Compliance with the principle of adversarial in disclosing the materials of covert investigative (detective) actions to the defense

Abstract

The defense has the right to have information about all elements of the procedural order of receiving the prosecution evidence, in particular, about the materials of the covert investigative (detective) actions (further - CIDA), which the latter intends to use against it in court. However, this right of defense is violated quite often. In addition, these issues remain unresolved at both the legislative and jurisprudence levels. The purpose of the article is to address some of the problematic issues that arise during the disclosing the materials of CIDA to the defense at the pre-trial stage of criminal proceedings. The research made it possible to draw the following conclusions from an analysis of the case-law of the national courts and of the European Court of Human Rights: 1) if the prosecution timely fulfilled the requirements of Article 290 of the Criminal Procedure Code of Ukraine (further - CPC of Ukraine), took all necessary and dependent measures aimed at declassification of materials that became the basis for the CIDA, but such materials were not declassified For reasons that did not depend on the prosecutor's procedural activity, there were no violations of the requirements of the said CPC of Ukraine by the prosecution. In such a case, the court shall evaluate the evidence obtained for their propriety and admissibility, as well as in combination with other evidence in the case, in accordance with the requirements of Article 94 of the CPC of Ukraine; 2) if the prosecution on his own initiative and/or at the request of the party of defense did not take the necessary measures, which depend on it and aimed at declassification of the materials which became the basis for the CIDA, in that case there is a violation of the rules of Article 290 of the CPC of Ukraine the consequences provided for in paragraph 12 of this Article; 3) if in the course of criminal proceedings in court, the prosecutor's repeated request for declassification of procedural documents which became the basis for the CIDA was granted and they were at the disposal of the prosecution party, then these procedural documents as received by the prosecution party after the transfer cases before the court should be opened in accordance with part eleven of Article 290 of the CPC of Ukraine.