What the appellate court must do in case of doubts about the author of the appeal: Supreme Court's answer

According to the provisions of Article 399 of the Criminal Procedure Code, the decision to leave an appeal without movement cannot be applied to appeals filed against rulings of investigative judges, but requires the court in any case to establish that such an appeal was filed without compliance with the requirements provided for in Article 396 of the Criminal Procedure Code. In case of doubts regarding the identification of the author of the document, the appellate court must verify the presence/absence of the appellant's electronic signature. This conclusion was made by the panel of judges of the Third Judicial Chamber of the Supreme Court's Criminal Cassation Chamber on 04.05.2026 in case No. 757/52457/25.

Positions of courts of first and appellate instance

The investigative judge returned the complaint to the applicant regarding the challenge of the prosecutor's inaction. The appellate court returned the applicant's appeal against this ruling based on paragraph 2 of part 3 of Article 399 of the Criminal Procedure Code, since the appeal filed on behalf of the applicant was not signed by the person who submitted it.

In the cassation appeal, the applicant claims that he composed and signed the appeal with an electronic signature and submitted it through the "Electronic Court" subsystem to the local court, and later the same day duplicated the appeal with all attachments to the official email of the appellate court. He notes that his position is confirmed by the display on the documents of the formed electronic container as "asice", the signed PDF file, the attached verification protocol of the qualified electronic signature, which was uploaded through the Unified State Register of Court Decisions to the local court and on the same day sent to the official email address of the appellate court along with other attachments.

Position of the Supreme Court's Criminal Cassation Chamber

The appellate court's ruling was canceled and a new hearing was scheduled in the appellate court.

The panel of judges of the Criminal Cassation Chamber indicated that Article 399 of the Criminal Procedure Code establishes the procedure for leaving an appeal without movement, its return, or refusal to open proceedings.

However, although the above-mentioned article of the law, in the part concerning leaving without movement, applies to appeals against verdicts or rulings of the court of first instance and cannot be applied to appeals against rulings of investigative judges, it nevertheless requires the court in any case to establish that such an appeal was filed without compliance with the requirements provided for in Article 396 of the Criminal Procedure Code.

As seen from the case materials and the ruling issued by the appellate court, this court, when returning the appeal, due to the absence of any acts/certificates/reports drawn up by the responsible person of the same court about the impossibility to verify the electronic signature on the website of the Central Certification Authority and to print out the protocol of verification of the electronic digital signature or its absence, did not pay attention to and did not evaluate the appellant's references in the appeal about its signing using a qualified electronic signature.

Moreover, having direct access to its own resources, including two electronic mailboxes and the judge's electronic cabinet, the court did not properly verify and did not evaluate the documents attached to the appeal, including the .pdf.asice attachments.

From the response of the State Enterprise Information and Communication Systems (SE ICS) to the Supreme Court's inquiry, it is evident that the applicant submitted a signed appeal to the local court, but it is not possible for SE ICS to provide information regarding the submission of such an appeal and its attachments to the appellate court's email.

Therefore, given the absence in the Supreme Court judge's electronic cabinet of any attached files or document attachments and the lack of access to the appellate court's email, the Supreme Court is deprived of the opportunity to establish the presence or absence of the applicant's electronic signature in the documents he submitted to the appellate court, unlike that court.

The Supreme Court draws attention to the fact that in case of doubts, for the identification of the author of the document, the appellate court was not deprived of the procedural possibility to verify the presence/absence of the appellant's electronic signature.

At the same time, the applicant's arguments expressed during the cassation review that the appellate court should have first left his appeal without movement with a deadline to correct the deficiencies are unfounded, considering the following.

The provisions of part 1 of Article 399 of the Criminal Procedure Code provide that the decision to leave the appeal without movement applies to appeals against verdicts or rulings of the court of first instance and cannot be applied to appeals against rulings of investigative judges.

The ruling of the panel of judges of the Third Judicial Chamber of the Criminal Cassation Chamber of the Supreme Court dated 04.05.2026 in case No. 757/52457/25 (proceeding No. 51-4471km25) can be found at this link.

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