What evidence do you have? Failure to disclose the materials of the criminal proceeding to the opposing party will result in the conviction being overturned.

Failure to disclose the materials of the criminal proceeding to the opposing party will result in the reversal of the verdict.

Part 12 of Article 290 of the Criminal Procedure Code provides that if a party to criminal proceedings fails to disclose the materials in accordance with the provisions of this article, the court has no right to accept the information contained therein as evidence. In most cases, courts indicate that undisclosed materials constitute inadmissible evidence. Is this correct?

Evidence in criminal proceedings consists of factual data obtained in accordance with the procedure prescribed by the Code of Criminal Procedure. On this basis, the existence or absence of facts and circumstances that are relevant to the criminal proceedings and subject to proof is established (Part 1 of Article 84 of the CPC).

Pursuant to Part 1 of Article 86 of the CPC, evidence is deemed admissible only if it is obtained in accordance with the procedure prescribed by this Code. Otherwise, it is inadmissible, with all the legal consequences that follow. However, in order for any evidence to be deemed inadmissible, certain materials must first be recognized as evidence. At the same time, regarding undisclosed case materials, Part 12 of Article 290 of the CPC explicitly states: “…the court has no right to admit the information contained therein as evidence.” Therefore, information contained in materials not disclosed to the opposing party cannot be admitted by the court as evidence.

Let us pay attention to the phrase used in Part 12 of Article 290 of the Code of Criminal Procedure: “information contained therein.” As we can see, the legislature did not stipulate that if a party to the proceedings fails to disclose the materials in accordance with the provisions of this article, the court has no right to admit such materials as evidence; rather, it specifically stated “…information contained therein as evidence.”

What does this mean?

For example, when the case materials are disclosed, the defense is provided with an inspection report indicating that dark gray pants and a sports jacket—which show damage and were attached to the case file as physical evidence by a court order—were examined. There is also an expert opinion stating that stab and cut damage was found on the jacket, which could have been caused by a flat, sharp object.

However, the defense was not provided with access to the items themselves, which made it impossible to examine them. Is it lawful, under these circumstances, to assert that the information contained in both the report and the expert opinion cannot be admitted as evidence?

In practice, the court generally notes that the reports and expert opinions were made available to the defense, and therefore there are no grounds for deeming them inadmissible. To confirm the validity of this position, let us recall that during a forensic examination, the information (data) contained on a specific object of examination is analyzed.

If the items themselves were not disclosed to a party to the proceedings, then pursuant to Part 12 of Article 290 of the Code of Criminal Procedure, the information contained in the reports regarding these items, as well as the expert’s opinion, cannot be admitted by the court as evidence, since they have lost their evidentiary value. After all, the disclosure of the protocols and the opinion is not equivalent to the disclosure of the items themselves; it is a derivative action. In other words, the protocol and the expert opinion contain references to information that was not disclosed to the defense, which is prohibited by Part 12 of Article 290 of the Code of Criminal Procedure.

Furthermore, the court has no right whatsoever to refer to any written evidence that has not been examined during the court hearing. Protocols of investigative (search) actions and other documents attached to the case file, if they contain or certify information relevant to establishing the facts and circumstances, must be read aloud in court (Article 358(1) of the Code of Criminal Procedure).

Given that the issues discussed arise in many cases—particularly those involving narcotics, smuggling, the receipt of unlawful remuneration, and the like—courts should pay closer attention to defense motions to disclose all case materials. After all, failure to comply with procedural requirements will have only one consequence—the reversal of the decision on appeal.