The completion of the pre-trial investigation and the disclosure of materials to the other party are interrelated and inseparable stages. And the legislator linked them with providing access to these materials to the defense. However, in practice, lawyers may encounter unexpected obstacles from both opponents and judges.
The concept of access to the materials of the proceedings is obviously different from familiarization under Article 221 of the CPC. After all, at the stage before the completion of the pre-trial investigation, access to certain materials, and in fact to the majority, is actually legally limited by the investigator/prosecutor. On the other hand, after the completion of the pre-trial investigation and under Article 290 of the CPC, the investigator or prosecutor cannot limit access to any materials of the proceedings that may later be used in court.
Therefore, the right to familiarize yourself with the materials of the pre-trial investigation is a fundamental element of the adversarial nature of the process and the exercise of the right to defense.
The current procedural legislation provides for a mandatory procedure for the disclosure of materials to the other party upon completion of the pre-trial investigation. The disclosure of materials can be conditionally divided into three parts: notification of the completion of the pre-trial investigation and provision of access to the materials of the pre-trial investigation; direct familiarization with the materials, i.e. provision of access and the opportunity to copy or display in an appropriate manner any material evidence or its parts, documents or copies thereof; written confirmation of the fact of providing access to the materials, indicating the name of such materials.
At the same time, for violation of the specified requirement regarding the disclosure of pre-trial investigation materials, the legislator provided for a procedural sanction in the form of a court ban on admitting information contained in undisclosed materials as evidence in criminal proceedings.
When defending clients in criminal proceedings, lawyers at the Yevhen Pelikhos Law Office encounter obstacles created by the prosecution, unreasonably restricting the defense’s free access to pre-trial investigation materials.
According to Part 1-2 of Article 290 of the Code of Criminal Procedure, the prosecution is obliged to provide the defense with access to all materials collected during the pre-trial investigation that may be used in court. The prosecutor or the investigator on his behalf is obliged to provide access to the materials of the pre-trial investigation that are at his disposal, including any evidence that, by itself or in combination with others, may be used to prove the innocence or lesser degree of guilt of the accused, or to contribute to the mitigation of punishment.
The law does not provide for any restrictions or features of the procedure or method of familiarization, and therefore, in practice, a lawyer or client, guided by the principle of dispositivity, have the right to determine the procedure or sequence of such familiarization at their own discretion.
However, in practice, investigators and prosecutors often impose their own conditions, in particular: they provide materials only in a certain chronological order, convenient or beneficial to them, which significantly complicates the provision of legal assistance.
For example, in a case being handled by the lawyers of our bureau, NABU detectives determined the order of providing materials only in chronological order in ascending order, starting from the 1st volume.
In our opinion, such actions by investigators and prosecutors are aimed at creating artificial obstacles to prevent effective protection of clients. In particular, if a lawyer is forced to familiarize himself with the materials in the manner established by the investigator, this does not allow him to fully form a legal position, effectively analyze the evidence and take all necessary actions for the defense. After all, before the completion of the pre-trial investigation, the prosecution receives certain new evidence and formulates an updated suspicion, while the defense will be able to find out for itself the grounds for such changes in suspicion only after about six months or a year, because the volume of materials of the pre-trial investigation, which lasted almost 5 years, exceeds 600 volumes (!).
Detectives and judges of the Supreme Court of Criminal Appeals, in response to such complaints, actually propose to receive all available volumes of the proceedings materials simultaneously for review. In this context, a fair question arises: can the simultaneous receipt (copying) of more than 600 volumes of materials be considered review?
Obviously, restricting access to case materials can lead to significant violations of the right to defense, which is a basis for declaring evidence inadmissible. The Constitutional Court of Ukraine and the Supreme Court have repeatedly noted that failure to provide or limited access to case materials is a gross violation of procedural guarantees and may call into question the fairness of the trial as a whole.
Thus, in the decision of January 18, 2012 No. 1-rp/2012 (case on familiarization of the accused and defense attorney with the materials of the criminal case), the Constitutional Court of Ukraine noted that the right of the accused (suspect) to familiarize himself with the materials of the case and the right to receive information about the completion of the investigation in a criminal case are components of the constitutional right to defense.
The right to access pre-trial investigation materials in accordance with the provisions of Article 6, Part 3, Subparagraph “b” of the Convention for the Protection of Human Rights and Fundamental Freedoms is a necessary condition for ensuring the suspect’s right to defense and provides for the suspect’s right to have the time and facilities necessary to prepare his defense.
The ECtHR has also reminded (for example, the case of Verentsov v. Ukraine, 2013 year, application No. 20372/11), that Article 6(3)(b) guarantees the accused “adequate time and facilities for the preparation of his defence”, and, therefore, this guarantee means that the preparation of the defence on the merits of the main charges may include taking all “necessary measures” by him. The accused must be able to organize his defence properly and without hindrance, to present to the court hearing the case all the necessary arguments of the defence, and thus to influence the outcome of the proceedings. Moreover, the means available to anyone charged with a criminal offence must include the opportunity to familiarise himself with the results of the investigation carried out during the proceedings, in order to prepare his defence.
Ukrainian judicial practice demonstrates an ambiguous attitude towards such situations. Some courts side with the defense and recognize the violation of rights by the prosecution.
In a number of decisions, the courts recognized as illegal restrictions on familiarization with materials and obliged investigators to provide lawyers with free access to pre-trial investigation materials (see, for example, the decisions of the investigating judges of the Supreme Judicial Council of Ukraine dated January 23, 2023 in case No. 991/430/23 and dated February 20, 2024 in case No. 760/3569/24). And in case No. 757/26408/13-k, the investigating judge of the Pecherskyi District Court of Kyiv obliged the investigator to provide the lawyer with access to the pre-trial investigation materials by ensuring the possibility of making copies and displaying the materials of the criminal proceedings in the premises of the prosecutor’s office.
However, there are cases when judges formally approach the problem, refusing to open proceedings on complaints or refusing to satisfy the complaint on the merits, citing the fact that the law does not clearly regulate the procedure for providing access to pre-trial investigation materials under Article 290 of the CPC.
The Yevhen Pelikhos Law Office also has a well-established practice on this issue: sometimes the issue can be resolved in a pre-trial procedure, and sometimes it is necessary to file a complaint with the investigating judge. For example, I filed a complaint with the Supreme Court of Criminal Procedure with a request to provide free access to the materials of the pre-trial investigation under Article 290 of the Criminal Procedure Code. And in this case, the investigating judge, by his ruling in case No. 991/1414/25, refused to grant it, concluding that the prosecutor’s response to the relevant motion stated the possibility for the defense attorney to agree on the procedure for familiarizing himself with the materials of the criminal proceedings with the detectives.
Considering that the specified dispute arose precisely as a result of the decisions or actions of the detectives, who determine a procedure for familiarization convenient only for them, as noted in the complaint to the investigating judge, the reference to the possibility of re-agreement of such a procedure is effectively excluded.
It is interesting that during the court session, the investigating judge of the Supreme Court of Ukraine denied the admissibility of the lawyer’s reference to the “free” access of the defense to the materials of the pre-trial investigation, since the legislator did not use this term when formulating the procedure for access to case materials under Article 290 of the Code of Criminal Procedure.
We are convinced of the opposite, because the legislator has not established any restrictions on access to pre-trial investigation materials, and therefore access should obviously be “free”!
As you can see, the case law on the issue of discovery of materials and the procedure for providing them for review under Article 290 of the CPC is ambiguous and is in the process of formation.
To prevent restrictions on the right to free access to pre-trial investigation materials, the defense should: record all cases of obstruction of access (make written statements, contact the procedural manager, record the facts of obstruction in the protocols) and challenge the illegal actions of the investigator and prosecutor. Judicial practice will contribute to the formation of a single legal position on this issue, which will help to avoid similar abuses by the prosecution in the future.
Restricting the right of the defense to free access to pre-trial investigation materials is a dangerous challenge to the principles of fair trial and violates the foundations of the criminal process. Any actions aimed at concealing or selectively revealing evidence eliminate the adversarial nature of the process and create the prerequisites for arbitrary persecution of a person. That is why lawyers and human rights defenders must persistently defend the rights of their clients, using appeal mechanisms.