Review of the criminal case

It is impossible to defend yourself against a charge when you do not know what it is. Therefore, access to the case file is not a mere formality nor a ‘favour from the investigator’, but a prerequisite without which a defence is impossible.

Access to the case file in criminal proceedings takes place in two different contexts, and confusing them can prove costly:

• during the investigation — access is restricted; the investigator may refuse, on the grounds that it would prejudice the investigation;
• once the investigation has been completed — the parties are obliged to disclose all materials to one another (Article 290 of the Code of Criminal Procedure). This is no longer the investigator’s right, but their duty.

+38 095 554-54-24 — legal advice

Disclosure of case materials: the rule that settles cases

Before bringing an indictment before the court, the prosecutor is obliged to grant access to all case materials.

And here is a rule everyone should know: if a party has not disclosed the materials, it has no right to use them as evidence in court.

This means that evidence which ‘suddenly appears’ in court and has not been disclosed to the defence cannot form the basis of a verdict. Such motions are granted, and it is precisely this that brings down entire sections of the prosecution’s case.

Therefore, reviewing the case materials is not merely passive reading, but a record of what is in the case file at that moment. Anything that is not there will not appear later.

Access during the investigation

This is more complicated. The investigator may restrict access, citing the interests of the investigation.

But not to everything. The defence must in any event be granted access to:

• procedural documents served on the individual: the notice of suspicion, court orders, and records of investigative actions in which they participated;
• materials supporting applications for a preventive measure or the seizure of property — otherwise it is impossible to mount a defence in court;
• documents and items seized from the person themselves.

A refusal to grant access may be appealed to the investigating judge. And it is often only after such an appeal that the investigator ‘suddenly’ finds a way to show the materials.

What reviewing the case file achieves

Understanding the charges. What evidence actually exists, and what is merely a bluff by the investigator during questioning.

Identifying irregularities. A search without a warrant, questioning without a solicitor, or an expert report with flaws. All of this is only apparent in the case file.

Assessing the prospects. An honest answer to the question ‘is there anything worth fighting for?’ is only possible after reading the case file.

Strategy. Whether to give evidence, whether to challenge the expert report, or whether a plea bargain makes sense.

Identifying what is missing. Often, the most important thing is not what is in the case file, but what is missing from it: witnesses who have not been questioned, documents that have not been requested, expert reports that have not been carried out. This provides grounds for motions.

Procedure for reviewing the case file

1. Application (motion) for access — in writing, with the submission recorded.
2. Inspection — on the premises of the investigating authority, within a reasonable timeframe sufficient for review.
3. Copying. You have the right to make extracts and copies of the materials, including taking photographs. A ban on photographing materials which you have the right to inspect is unlawful.
4. Record of inspection — records exactly what you have inspected and to what extent.
5. Motion based on the findings — regarding further investigative actions, expert examinations or interviews.
6. Appeal — if access has been restricted without justification.

Typical violations

• insufficient time is allowed — ‘review the case files within an hour’;
• prohibiting photography or copying;
• failing to provide all materials — ‘some parts have not yet been filed’;
• failing to disclose materials before the case is referred to court;
• ‘submitting’ evidence during the court proceedings.

Each of these breaches is recorded — and each has consequences, up to and including the evidence being inadmissible in court.

When a lawyer is not needed

Formally, you can familiarise yourself with the case materials on your own. But reading the case file and spotting what is relevant are two different things. Irregularities in the handling of evidence are only noticeable to someone who knows how they should be processed.

A lawyer is needed when:

• you are denied access or have it restricted;
• you are not allowed to make copies of the case materials;
• the case materials were disclosed merely as a formality — one hour before the case was referred to court;
• evidence appears in court that you have not seen;
• you need to assess the prospects of the case honestly.

How we work

1. We file a motion for access and record it.
2. We challenge the refusal before the investigating judge.
3. We examine the case materials — looking for irregularities in the collection of evidence.
4. We make copies of everything — for further work.
5. We file a motion based on our findings: what is missing from the case.
6. We block ‘submitted’ evidence — that which has not been disclosed to the defence.

Cost of services

Full price list · Defence in court in a criminal case

Questions and answers (Access to criminal case files)

Is it possible to access the case file during the investigation?

Partially. The investigating officer may restrict access in the interests of the investigation, but is obliged to provide documents that were served on the person, materials justifying a preventive measure or the seizure of property, and items seized from them.

When is access granted to all the materials?

Once the pre-trial investigation has been completed — before the indictment is sent to court. At this stage, the parties are obliged to disclose all materials to one another.

What happens if the materials are not disclosed?

The party that has not disclosed the materials is not entitled to use them as evidence in court. This is a powerful defence tool.

Can I take photographs of the case materials?

Yes. You have the right to make extracts and copies, including taking photographs. A ban on copying materials to which you have access is unlawful.

How much time is allowed for reviewing the materials?

The timeframe must be reasonable and sufficient to examine the full scope of the case. Being told to ‘review the volumes of evidence in an hour’ is a violation that can be challenged.

What should I do if access is refused?

You should lodge a complaint with the investigating judge. Often, it is only after a complaint has been lodged that the investigating judge finds a way to provide the evidence.

Evidence has appeared in court that I haven’t seen. What should I do?

File a motion to have it excluded: evidence not disclosed to the defence cannot form the basis of a verdict.

What should I look for in the case materials?

Not only what is there, but also what is missing: witnesses who have not been questioned, documents that have not been requested, expert examinations that have not been carried out. These are grounds for motions.

Which documents should I bring to the consultation?

The notice of suspicion, records of investigative actions, court orders, your request for access and the response to it.

Contacting a solicitor regarding access to the case files at ‘Svarog’

It is impossible to defend yourself blindly. We will submit a request for access, appeal against any refusal, examine the case and tell you honestly: what is in it, what is missing and what you can realistically fight for.

+38 095 554-54-24 · Kyiv, 7 Khoriva Street (Podil) · Mon–Fri 9.00–18.00