1. The subject of the dispute is the refusal of the appellate court to open appellate proceedings on the defense counsel’s appeal against the judgment of the court of first instance.
2. The Supreme Court reversed the ruling of the appellate court, stating that the appellate court unreasonably refused to open proceedings, citing that the judgment could not be appealed on the grounds provided for in Part 2 of Article 394 of the Criminal Procedure Code of Ukraine, since the case was considered under Part 3 of Article 349 of the Criminal Procedure Code of Ukraine (simplified procedure). The Supreme Court emphasized that the appeal contained arguments regarding the incorrect application of criminal law and procedural violations during the consideration of the case in the court of first instance. The court of cassation emphasized that a judgment rendered under Part 3 of Article 349 of the Criminal Procedure Code of Ukraine may be appealed in connection with a material violation of the rights of the accused or the incorrect application of criminal law. The Supreme Court noted that the appellate court, in refusing to open proceedings, actually assessed the arguments of the appeal, which is not provided for at the stage of resolving the issue of opening proceedings. The Court referred to the ruling of the Grand Chamber of the Supreme Court of February 27, 2018, which states that the provisions of Article 349 of the Criminal Procedure Code of Ukraine do not provide for an absolute waiver of the right to appeal, but only establish restrictions on appealing circumstances that were not challenged during the trial.
3. The Supreme Court reversed the ruling of the appellate court and ordered a new hearing in the court of appellate instance.
