"Confidentiality of a Pre-Trial Investigation or Aiding Investigators in Committing a Criminal Offense?" — Oleksandr Shcherbina, Attorney at BARRISTERS Law Firm

Confidentiality of the Pretrial Investigation or Aiding Investigators in Committing a Criminal Offense?

It has become increasingly common for attorneys to contact the criminal court clerk’s office to request information regarding motions filed by the prosecution, pursuant to Article 171 of the Criminal Procedure Code of Ukraine, to seize property. Thus, when lawyers request this information, court clerks—particularly in courts of first instance—inform them that the confidentiality of the pretrial investigation cannot be disclosed, citing Article 222 of the Code of Criminal Procedure of Ukraine, and access to the docket of cases scheduled for hearing is artificially blocked, which in turn violates the fundamental principle of adversarial proceedings and the right to a defense.

An analysis of the job description for a court clerk, as posted on the “Judiciary of Ukraine” website, shows that it is not within the clerk’s authority to determine whether the information requested by a lawyer contains secrets of a pretrial investigation or not. Instead, Article 397 of the Criminal Code of Ukraine clearly prohibits interference in the activities of a defense attorney or a person’s representative; this position is also consistent with Article 20 of the Law of Ukraine “On the Bar and the Practice of Law.” Based on the general provisions of the Criminal Procedure Code of Ukraine, namely paragraph 15 of Part 1 of Article 7, one of the general principles of criminal proceedings is the adversarial nature of the proceedings and the freedom of the parties to present their evidence to the court; a more expansive interpretation of this provision is provided in Article 22 of the Criminal Procedure Code of Ukraine.

Analyzing the text of Part 1 of Article 27 of the Criminal Procedure Code of Ukraine, no one may be restricted in their right to receive, in court, both oral and written information regarding the time, date, and place of the court hearing; the exclusive authority to impose such restrictions lies with the court.

Pursuant to Article 3 of the Criminal Procedure Code of Ukraine, the court clerk is not included in the list of persons involved in criminal proceedings and, therefore, is not an entity that has the authority to determine whether to provide or withhold oral or written information to participants in court proceedings within the framework of criminal proceedings.

Separately, attention should be drawn to Article 222 of the Criminal Procedure Code of Ukraine; indeed, Part 1 of that article states that information from a pretrial investigation may be disclosed only with the written permission of an investigator or prosecutor and to the extent deemed permissible by them. However, Part 2 of this article stipulates the need to warn persons who have become aware of information from the pretrial investigation—due to their participation in it—of their obligation not to disclose such information without the investigator’s or prosecutor’s permission. Based on an analysis of Article 222 of the Code of Criminal Procedure, taken together with Parts 1 and 2, and the rationale for denying the defense counsel’s request on the grounds of non-disclosure of information, lawyers throughout the country may file corresponding motions to have court clerks examined as witnesses nationwide, since they fall, in this case, under the criteria defined in Article 65 of the CPC of Ukraine.

Furthermore, when submitting such motions pursuant to Article 171 of the Code of Criminal Procedure of Ukraine, investigators and prosecutors are not prohibited from disclosing the information contained in the motion itself and the materials on which it is based, and therefore there are no legal grounds to refuse attorneys access to information regarding the date, time, and location of court hearings in these cases.

In particular, the administrative staff of the courts of first instance are ignoring Part 1 of Art. 172 of the Criminal Procedure Code of Ukraine, which stipulates that a motion for the seizure of property shall be considered by an investigating judge with the participation of, among others, the defense counsel and/or the owner of the property. This raises the question: Are the staff of the district courts committing crimes?