The procedure for disclosing materials to the other party is regulated by Article 290 of the Criminal Procedure Code (CPC) of Ukraine. According to the content of parts 1-5 of this article, it is the prosecutor or investigator on behalf of the prosecutor who is the first to report on granting the suspect and defense counsel access to the materials of the pre-trial investigation.
In practice, the investigator calls for "acquaintance". Thus, the defense receives full access to all materials of the criminal proceedings: interrogations, documents, physical evidence.
The fact of granting access to the materials is confirmed by the defense by signing the protocol of obtaining access to the materials of the pre-trial investigation. In practice, the suspect and the defense counsel sign a protocol stating that they are acquainted with all the materials of the pre-trial investigation. This is a common mistake. According to Part 9 of Article 290 of the Code of Criminal Procedure of Ukraine, the parties are obliged to confirm the fact of providing access to materials indicating the name of such materials. That is, instead of "reading all the materials", the party must describe each document. This will make it impossible to abuse the renumbering of production pages, their replacement and the inclusion of new evidence after review.
Consider the procedure for opening materials in the pre-trial investigation and during the trial.
Taking into account the rules of Part 6 of Article 290 of the Code of Criminal Procedure of Ukraine, the defense party is obliged to provide access to the evidence collected at the request of the prosecutor. But the defense has the right not to provide the prosecutor with access to any material that may be used by the prosecutor to prove the guilt of the accused.
The defense has the right to decide whether or not to grant the prosecutor access to such materials after the defense has reviewed the materials of the pre-trial investigation. Thus, the moment of opening of materials by the party of protection it is expedient to define the moment of the end of acquaintance with materials of a consequence. After that, it is necessary to decide what the defense uses from the collected materials during the trial. It is these materials that the defense is obliged to provide to the prosecutor.
The investigator shall provide the defense party with an appropriate protocol to confirm access. And he does it correctly, because it is in the protocol that the course and results of the procedural actions are recorded in accordance with Part 1 of Article 104 of the Code of Criminal Procedure of Ukraine. But the report can be made only by the investigator and the prosecutor, what to do to protection? I offer several options.
- Valuable letter. Send a valuable letter to the senior group of prosecutors to attach materials that the defense will use during the trial.
- Meeting. To acquaint directly the senior group of prosecutors with materials and to take away from him the receipt / statement which will confirm the fact of acquaintance before completion of pre-trial investigation.
- Writing. Send a letter to the senior group of prosecutors in criminal proceedings stating that access to defense materials has been granted at a certain time to the address of the lawyer's workplace. The place doesn't really matter.
In the case of a letter, the defense only notifies the prosecutor of the possibility of reviewing the materials. Further in court it will be difficult to confirm the fact of acquaintance of the prosecutor with materials if he didn't arrive for acquaintance in a certain place and time.
In other cases, the defense will have evidence to provide the prosecutor with access to materials that will be used during the trial: a receipt, a list of attachments, or another document. If it is difficult to get a written confirmation, record the acquaintance on video.
The prosecution confirms its position with the help of evidence that is in the materials of the criminal proceedings. The defense gathers its case materials that will be provided to the court during the examination of the evidence. Depending on the tactics of defense, evidence may be attached to the materials of the criminal proceedings both during the pre-trial investigation, through a request in accordance with Article 220 of the Code of Criminal Procedure of Ukraine, and during the trial.
After the indictment was sent to the court, the answers to the lawyer's inquiries came, and the client also received additional materials for his defense. Now you have letters, documents, other materials that need to be provided to the court during the trial. If the procedure for disclosing the materials to the prosecution is violated, the court will not be able to admit the information contained in them as evidence.
The procedure for disclosing materials to the other party during the trial is almost not settled. There are no special rules in the Code of Criminal Procedure for opening during the trial. There are only rules from the section "Pre-trial investigation" - part 11 of article 290 of the Code of Criminal Procedure of Ukraine: "The parties to the criminal proceedings are obliged to disclose to each other additional materials received before or during the trial."
There is also no case law that could guide the other party in opening the materials. The judge cannot make any additional procedural decisions on the results of the disclosure of materials, so the search for case law in the Unified State Register of Court Decisions will not yield results.
The options for opening the materials before the trial coincide with the options described above for the pre-trial investigation: a valuable letter; meeting; writing. The prosecutor and the victim can be acquainted immediately before the hearing, provide copies of materials, and during the hearing to apply for the inclusion of materials with reference to Part 11 of Article 290 of the Code of Criminal Procedure of Ukraine.
If you do it directly in court, there are two options. At the beginning of each court hearing, the court finds out whether the participants in the court proceedings have a petition. In this case, the defense counsel may file a motion to include new materials in the criminal case. After that, through a reference to Part 1 of Article 290 of the Code of Criminal Procedure of Ukraine to provide the other party - the prosecutor and the victim - materials for inspection. After fulfilling such requirements, the materials can be attached to the criminal case.
The second option: during the trial, the defense counsel makes a statement about the disclosure of materials to the prosecutor and the victim, provides them with materials for inspection. After the inspection, such materials are attached to the criminal case. A simple option that simultaneously fulfills the requirements of prior acquaintance of the other party and allows the court to use the attached materials as evidence.
In both cases, the party receiving the materials may not deny or make other statements concerning the inclusion of open materials in the criminal case. The court must attach the materials and provide an assessment of the admissibility of the information contained in them as evidence.
Admissibility of evidence
Are undisclosed materials obtained during the pre-trial investigation but included during the trial admissible? The Supreme Court of Ukraine in the decision of March 16, 2017 in case 671/463/15-k expressed the following legal position:
«Part 12 of Article 290 of the Code of Criminal Procedure in fact provides for a criminal procedural sanction against the parties to criminal proceedings, which is implemented in the event of non-compliance by the parties with the obligation to disclose materials. In the future, the court has no right to admit such information as evidence if it is contained in undisclosed materials. Thus, the non-disclosure by the parties to the criminal proceedings of materials to each other significantly reduces their evidence base, which, in turn, may adversely affect the legality and validity of the court's decision.
Failure of the parties to disclose materials to each other pursuant to Article 290 of the CPC after the pre-trial investigation, as well as additional materials obtained before or during the trial, is grounds for the court to declare the information contained therein inadmissible as evidence.».
Given the above legal position of the APU, my opinion is as follows. Materials that existed during the pre-trial investigation, but were not disclosed to the other party, are devoid of probative value during the trial. If the materials are objectively obtained or have already appeared during the trial, they will have probative value in the case of compliance with the requirements of paragraph 11 of Article 290 of the Code of Criminal Procedure of Ukraine on the disclosure of such materials to another party.
The procedure and proposed options for the discovery of materials depend not only on the tactics of protection, because the type and amount of evidence also affect the method of their discovery. However, the general rule remains the same - the evidence must be disclosed to the other party, otherwise it will have no probative value.