Denis Ponomarenko, a partner at BARRISTERS, LLC, discussed ways to gain access to case files

Access to case materials in the early stages is the key to an open procedural battle in an adversarial process, according to Denis Ponomarenko, a partner at Barristers LLP.

He began his lecture at Legal High School with examples of cases where criminal proceedings were used to exert pressure on businesses, noting that the new version of the Criminal Procedure Code of Ukraine includes Article 62, Part 3 of which states that a person whose property has been seized has the same rights as a suspect. This, in turn, entitles the defense to review the case materials. If access to the materials is denied, such a denial can be appealed. Sometimes investigating judges deny access to the materials of an investigative case, although this practice is not widespread and depends on the specific court.

The lecturer noted that prior to amendments to Ukraine’s Code of Criminal Procedure, attorneys had the ability to request expert examinations, which served to defend their clients. Currently, Ukraine’s Law “On the Bar” does not permit attorneys to file such requests or to conduct a defense based on the documents obtained. Although the presumption of innocence does not require the collection of evidence, reality shows that this rule is constantly violated, beginning with the entry into the Unified Register of Pre-trial Investigations (URPI) with the wording “committed a crime.”

The lecturer recommended using modern technologies, including mobile phone positioning relative to cell towers, to prove innocence, illustrating this possibility with examples from his own experience.

In the event of a notice of suspicion or an arrest, the materials for the defense attorney will include the investigator’s motions regarding these procedural actions, as well as search warrants. The lecturer noted that it is important to ensure these documents are properly drafted. Otherwise, a complaint should be filed against the investigator’s unlawful actions. If no complaints are filed in the case, the judge may disregard these violations. Violations can also be documented by filing motions to recuse the investigator or prosecutor.

“The defense strategy consists of gathering evidence of violations committed by the investigative authorities or of a violation of the investigating judge’s jurisdiction, which makes it possible to have the evidence collected against the client declared unlawful,” emphasized Denis Ponomarenko.

He concluded the lecture with a discussion during which Legal High School attendees had the opportunity to explore the details of the topic in question, drawing on the lecturer’s legal practice.