The Criminal Procedure Code of Ukraine and the Asymmetry of the Parties’ Capabilities: A Defense Perspective

The principle of adversarial proceedings and the freedom of the parties to present their evidence in court and to demonstrate its persuasiveness to the court is, in fact, asymmetrical in terms of the parties’ procedural capabilities, with the prosecution holding the advantage.

This applies first and foremost to the defense’s collection of evidence in criminal proceedings. Article 93 of the Criminal Procedure Code of Ukraine stipulates that the defense may gather evidence by requesting and obtaining from state authorities, local government bodies, enterprises, institutions, organizations, public officials, and individuals items, copies of documents, information, expert opinions, audit reports, and inspection reports; by initiating investigative (search) actions, covert investigative (search) actions, and other procedural actions; and by taking other measures capable of ensuring that proper and admissible evidence is presented to the court. However, the defense’s ability to request and obtain items, copies of documents, and information from state authorities, local government bodies, enterprises, institutions, organizations, public officials, and individuals is complicated, since the Code of Criminal Procedure of Ukraine does not provide for an appropriate procedural mechanism that would guarantee the possibility of obtaining the requested items; this applies particularly to physical items. Article 225 of the CPC of Ukraine provides for the examination of a witness or victim during a pretrial investigation at a court hearing upon a motion by the defense, however, it does not explicitly state that the technical recording and the court transcript must be provided to the defense in such a case.

Article 166 of the CPC of Ukraine provides that in the event of non-compliance with a ruling granting temporary access to items and documents, the investigating judge or the court, upon a motion by the party to the criminal proceedings that has been granted the right to access such items and documents pursuant to the ruling, has the right to issue a ruling authorizing a search; and if the authorization to conduct a search is granted upon a motion by the defense, the investigating judge or the court shall instruct the investigator, prosecutor, or National Police unit at the location where these actions are to be carried out to ensure that the search is conducted. However, the Code of Criminal Procedure of Ukraine does not contain any provision requiring the defense’s participation in the investigative judge’s or court’s consideration of such a motion. Article 221 of the Code of Criminal Procedure of Ukraine stipulates that an investigator or prosecutor is obligated, upon a motion by the defense, to provide materials from the pretrial investigation for review, with the exception of materials concerning security measures applied to persons participating in criminal proceedings, as well as those materials whose review at this stage of criminal proceedings could prejudice the pretrial investigation. However, the question of which materials, if reviewed at this stage of criminal proceedings, could prejudice the pretrial investigation is decided solely by the prosecution, without any judicial oversight, which generally does not comply with the practice of the European Court of Human Rights regarding the disclosure of materials to the defense. Furthermore, if a motion is denied, the defense is deprived of the opportunity to appeal such a denial to the investigating judge, since such a decision by the investigator or prosecutor is not included in the list of actions, decisions, or omissions provided for in Article 303 of the Code of Criminal Procedure of Ukraine. Moreover, even if the motion is granted, there are instances where the prosecution effectively denies the defense the opportunity to review such materials. Article 255 of the Code of Criminal Procedure of Ukraine stipulates that information, items, and documents obtained as a result of covert investigative (search) actions, which the prosecutor does not deem necessary for the further conduct of the pretrial investigation, must be destroyed without delay on the basis of the prosecutor’s decision, except in the cases provided for in paragraph three of this article and Article 256 of the Code of Criminal Procedure of Ukraine. Again, this issue is decided solely by the prosecution, without any judicial oversight, which generally does not comply with the practice of the European Court of Human Rights regarding the disclosure of materials to the defense. In such a situation, the defense is deprived of the opportunity to review the results of covert investigative (search) actions, which may potentially be necessary to advance the defense’s case, as they may contain exculpatory information. The provisions regarding the defense counsel’s participation in procedural actions also restrict the right to a defense. Although Part 5 of Article 46 of the Criminal Procedure Code of Ukraine provides that a defense attorney has the right to participate in interrogations and other procedural actions conducted with the participation of a suspect or defendant, the CPC of Ukraine lacks a provision requiring that the defense attorney be notified in advance of such proceedings. In practice, untimely notification results in the absence of defense attorneys and, consequently, accusations by the prosecution of obstructing procedural actions. In practice, there are instances where the prosecution interprets differing interpretations of the provisions of the CPC of Ukraine as abuse on the part of the defense. Here are some examples of such interpretations. It is not uncommon for the prosecution to appeal to the investigating judge pursuant to Part 10 of Article 290 of the CPC of Ukraine. However, if an unauthorized person notifies the defense of the completion of the pretrial investigation and grants access to the pretrial investigation materials (and in practice, investigators do not always provide a copy of the prosecutor’s order), the defense is not considered to have been properly notified, and accordingly, there can be no question of any delay. Furthermore, Article 290 of the Criminal Procedure Code of Ukraine is titled “Disclosure of Materials to the Other Party.” The procedure for disclosing materials consists of three parts: notification of the provision of access to the materials; review of the materials—providing access to the materials and the opportunity to copy and reproduce, as appropriate, any physical evidence or parts thereof, documents or copies thereof, etc.; written confirmation of the fact that access to the materials has been granted, specifying the names of such materials. The term “review” is used in this article in Part 5 (in documents provided for review, information that will not be disclosed during the trial may be redacted) and Part 6 (the decision on whether specific materials may be used by the prosecutor to prove the defendant’s guilt of committing a criminal offense and, consequently, the decision on whether or not to grant the prosecutor access to such materials, may be postponed until the defense has finished reviewing the materials of the pretrial investigation), Part 7 (upon the disclosure of materials by the parties to the criminal proceedings, the prosecutor or the investigator, acting on the prosecutor’s instructions, shall notify the victim and the representative of the legal entity against which the proceedings are being conducted, whereupon the latter has the right to review them in accordance with the rules set forth in this article), Part 8 (upon the disclosure of materials by the parties to the criminal proceedings, the civil plaintiff, his or her representative, and legal representative, as well as the civil defendant and his or her representative, shall be notified, after which these persons have the right to review them to the extent relevant to the civil claim, in accordance with the rules set forth in this article) and Part 10. An important conclusion follows from this: the review itself begins at the moment the right to access the materials is actually exercised, and not at the moment a notice is sent to the party, the victim, the representative of the legal entity against which the proceedings are being conducted, the civil claimant, its representative and legal representative, the civil defendant, and its representative, regarding the completion of the pretrial investigation and the granting of access to the pretrial investigation materials, or upon their receipt of such notification (as determined by the prosecution).2 All of this, in our view, unequivocally confirms that the defense is significantly limited in its procedural capabilities compared to the prosecution, and the adoption of amendments and additions to the Code of Criminal Procedure of Ukraine (examples of which include, in particular, the recent amendments to Article 481) requires careful consideration in terms of upholding the right to defense in criminal proceedings—as guaranteed by international human rights standards—and the universally recognized safeguards for the practice of law.