How can the right to defense be protected without turning criminal proceedings into an endless marathon of delays? Some European countries have managed to strike this balance. Ukraine is still searching for it, while certain high-level corruption cases continue to be closed due to the expiration of limitation periods.

Within the academic and professional legal community, intense debates are still ongoing as to whether a full-fledged mechanism for counteracting the abuse of procedural rights should be introduced into criminal proceedings.

Some argue that courts should be empowered to recognize only a clearly defined list of actions as abusive, while others suggest leaving this determination to judicial discretion, meaning that the list should remain non-exhaustive. What unites most legal professionals, however, is support for combating this phenomenon—although not unanimously. For instance, the head of the bar association still considers the notion of “abuse of rights” to be an oxymoron.

While the debate continues, judges still lack sufficient tools to respond effectively to procedural abuse. Moreover, a number of draft laws intended to address this issue, including one developed by the NACP, remain on hold. At the same time, it is crucial that the introduction of counter-abuse instruments does not hinder access to justice.

Even the European Commission, in its 2025 report on Ukraine, pointed out the need to amend the Criminal Procedure Code to reduce obstacles and procedural delays in criminal proceedings, especially in high-level corruption cases.

This article therefore examines existing foreign practices for countering such conduct by participants in criminal proceedings and explores how these mechanisms could operate in cases of bad-faith behavior before the HACC.

What do participants in high-level corruption cases abuse most often?

In its most recent HACC case-monitoring report, the team at Transparency International Ukraine identified that abuse during case consideration most frequently originates from the defense, which employs various delay tactics, including:

1. unfounded motions for recusal,
2. failure of participants to appear in court,
3. unjustifiably lengthy submissions and repeated filing of identical motions and applications.

In many European countries, such actions are recognized as abusive, and courts are provided with appropriate countermeasures. Not all EU states have comprehensive tools to address bad-faith conduct. However, those that have introduced them clearly had compelling reasons to do so.

Ukraine faces similar reasons today. The absence of such mechanisms or safeguards in the Criminal Procedure Code not only allows individuals to evade criminal liability but also increases the overall cost and complexity of justice.

Unfounded motions for recusal

Repeated motions to recuse HACC judges are a traditional delay tactic. Such motions halt proceedings until they are resolved by another judge. Defense counsel and defendants skillfully exploit this mechanism to stall hearings.

In the first half of 2025 alone, 72% of recusal motions filed with the HACC were found to be unfounded. There are numerous such cases, and the well-known “DACK tapes” case is no exception. HACC judges had to assess more than ten unfounded motions for recusal at the preparatory stage in the case concerning charges of abuse of office against Pecherskyi District Court of Kyiv judge Tetiana Illieva, and 19 motions during the hearing of the high-profile bribery case involving Zarichnyi District Court of Sumy judge Mykola Shershak.

In some instances, there were even attempts to artificially create grounds for recusal, including by involving HACC judges as third parties in administrative proceedings or accusing the court of irregular conduct by court clerks.

Under these circumstances, Ukrainian judges may leave repetitive abusive motions without consideration, but there are effectively no other consequences for individuals who overwhelm the court with recusal motions.

Had such conduct occurred, for example, in Italy or France, defense counsel and defendants would have been required to pay substantial sums for each rejected or dismissed recusal motion—a kind of “fee for an unfounded recusal.” In the case involving the Zarichnyi District Court judge of Sumy, the defense would have had to pay between €4,902 and €29,431 under Italian law, or between €1,425 and €14,250 under French law.

The imposition of fees for unfounded or dismissed recusals is a widespread European practice and could work effectively in Ukraine as well. If each such motion directly affected a participant’s finances, it would likely deter abuse of this procedural right.

Failure of defense counsel to appear

Delaying court proceedings through the failure of defense counsel to appear has become routine and is now the second most common reason for adjournments, surpassed only by the non-appearance of defendants themselves.

In the case against former Ministry of Agrarian Policy official Olena Polishchuk, accused of receiving a $150,000 bribe, defense counsel systematically and in a coordinated manner failed to attend hearings for an entire month, resulting in the adjournment of all five scheduled sessions. A similar example is the bribery case involving the mayor of Reni, where more than ten out of fifteen hearings over the course of a year were postponed due to coordinated absences of defense counsel.

The recent high-profile case against former head of the State Fiscal Service Roman Nasirov, concerning his alleged involvement in Oleksandr Onyshchenko’s “gas scheme,” further underscores the urgency of the problem. With the statute of limitations set to expire within months, Nasirov’s defense began using attorneys’ non-attendance as a means of repeatedly delaying hearings on the eve of a verdict. We have analyzed these abuses in greater detail in a separate article.

Overall, in the past year alone, HACC judges have issued at least 24 rulings calling for disciplinary action against attorneys. However, only four decisions were adopted by the Bar Qualification and Disciplinary Commissions, three of which resulted merely in warnings, and only one led to a three-month suspension of the right to practice law.

The legislation of neighboring Romania does not tolerate attorney absenteeism: failure to appear without valid reasons may result in fines ranging from €96 to €960. In such a scenario, the defense counsel in the Ministry of Agrarian Policy case could have contributed between €864 and €8,640 to the state budget.

Transparency International Ukraine has repeatedly proposed introducing a similar model into the Criminal Procedure Code, granting courts the authority to fine defense counsel for unjustified absences. However, no draft law currently contains such provisions. As long as Ukrainian legislation does not allow courts to impose fines on attorneys and disciplinary commission remain reluctant to address judicial referrals, unjustified absences will continue to impede criminal proceedings, particularly in corruption cases.

Long speeches and volumes of motions and complaints

Another common form of abuse in high-level corruption cases involves excessively long oral submissions by the defense and the flooding of courts with applications, motions, and complaints. Such conduct would raise no concerns if the submissions and filings were substantive and relevant, rather than primarily aimed at obstructing justice.

A striking example is the 20-hour defense submission challenging the in absentia investigation against the main defendant in the “Golden Mandarin” case, Heorhii Lohvynskyi. In the same case, during the consideration of in absentia detention, defense counsel filed dozens of motions and complaints, delaying proceedings for months.

Judges are frequently required to listen to hours-long submissions of questionable substance, including verbatim reading of written motions, unfounded statutory quotations, and repetitive arguments. They are also compelled to accept and review similar motions and complaints, as the Criminal Procedure Code provides only general guidance on the presiding judge’s authority to manage hearings.

As a result, setting time limits for submissions, allocating equal speaking time, establishing deadlines for filing procedural documents, and restricting the reading of written motions—measures occasionally applied by individual HACC judges—remain virtually the only lawful tools available in the Ukrainian context to prevent and halt abuse.

By contrast, in some European jurisdictions such measures are not merely a right but a duty of the court when a party manipulates proceedings. Slovenia and Estonia provide clear examples, explicitly obliging courts to prevent abuse of procedural rights.

Under Estonian law, failure to comply with the presiding judge’s instructions may result in a fine or detention for up to five days. Defense counsel may also be removed from a case for improper conduct, dishonesty, incompetence, irresponsibility, or for maliciously obstructing the fair and expeditious conduct of proceedings, including through repeated non-compliance with court orders.

Similar safeguards exist in Portuguese criminal procedure practices. There, a defense counsel may be deprived of the right to speak if they abuse that right—for example, by commenting on or prompting discussion of issues unrelated to the merits of the case. This limits the use of irrelevant arguments as a delay tactic.

Romanian criminal procedure law expressly allows courts to establish equal time limits for submissions by the parties. Incidentally, the NACP draft law mentioned above also contains proposals to reasonably limit the duration of submissions in criminal proceedings.

However, ensuring reasonable time limits for oral submissions addresses only part of the problem. The filing of large volumes of motions and inadmissible evidence—aimed solely at overburdening the court—can be equally harmful.

In such cases, Estonia’s Criminal Procedure Code allows courts not only to set deadlines for submitting evidence and similar procedural documents but also to limit their volume.

What is the problem?

The absence of adequate responses to procedural abuse in Ukrainian criminal justice is clearly a problem that requires resolution. As noted above, “removing obstacles and procedural delays, particularly in corruption cases,” is one of the European Commission’s key anti-corruption requirements for Ukraine.

A comparison of European and Ukrainian regulation demonstrates that the latter is exceptionally tolerant of bad-faith conduct by procedural participants. This may be explained by negative past experiences with restrictions on access to justice and by the judiciary’s ongoing efforts to build public trust. As a result, there is reluctance to grant courts additional restrictive powers, and even existing tools—such as administrative liability for contempt of court—do not appear to be a legislative priority for improvement.

However, in our view, public trust will not increase if courts lack instruments to ensure that cases are heard within a reasonable time and if the number of cases terminated due to expired limitation periods continues to grow. The limited powers of presiding judges under the current Criminal Procedure Code are insufficient to deliver timely and high-quality justice.

Accordingly, the role of judges in criminal proceedings must be expanded through the introduction of a comprehensive mechanism to counter abuse of procedural rights. Notably, such mechanisms have existed in other procedural codes since 2017. This institution should be designed on the basis of European practices while taking into account the Ukrainian context.

This material is prepared by the Transparency International Ukraine team

This publication was prepared within the framework of the “Digitalization for Growth, Integrity, and Transparency” (UK DIGIT) project, implemented by the Eurasia Foundation and funded by UK Dev. The material was produced with the financial support of the UK Government’s International Development Assistance Programme. The contents of this material are the sole responsibility of Transparency International Ukraine; the views expressed do not necessarily reflect the official policy of the Government of the United Kingdom.