DEFENCE ATTORNEY’S ACCESS TO SERVICE INFORMATION IN CRIMINAL PROCEEDINGS: DISAGREEMENT IN THE LEGISLATION AS A GROUND FOR ABUSE OF RIGHTS

Abstract

The article considers the mechanism of ensuring a balance between the
right to protection and the public interest in the preservation of official
information, and also describes the norms of the Criminal Procedure Code of
Ukraine (hereinafter - the CPC of Ukraine), which ensure the maintenance of this
balance. The opinion that the Criminal Procedure Code of Ukraine generally
provides a lawyer with the possibility of access to official information, in
particular through temporary access to things and documents, is substantiated. At
the same time, special provisions on the protection of lawyer’s secrecy, the source
of which is outside the Criminal Code of Ukraine, make it impossible for the
prosecution to exercise a similar right regarding the lawyer's professional
secrecy.
The redundancy of the legally defined subject of lawyer's secrecy has been
established. So, referring to it “any” information about the client and documents
prepared by a lawyer can create inconvenience during the provision of legal
assistance. The legal nature of this type of professional secrecy is clarified, in
particular, it is noted that it does not belong to either “secret information” or
“official information” as types of public information limited in access. The “secret
of the pre-trial investigation”, classified by law as the first of the mentioned types of public information, is also characterized by excess. The Criminal Code of
Ukraine does not define the information of a pre-trial investigation as secret
information, and at least part of such information is classified as official
information in law enforcement agencies.
It is noted that the law prohibits restricting access to certain types of
information, in particular information about the facts of accidents, disasters,
violations of human rights, illegal actions of government officials. Under such
conditions, the legality of classifying pre-trial investigation materials of criminal
proceedings as “secret”, for example, based on the facts of traffic accidents,
corruption criminal offenses, etc., seems debatable.
It is indicated that official information, including materials of a pre-trial
investigation, is not a “secret protected by law”, therefore temporary access to
things and documents containing such information, as well as questioning of a
witness on matters constituting such information, can be carried out in a general
manner. At the same time, the by-law regulation of the procedure for the transfer
of material carriers of official information does not ensure that the defense party
presents the original documents to the court.
It was concluded that there are prerequisites for the use of an imperfect
procedure for access to official information in order to substantiate claims
regarding a possible violation of the principle of equality of parties in criminal
proceedings or the right to defense.