Review

The article presents a comprehensive legal analysis of the exercise of procedural rights by the defense counsel at the stage of preparatory proceedings in criminal cases concerning high treason. Given the specific nature of crimes against the foundations of national security, the author emphasizes the urgency of strengthening legal aid guarantees under the special procedure regime introduced due to the legal state of martial law. Preparatory proceedings are defined as a crucial stage that ensures procedural filtering of cases, guarantees adversarial balance between the prosecution and the defense, and acts as a compensatory mechanism capable of remedying significant violations committed during pre-trial investigation.

The article highlights the systemic problems faced by defense attorneys at this stage: limited or selective access to case materials (especially in the presence of classified documents), court refusals to satisfy motions without adequate reasoning, inability to insist on public hearings, and the overuse of in absentia procedures under Article 615 of the Criminal Procedure Code of Ukraine. Particular attention is paid to the shortcomings of the existing mechanism for appealing the actions of investigators and prosecutors during preparatory proceedings, and the necessity of expanding the court’s powers to review the legality of procedural decisions adopted prior to the submission of the indictment.

In the context of the Constitutional Court of Ukraine’s jurisprudence, the right to legal assistance is treated as a fundamental constitutional guarantee that cannot be restricted even during emergency legal regimes. Drawing on the case law of the European Court of Human Rights (in particular Salduz v. Turkey, Dowsett v. the United Kingdom, Mirilashvili v. Russia), the author underscores the importance of early, full, and confidential access to a lawyer as a core element of the right to a fair trial under Article 6 of the Convention.

The article offers concrete proposals for amending criminal procedural legislation. These include introducing a statutory obligation for the court to provide reasoned rulings on each defense motion, establishing a special procedural status for defense attorneys in proceedings related to crimes against national security, and expanding access to classified materials through a formal security clearance mechanism. The author also supports granting bar self-governance bodies the power to document procedural violations and report them to disciplinary and international human rights institutions.

It is concluded that the effective realization of the right to defense in preparatory proceedings in high treason cases is only possible if the role of the court is transformed – from a passive filter allowing cases to proceed to trial, to an active arbitrator responsible for maintaining procedural equality under legally and politically exceptional circumstances. This approach is aligned with the constitutional principles of the rule of law and Ukraine’s international human rights obligations.

Keywords: preparatory proceedings, high treason, defense counsel, criminal procedure, procedural rights, martial law, adversarial process, ECHR, judicial control, Criminal Procedure Code of Ukraine.