DEFENSE STRATEGIES WHEN A TIME LIMIT IS SET FOR REVIEWING PRE-TRIAL INVESTIGATION MATERIALS IN CRIMINAL PROCEEDINGSIN CRIMINAL PROCEEDINGS RELATING TO CORRUPTION OFFENSES

This article examines defense strategies when a time limit is set for reviewing the materials of a pretrial investigation in criminal proceedings involving corruption offenses. As a result of the study, a list of tactical features of the defense has been formulated in cases where the prosecution files a motion under Part 10 of Article 290 of the Criminal Procedure Code of Ukraine regarding corruption offenses.

Keywords: defense tactics, review of pretrial investigation materials, corruption offenses, motion, time limit for review.

Statement of the Problem. The role of the defense in criminal proceedings involving corruption offenses is linked not only to challenging the legality and validity of criminal prosecution; but also with identifying circumstances that refute the suspicion, exonerate the accused (defendant), exclude or mitigate their liability, reduce the punishment and other consequences of a conviction, the protection of personal and property rights, facilitating the application of the institution of rehabilitation, but also with preventing violations and unjustified restrictions on rights and freedoms during the application of measures of criminal procedural coercion, to which, as substantiated in the literature [1, p. 105], the provision of Part 10 of Article 290 of the Criminal Procedure Code (hereinafter—CPC) of Ukraine, whereby an investigating judge sets a time limit for reviewing the materials of the pretrial investigation. The implementation of this provision is complicated by the presence of evaluative terms in its wording, as well as the vagueness of the concept of “delay” in this context and the differing interpretations of this concept by the parties to the criminal proceedings; and its interpretation in relation to the provisions of Part 3 of Article 219 of the CPC of Ukraine raises questions regarding their consistent application.

Analysis of Recent Studies and Publications. The problematic issues surrounding the setting of a deadline by an investigating judge for reviewing the materials of the pretrial investigation have been examined by E.V. Didenko, N.S. Karpov, S.O. Kovalchuk, T.V. Korcheva, M.A. Makarov, O.I. Marochkin, T.Yu. Marchenko, A.V. Murzanovskaya, O.I. Reznikova, O.O. Torbas, and others; however, this issue has not yet been examined in the context of investigating corruption crimes and the amendments to Article 219 of the Criminal Procedure Code of Ukraine. Therefore, the purpose of this article is to identify problems in the regulatory framework and the practical implementation of the provisions of Part 10 of Article 290 of the CPC of Ukraine during the investigation of corruption crimes, as well as the tactical features of the defense when the defense submits a motion pursuant to Part 10 of Article 290 of the CPC of Ukraine.

Presentation of the Main Material. Part 10 of Article 290 of the CPC of Ukraine provides that in the event of delay during the review of materials to which access has been granted, the investigating judge, upon a motion by a party to the criminal proceedings and taking into account the volume, complexity of the materials, and the conditions of access to them, set a deadline for reviewing the materials; upon the expiration of which, the party to the criminal proceedings, 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. Therefore, when challenging the validity of such a motion, one should first focus on establishing whether there was any delay during the review of the pretrial investigation materials. First and foremost, it is necessary to determine whether the authorized person has notified the defense of the completion of the pretrial investigation and granted access to the pretrial investigation materials. After all, this can only be the lead prosecutor of a group of prosecutors (specifically designated in a resolution by the head of the prosecutorial authority) or the lead investigator of a group of investigators (designated in a written order from the head of the pretrial investigation authority), but only one who has been authorized by the prosecutor to perform this procedural action, and such authorization must be attached to the notification. If such a document is not attached, the defense is not considered to have been properly notified; therefore, there is no question of any delay. Furthermore, proper notification of the completion of the pretrial investigation and the provision of access to the pretrial investigation materials are also of great importance. After all, if such a notice is sent by mail, there must be signatures on the delivery receipt. It is common practice to send notifications via mobile messaging apps; however, the Criminal Procedure Code of Ukraine does not provide for this method of notification, so it cannot be considered sufficient to establish that the defense was notified of the completion of the pretrial investigation and granted access to the pretrial investigation materials. For example, in criminal proceedings concerning a criminal offense under Part 3 of Article 369 of the Criminal Code (hereinafter “CC”) of Ukraine, no evidence of proper service(issuance of summonses) to the participants in the proceedings was attached to the motion [2]. Furthermore, it is worth noting certain terminological peculiarities of the provisions of Article 290 of the CPC of Ukraine.

Article 290 of the CPC of Ukraine is titled “Disclosure of Case Files to the Other Party.” The procedure for disclosing case materials consists of three stages: notification of access to the materials; review of the materials—granting access to the materials and the opportunity to copy and reproduce, as appropriate, any physical evidence or parts thereof, documents, or copies thereof, etc.; written confirmation of the fact that access to the materials has been granted, specifying the names of such materials.

The term “review” is used in this article in Part 5 (“in documents provided for review, information that will not be disclosed during the trial may be redacted”), Part 6 (“the decision on whether specific materials may be used by the prosecutor to prove the defendant’s guilt in committing a criminal offenseand, consequently, the decision on whether or not to grant the prosecutor access to such materials may be postponed until the defense has completed its review of the pretrial investigation materials”), Part 7 (“Upon the disclosure of materials by the parties to the criminal proceedings, the prosecutor or the investigator, acting on the prosecutor’s instructions, shall notify the victim and the representative of the legal entity against which the proceedings are being conducted, whereupon the latter shall have the right to review them in accordance with the rules set forth in this article”), Part 8 (“Upon the disclosure of materials by the parties to the criminal proceedings, the civil plaintiff, his or her representative, and legal representative, as well as the civil defendant and his or her representative, shall be notified, whereupon these persons have the right to review them to the extent relevant to the civil claim, in accordance with the rules set forth in this article”) and Part 10.

In this regard, it is significant that the legislature used the term “after” in Article 290 of the Code of Criminal Procedure of Ukraine.

An important conclusion follows from this: the review as such begins at the moment the right to access the materials is actually exercised, and not at the moment a notice is sent to the party, the victim, the representative of the legal entity against which the proceedings are being conducted, the civil claimant, their representative and legal representative, the civil defendant, or their representative, of the completion of the pretrial investigation and the provision of access to the pretrial investigation materials, or upon their receipt of such notification (as the prosecution contends). Thus, first, not the entire duration of the procedure for disclosing the materials is excluded from the pretrial investigation period [3, p. 35]; second, it is impossible to speak of “delay in reviewing the materials” when the defense has not yet begun reviewing the materials of the pretrial investigation; therefore, this is precisely what should be emphasized in objections to the motion.

Abuse of the right to review the materials of criminal proceedings is regarded in legal doctrine as a form of abuse by a suspect of the right to have sufficient time and opportunity to prepare their defense [4, p. 382], which may manifest itself in the actions of a suspect who delays proceedings, hoping, for example, for certain circumstances that, in his view, could improve his position [4, p. 381].

In practice, there are situations where the defense submits a motion to the investigator or prosecutor pursuant to paragraph 15 of Part 3 of Article 42 and Article 220 of the Code of Criminal Procedure of Ukraine requesting all certified copies of procedural documents and written notifications, but the investigator or prosecutor denies the motion. In such a case, the investigator or prosecutor will likely apply to the investigating judge in accordance with Part 10 of Article 290 of the Criminal Procedure Code of Ukraine, requesting that a time limit be set for reviewing the materials of the criminal proceedings. During the consideration of this motion, it is advisable to challenge the arguments presented by the investigator or prosecutor, pointing out violations of the adversarial principle and the right to defense, as well as the direct requirements of paragraph 15 of Part 3 of Article 42 of the CPC of Ukraine; Therefore, it is necessary to point out the absence of any delay in reviewing the materials, since it is the prosecution that is violating the requirements of the Code of Criminal Procedure of Ukraine. Furthermore, it does not constitute an abuse of rights or a delay in reviewing the materials when the defense insists on having the materials of the criminal proceedings disclosed not on the “territory” of the prosecution, but on its own “territory” [for more details: 5, pp. 105–109].

Nor does it constitute a delay when the defense does not confirm the fact of so-called “interim” review, that is, review of a portion of the case materials. After all, if the defense has not yet received the full set of materials and other physical media containing information that the defense needs to review, it is not required to confirm that it has reviewed them.

As T.V. Korcheva notes, it is advisable to provide a scientific clarification of the term “delay” and to define the criteria under which one can speak of a delay in the performance of a specific procedural action. In her view, the following factors should be taken into account: the volume of pretrial investigation materials, the person’s age, place of residence, proficiency in the official language, the availability of an interpreter and a defense attorney, and the number of such individuals [6, p. 214]. It appears that taking only these criteria into account may be insufficient to establish a delay during the review of the materials. After all, other factors are also significant, in particular the conditions under which the suspect reviews the materials of the pretrial investigation. The European Court of Human Rights (hereinafter “ECHR”), when assessing compliance with the right to have sufficient time and facilities to prepare one’s defense, proceeds from the premise that when an accused person is in custody, the concept of “opportunity” may include conditions of detention that would allow the accused, with due concentration, to read and write (“Mayzit v. Russia,” § 81; “Moiseyev v. Russia,” § 221). It is of the utmost importance that both the accused and his or her counsel be able to participate in the proceedings and make submissions without becoming unduly overburdened (“Makhfi v. France,” § 40; “Barberà, Messegué, and Jabardo v. Spain,” § 70) [7, p. 47]. Furthermore, the workload of the defense counsel (or counsel) is also a factor. As noted in the case law of the European Court of Human Rights, one must also take into account the volume of a defense attorney’s regular workload; clearly, the attorney cannot be expected to completely reorganize his or her work schedule and devote all of his or her time to a single case (“Mattick v. Germany (déc.)”) [7, p. 46]. The Code of Criminal Procedure of Ukraine does not require the defense to review the materials of a particular criminal proceeding continuously and on a daily basis.

In addition to the volume of the pretrial investigation materials, the nature of these materials is significant in terms of the complexity of the case; after all, if the case involves multiple incidents or is a high-profile case, this also slows down the review of the pretrial investigation materials. After all, it is important to bear in mind that reviewing the materials of criminal proceedings is a complex intellectual activity which, in the context of the right to have sufficient time and opportunities for defense, involves not only reading (listening to recordings) and copying the materials, but also their subsequent systematization, identifying correlations between them, and determining their completeness and consistency—all of which also require sufficient time.

Below, we will examine how the evaluative concept of “delay” is interpreted in the rulings of investigating judges in criminal proceedings concerning corruption offenses.

For example, in the ruling of the investigating judge of the Novovolynsk City Court of Volyn Oblast dated June 25, 2018, the conclusion regarding a delay in reviewing the materials was made based on the following: “According to the report by Senior Investigator A.R. Prosymtsiv dated June 25, 2018 (case file p. 82), the suspect <…> and his defense counsel <…> were notified of the completion of the pretrial investigation and invited to appear before the investigator to review the materials of the pretrial investigation on June 25, 2018, at 9:00 a.m.  Previously, on June 20 and 21 of this year, during a telephone conversation with the defense counsel <…>, the investigator agreed that the latter would arrive to review the materials of the criminal proceedings on June 25, 2018. The same agreement was reached with the suspect <…>. Since June 22, 2018, it has been impossible to contact defense counsel <…>, and during a telephone conversation with the suspect, the latter stated that he would not review the materials of the criminal proceedings without his defense counsel” [8]. At the same time, the ruling does not specify whether a copy of the prosecutor’s corresponding instruction to the investigator was also sent to the defense in order to consider such a procedural action as thenotification of the completion of the pretrial investigation and the granting of access to the materials of the pretrial investigation. As for the suspect’s position, pursuant to Part 5 of Article 46 of the Criminal Procedure Code of Ukraine, the defense attorney has the right to participate in interrogations and other procedural actions conducted with the suspect’s participation, therefore, the suspect has the right to exercise his procedural right, and his desire to do so cannot be regarded as a delay in reviewing the materials.

In the ruling of the investigating judge of the Industrial District Court of Dnipropetrovsk dated November 1, 2018, a similar conclusion was reached based on the following facts. On August 21, 2018, the defense was notified of the completion of the pretrial investigation, in accordance with the requirements of Art. 290 of the Criminal Procedure Code of Ukraine, and was granted access to the pretrial investigation materials in the form of 25 bound, numbered volumes with descriptions of the contents of each document, including in electronic form (photographs of written evidence). Between August 21, 2018, and September 19, 2018, the defense reviewed the case materials to the following extent: 1) PERSON_5—17 volumes; his defense counsel—in full; 2) PERSON_6 and his defense counsel—in their entirety; 3) PERSON_7—12 volumes;

PERSON_2 – 11 volumes. On September 19, 2018, the pretrial investigation was resumed in order to extend the terms of the pretrial investigation, the terms of the suspects’ detention, and to order voice analysis examinations. On September 26, 2018, the duration of the pretrial investigation was extended to 8 months, that is, until December 26, 2018. On September 27, 2018, the suspects’ detention period was extended until November 25, 2018. On October 4, 2018, the defense was notified of the completion of the pretrial investigation, in accordance with the requirements of Article 290 of the Criminal Procedure Code of Ukraine, access was granted to the materials of the pretrial investigation in the form of 26 bound, numbered volumes with descriptions of the contents of each document, including in electronic form (photographs of written evidence). The content of the pretrial investigation materials in the 25 volumes of the criminal proceeding remained unchanged; but a 26th volume was created, containing procedural documents regarding the extension of the pretrial investigation period, the detention of the suspects, and their complaints and motions. No restrictions were imposed on the suspects’ and their defense counsel’s ability to review the materials; full access was granted. However, the defense is deliberately delaying the exercise of its right to review the materials to which access has been granted. In particular, PERSON_4, PERSON_5, PERSON_7, and PERSON_2 review the materials every day in the office of the military prosecutor’s office of the Dnipropetrovsk garrison (Dnipro, Feodosiyivska St., bldg. 2) from 11:00 a.m. to 2:00 p.m., that is, an average of 3 hours, reviewing only one volume per day. Thus, as of October 29, 2018—that is, from October 4, 2018, to October 29, 2018—the defense reviewed the case materials to the following extent: 1) PERSON_4 – 9 volumes; 2) PERSON_5 – 12 volumes; his defense counsel – in full; 3) PERSON_6 and his defense counsel – in full; 4) PERSON_7 – 9 volumes; his defense counsel – in full; 5) PERSON_2 – 10 volumes; his defense counsel – in full [9]. In other words, PERSON_4, PERSON_5, PERSON_7, and PERSON_2 reviewed a smaller portion of the same pretrial investigation materials during the specified time periodof the pretrial investigation than they had previously reviewed during a comparable period of time, which indicates that the suspects intentionally delayed exercising their right to review the materials to which they were granted access [9].

In other words, the defense’s repeated review of the materials following the resumption of the suspended pretrial investigation was effectively deemed a delay [9]; this review took an average of 3 hours, at a rate of only one volume per day [9]. At the same time, 3 hours and one volume per day may be the absolute maximum feasible for the defense to review the materials, since the assessment must take into account the complexity of the case, the conditions under which the review takes place, the defense attorneys’ workload, the suspect’s education and health, and their willingness to review the materials in the presence of a defense attorney.

In judicial practice regarding criminal proceedings for corruption offenses, the following are considered delays during the review process: the defense counsel’s failure to appear and their failure to receive notifications when other defense counsel and the suspect have already reviewed the materials [10]; waiver of the right to a defense attorney; failure to appear for the purpose of enabling PERSON_1 to file a motion to waive the right to review the case materials without the participation of a defense attorney [11]; a defense attorney’s initiation of review of the case materials in a criminal proceeding and subsequent refusal to continue reviewing them [11]; the fact that the suspect expressed a desire to review the materials of the criminal proceedings in the presence of her defense attorneys, and therefore requested that the latter not review the materials of the criminal proceedings without her participation until she had recovered [12]; the fact that, over the course of 6 business days, the suspect reviewed only 34 pages of the 125-page investigation materials [13]; the fact that between September 14, 2018, and December 17, 2018, the suspect, PERSON_4, reviewed only 26 volumes of the criminal case file, while his defense counsel, Attorney P.Y. Plyotka, reviewed only 6 volumes of the criminal case file during that period. According to the information specified in the protocol on granting access to the pretrial investigation materials, suspect PERSON_4 and defense counsel P.Yu. Plyotka actually spent up to one hour reviewing the materials on the day of the hearings and access to the materials. Therefore, the suspect in the criminal proceedings and his defense counsel can objectively review at least 5 volumes of pretrial investigation materials during a workday [14].

It should be noted that objecting solely to the timeframe for review specified in the motion constitutes a de facto admission by the defense of the fact of delaying the review and, more broadly, of its own abuse of rights.

A logical and consistent view, in terms of the local objective of the burden of proof during the consideration of the motion, is that the following conditions must be met to establish a timeframe for reviewing the materials of the criminal proceedings: the defense has been granted access to the materials of the criminal proceedings; access to the materials has been granted by an authorized person; the defense has been given sufficient time to review the materials; and the defense is delaying its review [11].

Conclusions. An analysis of the legal framework and the practice of applying the provisions of Part 10 of Article 290 of the Criminal Procedure Code of Ukraine in judicial practice allows us to identify the following tactical features of the defense’s conduct when the prosecution files a motion under Part 10 of Article 290 of the Criminal Procedure Code of Ukraine regarding corruption offenses:

- assessment of the appropriateness of the procedure for notifying the completion of the pretrial investigation, compliance with it, and the provision of access to pretrial investigation materials (the person making the notification and the procedure for notification);
- assessing the correctness of the use of the term “delay in reviewing the materials” in light of the fact that the review itself begins from the moment the right to access the materials is actually exercised, rather than from the moment the materials are sent to the party, the victim, the representative of the legal entity against which the proceedings are being conducted, the civil plaintiff, the civil plaintiff’s representative and legal representative, the civil defendant, or their representative, of the completion of the pretrial investigation and the provision of access to the pretrial investigation materials, or upon their receipt of such notification (as claimed by the prosecution);
- assessment of whether there was “delay in reviewing the materials,” taking into account the provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms regarding the right of every person charged with a criminal offense to have the time and facilities necessary to prepare their defense, taking into account the conditions under which the suspect and the defense counsel review the pretrial investigation materials, the workload of the defense counsel (counsels), and the complexity of the case;
- the argument that the defense counsel has the right to participate in interrogations and other procedural actions conducted with the suspect present, therefore, the suspect has the right to exercise his procedural right to review the materials in the presence of the defense counsel, and his desire to exercise this right cannot be considered a delay in reviewing the materials;
- taking into account that objecting solely to the timeframe for review specified in the motion constitutes a de facto admission by the defense of the fact of delaying the review, and more broadly—of its own abuse of rights.
 

REFERENCES

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13. Ruling of the investigating judge of the Vinnytsia City Court of Vinnytsia Oblast dated August 8, 2014 (Case No. 127/17016/14-k). URL: http://www.reyestr.court.gov.ua/Review/48304988.
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