When the Past Changes: Negative Effects of Retroactive Application of the Supreme Court’s Legal Positions

When formulating a legal position in a specific case, the defence takes into account, amongst other things, the established case law of the Supreme Court of Ukraine.

Similarly, courts of first instance and appeal apply the law taking into account the relevant legal conclusions of the highest court.

However, in the course of the judicial proceedings in a single case, a situation may arise where the Supreme Court’s case law on the very same legal issue (regarding the application of a provision of procedural or substantive law) undergoes significant and, in some cases radical, changes.

As a result, at the time the court of first instance delivers its judgment, one legal position applies, whereas at the appeal stage, a different one—formed later (after the court of first instance has delivered its judgment)—is in force.

Please note that such changes occur whilst the legal provision itself remains entirely unchanged.

Consequently, a legal conflict arises. A decision by the court of first instance, which at the time of its adoption complied with both the applicable provision of law and the Supreme Court’s case law in force at that time, is subsequently deemed unlawful solely on the basis of the court’s new interpretation of the provision.

In other words, the Supreme Court’s new approaches are applied to events that occurred and were carried out in the past — prior to the formulation of the relevant position — and often in the face of directly contrary case law.

This situation calls into question the principles of legal certainty, the stability of judicial practice and the predictability of law-enforcement — foundations without which effective justice is impossible.

To illustrate this issue, it is worth citing the situation involving a radical transformation in the Supreme Court’s legal approaches regarding (1) the time limit for enforcing orders granting temporary access to property and documents, and (2) the transfer by a prosecutor of case materials to a pre-trial investigation body outside the time limit provided for in Article 214(7) of the Criminal Procedure Code of Ukraine.

Temporary access: time limit for executing a ruling vs the time limit for presenting the ruling for execution

As is well known, the validity period of such rulings was previously one month. From 28 April, 2020, the legislature extended this period to two months. Although the explanatory note did not contain a proper justification for this change, it was apparent from the recommendations of the European Union Advisory Mission that the previous time limit was excessively short, and this often made it impossible in practice to properly execute the relevant orders [1].

In turn, according to the Supreme Court’s position, the obtaining of evidence outside the time limit specified in the rulings rendered such evidence inadmissible under Article 87 of the Criminal Procedure Code of Ukraine [2].

Thus, both the legislature and judicial practice effectively adopted a single approach: the time limit specified in the Criminal Procedure Code is the time limit specifically for the full execution of the order, that is, for the actual obtaining of items and documents.

However, from around 2024, the Supreme Court’s legal position underwent a fundamental change. Under the new approach, the specified period is no longer interpreted as a deadline for enforcing the order, but merely as the period within which the order must be presented to the holder of the relevant items or documents for enforcement [3]. Consequently, the actual receipt of documents is permitted after the expiry of this period, without such actions being regarded as a breach.

Thus, we are witnessing not merely an evolution, but a fundamental change in the approach to interpreting the same provision, despite the absence of any changes to its content.

The transfer of case files by a prosecutor to a pre-trial investigation body outside the time limit provided for in p.7 Article 214 of the Criminal Procedure Code of Ukraine

As is well known, previously, a prosecutor who had initiated criminal proceedings was obliged to transfer the case files to the investigator without delay, but no later than the following day.

The Supreme Court had established an approach whereby a breach of this obligation and the prosecutor’s independent performance of procedural actions outside this time limit resulted in the evidence obtained being deemed inadmissible [4].

This created clear and predictable ‘rules of the game’ for the parties to the proceedings.

From 25 November, 2021, the legislature, evidently in response to practical needs, extended this time limit to five working days. At the same time, the very essence of the obligation remained unchanged: the prosecutor was still required to transfer the materials, rather than acting in place of the pre-trial investigation body.

It would seem that the logic of law-enforcement should remain consistent.

However, as early as 2022, the Supreme Court changed its legal position regarding the legal consequences of a prosecutor’s failure to transfer case files within the time limit specified in the Criminal Procedure Code of Ukraine [5]. Since then, failure to meet this deadline ceased to be regarded as an absolute ground for declaring evidence inadmissible. The Supreme Court proposed a discretionary approach to the prosecutor’s actions: it is necessary to take into account the duration of the breach, the nature and scope of the procedural actions, as well as their impact on the individual’s constitutional and convention-based rights.

This position was confirmed In 2025 by the Joint Chamber of the Cassation Criminal Court of the Supreme Court.

And once again, we are faced with a key problem – the provision of the law has, in essence, remained unchanged regarding the obligation to transfer case materials. However, the Supreme Court’s interpretation of it has changed radically. And this new, more ‘flexible’ interpretation has begun to be applied to legal relationships that arose whilst the previous, more ‘strict’ judicial practice was still in force.

What does this mean in practice? The defence, which had built its legal position on the established practice of the Supreme Court, suddenly finds itself in a situation where these arguments are no longer valid.

This is a striking example of how a change in the court’s legal position can affect the principle of legal certainty, undermine the legitimate expectations of parties to the proceedings and create a sense of unpredictability in the justice system.

It is for this reason that the question of the temporal scope of the Supreme Court’s legal rulings requires not only theoretical consideration but also practical regulation.

The institutional response of the Criminal Cassation Court within the Supreme Court

It is apparent from both of the above examples that the rulings of the court of cassation concerned issues affecting the assessment of the admissibility of evidence.

In 2021, the Criminal Cassation Court of the Supreme Court raised the issue before the Joint Chamber, and in 2023 before the Grand Chamber of the Supreme Court, that such rulings of the Supreme Court should have only prospective effect [6].

And this is an extremely important signal: the judicial system itself recognises the existence of a problem and is attempting to strike a balance between the development of legal positions and the principle of legal certainty.

Why is this fundamental? Because we are dealing with a situation where the court’s legal position changes whilst the provisions of the law remain unchanged. Moreover, it is precisely this change in interpretation that becomes decisive for the final resolution of a specific case.

And this is where a systemic conflict arises.

On the one hand, the Supreme Court’s new legal position, in effect, alters the standards for assessing evidence and may determine the outcome of the case. On the other hand, the very fact of this change in position is not recognised as grounds for reviewing court decisions, either on the basis of exceptional circumstances or newly-discovered facts.

In other words, we find ourselves in a situation where:

• the new interpretation is applied to ‘old’ legal relationships;
• it may alter the outcome of the case;
• but the parties are deprived of a procedural mechanism to rectify this difference in approach.

The situation is further complicated by the fact that, in both cases, the Supreme Court’s new interpretation is not an obvious or direct extension of the wording of the law. They essentially create a new dimension of law-enforcement through judicial interpretation.

And this is precisely where the main risk lies.

After all, the Supreme Court’s position directly influences conclusions regarding the admissibility of evidence, and the outcome of criminal proceedings depends, without any exaggeration, on this.

Thus, we are faced not merely with an evolution of case law, but with a de facto retroactive reformulation of procedural standards – without adequate safeguards and without mechanisms for compensation for the parties to the proceedings.

This once again underlines the need to clearly define the temporal scope of the Supreme Court’s legal conclusions and to introduce approaches that will guarantee a fair balance between the development of the law and the stability of legal regulation.

Conclusions and recommendations

In summary, it must be noted that a change in the Supreme Court’s legal position, whilst the statutory provision remains unchanged, effectively leads to a retrospective revision of the standards of application of law. Such a change in case law may occur during the course of a single case being heard across different courts and affects the final outcome of criminal proceedings.

This gives rise to legal uncertainty, as the parties to proceedings cannot foresee the consequences of their actions, even when acting in accordance with the practice in force at the time.

What’s the solution? When changing a legal position, establish the procedure and temporal limits for its application. Provide for procedural safeguards for the party that’s placed at a disadvantage.

Implementing these approaches will minimise the negative consequences of the retrospective effect of judicial rulings and ensure a balance between the development of the law and the stability of its application.

[1] Proposals by the European Union Advisory Mission regarding amendments to the Criminal Procedure Code of Ukraine https://komzakonpr.rada.gov.ua/uploads/documents/31985.pdf

[2] The Supreme Court’s case law on the inadmissibility of evidence obtained outside the scope of a temporary access order

Decision of the Panel of Judges of the Third Judicial Chamber of the Criminal Cassation Division of the Supreme Court of 26 January 2022 in Case No. 264/6171/18 https://reyestr.court.gov.ua/Review/102865645

Decision of the panel of judges of the First Judicial Chamber of the Criminal Chamber of the Supreme Court dated 12 November 2020 in case No. 201/2194/17 https://reyestr.court.gov.ua/Review/92902810#

[3] Supreme Court case law on the admissibility of evidence obtained outside the scope of a temporary access order

Decision of the Panel of Judges of the Third Judicial Chamber of the Criminal Chamber of the Supreme Court dated 31 October 2024 in Case No. 183/1031/20 https://reyestr.court.gov.ua/Review/122908339

Decision of the Panel of Judges of the Third Judicial Chamber of the Criminal Chamber of the Supreme Court dated 30 April 2025 in Case No. 705/1645/20 https://reyestr.court.gov.ua/Review/127077615

Ruling of the panel of judges of the Third Judicial Chamber of the Criminal Cassation Chamber of the Supreme Court dated 27 September 2024 in case No. 761/11523/22 https://reyestr.court.gov.ua/Review/121957903

Decision of the Panel of Judges of the First Judicial Chamber of the Criminal Chamber of the Supreme Court dated 16 December 2025 in Case No. 991/3966/20 https://reyestr.court.gov.ua/Review/132893573

[4] Supreme Court case law on the inadmissibility of evidence obtained by a prosecutor outside the time limit specified in Article 214(7) of the Criminal Procedure Code

Decision of the Panel of Judges of the Second Judicial Chamber of the Judicial Qualifications Committee of the Supreme Court dated 14 April 2020 in case No. 761/34909/17 – https://reyestr.court.gov.ua/Review/88904111

Decision of the panel of judges of the Third Judicial Chamber dated 7 October 2020 in case No. 235/5633/18 – https://reyestr.court.gov.ua/Review/92173700

Decision of the panel of judges of the Third Judicial Chamber of the Criminal Chamber of the Supreme Court dated 14 June 2021 in case No. 991/492/19 – https://reyestr.court.gov.ua/Review/97736514

[5] The Supreme Court’s case law stating that evidence obtained by a prosecutor outside the time limit set out in Article 214(7) of the Criminal Procedure Code is not automatically inadmissible

Resolution of the Third Judicial Chamber of the Criminal Chamber of the Supreme Court dated 21 November 2022 in case No. 991/492/19 https://reyestr.court.gov.ua/Review/107805010

Separate opinion of a judge of the Criminal Chamber of the Supreme Court  https://reyestr.court.gov.ua/Review/107706662

Decision of the Joint Chamber of the Civil Cassation Chamber of the Supreme Court of 27 October 2025 in Case No. 487/2438/17 – https://reyestr.court.gov.ua/Review/131495374

[6] Regarding the raising of the issue of the prospective effect of Supreme Court rulings

Decision of the Panel of Judges of the First Specialised Chamber of the Civil Court of Cassation of the Supreme Court dated 7 March 2023 in Case No. 761/13685/14-k https://reyestr.court.gov.ua/Review/109646051

Ruling of the Pre-Trial Chamber of the Supreme Court dated 13 April 2023 in case No. 761/13685/14-k https://reyestr.court.gov.ua/Review/110308826

Separate opinion of the judges of the Pre-Trial Chamber of the Supreme Court dated 13 April 2023 in Case No. 761/13685/14-k https://reyestr.court.gov.ua/Review/110515501

Ruling of the Panel of Judges of the Third Specialised Chamber of the Civil Court of Cassation of the Supreme Court dated 12 May 2021 in Case No. 663/267/19 – https://reyestr.court.gov.ua/Review/96856599