PROCEDURAL ASPECTS OF THE APPLICATION OF TEMPORARY ACCESS TO ITEMS AND DOCUMENTS BY THE DEFENSE PARTY

Abstract

The author has studied the provisions of the current Criminal Procedural Code of Ukraine (hereinafter – the CPC of Ukraine), regulating the procedure of application of temporary access to items and documents by the defense party. The author has accomplished comparative analysis of the provisions of the CPC of Ukraine and the Law of Ukraine “On Advocacy and Legal Practice” regulating the procedure of receipt of evidence by a defense lawyer in the form of familiarization, examination, copying and seizure of items and documents. It has been stated that provision the right to collect evidence to the defense party by temporarily access to items and documents is aimed at increasing competition process in the criminal proceedings. It has been specified that the purpose of conducting the temporary access to items and documents is to establish the circumstances of the committed criminal offense and collection of evidence. The author has distinguished three ways of its realization: familiarization with items and documents; production of their copies; seizure.

It has been emphasized that the legislator did not stipulate any procedural document that would record the conduction of temporary access to items and documents in the form of familiarization and copying, which contradicts the theory of criminal procedure and the requirements of admissibility of evidence. It has been stressed that a description that confirms the conduction of proceedings and ensures the admissibility of obtained evidence is executed only in case of seizing the items and documents under the provisions of the CPC of Ukraine. The author has offered an sample of the description that contains the features of procedural document, thus, we can overcome legal gaps without violating the requirements of the CPC of Ukraine.

It has been found out that the norms of criminal procedural legislation of Ukraine have “legalized” mechanism of counteracting conduction of pre-trial investigation, establishment of the truth, the guilty and the degree of fault of each person that can work at the time, when the defense party realizes the temporary access to items and documents in the form of seizure in case of transferring items and documents to a defense lawyer seized by other persons of the defense party. Two directions of resolving these issues have been suggested.