Imagine a situation: you are protecting a client who has the status of a suspect. During the pre-trial investigation, as part of the provision of legal assistance to the client, you sent several legal inquiries to public authorities or private institutions. At the same time, the client also collects evidence of innocence. As a result, some of the evidence was collected by the lawyer and the client before the pre-trial investigation was completed. Other evidence was obtained by the defense attorney after the indictment was sent to the court in response to a lawyer's request in the form of documents and other information. The defense is obliged to disclose the received materials to the prosecution. But how to properly open evidence to the prosecution during the pre-trial investigation and trial?
Investigator, prosecutor, defense: who comes first?
The procedure for opening materials to the other party is regulated by Article 290 of the 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 notify the suspect and defense counsel of access to the materials of the pre-trial investigation.
In practice, the investigator calls for "acquaintance". Thus, the defense party gets 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 a protocol on granting 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 Art. 290 of the CPC of Ukraine, the parties are obliged to confirm the fact of granting access to materials indicating the name of such materials. That is instead of "reading all the materials", the party should describe each document. This will make it impossible to abuse the renumbering of the pages of the proceedings, their replacement and the addition of new evidence after review.
Consider the procedure for opening materials in the pre-trial investigation and during the trial.
When the defense has to disclose evidence? Given the rules of Part 6 of Article 290 of the CPC of Ukraine, the defense is obliged to provide access to the evidence collected at the request of the prosecutor. However, 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 read the materials of the pre-trial investigation. Thus, it is expedient to determine the moment of opening of materials by the defense by the moment of completion of acquaintance with materials of investigation. After that, it is necessary to decide which of the collected materials the defense uses during the trial and, accordingly, is obliged to provide to the prosecutor. The defense should not acquaint with the materials of the investigator, because it is about the use of evidence during the trial, ie the investigator is excluded from the process.
How to confirm the fact of providing access to materials collected by the defense?
The investigator shall provide the defense party with an appropriate protocol to confirm the fact of access. And he does it correctly, because it is in the protocol that the course and results of the procedural action are recorded in accordance with Part 1 of Article 104 of the CPC of Ukraine. But the report can be made only by the investigator and the prosecutor, what to do protection? I offer several options.
- Insured letter. Send a valuable letter to the senior group of prosecutors to attach materials that the defense intends to use during the trial.
- Meeting. Familiarize the senior group of prosecutors directly with the materials and select a receipt / statement that will confirm the fact of acquaintance before the completion of the pre-trial investigation.
- Letter. Send a letter to the senior group of prosecutors in criminal proceedings stating that access to defense materials has been granted at a specified time to the address of the lawyer's workplace. The place is really unimportant, it can be any restaurant if you have a desire to impress the prosecutor J
In the case of a letter, the defense only informs the prosecutor of the possibility of reviewing the materials. In the future, it will be difficult to confirm in court the fact of acquaintance of the prosecutor with the materials, if he did not come to get acquainted at the appointed place and time.
In other cases, the defense will have evidence that the prosecutor has access to the materials that will be used during the trial: a receipt, a description of the attachment or other document. If getting written confirmation is problematic, record the video.
The prosecution proves its position with the help of evidence contained in the materials of the criminal proceedings. The defense collects its case materials, which will be provided to the court during the examination of evidence. Depending on the tactics of defense, the evidence is attached to the materials of the criminal proceedings both during the pre-trial investigation, through a request in accordance with Article 220 of the CPC of Ukraine, and during the trial.
After the indictment was sent, the court received answers to the lawyer's inquiries, and the client also received additional materials in 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.
How to disclose to the other party the materials obtained during the trial?
The procedure for disclosing materials to the other party during the trial is almost not regulated. There are no special rules in the CCP for opening during a trial. There is only a rule from the section "Pre-trial investigation" - Part 11 of Article 290 of the CPC of Ukraine: "The parties to the criminal proceedings are obliged to open to each other additional materials received before or during a trial».
Також відсутня і судова практика, яка могла б зорієнтувати щодо порядку відкриття матеріалів іншій стороні. Суддя не має виносити ніяких додаткових процесуальних рішень за результатами відкриття матеріалів, тож пошук судової практики у Єдиному державному реєстрі судових рішень не дасть результатів. Тому потрібно вмикати творчість 😉
Options for opening materials before the trial coincide with the options I described above for the pre-trial investigation: security; meeting; letter. The prosecutor and the victim can be acquainted immediately before the court hearing, provide copies of materials, and during the court hearing to apply for the inclusion of materials with reference to Part 11 of Article 290 of the CPC of Ukraine.
Directly in court. Option 1. At the beginning of each court session, the court finds out whether the participants in the court proceedings have a petition. In this case, the defense counsel may request the inclusion of new materials in the criminal case. After that, through reference to Part 11 of Article 290 of the CPC of Ukraine, provide the other party - the prosecutor and the victim - with materials for review. After fulfilling such requirements, the materials can be attached to a criminal case.
Option 2. During the trial, the defense counsel makes a statement about the disclosure of the materials to the prosecutor and the victim, provides them with materials for review. After the inspection, such materials are attached to the criminal case. A simple option that at the same time fulfills the requirements for 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 object to or make other comments on the inclusion of the open materials in the criminal case. The court must attach the materials and assess the admissibility of the information contained in the open materials as 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 16.03.2017 in case 671/463/15-k expressed the following legal position.
Part 12 of Article 290 of the CPC actually provides for a criminal procedural sanction against the parties to criminal proceedings, which is implemented in case of failure of the parties to disclose materials, which is that in the future the court has no right to admit information as evidence in undisclosed materials. Thus, the non-disclosure of materials by the parties to criminal proceedings significantly reduces their evidence base, which, in turn, may adversely affect the legality and validity of the court's decision.
Non-disclosure of materials by the parties to each other in accordance with Article 290 of the CPC after the pre-trial investigation, as well as additional materials received before or during the trial, is grounds for the court to declare the information contained in them inadmissible as evidence.
Given the above legal position of the Supreme Court, 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 CPC of Ukraine on the disclosure of such materials to the other party.
Conclusions. The procedure and proposed options for the disclosure of materials depend not only on the tactics of defense, because the type and amount of evidence also affect the method of their disclosure. However, the general rule remains the same - the evidence must be disclosed to the other party, otherwise they will have no probative value.