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11.12.2018
AUTHOR: OLEKSANDR SHCHERBYNA

The secrecy of pretrial investigation or investigator assistance in a criminal offense?

It is not uncommon when lawyers appeal to the criminal office asking to provide information on the applications filed by the prosecuting party under the Article 171 of the CPC  (Criminal Procedural Code) of Ukraine on the attachment order. Thus, when the lawyers request the information they are notified by the court registrars (especially the courts of the first instance) that divulging the secrecy of the pretrial investigation is prohibited under the Article 222 of the CPC of Ukraine. Thus, they are artificially fenced of access to listing cases for trial, which in turn violates the basic adversarial principle and the right to defense.

Having checked the job description of the court registrar available on “The Judiciary of Ukraine” website, it can be concluded – it is outside the registrar’s responsibility to decide whether the information requested by the lawyer is the pretrial investigation secret, or not. Instead, the Article 397 of the Criminal Code of Ukraine clearly indicates that it is prohibited to interfere with the activities of a defence attorney or a representative of a person. This point of view is also consistent with Article 20 of the Law of Ukraine “On the Bar and Practice of Law” following the principle of the CPC of Ukraine general provisions, namely p.15.1.7, one of the general principles of the criminal proceedings is the adversarial procedure of the parties and the freedom to file their evidence in court; the more extensive interpretation of this norm can be found in the Article 22 of the CPC of Ukraine.

Reviewing the disposition of Part 1 of Art. 27 in CPC of Ukraine, no one may be disabled in getting both oral and written information in court about the time, date and place of the trial, the exclusive competence regarding the restriction falls within the jurisdiction of the court.

In accordance with Article 3 of the CPC of Ukraine, the court registrar is not included into the list of persons having relevance to criminal proceedings, and therefore he/ she is not an entity who in turn has the right to determine the possibility of providing or not providing oral or written information to the participants of the trial within the criminal process.

Special attention should be paid to Article 222 of the CPC of Ukraine, indeed, Part 1 of the article states that the Information of the pretrial investigation can be disclosed only with the written permission of the investigator or prosecutor whitin the stated terms. However, in Part 2 of this article, it is specified that the persons who became aware of the pretrial investigation information because of their participation in it must be notified about their obligation not to disclose such information without permission. As judged by the analysis of Article 222 CPC together with paragraphs 1 and 2, and the logic of refusing to provide the lawyer with requested information for reasons of non-disclosure, lawyers of the entire community can file relevant petitions to interrogate the court registrars throughout the country as witnesses whithin the purview of the requirement of Article 65, the CPC of Ukraine.

Moreover, when sending the respective Petitions under the procedure of Art. 171 of the CPC of Ukraine, it is not prohibited for the investigator, the prosecutor to disclose the information in the petition itself and the materials which substantiate it, therefore there are no legal grounds for refusing a defence attorney in providing information about the date, time and place of court hearings on these cases.

In particular, the courts of first instance disregards the part 1 of art. 172 of the CPC of Ukraine, which states that the petition for the arrest of the property is considered by the investigating judge with the participation of the defence attorney and/or the person who owns the property. This leads to the question: Does District Court staff commit misdeeds too?

Source: BARRISTERS
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