“Is the victim required to disclose the case materials to the defense in accordance with Article 290 of the Code of Criminal Procedure, and how can the fact that the victim has reviewed them be confirmed?” — Iryna Hlovyuk, attorney and research advisor at Barristers LLP
Significant difficulties in court arise from questions regarding the admissibility as evidence of materials that, according to one party, were not disclosed in accordance with the prescribed procedure. In particular, this applies to evidence intended to confirm that the other party refused to review such materials, as well as to materials in the victim’s possession.
Disclosure of Medical Records
On January 27, 2020, the Joint Chamber of the Criminal Court of Cassation concluded that “the absence from the case file of medical documents on which the expert’s opinion is based, and the failure to disclose these documents to the defense at the stage of implementing Article 290 of the Criminal Procedure Code… does not automatically result in the expert examination being deemed inadmissible evidence.” However, this is provided that these documents were obtained in accordance with the procedure established by law and the defense did not file a motion requesting access to the medical documents, or that during the trial or appellate proceedings, the defense was given the opportunity to exercise its right to review such documents.
It should be noted that in this case, the victim provided such documentation to the investigator. These documents were the subject of a forensic medical examination conducted on the basis of the investigator’s corresponding order, which also contained information regarding the transfer of the same documentation to the expert. The Criminal Chamber of the Supreme Court noted that the victim has the right to directly provide the investigator with medical documents to substantiate the facts regarding the harm to her health caused by the crime. At the same time, the investigator is obligated to accept these documents to clarify all circumstances that, pursuant to Article 91 of the Code of Criminal Procedure, constitute the subject matter of proof, including by ordering a forensic medical examination based on the medical records received from the aforementioned party. Under other circumstances—that is, if the victim refuses to provide the necessary documents—the investigator must apply to the court for permission to temporarily access them in accordance with the rules of Chapter 15, Section II of the Code of Criminal Procedure.
The Panel of Judges of the Supreme Court of Ukraine, in its ruling dated August 7, 2019, noted: “In any case, physical evidence and documents provided to the expert must be obtained in the manner provided for in Article 93 of the Code of Criminal Procedure, duly incorporated into the criminal proceedings in accordance with the procedure established by the Code of Criminal Procedure (depending on the method of collection), and acquire the appropriate procedural status. The parties, the victim, and the representative of the legal entity against which the proceedings are being conducted must be given the opportunity to review them, both during the pretrial investigation in accordance with Article 221 of the Code of Criminal Procedure and after its conclusion in accordance with Article 290 of the Code of Criminal Procedure.”
The court reviewed and confirmed the defense counsel’s arguments regarding the absence of Person 2’s medical records in the case file, specifically the inpatient medical records for a patient named Person 2, to which the forensic medical expert refers. In light of the provisions of Part 12 of Article 290 of the Code of Criminal Procedure, this precludes the admission as evidence of both the medical records themselves and the expert opinion based on them.
Rights of the Victim
This issue concerns medical records that contain information about a person’s health and are subject to the safeguards provided for in Article 391 of the Fundamentals of Ukrainian Legislation on Health Care. After all, a patient has the right to confidentiality regarding their health status, the fact of seeking medical care, their diagnosis, and information obtained during their medical examination. Article 286 of the Civil Code contains similar provisions. In other words, the victim has the right to refuse to provide the relevant documents (as well as any others, since they are not obligated to participate in the presentation of evidence) to the investigator or prosecutor.
In light of this, it appears that the issue of disclosing materials, including the victim’s medical records, should be resolved based, first, on the general requirements of Article 290 of the Code of Criminal Procedure, and second, on the actual procedural situation that has arisen in the proceedings.
The general provisions of Article 290 of the Code of Criminal Procedure do not impose an obligation on the victim to disclose materials from the pretrial investigation (and this applies to any materials in the victim’s possession, regardless of their relevance to the proceedings). In other words, if a document is in the victim’s possession and the victim does not deem it necessary to provide it to the investigator or prosecutor, that is the victim’s right, which cannot be restricted.
The victim may exercise this right at a later stage, during court proceedings. And since the victim is not under any obligation to disclose such materials, the criminal procedural sanction specified in Part 12 of Article 290 of the Code of Criminal Procedure cannot be applied in such a case.
Let us illustrate this point with the reasoning of the Supreme Court of Ukraine, as set forth in its ruling of February 12, 2019. It states: “Pursuant to paragraph 19 of Part 1 of Article 3 of the Code of Criminal Procedure, the victim, his or her representative, and legal representative are classified as members of the prosecution only in the cases established by this Code. And only in such cases may the obligation to disclose materials in accordance with the provisions of Article 290 of the Code of Criminal Procedure be imposed on the victim. Thus, as an independent party to the presentation of evidence, the victim may not share the position of the prosecution but may defend their own interests independently, determining the direction and tactics of that defense. Thus, although during the trial and appellate proceedings the prosecution did not submit as evidence the investigator’s authorization… to conduct the pretrial investigation… this circumstance did not deprive the victim and the legal representative of the minor victim of the right to submit this procedural document to substantiate their claims and defend their interests.”
Submission of Documents and Samples
It should also be noted that the victim cannot submit the relevant documents directly to the expert, since the victim does not have the right to engage the expert independently and, accordingly, does not have the right to submit materials for examination. Furthermore, pursuant to Part 4 of Article 69 of the Code of Criminal Procedure, the expert does not have the right to collect materials for the expert examination on his or her own initiative.
As stated in the resolution of the Criminal Chamber of the Supreme Court dated August 7, 2019, “in any case, physical evidence and documents provided to the expert must be obtained in the manner prescribed by Article 93 of the Code of Criminal Procedure, duly admitted into the criminal proceedings in accordance with the procedure established by the Code of Criminal Procedure (depending on the method of collection), and acquire the appropriate procedural status.”
However, if the victim handed over the items or documents to an investigator or prosecutor, or if the prosecution obtained them through temporary access to the items and documents, the situation regarding the application of Article 290 of the Code of Criminal Procedure may change. Pursuant to paragraphs 2 and 3 of Article 100 of the CPC, physical evidence or a document provided voluntarily or pursuant to a court order shall be retained by the party to the proceedings to whom it was provided. At the request of the document’s owner, the investigator, prosecutor, or court may issue copies of the document or, if necessary, the original, replacing them in the case file with certified copies.
Thus, if the investigator, prosecutor, or court has not issued a decision to return the original document to the holder (in this case, the victim), the original remains in the case file—that is, at the disposal of the investigator, prosecutor, and therefore must be disclosed in accordance with Article 290 of the Code of Criminal Procedure. If, however, such a decision was made and the original document is in the victim’s possession, the prosecution is not obligated to provide the original itself but must disclose a copy of it and the decision by which the original was issued to the victim.
The Concept of “Tacit Waiver”
In its resolution dated January 27, 2020, the Supreme Court of Ukraine formulated the concept of “voluntary tacit waiver by the defense of its right to file a motion, at the stage of implementing Article 290 of the Code of Criminal Procedure, for access to documents examined by an expert”. It stated that the defense is not deprived of the procedural opportunity, if necessary, to file a motion requesting access to the materials examined by the expert. In the absence of such a motion, and taking into account Article 22 of the Code of Criminal Procedure, it should be understood that the defense did not deem it appropriate to exercise its right to have medical records disclosed to it at that stage of the proceedings. The defense’s indisputably established, deliberate, voluntary, and tacit refusal to exercise its right to file a motion, at the stage of implementing Article 290 of the Code of Criminal Procedure, for access to the documents examined by the expert does not automatically call into question the admissibility of that expert’s conclusion. Moreover, this right may be exercised during trial or appellate proceedings, which does not conflict with the purpose of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
This interpretation is relevant to situations where the original documents are in the victim’s possession, since Article 290 of the Code of Criminal Procedure does not require the filing of separate motions for access to materials held by the prosecution.
A similar approach, as it relates to other sources of evidence (documents in the form of audio or video recordings), can be found in the ruling dated February 11, 2020. According to the protocol on granting access to pretrial investigation materials, the defense counsel and the suspect, Person 2, were granted access to the case materials. At the same time, the protocol noted that “the defense was not granted access to the evidence contained on the disc.” In other words, the defense confirmed that it had been granted access to the materials and was not deprived of the opportunity to file a motion with the investigator requesting that the information contained on the CD be presented; however, it did not exercise this right. In this regard, the court questioned the investigator, who explained that he had offered the defense counsel the opportunity to view the video recording; however, the defense counsel wrote in the minutes that the disc had not been provided to him. In light of the parties’ procedural conduct, the panel of judges concluded that the prosecution had complied with the provisions of Article 290 of the Code of Criminal Procedure. Therefore, there are no grounds for declaring the surveillance camera video—which was examined by the court during a hearing attended by the defense—inadmissible as evidence.
This indicates a certain “expectation” of activity on the part of the defense when reviewing the materials of the pretrial investigation; a failure to act in this regard may be interpreted to its disadvantage.
Refusal to Confirm Review
The Supreme Court of Ukraine provided a broad interpretation of Parts 9 and 10 of Article 290 of the CPC, particularly regarding delays in reviewing materials to which access has been granted, refusal to confirm that access was granted, and the concept of “designation of materials.” Thus, in its ruling of March 26, 2019, it extended the limitation on the time allowed for reviewing materials based on an investigating judge’s order to other cases of a party’s abuse of its rights. In particular, this applies in cases where a party refuses to confirm in writing that access to the materials has been granted.
The KKS noted: “At the same time, Part 10 of Article 290 of the Code of Criminal Procedure establishes a special procedure for determining whether the opposing party has been granted access to the case materials. Thus, in the event of delay in reviewing the case materials, the investigating judge, upon a motion by a party to the proceedings and taking into account the volume, complexity of the materials, and conditions of access to them, is required to set a time limit for review. Upon the expiration of that deadline, the party to the proceedings, or the victim, or the representative of the legal entity against which the proceedings are being conducted, shall be deemed to have exercised their right to access the materials.” The Code of Criminal Procedure does not provide for any other procedure to confirm that the case materials have been made available in the event of a party’s abuse of its procedural rights. This approach is also set forth in other resolutions.
However, in its resolution dated December 10, 2019, the Criminal Chamber of the Supreme Court did not recognize the necessity of such a procedure. It noted: “Reviewing the materials of the pretrial investigation is a right, not an obligation, of the defense; therefore, the defense counsel’s failure to exercise this right—provided that the prosecution has properly complied with the requirements of Article 290 of the CPC—does not constitute grounds for declaring the evidence inadmissible.”
A similar position was set forth in the ruling dated January 23, 2020. The case file shows that the pretrial investigation authority sent written notices to Person 1 and the defense counsel regarding the completion of the pretrial investigation, along with copies of the indictment and the register of case materials. It was explained that the defense had until 4:00 p.m. on November 25, 2016, to exercise its right to access these materials. According to the protocol on granting access, the defense counsel exercised the right granted to him and reviewed the specified materials in their entirety. In addition, Person 1 was also granted access to the materials, as confirmed by the protocol. At the same time, Person 1 noted in the protocol the need to be granted additional time to review the materials. The protocol was drawn up in the presence of witnesses Person 8 and Person 9, who attested to the fact that Person 1 refused to sign the acknowledgment of
receipt of a copy of the indictment and the register of materials.
In light of this, the panel of judges concluded that the prosecution had disclosed and provided the defense with access to all materials of the pretrial investigation. Thus, the defense’s refusal to confirm in writing to the opposing party that it had been granted access to the materials, and its refusal to review them citing time constraints, cannot be construed as a failure to disclose such materials within the meaning of Article 290(12) of the Code of Criminal Procedure.
At the same time, in the latter example, given the reference to the need for additional time, the prosecution had grounds to apply the procedure provided for in Article 290(10) of the Code of Criminal Procedure.
List of Materials
Regarding the “names of the materials” to which access was granted, in its ruling of February 22, 2018, the Criminal Chamber of the Supreme Court noted the following: “The defense counsel’s arguments in the cassation appeal are also unfounded, the absence in the access protocols to the materials and additional materials of the pretrial investigation of a separate list of each document reviewed by the defense constitutes grounds for deeming them inadmissible. Upon reviewing the content of the aforementioned protocols, it was established that they comply with the formal requirements specified by law and the requirements set forth in Article 104 of the Code of Criminal Procedure. Neither the defense counsel nor Person 3 raised any objections regarding the procedure for granting such access, nor did they file any statements or motions; they personally noted this in the relevant protocol, as well as the fact that they had reviewed the case materials.
At the same time, the minutes reflect that the defense reviewed the case materials, which were compiled into three volumes, with the number of pages in each volume specified; these were provided in a bound and numbered format. “Criminal procedure law does not require that a list of every procedural document be included in the minutes.”
However, such an interpretation—which is relevant provided that each party to the proceedings performs their duties in good faith—does not account for possible abuses by the prosecution, which could replace certain pages of the case file, amend the inventory, and have the materials re-bound. Consequently, the defense may in fact not be familiar with the materials that have actually been submitted to the court.
Conclusions for Consideration
Consequently, the issue of disclosing materials that were provided to the investigator by other participants in the proceedings—to prevent the consequences provided for in Part 12 of Article 290 of the Code of Criminal Procedure—should be resolved based on the following. If a document or piece of physical evidence is not in the possession of the investigator or prosecutor, the prosecution is not obligated to provide the document or item pursuant to Article 290 of the Code of Criminal Procedure. However, if the defense files a motion, the mechanisms provided for in Articles 93 and 164 of the Code of Criminal Procedure must be used to obtain the items or documents for disclosure. If, however, the items or documents have been transferred to the investigator or prosecutor, or if the prosecution has obtained them through temporary access to the items and documents, they must be disclosed in accordance with Article 290 of the Code of Criminal Procedure.
Any delay in allowing access to the case materials or a refusal to provide written confirmation of
that access to the materials was granted—which made it impossible to obtain confirmation of such a fact—must be definitively established only by a ruling of the investigating judge in accordance with Part 10 of Article 290 of the CPC. However, there are instances where Part 12 of Article 290 of the Code of Criminal Procedure has not been applied even in the absence of such a ruling.
Author: Law and Business
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