Proceedings Concerning the Application of Criminal Measures to a Legal Entity: Special Procedural Form, Representation and Judicial Control

Abstract

Law of Ukraine No. 4111–IX of 4 December 2024 introduced Chapter 37^-1 into the Criminal Procedure Code of Ukraine and created a special procedural regime for applying criminal-law measures to legal entities on the grounds set out in Article 96-3(2) of the Criminal Code, alongside the general procedure applicable to the grounds in Article 96-3(1). The article addresses three interrelated questions: whether Chapter 37^-1 amounts to an autonomous special procedural form; what minimum standard of procedural status, representation and defence of a legal entity is required in the light of the European Convention on Human Rights, EU law and comparative experience; and what criteria of legal certainty, proportionality and judicial control should govern interim restrictions, agreements and the temporal operation of the 2024 amendments. Methodologically, the study combines systemic, formal-legal and functional comparative analysis, with primary emphasis on the case law of the ECtHR, the Court of Justice of the European Union, the US Supreme Court, the UK Supreme Court, the German Federal Constitutional Court, the Spanish Supreme Court, and relevant French judicial and quasi-judicial materials. It also includes a provision-by-provision comparison of Articles 483^-1 to 483^-22 of the CPC of Ukraine with analogous institutions of the general procedure, making it possible to distinguish justified special rules from legislative solutions that dilute procedural safeguards. The article argues that Chapter 37^-1 constitutes a special procedural form for proceedings based on Article 96-3(2) of the Criminal Code, but that its current design is only partially integrated into the general architecture of criminal procedure. The most vulnerable elements are not the formal linkage of the commencement of the special track to a prosecutor’s decision or a court ruling as such, but the absence of externally verifiable safeguards against de facto proceedings concerning a legal entity outside the special status, the conflation of representation and defence functions, the absence of adequate conflict-of-interest safeguards, the reduced standard of disclosure, the risks inherent in ex parte restrictions, and the incomplete regulation of legal professional privilege and self-incrimination in the corporate context. Based on comparative materials and the provision-specific analysis, the article substantiates the need to differentiate legislatively between the status of a legal entity’s representative and defence counsel, to establish a special regime for the protection of professional secrecy, to require mandatory participation of counsel in proceedings concerning interim restrictions and agreements, to provide an early procedural channel for the protection of owners and ultimate beneficial owners before the special track is formalized, and to adopt a differentiated approach to the temporal effect of the 2024 amendments. Targeted amendments to Articles 3, 5, 7, 483^-1, 483^-2, 483^-7 and 483^-11, as well as related provisions of the CPC of Ukraine, are proposed.