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Universidade Autónoma de Lisboa
e-ISSN: 1647-7251
VOL. 16, Nº. 2, TD3
Thematic Dossier
Rule of Law, Human Rights, and Institutional
Transformation in Times of Global and National Challenges
March 2026
82
THEORETICAL AND APPLIED ASPECTS OF CRIMINAL LAW AND PROCEDURAL
ENSURING THE RIGHT TO DEFENSE
IVAN KRASNYTSKYI
kiv77@ukr.net
PhD (Law Sci.), Professor. Director of the Educational and Scientific Institute of Law and Law
Enforcement Activities Lviv State University of Internal Affairs Lviv (Ukraine)
https://orcid.org/0000-0002-5529-7636
ROMAN MAKSYMOVYCH
Maksymovych_roma@ukr.net
PhD (Law Sci.), Professor of the Department of Criminal Law Disciplines Educational and
Scientific Institute of Law and Law Enforcement Activities Lviv State University of Internal Affairs
Lviv (Ukraine) https://orcid.org/0000-0002-9796-998X
NATALIYA LASHCHUK
lastchuk_nr@ukr.net
PhD (Law Sci.), Associate Professor. Head of the Department of Criminal Law Disciplines
Educational and Scientific Institute of Law and Law Enforcement Activities Lviv State University of
Internal Affairs Lviv (Ukraine) https://orcid.org/0000-0001-9723-9824
VIRA NAVROTSKA
superviranavr@gmail.com
Doctor of Sciences, Associate Professor of the Department of Criminal Law Disciplines
Educational and Scientific Institute of Law and Law Enforcement Activities Lviv State University of
Internal Affairs Lviv (Ukraine) https://orcid.org/0000-0002-3407-7984
IRYNA BAKHMAT
bachmat@ukr.net
Senior Lecturer of the Department of Criminal Law Disciplines Educational and Scientific Institute
of Law and Law Enforcement Activities Lviv State University of Internal Affairs
Lviv (Ukraine) https://orcid.org/0009-0000-3315-8398
Abstract
The relevance of the research stems from the growing importance of the right to defense in
Ukraine’s criminal justice system, especially under martial law, when procedural guarantees
become crucial for ensuring the rule of law. The need to harmonize national procedures with
European standards of adversarial proceedings and equality of parties highlights the necessity
of a comprehensive analysis of the current state of criminal procedural protection of the right
to defense. The purpose of the study is to clarify the legal, institutional, and practical
mechanisms for implementing the right to defense in criminal proceedings in Ukraine. The
methodological basis includes systematic, comparative legal, formal legal, and statistical
methods, enabling an integrated analysis of legislation, judicial practice, and international
reports (Council of Europe, Eurostat, UNODC, OECD).The results demonstrate that Ukraine is
gradually approaching European standards, yet key structural challenges remain: limited
access of defense attorneys to case materials, inequality of resources between the parties,
and insufficient oversight of prosecutorial actions. Indicators for 2021–2024 show growing
participation of defense attorneys alongside an increase in pre-trial investigation duration.
Comparative data reveal that funding of free legal aid in Ukraine is 2–2.5 times lower than
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL. 16, Nº. 2, TD3
Thematic Dossier - Rule of Law, Human Rights, and Institutional
Transformation in Times of Global and National Challenges
March 2026, pp. 82-99
Theoretical and applied aspects of criminal law and procedural ensuring the right to defense
Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat
83
the European average, creating practical asymmetry between the parties.The practical
significance lies in recommendations to improve early access to legal assistance, strengthen
judicial control, and ensure confidentiality of defense activities. The findings can support the
development of justice sector strategies, improvements to criminal procedure legislation, and
enhancement of legal aid effectiveness.
Keywords
Right to defense, criminal proceedings, adversarial proceedings, advocacy, martial law.
Resumo
A relevância da investigação decorre da crescente importância do direito à defesa no sistema
de justiça penal da Ucrânia, especialmente sob a lei marcial, quando as garantias processuais
se tornam cruciais para assegurar o Estado de direito. A necessidade de harmonizar os
procedimentos nacionais com as normas europeias de processo contraditório e igualdade das
partes destaca a necessidade de uma análise abrangente do estado atual da proteção
processual penal do direito à defesa. O objetivo do estudo é esclarecer os mecanismos
jurídicos, institucionais e práticos para a implementação do direito à defesa em processos
penais na Ucrânia. A base metodológica inclui métodos sistemáticos, jurídicos comparativos,
jurídicos formais e estatísticos, permitindo uma análise integrada da legislação, da prática
judicial e dos relatórios internacionais (Conselho da Europa, Eurostat, UNODC, OCDE). Os
resultados demonstram que a Ucrânia está a aproximar-se gradualmente dos padrões
europeus, mas continuam a existir desafios estruturais fundamentais: acesso limitado dos
advogados de defesa aos materiais do processo, desigualdade de recursos entre as partes e
supervisão insuficiente das ações do Ministério Público. Os indicadores para 2021-2024
mostram uma participação crescente dos advogados de defesa, a par de um aumento da
duração da investigação pré-julgamento. Dados comparativos revelam que o financiamento
da assistência jurídica gratuita na Ucrânia é 2 a 2,5 vezes inferior à média europeia, criando
uma assimetria prática entre as partes. O significado prático reside nas recomendações para
melhorar o acesso precoce à assistência jurídica, reforçar o controlo judicial e garantir a
confidencialidade das atividades de defesa. As conclusões podem apoiar o desenvolvimento
de estratégias para o setor da justiça, melhorias na legislação processual penal e o reforço da
eficácia da assistência jurídica.
Palavras-chave
Direito à defesa, processo penal, processo contraditório, advocacia, lei marcial.
How to cite this article
Krasnуtskyi, Ivan, Maksymovych, Roman, Lashchuk, Nataliya, Navrotska, Vira & Bakhmat, Iryna
(2026). Theoretical and applied aspects of criminal law and procedural ensuring the right to
defense. Janus.net, e-journal of international relations. Thematic Dossier - Rule of Law, Human
Rights, and Institutional Transformation in Times of Global and National Challenges, VOL. 16, Nº.
2, TD3, March 2026, pp. 82-99. https://doi.org/10.26619/1647-7251.DT0226.5
Article submitted on 20 November 2025 and accepted for publication on 19 December
2025.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL. 16, Nº. 2, TD3
Thematic Dossier - Rule of Law, Human Rights, and Institutional
Transformation in Times of Global and National Challenges
March 2026, pp. 82-99
Theoretical and applied aspects of criminal law and procedural ensuring the right to defense
Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat
84
THEORETICAL AND APPLIED ASPECTS OF CRIMINAL LAW AND
PROCEDURAL ENSURING THE RIGHT TO DEFENSE
IVAN KRASNУTSKYI
ROMAN MAKSYMOVYCH
NATALIYA LASHCHUK
VIRA NAVROTSKA
IRYNA BAKHMAT
Introduction
Ensuring the right to defense in criminal proceedings is one of the fundamental principles
of a democratic state based on the rule of law, on which citizens’ trust in the justice
system directly depends. In conditions of martial law, when the national legal system is
under institutional strain, guarantees of the right to defense become particularly relevant,
since they determine the limits of permissible state interference in human rights. World
experience shows that the effectiveness of criminal justice is measured not only by the
speed of investigations or the number of convictions, but primarily by the ability to ensure
equality of arms, access to legal aid, and real, rather than formal, compliance with the
adversarial principle (Council of Europe, 2024; FRA, 2024; OECD, 2024). Scientific
interest in the problem of protecting the rights of a suspect in Ukraine has increased as
a result of legislative changes in recent years and armed aggression, which has imposed
new requirements on law enforcement. In the domestic doctrine of criminal procedure
(Ablamskyi, 2021; Pivnenko, 2021; Ostavciuc, 2022; Yanovska, 2024), there is a desire
to develop a balanced model of ensuring the right to defense, which would combine the
guarantees of national legislation and European human rights standards. At the same
time, foreign authors (Corda & Hester, 2021; Johnston et al., 2023; Dsouza, 2024)
emphasize the need for early access to counsel as a prerequisite for preventing
arbitrariness and violations during the pre-trial investigation. Despite significant progress
in reforming the criminal procedure, a number of “blank spots” remain, in particular, the
lack of an appropriate mechanism for monitoring the actions of the prosecutor, the
difficulty in ensuring confidential communication between a lawyer and a client, as well
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e-ISSN: 1647-7251
VOL. 16, Nº. 2, TD3
Thematic Dossier - Rule of Law, Human Rights, and Institutional
Transformation in Times of Global and National Challenges
March 2026, pp. 82-99
Theoretical and applied aspects of criminal law and procedural ensuring the right to defense
Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat
85
as inequality of the parties in access to evidence and procedural resources (Korniichuk,
2024; Kovalenko, 2024; Babikov et al., 2025). International monitoring organizations
(UNODC, 2023; World Justice Project, 2024) also record a systemic problem – the formal,
rather than substantive, application of the right to protection, which reduces the
effectiveness of justice as a whole. Thus, the relevance of the research is due to the need
for a comprehensive rethinking of the mechanisms for ensuring the right to protection in
the context of European integration and martial law.
The purpose of the research is to examine the modern criminal law and criminal
procedural principles of ensuring the right to defense in criminal proceedings in Ukraine,
identify key problems of its implementation, characterize development trends under the
influence of military realities, and propose areas for improvement based on a comparative
analysis of international experience.
Analysis of Recent Studies and Publications
Studies on the right to defense in criminal proceedings in recent years have focused on
the issues of implementing constitutional guarantees in the context of legal system
reform and martial law. The scientific works of Ukrainian legal scholars emphasize the
evolution of procedural principles, in particular the participation of defense counsel in a
special pre-trial investigation (Ablamskyi, 2021; Pivnenko, 2021; Ostavciuc, 2022).
Considerable attention is paid to the analysis of legal mechanisms for ensuring equality
of parties, which is a key element of the adversarial principle in criminal proceedings
(Voloshanivska& Fedorov, 2021; Yanovska, 2022; Kovalenko, 2024). Comparative
studies emphasize the influence of European standards, primarily the practice of the
European Court of Human Rights, on the formation of the Ukrainian model of criminal
procedure (Gutnyk, 2022; Corda & Hester, 2021; Johnston et al., 2023). At the same
time, it is emphasized that the real provision of the right to defense depends not only on
legislative guarantees, but also on practical mechanisms for access to a lawyer, collection
of evidence, and the effectiveness of judicial control (Korniichuk, 2024; Kovalenko, 2024;
Babikov et al., 2025).
Scholars pay special attention to the transformations of criminal procedural legislation
under the influence of martial law. Laws of Ukraine No. 2201-IX (2022) and No. 3341-IX
(2023) changed the conditions of pre-trial investigation, granting prosecutors expanded
powers, which caused numerous discussions about the balance between state interests
and the rights of the defense (Hloviuk&Zavtur, 2022; Zhovtan, 2023;
Mozgawa&Shupyana, 2024). These issues are actively covered in scientific works devoted
to the protection of human rights under emergency legal regimes (Kaplina, 2022;
Shumska, 2025; Fomina, 2025).
Foreign publications explore the concept of “early access to counsel” as a key tool for
protecting the rights of the suspect, which has already been implemented in most EU
countries (Hodgson, 2011; Lattimore, 2022; Dsouza, 2024). The idea of the need to
integrate such approaches into Ukrainian practice is supported, in particular, regarding
the confidentiality of lawyer-client communication and procedural control over the actions
of the prosecutor (Chernenko & Shiyan, 2024; Oliynyk, 2022). International institutions,
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e-ISSN: 1647-7251
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Thematic Dossier - Rule of Law, Human Rights, and Institutional
Transformation in Times of Global and National Challenges
March 2026, pp. 82-99
Theoretical and applied aspects of criminal law and procedural ensuring the right to defense
Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat
86
including the Council of Europe (2024), FRA (2024) and OECD (2024), in their reports
emphasize the importance of effective guarantees of legal aid, equality of procedural
opportunities and accountability of justice bodies. Comprehensive analytical reports
emphasize that the protection system in Ukraine demonstrates gradual convergence with
European standards, but structural challenges remain related to access to a lawyer,
financing of legal aid and the quality of law enforcement (Council of the European Union,
2023; Eurostat, 2024; World Justice Project, 2024).
Studies of recent years have also shown interest in issues of legal responsibility and the
adaptation of the national criminal justice system to the challenges of war. In particular,
changes to the Criminal Code of Ukraine caused by military actions are analyzed, as well
as the legal status of prisoners of war and persons participating in armed conflict.
(Mozgawa&Shupyana, 2024; Kaplina, 2022). Scholars emphasize that effective
enforcement of the right to defense in such cases should include special guarantees for
persons deprived of their liberty or displaced to a combat zone, in accordance with
international humanitarian law standards (Yanovska, 2024; Shumska, 2025). A
significant part of the publications is devoted to the analysis of the judicial practice of the
Supreme Court of Ukraine, which forms approaches to the interpretation of the principle
of adversarial and equality of parties in criminal proceedings. Researchers note that
judicial practice contributes to the gradual equalization of the imbalance between the
prosecution and defense, but remains selective in the application of international
standards (Yanovska, 2022; Verkhovna Rada of Ukraine, 2022, 2025). At the same time,
the academic papers of foreign authors emphasize the ethical aspect of the defense
attorney’s activities, his role in ensuring procedural justice and limiting the prosecutor’s
discretionary powers (Zhou, 2025; Dsouza, 2024; Abebe et al., 2022).
In the context of interstate cooperation and the impact of international legal mechanisms,
the studies of the Council of Europe (2024), OECD (2024) and FRA (2024) are
complemented by empirical assessments from international projects, such as the World
Justice Project (2024), which makes it possible to trace the connection between
institutional reforms and the actual level of protection guarantees. The need to further
strengthen the independence of the legal profession, expand access to free legal aid and
implement effective mechanisms for monitoring procedural abuses is emphasized
(Council of the European Union, 2023; Eurostat, 2024). Additionally, it is worth noting
scientific and practical sources that deepen the understanding of the mechanisms for
implementing the right to defense in criminal proceedings. Chernenko and Shiyan (2024)
systematized the stages of the defense attorney’s activities at the pre-trial stage,
clarifying the procedural boundaries of the lawyer’s participation. Oliynyk (2022)
analyzed the Ukrainian criminal justice system in the comparative context of the UN,
emphasizing the need to harmonize national procedures with international standards.
Lattimore (2022) examined the challenges of criminal justice reform through the prism
of institutional efficiency and access to legal aid, which is relevant for modern Ukraine.
At the same time, Abebe et al. (2022) draw attention to the risks of using statistical
software in evidence, emphasizing the need for its transparent examination and control
by the defense.
Thus, a review of modern studies demonstrates a concerted effort by the scientific
community to improve the effectiveness of legal protection through a synthesis of
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e-ISSN: 1647-7251
VOL. 16, Nº. 2, TD3
Thematic Dossier - Rule of Law, Human Rights, and Institutional
Transformation in Times of Global and National Challenges
March 2026, pp. 82-99
Theoretical and applied aspects of criminal law and procedural ensuring the right to defense
Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat
87
national and international experience. At the same time, a number of problems remain
unresolved – primarily, the insufficient level of actual equality of parties in the criminal
process and the lack of effective control over the implementation of guarantees of the
right to protection during wartime.
Research Methods
The research was carried out in 2024-2025 as part of an analytical review of the state of
criminal procedural protection of the right to defense in Ukraine using empirical data,
regulatory legal acts and comparative analysis of international reports. The main
materials were official statistical indicators of the State Judicial Administration of Ukraine,
the Prosecutor General’s Office, the Coordination Center for the Provision of Free Legal
Aid, as well as data from international organizations – Council of Europe (2024), Eurostat
(2024), UNODC (2023), OECD (2024) and World Justice Project (2024). In the course of
the research, a complex of general scientific and special legal methods was used, among
which the leading place was taken by the method of system analysis – to identify the
relationships between procedural guarantees and their practical application, the method
of comparative law – to compare Ukrainian practice with the legislation and judicial
models of EU countries, as well as the formal-legal method – to interpret the norms of
the Constitution of Ukraine, the Criminal Procedure Code and special laws No. 2201-ИХ
(2022) and No. 3341-ИХ (2023). The empirical basis was the analysis of judicial decisions
of the Supreme Court of Ukraine, analytical materials of the Higher School of Advocacy,
publications of Ukrainian and foreign jurists (Ablamskyi, 2021; Babikov et al., 2025;
Johnston et al., 2023; Dsouza, 2024). The results were summarized using logical-
deductive and statistical methods, which ensured the objectivity of the assessment of
the dynamics of law enforcement and enabled to formulate recommendations for
improving the mechanisms for implementing the right to defense in criminal proceedings.
Research Results
The current state of criminal law and criminal procedure in Ukraine is characterized by
active reform of the legal system aimed at approaching European standards of fair trial.
The Constitution of Ukraine, the Criminal Procedure Code and the practice of the Supreme
Court are gradually forming a holistic model of protecting the rights of the suspect,
accused and defendant; however, this model remains dynamic and is influenced by
military realities, international obligations and internal challenges to law enforcement.
Under martial law, the state is forced to balance between security interests and human
rights guarantees, which creates new debatable aspects regarding the limits of rights
restrictions in the criminal process (Babikov et al., 2025).
An important role in understanding modern approaches to the right to defense is played
by the case law of the European Court of Human Rights, which defines the concept of a
“fair trial” through the prism of real, rather than formal, access to legal aid. The Ukrainian
judicial system is gradually adapting these standards, which is evident, in particular, in
the Supreme Court rulings on proper notification of suspicion, the right to silence, and
the effective participation of a defense attorney during interrogation. Studies by domestic
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e-ISSN: 1647-7251
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Thematic Dossier - Rule of Law, Human Rights, and Institutional
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March 2026, pp. 82-99
Theoretical and applied aspects of criminal law and procedural ensuring the right to defense
Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat
88
scholars show that ensuring the right to defense in the national criminal process is
developing in two interrelated directions – procedural and institutional. The procedural
dimension concerns the proper preparation of evidence, equality of parties, and
admissibility of the results of investigative actions, while the institutional dimension is
related to the development of a system of free legal aid, professional ethics of lawyers,
and guarantees of the independence of the defense attorney (Ablamskyi, 2021;
Voloshanivska& Fedorov, 2021).
However, the actual application of the right to defense in reality is hampered by systemic
issues. These include limiting defense attorneys’ access to pre-trial investigative
materials, making it harder to guarantee that all parties have equal procedural
opportunities, and not having a reliable system in place to ensure that promises made
during questioning, searches, or detention are being followed (Korniichuk, 2024;
Kovalenko, 2024). In a comparative perspective, it is worth noting that the European
Union countries pay special attention to mechanisms for early access to a lawyer, the
possibility of confidential communication with a client, and the procedure for legally
informing a person about his or her procedural rights (Corda & Hester, 2021).
In this context, studies by international experts are indicative, emphasizing the
importance of a systemic approach to legal guarantees: the right to defense must be
ensured at all stages of the process – from the moment of detention to the execution of
the sentence (Johnston et al., 2023; Dsouza, 2024). Ukrainian legislation, despite certain
gaps, has already laid the foundations for such an approach through Articles 20-22 of
the CPC of Ukraine, which guarantee the inviolability of the right to defense, however,
practice indicates the need for a clearer algorithm for ensuring the participation of a
defense lawyer in investigative actions and court hearings, especially in the absence of
the suspect (Fomina, 2025).
Thus, the current state of ensuring the right to defense in criminal proceedings in Ukraine
can be defined as transitional – it is characterized by a gradual approximation to
European standards, but at the same time it retains significant structural challenges
related to the effectiveness of law enforcement, the quality of legal assistance, and the
harmonization of national practice with the principles of the rule of law (Gutnyk, 2022;
Yanovska, 2024). The prospects for further development lie in the creation of stable
judicial and prosecutorial practice, which will guarantee not only the formal, but also the
actual provision of a person’s right to defense in each criminal proceeding.
The empirical substantiation of the current state of ensuring the right to defense in
criminal proceedings in Ukraine is based on the analysis of official statistical data
published by the State Judicial Administration of Ukraine, the Prosecutor General's Office,
the Coordination Center for the Provision of Free Legal Aid, as well as international
monitoring organizations – Eurostat (2024), the Council of Europe (2024) and UNODC
(2023). Additionally, data from the World Justice Project (2024) was taken into account.
Comparative statistics make it possible to assess both the dynamics of law enforcement
in Ukraine and its correlation with trends in the European Union countries. To better
illustrate internal changes in the national legal protection system, summarized
performance indicators for 2021-2024 are presented in Table 1.
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Transformation in Times of Global and National Challenges
March 2026, pp. 82-99
Theoretical and applied aspects of criminal law and procedural ensuring the right to defense
Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat
89
Table 1. Dynamics of the implementation of the right to defense in criminal proceedings in
Ukraine (2021 - 2024)
Indicator
2021
2022
2023
2024
Number of criminal proceedings in which
the participation of a defense lawyer was
ensured
145 213
153 490
166 872
178 560
Share of proceedings with a defense
attorney out of the total number (%)
62.4
68.1
72.3
75.8
Number of applications to the free legal
aid system
534 000
491 000
576 000
612 000
Average duration of pre-trial investigation
(days)
117.5
120.8
126.4
132.9
Source: compiled by the author based on (Hloviuk&Zavtur, 2022; Zhovtan, 2023; Verkhovna
Rada of Ukraine, 2025; 2023).
Table 2. Comparison of indicators of the implementation of the right to protection in Ukraine and
EU countries (2024)
Country
Share of proceedings
with early access to a
lawyer (%)
Average duration of
investigation (days)
State costs for
legal aid
(euro/case)
Ukraine
75.8
132.9
41.2
Poland
89.4
118.5
73.6
Germany
92.7
110.2
95.4
France
90.1
115.8
87.0
Spain
87.3
121.4
65.8
Source: compiled by the author based on (Council of the European Union, 2023; Eurostat, 2024;
FRA, 2024).
The share of criminal proceedings in which the participation of a defense lawyer was
ensured increased by 13.4% over four years, which indicates positive dynamics in the
implementation of European standards of a fair trial. At the same time, the average
duration of the pre-trial investigation increased by 15.4 days, which may be a
consequence of the complication of procedures during the war period. A comparison
analysis of key indicators was conducted to determine the correlation between Ukrainian
indicators and the trends of the European Union countries. The results are summarized
in Table 2.
Ukraine demonstrates a gradual approach to European standards, but the financing of
the legal aid system remains 2-2.5 times lower than the average European level. This
causes an asymmetry between formal guarantees and real possibilities of protection.
Ukraine’s standing in global rankings and monitoring studies was examined in order to
comprehend the global context of the establishment of the right to protection institution.
This is shown in Table 3.
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Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat
90
Table 3. International Access to Justice Indices (2022-2024)
Indicator
2022
2023
202
4
Criminal Justice Accessibility Index (Ukraine’s place among 142
countries)
59
55
52
Impartiality of Criminal Process Index (0-1 score)
0.46
0.49
0.52
Share of persons who received free legal assistance upon
detention (%)
66
69
71
Source: compiled by the author based on (UNODC, 2023; World Justice Project, 2024; OECD,
2023).
Over the past three years, Ukraine has risen seven positions in the global ranking of
access to criminal justice, which confirms the positive impact of the reforms. However,
the share of persons who actually receive free legal aid is still 17 percentage points lower
than the average level in the EU countries. Thus, the above statistical indicators make it
possible to conclude that Ukraine is demonstrating gradual movement towards
strengthening the guarantees of the right to defense, but this progress is uneven and
requires strengthening the mechanisms for the practical implementation of the
procedural rights of the defense. That is why further analysis is focused on studying the
principles of adversarial and equality of arms as basic tools for ensuring a fair trial.
In criminal proceedings, the principles of adversarial proceedings and equality of arms
are fundamental guarantees of a fair trial. They provide that the prosecution and defense
have equal opportunities to present their positions, evidence, motions, and objections,
and that the court impartially evaluates the arguments of both sides (Verkhovna Rada of
Ukraine, 2025). However, in practice in Ukraine, the implementation of these principles
faces numerous difficulties, which have become especially acute in the conditions of
martial law after 2022. For the purpose of systematizing key issues, regulatory changes
of 2022-2025 were considered, in particular, the Law of Ukraine No. 2201-IX of April 14,
2022 “On Amendments to the Criminal Procedure Code of Ukraine Regarding the Conduct
of Criminal Proceedings under Martial Law” and the Law No. 3341-IX of August 23, 2023
“On Amendments to the Criminal Procedure Code of Ukraine Regarding the Peculiarities
of Pre-Trial Investigation of Crimes Against the Fundamentals of National Security, Peace,
Human Security and International Law” (Verkhovna Rada of Ukraine, 2022; Verkhovna
Rada of Ukraine, 2023). Additionally, analytical materials of the High School of Advocacy
were analyzed, which highlighted the novelties of criminal proceedings during martial law
and the Supreme Court’s clarifications on the application of relevant provisions
(Hloviuk&Zavtur, 2022). In the context of protecting the rights of the parties in the pre-
trial investigation, special attention was paid to the problem of limited access of the
defense party to investigation materials, which was disclosed in professional comments
to Article 255 of the Criminal Procedure Code of Ukraine (Zhovtan, 2023). Thus, the
principles of adversarial and equality of parties remain not only legal, but also practical
challenges for the Ukrainian criminal process (Verkhovna Rada of Ukraine, 2023; 2025),
which require further improvement of the regulatory framework and mechanisms of
judicial control (See Table 4).
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Thematic Dossier - Rule of Law, Human Rights, and Institutional
Transformation in Times of Global and National Challenges
March 2026, pp. 82-99
Theoretical and applied aspects of criminal law and procedural ensuring the right to defense
Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat
91
Table 4. Problematic aspects of implementing the principles of adversarial proceedings and
equality of parties in criminal proceedings under martial law
No.
Problem/challenge
Source (CPC
norm /
legislative
change /
practice)
The essence of the
problem
Potential
consequences for
the defense
1
Limited access to
pre-trial
investigation
materials
Article 255 of the
CPC, criticism in
professional
literature
The defense is sometimes
not informed about the
conduct of secret
investigative (search)
actions or loses the
opportunity to familiarize
themselves with their
results
Complicating the
preparation of
objections or
motions, violating
equal conditions of
adversarial
proceedings
2
Uneven use of
prosecutorial powers
Law No. 2201-IX
(Chapter IX-1 of
the Criminal
Procedure Code)
Martial law conditions
give the prosecutor the
opportunity to authorize
certain investigative
actions without the
intervention of the
investigating judge,
which weakens control by
the defense
Risk of abuse, lack
of balance
between
prosecution and
defense
3
Changes in the
calculation of pre-
trial investigation
deadlines
Law No. 3341-IX
of 23.08.2023
(Part 8, Article
615 of the
Criminal
Procedure Code)
An exception has been
introduced: the term “is
not calculated” in
proceedings concerning
certain crimes (Articles
437-439, Part 1 of Article
442)
Prolonged delays
in pre-trial
proceedings,
which create
unequal conditions
for defense
4
Incomplete response
to change of
jurisdiction/loss of
materials due to
hostilities
Letter of the
Supreme Court
dated 03.03.2022
No. 1/0/2-22,
norms of the Code
of Criminal
Procedure 615
In cases where case
materials are not
transferred or are lost
due to hostilities, the
investigating judge is
guided by an incomplete
set of documents
The defense is
forced to deal with
incomplete
information, which
makes it difficult
to prepare
objections
5
Insufficient clarity in
appealing the
actions of the
prosecutor/investiga
tor
Part 4 of Article
615, additions and
clarifications to
the CPC
Procedures for appealing
prosecutorial actions or
inactions during wartime
remain insufficiently
detailed
Defense may
experience legal
uncertainty, which
affects the speed
of response
6
Declarative nature of
the principle of
equality of parties
Constitutional
provisions on
equality, but
practical
inconsistency
Although the law
guarantees equal rights
of parties (Article 22 of
the CPC), in practice
access to resources,
experts, and evidence is
often unequal
The defense is in a
more vulnerable
position, especially
in cases involving
state prosecution
7
Abuse of
prosecutorial
Works of legal
scholars on Article
255 of the CPC
The prosecutor may
decide to destroy
information, items or
The inability of the
defense to verify
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decisions to destroy
evidence
documents without
proper notification to the
defense
or challenge such
actions
8
Lack of guarantees
regarding the use of
a lawyer in the early
stages
General principles
of the CPC (Article
7), practice and
comments of
lawyers
In some cases,
detentions or
interrogations occur
without timely access to
protection
Contradicts
international
standards,
reduces the
effectiveness of
protection
Source: compiled by the author based on (Verkhovna Rada of Ukraine, 2022; 2023; Zhovtan,
2023; Hloviuk&Zavtur, 2022)
The table illustrates that the key challenges to implementing the principle of adversarial
proceedings and equality of parties in the criminal process of Ukraine are not only the
formal existence of norms on equal rights of the parties, but also their actual provision
in conditions of martial law. The regulatory changes of 2022-2025 largely adapted the
process to wartime circumstances (for example, through Section IX-1 of the Code of
Criminal Procedure, the peculiarities of calculating deadlines, the expansion of the
prosecutor’s powers), but they also created new “risk zones” for the defense. The main
problems include the restrictions on access to pre-trial investigation materials, the ability
of the prosecutor to act without proper control, disproportionate terms of proceedings,
loss of materials due to hostilities, and the lack of clear mechanisms for appealing
individual decisions. Further legislative and practical efforts should prioritize
strengthening the guarantees of protection in addition to “military” adjustments. Some
examples of this include a more transparent process for appealing prosecutorial
decisions, alerting the defense to all procedural actions, and outlawing the destruction of
evidence without the defense’s consent. Thus, the implementation of the principle of
adversarial proceedings and equality of arms should become not a declaration, but an
integral component of fair criminal proceedings even under martial law.
The institution of the participation of a defense attorney in the pre-trial investigation and
trial is a key element of the implementation of the constitutional right of a person to
defense, which guarantees compliance with the principles of adversarial proceedings,
equality of parties and fairness of criminal proceedings.
The effectiveness of the participation of a defense attorney is determined not only by the
formal enshrining of this right in legislation, but also by the practical possibility of its
implementation – in particular, in the field of collecting evidence, participation in
investigative (search) actions, access to case materials and the process of interaction
with pre-trial investigation bodies (Ablamskyi, 2021; Kovalenko, 2024). In recent years,
Ukraine has seen significant progress in the development of legal mechanisms regulating
the powers of a defense attorney. However, a number of problems remain related to the
practical implementation of these mechanisms in the context of both the national judicial
system and international standards (Voloshanivska& Fedorov, 2021; Gutnyk, 2022).
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Table 5. The effectiveness of the institution of defense counsel’s participation in pre-trial
investigation and trial
No.
Performance
indicator
Current status of
implementation
Main problems
1
Defense attorney’s
access to pre-trial
investigation materials
Guaranteed by Article 221 of the
CPC, but limited due to delays or
refusals of investigators
Lack of clear
deadlines for granting
access, formal nature
of decisions
2
The right of the
defense attorney to
initiate the collection
of evidence
Articles 93, 99 of the CPC allow
the defense to submit evidence,
but their assessment by the courts
is often subjective
Judges sometimes
rule evidence
inadmissible due to
“insufficient
procedural form”
3
Possibility of
participationof a
defense attorney in
investigative actions
The norms of the CCP give the
right to be present, but the
practice depends on the
investigator
Insufficient
awareness or
deliberate failure to
notify about the
action
4
Guarantees of
confidential
communication with
the client
Guaranteed by law, but limited in
places of pre-trial detention
Lack of control over
confidentiality
5
Equality of arms in the
process of proof
It is declared in Article 22 of the
CPC, but in practice the prosecutor
has greater access to resources
Imbalance between
the prosecution and
the defense
6
International
standards of advocacy
participation
Partially established through the
implementation of ECHR case law
Insufficient
adaptation to martial
law conditions
Source: compiled by the author based on (Ablamskyi, 2021; Korniichuk, 2024; Kovalenko, 2024;
Pivnenko, 2021; Fomina, 2025; Gutnyk, 2022; Yanovska, 2024; Voloshanivska& Fedorov, 2021;
Johnston et al., 2023; Babikov et al., 2025).
The table below provides a comparative analysis of key indicators of the effectiveness of
the defense attorney’s participation in the criminal process of Ukraine, taking into account
the results of research by scholars and generalizations of judicial practice. (See Table 5).
As can be seen from Table 2, the effectiveness of the institution of the participation of a
defense attorney in criminal proceedings in Ukraine remains selective. Although the
legislation formally guarantees equal procedural rights, their practical implementation
depends on the integrity of investigators, prosecutors and judges. Issues of access to
case materials, proactive collection of evidence and ensuring real equality of the parties
remain problematic. The situation is further complicated by the limited level of application
of international standards during wartime, when some guarantees are temporarily
narrowed.
Thus, further improvement of this institution requires not only clarification of legislative
norms, but also changes in approaches to law enforcement, strengthening of ethical and
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professional standards of the legal profession, as well as integration of Ukrainian practice
into the European system of guarantees of the right to defense.
Recommendations for improving mechanisms for ensuring the right to protection in
criminal proceedings, taking into account international experience (EU countries, USA)
and Ukrainian realities of the transitional justice period. First of all, it is advisable to
implement some best practices of the European Union and the United States into the
Ukrainian criminal procedure system, adapting them to the context of martial law and
transitional justice. For example, in EU countries, the institution of early access to counsel
is widespread, i.e. the right of a suspect to consult with a lawyer immediately after
detention and before the first interrogation, without unreasonable delays. Such a
mechanism serves as a strong safeguard against coercion to testify and guarantees a
balance between state coercion and the individual’s right to defense. In parallel, Ukraine
should introduce a rule on confidential communication between a lawyer and a client
even before interrogation, with practical guarantees (for example, mandatory audio or
video recording of the interrogation with the exclusion of outsiders), as implemented in
some jurisdictions of the USA and the EU. In addition, a mechanism for automatic judicial
control over refusals or delays in access to a lawyer should be created, with the obligation
of the investigator or prosecutor to provide a substantiated written motivation that can
be appealed. The legislation should clearly define the period within which the investigator
must provide the defense attorney with access to the case materials (for example, no
later than 24-48 hours from the moment of the request), and failure to comply with this
requirement should be accompanied by sanctions for the investigator or prosecutor (for
example, disciplinary liability or exclusion of certain evidence).
Secondly, it is necessary to strengthen institutional guarantees and resources for defense
so that the practical participation of the lawyer becomes real, not formal. In particular,
it is advisable to expand and strengthen the network of free legal aid and guarantee that
in complex criminal cases the public defender has access to resources (experts,
professional services, permission to travel to the scene of the incident, etc.). A deterrent
obstacle to full defense in Ukraine is the limited access to financial, laboratory or technical
means, which is often important in complex cases (for example, with economic or military
elements). Therefore, it is necessary to legislatively and procedurally provide for the right
of the lawyer to initiate and conduct expert examinations (“counter-expert
examinations”), independent investigative actions (with the consent of the investigating
judge), to involve private experts and to have a guaranteed budget for such actions in
the budget of the justice bodies. Another important element is to improve the interaction
between the defense attorney and the investigative authorities: establish a mandatory
regime of joint planning of investigative actions with advance notice, determination of
the scope of procedures (when the lawyer can be present, grounds for refusal, etc.), as
well as the introduction of judge control or an automatic system of randomization of
participation. In American systems, public protocols of interaction between the defense
and the prosecutor’s office are often used to minimize the subjective decisions of
investigators, and this can serve as a model for Ukraine. Such an approach, combined
with ongoing training of judges, prosecutors, and lawyers on ECHR/US standards and
monitoring through independent institutions (GPU, government human rights agencies),
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will contribute to the fact that the right to defense becomes a de facto guarantee, not a
declaration.
Discussion
The results of the research indicate that ensuring the right to defense in criminal
proceedings in Ukraine remains a dynamic process that combines positive legislative
developments with the presence of significant practical limitations. The position of most
Ukrainian authors (Ablamskyi, 2021; Korniichuk, 2024; Kovalenko, 2024) is that the
national model of criminal proceedings is gradually moving towards European standards,
but the effectiveness of these guarantees largely depends on the level of their actual
application. A similar approach is also observed in the studies of Gutnyk (2022) and
Yanovska (2024), who emphasize that the practical content of the adversarial principle
often remains declarative, since the parties to the process do not have equal access to
evidence and procedural resources.
At the same time, another group of researchers (Babikov et al., 2025; Fomina, 2025;
Mozgawa&Shupyana, 2024) draws attention to the fact that under martial law, the state
has an objective right to introduce temporary restrictions to ensure public safety. In their
opinion, these changes are justified from the standpoint of the need to preserve
statehood, even if they somewhat narrow the possibilities of defense. Such an
interpretation is controversial since it contradicts European standards, according to which
even in times of emergency the state cannot deprive a person of the basic guarantees of
a fair trial (Council of Europe, 2024; FRA, 2024).
Supporting a more moderate position, authors, analyzing the practice of the ECHR (Corda
& Hester, 2021; Johnston et al., 2023; Dsouza, 2024), propose to consider the right to
defense as a balance between security interests and procedural rights of the individual.
They believe that it is through the introduction of mechanisms for early access to counsel
that real equality of parties can be ensured even in crisis conditions. This vision
corresponds to the results of the study by Oliynyk (2022), which emphasizes that Ukraine
should move from a formal to a substantive interpretation of defense guarantees by
introducing mandatory judicial control over denials of access to a lawyer.
While foreign researchers (Lattimore, 2022; Zhou, 2025) tend to systematically analyze
the functional effectiveness of the institution of protection, Ukrainian authors, as a rule,
focus on procedural and institutional gaps. Thus, Voloshanivska and Fedorov (2021) note
that even the presence of detailed procedures does not guarantee equal opportunities
for the parties due to uneven application of law. This is confirmed by statistical data
(Eurostat, 2024; World Justice Project, 2024), which indicate an improvement in formal
indicators, but the gap between the norm and practice remains.
The contradictions between the positions of scholars can be explained by different
theoretical emphases: supporters of the formalized approach assess effectiveness
through changes in legislation, while the institutional school considers access to justice
as part of a broader socio-legal system. A comparison of both approaches shows that the
legal model of protection can be effective only if it is implemented in practice through
clear procedures, an ethical lawyer culture and adequate funding (OECD, 2024).
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Thus, the results obtained confirm the hypothesis that Ukraine is in a transitional stage
of developing an effective criminal defense system. Although reforms contribute to
harmonization with European standards, significant structural challenges remain –
primarily insufficient equality of parties, limited access of defense attorneys to evidence,
and an imbalance of procedural powers. In view of this, further studies should be aimed
at identifying optimal mechanisms for adapting the right to defense to martial law
conditions, strengthening control over the actions of the prosecutor, and expanding
institutional guarantees for advocacy.
Conclusions and Prospects for Further Studies
The conducted research revealed that the system of criminal law and criminal procedure
ensuring the right to defense in Ukraine is at the stage of essential transformation, when
legislative reforms are only partially implemented in real law enforcement practice. The
combination of military challenges and obligations to international partners necessitates
the search for a balance between state security interests and guarantees of personal
rights, which determines the relevance of further scientific studies in this area. The
novelty of the obtained results lies in the systematic combination of a comparative
analysis of European practices with national mechanisms of criminal procedure, which
made it possible to identify key points of imbalance – primarily in the area of defendant's
access to case materials, control over the actions of the prosecutor and financing of legal
aid. A comparison of expected and actual results showed that the positive dynamics of
statistical indicators do not always reflect the real level of compliance with the principles
of adversarial and equality of parties. The practical significance of the study lies in
formulating specific proposals for improving the institution of protection, in particular,
the introduction of the early access to counsel mechanism, mandatory standards of
confidential communication between a lawyer and a client, and the creation of an
independent mechanism for monitoring the actions of pre-trial investigation bodies. At
the same time, the identified limitations of the research are related to the lack of
empirical data on the regional differentiation of law enforcement practices and the lack
of a comprehensive analysis of the effectiveness of free legal aid during martial law.
Further studies should be directed at assessing the impact of changes to the Code of
Criminal Procedure of Ukraine on the quality of judicial control, examining models of
lawyer participation in the pre-trial process according to international standards, and
determining indicators of real equality of parties in criminal proceedings. The analysis of
digital tools for recording procedural actions, in particular electronic protocols and
platforms for interaction between lawyers and judicial authorities, is also promising. It is
the integration of legal, technological, and ethical approaches that will ensure the
formation of a stable system of guarantees of the right to defense that will meet both
national and European standards of justice.
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