The head of the district prosecutor's office cannot file an appeal if they did not participate in the case — CCS of the Supreme Court

The head or deputy head of the district prosecutor’s office, if they did not participate in the court proceedings, do not have the right to appeal a decision made by the local court based on the probation authority’s submission to replace the sentence of the convicted person. This conclusion was made by the panel of judges of the Third Judicial Chamber of the CCS of the Supreme Court in case No. 756/6907/22.

Positions of the courts of first and appellate instances

The local court by ruling dismissed the probation center’s submission to replace the sentence of the convicted person.

Disagreeing with the above ruling, the deputy head of the district prosecutor’s office filed an appeal, which the appellate court returned to him because he did not provide the court with any procedural decisions from the head of the prosecutor’s office authorizing him to participate in this proceeding at the appellate court. Therefore, he is not a prosecutor within the meaning of paragraph 6 of part 1 of Article 393 of the Criminal Procedure Code (CPC), as a person entitled to file an appeal against the local court’s ruling.

In the cassation appeal, the prosecutor argues that as the deputy head of the district prosecutor’s office, he had the right to file an appeal.

Position of the CCS of the Supreme Court

The appellate court’s ruling was left unchanged.

The panel of judges of the CCS indicated that the prosecutor’s powers are regulated by Article 36 of the CPC, in particular paragraph 20 of part 2 of this article. From part 4 of the same article, it is clear that the right to appeal belongs to the prosecutor who participated in the court proceedings.

According to the provisions of the same part of the article, regardless of participation in the court proceedings, the right to file an appeal or cassation appeal belongs to higher-level prosecutors: the Prosecutor General (or the person performing his duties), his first deputy and deputies, the Deputy Prosecutor General – head of the Specialized Anti-Corruption Prosecutor’s Office (or the person performing his duties), his first deputy and deputy, the head of the regional prosecutor’s office, his first deputy and deputies.

Among these persons, there is no head or deputy head of the district prosecutor’s office if they did not participate in the court proceedings.

From the extract of the order, it is seen that the deputy head of the district prosecutor’s office is assigned duties, including:

– organizing the representation of the state’s interests in court and their protection when enforcing court decisions in exceptional cases in the manner and procedure provided by the Law "On the Prosecutor’s Office," orders of the Prosecutor General, and other regulatory acts;

– proper implementation of the powers granted by law to counter violations of human rights in law enforcement agencies and penitentiary spheres, organizing supervision over compliance with laws when enforcing court decisions in criminal cases, as well as when applying other coercive measures related to restricting personal freedom of citizens.

From the materials of the criminal proceedings, it appears that another prosecutor was authorized to participate in the consideration of the submission, who unquestionably had the right to appeal court decisions.

The case materials do not contain any data regarding the powers of other prosecutors or directly the deputy head of the district prosecutor’s office to participate during the consideration of the probation authority’s submission and appeal the court’s decision.

Such information is absent in the cassation appeal and its attachments.

According to the prosecutor’s letter, he supported the submission but did not wish to participate in its consideration. Taking into account the above, in this specific criminal proceeding, considering the provisions of Articles 3, 36, 393, 539 of the CPC, the deputy head of the district prosecutor’s office is not authorized to appeal the local court’s ruling to dismiss the probation center’s submission to replace the sentence of the convicted person.

The ruling of the panel of judges of the Third Judicial Chamber of the CCS of the Supreme Court dated 01.06.2026 in case No. 756/6907/22 (proceeding No. 51-1372km26) can be found at this link.

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