USE OF EXTRAORDINARY (SPECIAL) PRE-TRIAL INVESTIGATION DURING MARTIAL LAW: PROBLEMS OF ENSURING A FAIR TRIAL

Abstract

The article offers a comprehensive examination of the application of special (in absentia) pre-trial investigation in Ukraine under martial law and analyses the key challenges associated with safeguarding the right to a fair trial when a suspect remains outside the jurisdiction of the state, resides in temporarily occupied territories, or stays abroad. The author emphasises that the full-scale armed aggression of the Russian Federation has significantly transformed criminal procedural practice, increasing the number of situations in which suspects cannot be duly summoned or notified through traditional means. As a result, investigative authorities increasingly rely on the mechanism of in absentia proceedings envisaged by Article 297¹ of the Criminal Procedure Code of Ukraine. The study underlines that the effectiveness of this mechanism depends on the observance of the principles of adversarial procedure, equality of arms, proper notification of the suspect, and the genuine possibility to restore procedural rights once the person returns to Ukrainian jurisdiction. The article provides a detailed overview of the statutory framework governing special pre-trial investigation, including the requirements for service of notice of suspicion and summonses, the procedure for publishing notices in nationwide media and on the official website of the Office of the Prosecutor General, and the conditions under which an investigating judge may authorise proceedings in absentia. Although the law outlines these procedures in formal terms, their practical implementation often reveals difficulties related to confirming the suspect’s actual location, insufficient verification of notification efforts, unclear standards for establishing evasion, and the risk of a purely formal approach to summons procedures. A significant segment of the study addresses national case law, including decisions of the High Anti-Corruption Court and the Supreme Court. The examples demonstrate that courts both grant and deny motions for special pre- trial investigation depending on the evidentiary sufficiency concerning proper notification and the suspect’s deliberate avoidance of justice. This lack of consistency creates legal uncertainty and increases the risk of procedural rights violations, thus highlighting the need for improved statutory clarity. The article further analyses the jurisprudence of the European Court of Human Rights on in absentia proceedings. Based on cases such as “Colozza v. Italy”, “Krombach v. France”, and “Sejdovic v. Italy”, the author identifies four essential safeguards: proof of adequate notification, the right to a fresh determination of the case upon the suspect’s return, effective legal representation, and the preservation of adversarial balance. A comparative assessment of these standards and Ukrainian legislation reveals gaps where national procedures satisfy only the formal requirements, without fully ensuring substantive guarantees. The work also highlights the challenges surrounding the reopening of proceedings after the suspect’s return, particularly the limited grounds for setting aside an in absentia conviction and the absence of a unified practice regarding de novo reconsideration. The author argues that meaningful access to a fresh trial is a cornerstone of the right to a fair hearing and must align with the standards articulated by the European Court of Human Rights. In conclusion, the study substantiates the need to refine notification procedures, strengthen judicial oversight over the initiation of special proceedings, broaden the grounds for reopening cases, and enhance the role of defence counsel. The author asserts that the effectiveness of special pre-trial investigation can be ensured only by balancing the state’s interest in efficient criminal prosecution with the unconditional protection of fundamental procedural rights, even under conditions of armed conflict.