Yuriy Zhovtan, attorney, partner at Barristers LLC, member of the Criminal Law and Procedure Committee of the Odesa Regional Bar Association, Ph.D.

The conduct of a pretrial investigation and the collection of evidence and materials serve as a source of information that forms the basis for either supporting or refuting the charges, highlighting a crucial stage in the entire process—from the initial entry of information into the Unified Register of Pretrial Investigations (hereinafter referred to as the “Unified Register”) through to the rendering of a verdict or the dismissal of the criminal proceedings (case).

An analysis of certain problematic aspects of Chapter 21 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the “CPC of Ukraine”), regarding the use of the results of covert investigative and search operations (hereinafter referred to as “CISO”) in criminal proceedings, in particular Part 1 of Article 255 of the CPC of Ukraine, according to which information, items, and documents obtained as a result of covert investigative activities that 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, points to an imbalance in the equality of the parties, inconsistencies in certain provisions of Ukraine’s criminal procedure legislation, and furthermore contradicts the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights.

As practice shows, the prosecution’s application of the aforementioned provision calls into question the prosecutor’s duty to conduct a comprehensive, thorough, and impartial investigation of the circumstances of the criminal proceedings, as enshrined in Part 2 of Article 9 of the Criminal Procedure Code of Ukraine, and violates the defense’s guarantees regarding the right to review all materials of the pretrial investigation, and the issue does not even concern an intentional act by the prosecutor, but rather the human factor that may influence the independent decision to destroy certain materials without the opposing party having the opportunity to express its opinion on the matter.

As can be seen from the foregoing, this issue is relevant and currently unresolved, which points to the need to seek and subsequently implement measures to address this gap in the current Code of Criminal Procedure of Ukraine.

Analysis of Recent Studies and Publications

The issue of participants in criminal proceedings exercising their right to access pretrial investigation materials upon the conclusion of the investigation has been repeatedly addressed in the works of scholars such as: S.V. Andrusenko, N.L. Borzhetska, T.V. Voloshanivska, I.V. Glovuk, I.O. Krytska, T.Yu. Marchenko, M.I. Pashkovsky, S.M. Smokov, M.M. Stoyanov, and other scholars.  However, given the rapid changes in current legislation and the specific nature of disclosing pretrial investigation materials to the other party—particularly the results of the pretrial investigation that the prosecutor does not deem necessary for the further conduct of the pretrial investigation— this issue has not been sufficiently studied and requires further development to ensure the realization of the right to defense and to prevent the parties from abusing their procedural rights, which underscores the need to focus on and analyze this issue.

Analysis of the Issue

Effective defense in criminal proceedings in Ukraine is based on an understanding of the function of the defense, which is aimed at: challenging the legality and validity of criminal prosecution; identifying circumstances that refute the suspicion, exonerate the accused (defendant), exclude or mitigate their liability, and mitigate the punishment and other consequences of a conviction; protecting personal and property rights; as well as preventing violations and unjustified restrictions on rights and freedoms when applying measures to ensure criminal proceedings, which is carried out through criminal procedural means in the manner prescribed by criminal procedural law [1, pp. 368–369]. According to T.V. Voloshanivska, one of the guarantees ensuring the right to defense is the obligation imposed on pretrial investigation authorities and the court to provide the individual with the means to defend themselves against the charges [2, p. 201]. Based on the provisions of Article 6(3)(b) of the Convention for the Protection of Human Rights and Fundamental Freedoms, every person charged with a criminal offense has the right to have the time and facilities necessary to prepare their defense [3]. In the case of “Mattoccia v. Italy,” the ECHR noted that although the level of detail in the information provided to the accused depends on the circumstances of the specific case, in any event, the information provided to the accused must be sufficient for the accused to fully understand the nature of the charges against them, which is necessary for preparing an adequate defense [4]. In this regard, in agreement with T.Y. Marchenko, we note that the timeliness of providing information to the accused, as well as its scope and relevance, is assessed through the lens of the provision enshrined in Article 6(3)(b) of the Convention [5, p. 22]. An important element in ensuring sufficient opportunities for defense is access to the materials of the criminal proceedings. An analysis of the provisions of Article 255 of the Code of Criminal Procedure of Ukraine raises numerous questions regarding the exercise of the right to defense. In particular, Part 1 of the aforementioned provision states that information, items, and documents obtained as a result of special investigative measures, which the prosecutor does not deem necessary for the further conduct of the pretrial investigation, must be destroyed without delay based on the prosecutor’s decision. At the same time, Part 2 of the aforementioned article prohibits the use of the materials specified in Part 1 of this article for purposes unrelated to criminal proceedings, or the disclosure of such materials to participants in criminal proceedings or any other persons [6]. As I.V. Hlovyuk, regarding “any other persons,” such an approach—given the covert nature of covert investigative (search) actions—raises no objections; however, the prohibition on disclosure to participants in criminal proceedings raises concerns regarding the guarantee of the right to defense. The results of covert investigative (search) operations, which the prosecutor does not deem necessary for the further conduct of the pretrial investigation, may contain information that could be of significant importance in the future to the defense, which, at the time the decision to destroy such materials is made, is unaware of their existence, and, accordingly, does not and cannot have access to it. This, by its very nature, contradicts Part 2 of Article 290 of the Code of Criminal Procedure of Ukraine, which establishes the obligation of the prosecutor—or an investigator acting on the prosecutor’s instructions—to provide access to anyevidence that, on its own or in conjunction with other evidence, may be used to prove the accused’s innocence or a lesser degree of guilt, or to contribute to a more lenient sentence [7, pp. 27–28]. Citing the legal reasoning in the European Court of Human Rights (ECHR) decision in the case of “Matanović v. Croatia,” the author notes that although the right of access to case files is not absolute, a procedure under which prosecutorial authorities independently attempt to assess what may or may not be relevant to the case, without any subsequent procedural safeguards for the rights of the defense, cannot meet the requirements of Article 6 § 1 [8].

Consequently, at present, the equality of the parties in Ukraine’s criminal proceedings is, in certain cases, merely declaratory in nature, particularly with regard to granting access to materials from the National Security and Defense Council.  Under Article 255 of the Code of Criminal Procedure of Ukraine, the defense is deprived of the opportunity to even file a motion, since it is unaware that a non-structural search and seizure is being conducted, and the evidence is destroyed as unnecessary, in the prosecutor’s opinion, for the further conduct of the pretrial investigation [7, p. 30]. In the case law of the European Court of Human Rights (ECHR), attention has repeatedly been drawn to restrictions on the right of access to case materials. In particular, in the judgments in “Beraru v. Romania” and “M v. the Netherlands” the Court emphasized that unrestricted access to the case file and unrestricted use of any evidence, including the ability to obtain copies of relevant documents, are essential guarantees of a fair trial. Such a restriction leads to a violation of the principle of equality of the parties, which, in turn, entails a violation of the principle of proportionality [9]. At the same time, in its case law, the ECHR emphasizes that the right to disclosure of evidence is not an absolute right. In particular, in its judgment in the case of “Natunen v. Finland,” the ECHR notes that in any criminal proceeding there may be competing interests, such as national security, the need to protect witnesses at risk of reprisals, or the preservation of confidential investigative methods, which must be weighed against the rights of the accused [10]. Similar legal positions of the ECHR can be found in the cases of “Dovset v. the United Kingdom” [11] and “Durson v. the Netherlands” [12]. In the case of “Mr. Mitchell v. the United Kingdom,” the Court also noted that restrictions on a person’s procedural rights (including access to certain information) can be justified only in exceptional circumstances [13]. Any restrictions imposed must not limit or diminish access to information provided to the individual in such a way or to such an extent that it would substantially diminish the substance of the right. Such a procedure, in which the prosecution attempts to independently assess the importance of the withheld information to the defense and weighs (evaluates) this against the public interest in keeping the information confidential, cannot meet the requirements of Article 6(1) of the Convention [11].

Furthermore, restrictions will not be compatible with Article 6(1) of the Convention if they do not serve “legitimate” aims and if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be achieved” [14]. In the case of “Jespers v. Belgium,” the Court noted that the failure to disclose to the defense material evidence containing information that could enable the accused to exonerate himself or reduce the length of his sentence may be regarded as a denial of the opportunities necessary to prepare a defense and, consequently, a violation of the right guaranteed by Article 6(3)(b) of the Convention [15]. In some cases, it may be necessary to withhold certain evidence from the defense in order to protect the fundamental rights of another person or to safeguard important public interests. To ensure that the accused receives a fair trial, any difficulties arising from restrictions on the rights of the defense must be adequately compensated for (balanced) by procedures followed by the judicial authorities [16].

Although there is established ECHR case law on assessing the balance between the need to preserve state secrets and the protection of an important public interest, unfortunately, current practice indicates a lack of adequate legal procedures for judicial review of decisions regarding the disposition of such materials.  In its judgment in *Matanović v. Croatia*, the ECHR emphasizes that in systems where prosecutorial authorities are required by law to consider facts both for and against the suspect, a procedure whereby prosecutorial authorities independently attempt to assess what may or may not be relevant to the case, without any subsequent procedural safeguards for the rights of the defense, cannot meet the requirements of Article 6(1) of the Convention [8].

I.V. Glovuk and T.Yu. Marchenko draw attention to the need to ensure the preservation of such materials until a court decision concluding the criminal proceedings becomes final, or until a ruling is issued to dismiss the criminal proceedings,given that the prosecutor’s assessment of the “necessity” of the results obtained from the special investigative measures for conducting the pretrial investigation contains an element of subjectivity [17, p. 55]. Analyzing the practice of the European Court of Human Rights (ECHR) in relation to the provisions of the Code of Criminal Procedure of Ukraine, the authors conclude that, given the specific nature of special investigative measures, the duration of their implementation, and the fact that materials which the prosecutor does not intend to use as evidence in court proceedings may not be declassified, and their declassification at a specific point in time would conflict with an important public interest, it would be appropriate to resolve the issue of the need to disclose these materials through judicial proceedings. To this end, in Part 5 of Article 290 of the Code of Criminal Procedure of Ukraine, I.V. Hloviuk and T.Y. Marchenko propose granting the investigating judge and the court the authority to assess the need to disclose the aforementioned results of the forensic examination, while ensuring the defense’s right to have sufficient opportunities to prepare its defense. In particular, the investigating judge or the court must determine whether such results of non-surgical investigative measures could enable the suspect or defendant to exonerate themselves or reduce the scope of the charges, while striking a balance between the public interest, the need to keep confidential information regarding the fact, the methods used in the special investigative measures, the persons conducting them and those involved in their conduct, and the information obtained as a result of their conduct, and the right of the suspect and his or her defense counsel to have the opportunities necessary to prepare a defense [17, p. 55].

We believe that the prosecutor is obligated to disclose to the defense all materials from special investigative measures conducted with respect to a specific person (or persons), and may not, at his or her own discretion, determine that the results obtained are subject to immediate destruction without notifying the defense of their existence. The suspect and his or her defense counsel must be notified in writing by the prosecutor or, at the prosecutor’s direction, by the investigator, of the existence of all materials from special investigative measures conducted in the criminal proceedings. The defense’s access to such materials must be granted based on a filed motion in accordance with Article 221 of the Criminal Procedure Code of Ukraine, which is reviewed by the prosecutor in accordance with the procedure provided for in Article 220 of the Criminal Procedure Code of Ukraine. If the defense discovers evidence that is relevant to the criminal proceedings for proving the innocence or lesser degree of guilt of the suspect (defendant), or for mitigating the sentence, the defense has the right to file a motion to have such documents included in the criminal case file.

Furthermore, when considering the possibility of the defense filing a motion to grant access to the materials of the pretrial investigation prior to its completion,then, in accordance with Part 2 of Article 220 of the Code of Criminal Procedure, the investigator or prosecutor must issue a reasoned ruling regarding the full or partial denial of the motion. The defense may need to appeal both the inaction of the investigator or prosecutor—which consists of failing to consider a motion to review the materials of the pretrial investigation before its completion— as well as to challenge a ruling denying a motion to review the materials of the pretrial investigation before its completion. However, the current Code of Criminal Procedure of Ukraine does not address the issue of whether a refusal to grant access to the materials can be appealed under Article 221 of the Code. Therefore, in accordance with the entirely valid assertion by O.V.Malakhova, we believe that an effective way to counter unfounded refusals by an investigator or prosecutor to grant access to the materials of a pretrial investigation prior to its completion is to appeal such refusals to an investigating judge [18, p. 105].

In this regard, we support the position of I.V. Glovuk, who, with the aim of improving the regulatory framework governing access to pretrial investigation materials prior to its completion, proposes supplementing Article 303 of the CPC with paragraph 10 as follows: “10) a decision by an investigator or prosecutor to deny a motion to review the materials of a pretrial investigation prior to its completion, with respect to the provision of materials, the review of which at this stage of criminal proceedings may prejudice the pretrial investigation—by the person whose motion was denied, their representative, legal representative, or defense counsel” [19, p. 74].

In our view, given the foregoing, in order to prevent a prosecutor from abusing the right to decide on the immediate destruction of information, items, and documents obtained as a result of a special investigative measure that the prosecutor does not deem necessary for the further conduct of the pretrial investigation, we propose the following amendments to the Code of Criminal Procedure of Ukraine:

Article 255 of the Code of Criminal Procedure of Ukraine shall be supplemented with Part 3^-1 and shall read as follows:

“^3-1 If information, items, and documents obtained as a result of covert investigative (search) actions, either on their own or in conjunction with other evidence, may be used to prove the accused’s innocence or a lesser degree of guilt, or to contribute to a more lenient sentence, the prosecutor is required to notify the defense of the existence of such information, items, or documents in the prosecutor’s possession.

Upon receiving notification that the prosecution possesses the materials specified in the first part of this article, the defense has the right to file a motion to review them, in accordance with the requirements of Article 221 of this Code.

The admissibility of the actions provided for in this part and the timing of their implementation shall be determined by the prosecutor, taking into account the need to ensure the rights and legitimate interests of individuals, as well as to prevent harm to the criminal proceedings” [20].

Conclusions

Therefore, in order to prevent a prosecutor from abusing the right to decide on the immediate destruction of information, items, and documents obtained as a result of covert investigative (search) actions that the prosecutor does not deem necessary for the further conduct of the pretrial investigation, it is appropriate to make corresponding amendments to the Code of Criminal Procedure of Ukraine regarding the notification of the defense of such a decision, by enshrining the relevant provision in Part 3-1 of Article 255 of the Code of Criminal Procedure of Ukraine. Furthermore, to ensure the right to a defense, it is necessary to amend Part 1 of Article 303 of the Code of Criminal Procedure of Ukraine, regarding the possibility of appealing a decision by an investigator, inquiry officer, or prosecutor to deny a motion to review the materials of the pretrial investigation prior to its completion.

List of References

1. Hlovyuk, I.V. Criminal Procedural Functions: Theoretical and Methodological Foundations and Practical Implementation: Dissertation … Doctor of Juridical Sciences: 12.00.09. Odesa, 2016. 602 pp.
2. Voloshanivska, T.V. The Principle of Ensuring the Right to Defense in Criminal Proceedings in the Context of European Standards for a Fair Trial: dissertation … Candidate of Juridical Sciences: 12.00.09. Odesa, 2019. 265 pp.
3. Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950. URL: http://zakon2.rada.gov.ua/laws/show/995_004
4. Case of Mattoccia v. Italy, Application No. 23969/94, Judgment of the ECHR, July 25, 2000. URL: http://hudoc.echr.coe.int/fre?i=001-58764
5. Marchenko, T. Yu. The Right of a Suspect or Defendant to Have the Time and Opportunities Necessary to Prepare Their Defense: Theory and Practice of Implementation in Criminal Proceedings in Ukraine: Doctoral Dissertation in Philosophy: 081 – Law. 292 pp.
6. Criminal Procedure Code of Ukraine: dated April 13, 2012, No. 4651-VI: as of April 12, 2024. URL: https://zakon.rada.gov.ua/laws/show/4651-17/conv#n5735
7. Hlovyuk, I. V. Problematic Issues in the Application of the Provisions of Article 255 of the Criminal Procedure Code of Ukraine in the Context of ECHR Practice. Countering Organized Crime: Proceedings of the All-Ukrainian Scientific and Practical Online Conference, Odesa, March 30, 2018. Odesa: Published by Vadym Viktorovych Bukaev, 2018. pp. 27–31
8. ECHR Judgment in the Case of “Matanović v. Croatia” (Application No. 2742/12) URL: http://unba.org.ua/assets/uploads/publications/Pereklad_rishennya_evr_sudu_13072017.pdf
9. Case of Beraru v. Romania (Application No. 40107/04). URL: https://hudoc.echr.coe.int/eng#{“itemid”:[“001-141910”]}
10. Case of Natunen v. Finland (App. No. 21022/04). URL: https://hudoc.echr.coe.int/rus#{“itemid”:[“001-91932”]}
11. Case of Dowsett v. the United Kingdom (Application No. 39482/98). URL: https://hudoc.echr.coe.int/eng#{“appno”:[“39482/98″],”itemid”:[“001-61174”]}
12. Case of Doorson v. the Netherlands (Application No. 20524/92). URL: https://hudoc.echr.coe.int/eng#{“itemid”:[“001-2799”]}
13. Case of McMichael v. the United Kingdom (Application No. 16424/90). URL: https://hudoc.echr.coe.int/eng#{“itemid”:[“001-57923”]}
14. Case of Ashingdane v. the United Kingdom (Application No. 8225/78). URL: https://hudoc.echr.coe.int/eng#{“itemid”:[“001-57425”]}
15. Case of Jespers v. Belgium (Application No. 8403/78). URL: https://hudoc.echr.coe.int/eng#{“itemid”:[“001-95751”]}
16. Case of Rowe and Davis v. the United Kingdom. URL https://hudoc.echr.coe.int/eng#{“itemid”:[“001-58496”]}
17. Hlovyuk, I.V., and Marchenko, T.Y. “Problems of the Defense’s Access to the Results of Covert Investigative (Detective) Actions.” Legal Journal: Law of Ukraine. 2018. No. 8. pp. 48–59. URL: https://pravoua.com.ua/ua/store/pravoukr/pravo_2018_8/pravo_2018_8_s3/
18. Malakhova, O. V. Implementation of the Institution of Assistance to the Defense in Criminal Procedural Evidence: Ph.D. thesis in Law: 12.00.09. Odesa, 2016. 213 pp.
19. Hlovyuk, I. V. Current Issues in Improving the Regulatory Framework for Access to Pretrial Investigation Materials Prior to the Conclusion of the Investigation. Theory and Practice of Law Enforcement: International Scientific and Practical Conference (November 11, 2016) / ed. by Yu. S. Nazar. Lviv: Lviv State University of Internal Affairs, 2016. pp. 73–77.
20. Zhovtan, Yu. V. Access to Pretrial Investigation Materials: Theory and Practice: Doctoral Dissertation in Philosophy: 081 – Law. 2023. 283 pp.
21. Zhovtan, Yu. V. Problems in Implementing the Provisions of Article 255 of the Criminal Procedure Code of Ukraine in the Context of Ensuring the Defense’s Right to Access Pre-trial Investigation Materials in Criminal Proceedings 23 (1)