Ensuring of legality during disclosure other party evidence in accordance with article 290 Criminal processual code of Ukraine

Abstract

The article is devoted to the consideration of the issue regarding the specifics of the procedure for the disclosure of physical evidence to the defense at the end of the preliminary investigation before sending the indictment to the court. This question is investigated under three points of view: de jure (formally, by law), de facto (in fact, as is the case in practice) and de lege ferenda (from the point of view of the law, the adoption of which is desirable).

The main areas of research are: (1) analysis of the possibility of the existence of exceptions from the general rule on the mandatory disclosure of physical evidence, regulated by Art. 290 of Criminal Procedural Code of Ukraine. Based on the analysis of law enforcement positions, the author concludes that all material evidence that is at the disposal of the prosecution should be disclosed to the defense. When they are transferred for safekeeping to individuals, it is enough that the defense side is informed of the fact of the existence of such physical evidence in criminal proceedings; (2) determination of the peculiarities of the procedural and organizational order for disclosure of material evidence. In particular, according to the author, it is advisable for the prosecution to draw up a protocol providing access to the materials with an attachment to it in the form of a description of the materials provided, since in such a case there is hardly a risk that the investigator will not indicate the material evidence that was not stored among the sheets criminal proceedings, and in other places. But taking into account Part 1 of Art. 104 of the CPC, to ensure legal certainty, the author proposes the introduction of appropriate legislative amendments; (3) clarification of the procedural consequences of non-disclosure of material evidence to the other party in accordance with Art. 290 Criminal Procedural Code. In this aspect, the article focuses on the fact that the purpose of the regulatory requirements set forth in Art. 290 of the Criminal Procedural Code, is to ensure that the defense is aware of all the factual data collected by the prosecution during the pre-trial investigation that she wishes to use in court proceedings, and she had the opportunity to investigate and challenge in court on a par with the prosecution.