When a Principle Blocks Justice: Immediacy of Trial When a Judge Is Replaced

A change in the bench can wipe out years of work — and that is exactly what the HACC may face if, as a result of the latest Anti-Corruption Court competition, three of its judges move up to the Appeals Chamber. At the heart of the problem lies the principle of immediacy. So how do we strike a balance between the quality of justice and reasonable time limits? 

One of the cornerstones of criminal procedure is the principle that the court must directly examine testimony, items, and documents — set out in Article 23 of Ukraine’s Criminal Procedure Code. The idea is that a judge must personally see, hear, and examine all evidence in the case before issuing a ruling. 

Under this rule, a court may not base its conclusions on summaries or interrogation transcripts compiled by investigators during the pre-trial stage. The judge must personally question the witness, examine physical evidence and documents, and hear the accused “live.” The point of immediacy, in particular, is that only live exchange reveals the emotion, hesitation, or contradictions that no transcript can convey — and only this, ultimately, allows the truth to be established.

Yet lengthy trials face familiar disruptions tied to judges’ lives — staff changes, maternity leave, retirement. These can wipe out progress in a case overnight and force everything to start from scratch. Whether such approaches are really justified is what we examine below.

From the princely court to “paper pushing”: a history of the principle

The history of this principle in Ukraine reaches back to the Kyivan Rus era and its foundational legal text, “Ruska Pravda.” Justice then was strictly direct and immediate: the defendant was brought before the prince, with proof consisting of physical actions — “pursuing the trail” or “zvid.” No stacks of paper — the judge personally observed the process, and only the one who had begun it could issue the verdict. 

But as bureaucracy grew in the 15th–17th centuries, immediacy gave way to documents. Under the Sobornoe Ulozhenie — the universal code of criminal and civil law of the Tsardom of Muscovy — “paper pushing” took over. Investigators wrote down the parties’ words and drew up brief summaries, while judges often issued rulings without ever seeing the participants. Immediacy made its comeback only with the judicial reform of 1864. That was when legal scholarship finally accepted that, to find the truth, the judge has to be physically present rather than merely read transcripts. 

In the Ukrainian lands that were part of Austria-Hungary — Galicia, Bukovyna, and Transcarpathia — the principle of immediacy took root thanks to the Austrian Code of Criminal Procedure of 1873.

That code set immediacy and orality against the old “inquisitorial” process built on written submissions, where the judge simply read the papers gathered by the investigator without listening to anyone live. The Austrian code, instead, required the court to perceive all evidence directly (Hauptverhandlung): the judge personally heard defendants, witnesses, and experts, and the verdict had to rest exclusively on what took place in the courtroom. Reading out interrogation transcripts was permitted only as an exception: if the witness had died, vanished, fallen seriously ill, or if both parties consented.

The code also required that the bench remain unchanged — the same judges had to hear the case from start to finish. If any judge could not attend, the trial was suspended, or a substitute judge was brought in, who had to be present in the courtroom from the very first minute. Appeal as to guilt was limited: the higher instance could not review what only the first judge had seen without rehearing the case. This tradition laid the groundwork for what we now call a high standard of proof.

A paper transcript is not yet evidence

The substance of the immediacy principle is set out in Ukraine’s Criminal Procedure Code and can be summarized as follows.

• Live and in person: the court examines evidence directly and obtains testimony from participants in criminal proceedings orally (Article 23).
• Out of court means non-evidence: the court cannot recognize as evidence any information contained in testimony, items, or documents that it has not directly examined (Article 23).
• The prosecution must secure the witnesses’ attendance: so that the defense can question them before an independent and impartial court (Article 23(3)).

Immediacy in examining testimony is a general principle of criminal proceedings and applies by default. The exceptions are quite limited: testimony from individuals who do not appear in court is admitted only in select cases set out in the CPC — for example, where the questioning was conducted by an investigating judge during the pre-trial stage (Articles 23, 225 of the CPC of Ukraine). Beyond that, video recordings of interrogations may be used, as provided by Article 615(11) of the CPC.

Video recording as a “bridge” of immediacy

Martial law has forced the justice system to adapt to new and often extreme conditions. Familiar approaches have had to be revisited, since the physical presence of all participants in a trial can sometimes be impossible for objective reasons. 

The fundamental rule remains that set out in Article 95(4) of the CPC: a court may not base its rulings on testimony given to an investigator or prosecutor, or refer to such testimony. That means a paper transcript of an interrogation by an investigator or detective is not evidence until the witness, victim, or defendant repeats it in person before the court.

However, Article 615(11) of the CPC allows the use of testimony from witnesses or victims obtained during a martial-law investigation as evidence — provided it is mandatorily recorded on video. The video recording becomes that very “bridge” of immediacy: by viewing the footage, the judge sees a living person, their emotions and behavior, which is far more reliable than dry text on paper. Where the suspect is being questioned, the proceeding must include continuous video recording and the participation of defense counsel.

The court’s technical evolution

In this context, one cannot overlook another important principle of criminal justice — the full recording of court proceedings by technical means. Recording of court hearings has come a long way: from the ordinary paper court journal to the full digital video and audio recording that is the standard today. Previously, the only source of information on what had taken place in the courtroom for those who had not personally attended was a court hearing record handwritten by the secretary or typed on a typewriter. 

The first step in this transformation was the move to mandatory audio recording with systems such as “Kamerton” or “Oberih.” But sound did not convey the full picture: gestures, facial expressions, or whether someone was prompting the witness off to the side. Today we have arrived at full audio and video recording of hearings — that is, complete digitalization of justice. Modern courtrooms are equipped with cameras that capture everything happening in the room, while the remote videoconference (VC) system allows participation in a hearing from home or office. The issue became especially acute during the pandemic, and later during the full-scale war. Video recording has secured the “remote immediacy” of the judicial process.

One of HACC’s challenges: why cases start “from scratch”

In practice, the immediacy of the trial sometimes becomes a challenge, which we described in detail in our HACC monitoring report. The core problem is the conflict between quality and speed. Top corruption cases are extremely voluminous and are heard for years. The principle of immediacy requires an unchanging composition of the bench: if one judge changes (for instance, due to maternity leave, dismissal, or appointment to another body), the panel in its new composition must restart the case from the very beginning to personally examine all evidence (Article 319 of the CPC).

The law provides two exceptions to this rule.

The first applies when the parties to the proceeding do not object to the new judge continuing the trial, and the new judge has reviewed the case file and agrees with the rulings already issued. The court may then rule that there is no need to start the trial over.

Cases where the defense voluntarily agrees not to start the trial over are a real rarity in anti-corruption proceedings. One example is the case concerning the construction of the Shyrokyi Lan training ground. The defense did not object to continuing the trial after a judge replacement. That stance let the parties avoid wasting time on duplicate procedures.

But in a number of high-profile cases — such as the Kraian plant case or the Derzhinformiust embezzlement case — HACC decided not to restart the trial despite objections from individual participants. The judges argued that full audio and video recording of earlier hearings allows a new judge to familiarize themselves with every nuance of the case in detail without spending years on repeat witness questioning.

This approach is not shared by all judges, as their dissenting opinions show. They stress that the defense’s right to demand a fresh trial must take priority. Their position rests on the view that no video can replace personal contact between the judge and the defendant, and that an unchanging composition of the court is more valuable than the speed of the trial. The divergence in practice is a problem in itself: in some cases HACC continues the hearing, in others it starts from scratch — dragging the process out for years. Some judges, meanwhile, stress that a literal reading of immediacy must not turn into an absurdity that blocks justice.

For example, in June 2023, during the trial of the bribery case against Olena Polishchuk, a former official at the Ministry of Agrarian Policy, one of the panel judges was replaced due to a long business trip. The trial court, guided by the logic of procedural economy and the principle of reasonable time limits, ruled: do not restart the trial, do not re-examine the evidence. The case was already at the stage of questioning the defendant. The judges noted that the new judge had reviewed the case file and agreed with earlier rulings. In February 2024, HACC sentenced the former official to 8 years’ imprisonment with additional penalties.

In their appeal, however, defense counsel did not even ask for a new trial — they sought acquittal for lack of evidence. Yet the HACC Appeals Chamber, instead of ruling on the appeal on the merits, focused precisely on the procedural moment of the judge’s replacement. Two of the three appellate judges took the position that continuing the trial after a judge change against the defense’s wish to start over was a substantial violation of the law. In their view, a verdict issued by a judge who had only partially participated in the case undermines the principles of immediacy and unchanging composition of the court. As a result, the verdict was overturned and the case sent back for retrial.

Notably, one judge disagreed with the colleagues and, in a dissenting opinion, stressed that the principle of immediacy is not absolute. In their view, the principle has built-in flexibility: both the law and the case law of the Supreme Court already permit a number of exceptions, in particular:

• the use of testimony from earlier trials (Criminal Cassation Court of the Supreme Court ruling of June 1, 2022, in case No. 206/6584/19);

• the use of the results of victim questioning in the absence of the defendant (Criminal Cassation Court of the Supreme Court ruling of January 18, 2022, in case No. 404/2468/17);

• courts grounding their conclusions on testimony given to the trial court (Criminal Cassation Court of the Supreme Court ruling of October 17, 2023, in case No. 638/18452/17);

• examining at the hearing only the parts of the documentary evidence that the parties draw attention to, rather than the full body (Criminal Cassation Court ruling of December 6, 2021, in case No. 756/4855/17).

The key takeaway is that the unchanging composition of the court matters, but it cannot be read in isolation from the circumstances of the specific case, and the principle of immediacy must not become an obstacle to effective justice.

The second exception is the concept of the substitute judge (Article 320 of the CPC). In long proceedings, a substitute judge is to be assigned, who sits in the courtroom and can immediately step in for an absent or dismissed primary judge without halting the trial.

In real life, however, with judges already in short supply and corruption cases almost always drawn out, the prospects for this mechanism are highly questionable. In the current chronic personnel shortage, keeping an experienced judge on the “bench of substitutes” for years on end is a luxury. As a result, when one of the panel members drops out, the trial often has to be restarted from square one.

International experience: a balance between immediacy and effectiveness

A look at international practice shows that approaches to applying the principle of immediacy when the bench changes range from strict mandatory rules to flexible procedures built on the use of technical means. 

In German criminal procedure, the judge has no discretion as to whether to restart the trial when the bench has changed and no substitute judge is in place. Under §226 of Germany’s Code of Criminal Procedure, the main hearing is held in the continuous presence of the judges. But, of course, various human factors may make a judge’s participation in every session impossible. For that reason, section 192 of another statute provides that, in lengthy proceedings, the presiding judge may bring in substitute judges who attend the hearing and step in for any judge unable to be present. From this it follows that the trial cannot continue if one of the judges has been replaced and no substitute was brought in. An unlawful composition of the court is an absolute ground for overturning the verdict on appeal.

The situation in Lithuania is similar: every case must be heard by an unchanging bench, and replacing a judge automatically triggers a restart from scratch, unless a substitute judge was involved in the proceedings (Articles 222, 223).

Other countries, meanwhile, have opted for a more flexible path geared toward reasonable time limits. Poland’s Code of Criminal Procedure (Articles 404 and 404b) allows the trial to continue after a panel member is replaced if this does not endanger the proper handling of the case. The new judge is given time to review the case file and the evidence, after which they can formally state whether they need the evidence to be re-examined. 

The most telling example for the Ukrainian context is Italy’s experience. Despite the historically strict requirement that judges remain unchanged, set out in Article 525 of Italy’s CPP, practice changed radically after the precedent-setting ruling of the Supreme Court of Cassation in the Bajrami case (2019), which was later reflected in Article 495 of the Code. An interested party now has the right to a renewed questioning of witnesses only where the earlier testimony was not fixed by audio or video recording, or where the judge sees an objective need for it.

This trend toward technological “compensation” for immediacy is also reflected in the case law of the European Court of Human Rights. The Court has repeatedly stressed that the accused’s ability to confront a witness in the presence of the judge who ultimately decides the case is an important guarantee for assessing the truthfulness of the testimony. 

But the ECHR does not consider the principle of immediacy an absolute ban on any change of the bench. In Cutean v. Romania and P.K. v. Finland, the Court noted that administrative or procedural factors may impede a judge’s participation, and “compensatory measures” must be applied in such cases. These include providing the new judge with transcripts or technical recordings of the hearings. 

For example, in Graviano v. Italy and Škaro v. Croatia, the ECHR found no violation, since the change of judge was accompanied by access to materials from earlier hearings, and the truthfulness of the witnesses’ testimony was not in dispute. However, the Court does find a violation where the entire panel changes, or where the new judge issues a verdict without seeing key witnesses whose testimony was decisive. 

The matter of immediacy and the right to renewed questioning of witnesses is also relevant for Ukraine. Specifically, in Famulyak v. Ukraine, the ECHR stressed that replacing a judge on the panel after a witness has been heard should normally lead to a renewed questioning of that witness. However, if the witness has already been questioned by the defense at an earlier stage and this is properly recorded, the principle of immediacy may be limited.

In another case — Chernika v. Ukraine — the Court stressed that an important element of a fair trial is the defendant’s ability to “confront” a witness in the presence of the judge who ultimately decides the case. The judge must personally satisfy himself or herself of the truthfulness of the testimony, see the person’s reactions and emotions. Yet again, the ECHR points out that the principle of immediacy is not absolute and may be limited where: full transcripts of earlier interrogations are available; the witness’s truthfulness is not in question.

This allows the conclusion that both international practice and ECHR case law show a gradual shift from physical presence to substantive immediacy, where high-quality audio and video recording acts as a proper means of ensuring that the case is heard by a fair court when its composition changes.

Substance or formalism: why this issue calls for legislative change

The disparity in HACC practice on the procedural consequences of replacing a judge creates legal uncertainty and may invite abuse by participants in the proceeding. Parliament must clearly establish: where there is full audio and video recording, the participants’ consent to continuing the trial should not be decisive. The new judge already has every digital tool needed to acquaint themselves with the nuances of the trial, without zeroing out years of work by their colleagues. 

At the same time, on a reasoned motion from a participant, the court may re-examine certain pieces of evidence or re-question key witnesses where this is necessary to safeguard the right to a fair trial.

This step would balance immediacy against the principle of reasonable time limits. Today’s technology is already sophisticated enough to deliver a fair trial without years of going around in circles through the same procedures.