Ensuring the right to defense in the context of electronic criminal proceedings: prospects for digitalization of pre-trial investigation in Ukraine

Abstract

The article explores the theoretical and practical aspects of ensuring the right to defense in the context of the digitalization of pre-trial investigation in Ukraine. The relevance of the topic is driven by the active implementation of information and communication technologies in the field of criminal justice, in particular the launch of electronic criminal proceedings (ECP), the «iCase» system, and the Unified Judicial Information and Telecommunication System (UJITS). It is established that the digitalization of the criminal process creates new opportunities for efficient, transparent, and expeditious investigations, but also poses significant challenges to the exercise of the right to defense, especially under conditions of remote participation of the parties. The current Ukrainian legislation is analyzed, including recent amendments to the Criminal Procedure Code of Ukraine
(in particular, Article 106-1), which provide the normative framework for the functioning of electronic systems for procedural document exchange. The current practices of implementing electronic systems by the National Anti-Corruption Bureau of Ukraine (NABU), the Specialized Anti-Corruption Prosecutor’s Office (SAPO), and the High Anti-Corruption Court (HACC) are reviewed, highlighting the limited access of the defense to electronic case files – a factor undermining the principle of procedural equality and adversarial proceedings. Challenges related to confidential communication between lawyers and suspects, restrictions on the use of video conferencing, issues of electronic notification delivery, and risks of formalized attorney participation are identified. The author compares the Ukrainian experience with foreign models of criminal justice digitalization (Czech Republic, Lithuania, Germany, Estonia) and with the case law of the European Court of Human Rights (ECtHR), particularly in Colozza v. Italy, Sejdovic v. Italy, and Sakhnovskiy v. Russia, which confirm the necessity of adhering to the principles of effective participation, access to case materials, confidentiality, and the right to a retrial. It is argued that digital transformation of the criminal process must be accompanied not only by technical innovations but also by regulatory and institutional modernization. The article outlines key directions for legislative improvement: ensuring full and unrestricted access of defense lawyers to electronic case materials, establishing secure channels of communication between attorneys and clients, guaranteeing the right to retrial in cases of in absentia proceedings, and developing professional standards for digital participation by defense attorneys. The conclusion emphasizes that only by maintaining a balance between technological efficiency and human rights protection can Ukraine achieve a true transformation of criminal justice in line with European legal standards.