ISSUES RELATED TO THE APPLICATION OF ARTICLE 290 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE IN THE DEFENSE COUNSEL’S PRACTICE: THE PRACTICE OF THE CRIMINAL CHAMBER OF THE SUPREME COURT

One of the problematic issues that arise in practice regarding the application of Parts 6 and 12 of Article 290 of the Code of Criminal Procedure of Ukraine is the scope of the defense’s obligations to disclose case materials and the procedure for fulfilling this obligation.

In judicial practice, there are instances where the rights of the defense are restricted because the defense is denied the right to summon and examine witnesses in court on the grounds that the defense failed to disclose these witnesses when complying with the requirements of Article 290 of the Code of Criminal Procedure of Ukraine [1–6]. For example, it is noted: “The defense failed to provide the prosecution with access to the document—the questionnaire for PERSON_6—or any other information regarding the witness in question.” These circumstances, in turn, indicate a violation by the defense of the requirements set forth in Part 6 of Article 290 of the Code of Criminal Procedure of Ukraine, since, having possessed materials that existed during the pretrial investigation—which were subsequently submitted to the court as evidence— the defense failed to disclose them to the prosecution. Thus, in light of the foregoing, pursuant to Part 12 of Article 290 of the Criminal Procedure Code of Ukraine, the testimony of Witness PERSON_6, given at the court hearing on June 7, 2018, cannot be admitted as evidence, and are therefore inadmissible; the court will not take them into account” [7]. At the level of criminal procedural doctrine, this issue has long been resolved unequivocally: such judicial practice does not comply with the CPC of Ukraine, since, pursuant to Article 290 of the CPC of Ukraine, the disclosure of evidence obtained by the parties to the criminal proceedings during the pretrial investigation is carried out. The defense has no right to conduct cross-examination; pursuant to Part 8 of Article 95 of the CPC of Ukraine, it has the right to obtain statements from participants in criminal proceedings and other persons—with their consent—which do not constitute a source of evidence. Furthermore, Article 290 of the CPC of Ukraine does not require the defense to notify the prosecutor of the individuals who will be summoned by the defendant or the defense counsel to court for questioning [8, p. 132]. Furthermore, the assertion that “the defendant was unable to explain why the issue of identifying individuals… and their examination was not raised by him during the pretrial investigation” is inconsistent with Articles 17 and 92 of the CPC of Ukraine [6], since the defense is free to determine its defense strategy and tactics, as well as to choose the timing for presenting the information, items, and documents in its possession (subject to the restrictions provided for in Part 6 of Article 290 of the Code of Criminal Procedure of Ukraine), and such assertions essentially amount to shifting the burden of proving innocence onto the defense. A similar issue arises with regard to the expert’s report. For example, a motion filed by PERSON_2, the defense counsel for PERSON_1, to admit the automotive technical expert report No. No. 203A dated October 11, 2013, which was conducted on a contractual basis; the court also refused to disclose and provide the victims and the prosecutor with access to review the aforementioned report [9].

In accordance with Part 6 of Article 290 of the Code of Criminal Procedure of Ukraine: “Upon the prosecutor’s request, the defense is obligated to provide access to and the opportunity to copy or otherwise reproduce any physical evidence or parts thereof, documents or copies thereof, as well as to provide access to a residence or other premises if they are in the possession or under the control of the defense, provided that the defense intends to use the information contained therein as evidence in court,” indeed, the legislature has not obligated the defense to provide access to the expert’s report [8, p. 131]. Incidentally, we note that imposing such obligations on the defense by analogy of law is impermissible. In this case, it involves imposing new obligations on the defense that are not provided for in the Criminal Procedure Code of Ukraine.

At the same time, as I. Vovk notes, the application of criminal procedure law by analogy must under no circumstances impose obligations on them that are not provided for by law [10, p. 296]. A related requirement is that the rights guaranteed to participants in the proceedings by criminal procedure law must be fully respected [11]. Therefore, imposing an obligation on the defense to disclose the list of witnesses or an expert’s opinion is inadmissible even by analogy of law. This position is reflected in a resolution of the Criminal Chamber of the Supreme Court, which states: “As for the prosecutor’s arguments regarding the defense’s failureduring the pretrial investigation and the defense’s assertion that such testimony constitutes inadmissible evidence, these arguments also do not merit consideration. Pursuant to the provisions of Part 6 of Article 290 of the Code of Criminal Procedure, the materials to which the defense is obligated, upon the prosecutor’s request, to provide access and the opportunity to copy or reproduce in an appropriate manner are limited to any physical evidence or parts thereof, documents, or copies thereof. Furthermore, in light of the requirements of Article 23 of the Code of Criminal Procedure, the court receives the testimony of participants in criminal proceedings orally and may admit as evidence the testimony of persons who do not provide it directly during the court hearing only in the cases provided for by this Code. Furthermore, the CPC does not require the defense to record the testimony of defense witnesses in any manner during the pretrial investigation [12]. It should also be noted that, pursuant to Part 6 of Article 290 of the CPC of Ukraine, the defense, upon the prosecutor’s request, is obligated to provide access to and the opportunity to copy or otherwise reproduce any physical evidence or parts thereof, documents or copies thereof, as well as to provide access to a residence or other premises if they are in the possession or under the control of the defense. This wording allows us to put forward at least two arguments: 1) without a request from the prosecutor (even if a request is submitted by an investigator), the defense has no obligation to grant access; 2) in the event of the prosecutor’s inaction—that is, failure to submit a request— and if the indictment is forwarded to the court without such a request, the court cannot impose the criminal procedural sanction provided for in Part 12 of Article 290 of the Code of Criminal Procedure of Ukraine on materials held by the defense. The Resolution of the Criminal Chamber of the Supreme Court dated March 17, 2020, confirms the correctness of this doctrinal interpretation: “The prosecutor’s arguments regarding the court of first instance’s unfounded admission as admissible evidence of documents provided by the defense inthe fact that they were not disclosed to the prosecutor in accordance with Article 290 of the Code of Criminal Procedure, are unfounded… The defense’s obligation to disclose materials of the criminal proceedings is directly linked to the existence of a corresponding request from the prosecutor. However, in this criminal proceeding, there is no evidence whatsoever that the prosecutor submitted such a request to the defense or to the court, nor does the prosecutor cite any such evidence in the grounds for his cassation appeal. At the same time, as can be seen from the materials of the criminal proceedings, even without a request from the prosecutor, the defense counsel, in accordance with the requirements of Art. 290 of the Code of Criminal Procedure, the defense counsel sent a package of documents—which the defense intended to use as evidence in court—to the victim and the prosecutor for review, as confirmed by a copy of the receipt dated April 21, 2017.

At the defense counsel’s motion, the court attached the aforementioned documents to the criminal case file (pp. 42–43, Vol. 2) and examined them thoroughly and comprehensively. As for the prosecutor’s arguments that the defense failed to disclose the testimony of Witness PERSON_1 during the pretrial investigation and that such testimony should be deemed inadmissible evidence, these arguments also do not merit consideration. Pursuant to the provisions of Article 290(6) of the Code of Criminal Procedure, the materials to which the defense is required, upon the prosecutor’s request, to grant access and the opportunity to copy or reproduce in an appropriate manner are limited to any physical evidence or parts thereof, documents, or copies thereof. Furthermore, in light of the requirements of Article 23 of the Code of Criminal Procedure, the court receives the testimony of participants in criminal proceedings orally and may admit as evidence the testimony of persons who do not give it directly in court only in the cases provided for by this Code. Furthermore, the Code of Criminal Procedure does not require the defense to record in any way the testimony of defense witnesses during the pretrial investigation” [12]. Consequently, during the trial phase of criminal proceedings, it is impermissible to refuse to summon and examine witnesses on the grounds that their list or their statements were not disclosed by the defense in accordance with Part 6 of Article 290 of the CPC of Ukraine, since the list of witnesses is not a source of evidence—a document—and the statements are not a source of evidence—testimony. The sanction of excluding information contained in the defense’s materials from being admitted as evidence cannot be applied if the defense’s failure to comply with the requirements of Part 6 of Article 290 of the Code of Criminal Procedure of Ukraine resulted from thethe prosecutor’s failure to submit a request for the defense to be granted access to and the opportunity to copy or otherwise reproduce any physical evidence or parts thereof, documents or copies thereof, or to be granted access to a residence or other premises, if they are in the possession or under the control of the defense.

List of References:

1. Unified State Register of Court Decisions (USRCD), URL: http://www.reyestr.court.gov.ua/Review/64866328
2. USRCD, URL: http://www.reyestr.court.gov.ua/Review/44778616
3. EDRSR, URL: http://www.reyestr.court.gov.ua/Review/47313293
4. EDRSR, URL: http://www.reyestr.court.gov.ua/Review/35344629
5. USRE, URL: http://www.reyestr.court.gov.ua/Review/59343020
6. Unified State Register of Court Decisions, URL: http://www.reyestr.court.gov.ua/Review/59343020
7. Unified State Register of Court Decisions, URL: http://www.reyestr.court.gov.ua/Review/83269362
8. Malakhova, O.V. Implementation of the Institution of Assistance in Defense in Criminal Procedural Evidence: Ph.D. thesis in Law: 12.00.09 / Olga Valentynivna Malakhova. Odessa, 2016. 213 pp.
EDRSP, URL: http://www.reyestr.court.gov.ua/Review/34192500
9. Vovk, I. Conditions for the Application of Analogy in Criminal Proceedings in Ukraine. Law of Ukraine. 2011. No. 3. pp. 291–297.
10. Leiba, O.A. Problems of Applying Criminal Procedural Law by Analogy in the Works of M.M. Grodzinsky. Law Forum. 2017. No. 5. pp. 224–229 URL: http://nbuv.gov.ua/j-pdf/FP_ index.htm_2017_5_35.pdf
EDRSP, URL: http://www.reyestr.court.gov.ua/Review/88401654

Keywords: pretrial investigation, investigator, prosecutor, defense counsel, disclosure of pretrial investigation materials. Keywords: pre-trial investigation, investigator, prosecutor, defense counsel, disclosure of pre-trial investigation materials.

Key words: pre-trial investigation, investigator, prosecutor, defense counsel, disclosure of materials to the other party.