such a “detail.”

Third. The group of prosecutors in the “Kornatskyi case” was appointed with significant violations of the CPC, and it was the illegally appointed prosecutor who sent the indictment against Kornatskyi to the court.

Fourth. The indictment was sent to the court beyond the terms of the pre-trial investigation, which in any court should have resulted in its return to the prosecutor. But are such “details” worthy of the HACC’s attention?

Fifth. Twice in a row, two HACC judges were excluded from the automatic case distribution as lacking the appropriate specialization, and after another judge was assigned, they were included in the panel, and the note about “lack of specialization” for these judges disappeared.

Sixth. The mandatory expert examination of damages caused by the “criminal offense” in the “Kornatskyi case” is completely absent, and the amount of “missing damages” was “recalculated” entirely by the detective without an expert.

And finally, seventh. The wording of Article 35 of the Law on the Status of a People’s Deputy of Ukraine, which introduced the conversion term “housing provision” and whose violation is the basis of the accusation in the “Kornatskyi case,” does not exist as a legal norm since the law that introduced the changes was not signed by the person designated by the Constitution of Ukraine and is unconstitutional. It never came into force, and basing a criminal accusation on it is absurd.

And this is only a small part of the “legal curiosities” that the HACC turned a blind eye to, striving to increase its collection of guilty verdicts.

However, in our opinion, alongside the extreme importance of combating corruption, ensuring the fairness of judicial proceedings and respect for human rights and freedoms, providing the opportunity to refute accusations and prove innocence before an objective and impartial court not connected with the “opinion” of the prosecution is no less significant.

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