Problems in the Examination of Documents During Trial: Application Practice of Article 358 of the Criminal Procedure Code of Ukraine

Author: Oleksandr Zaitsev, Attorney-at-Law, Counsel at Grain Law Firm

In recent years, the practical approach to the examination of evidence — particularly documentary evidence — in courts of first instance within criminal proceedings has undergone significant changes. These developments have led to substantial violations of both defendants’ rights and the requirements of criminal procedural law.

As a general rule, during the examination of documents at trial, it is the prosecutor who effectively “sets the tone” for how evidence is to be examined, while the court largely agrees with the method proposed by the prosecution.

In addition to local courts of general jurisdiction, this practice has become particularly widespread in criminal proceedings under the jurisdiction of the High Anti-Corruption Court, especially in cases where public prosecution is supported by prosecutors of the Specialized Anti-Corruption Prosecutor’s Office.

First of all, it should be noted that among all procedural sources of evidence defined in Part 2 of Article 84 of the Criminal Procedure Code of Ukraine (hereinafter – the CPC of Ukraine), documentary evidence is most often the most voluminous and time-consuming to examine. This is particularly true in criminal proceedings involving allegations of economic crimes. The volume of case materials in such proceedings may often reach approximately 200 volumes or more.

The procedure for examining documents is regulated by Article 358 of the CPC of Ukraine.

At present, the following practical approach to examining documents during trial can be observed: the prosecution brings several volumes of case materials to the courtroom — sometimes up to ten volumes at a time — and in certain cases supplements them with written submissions.

During the trial, the prosecutor may present written explanations or express an oral position; however, these statements are typically limited to referencing selected document titles from the case files, without explaining their content, without linking them to the circumstances of the criminal offence as defined in Article 91 of the CPC of Ukraine, and without conducting a direct examination of these documents in court.

Subsequently, the prosecution submits the case volumes for inclusion in the court file. These volumes often contain numerous documents that were not even mentioned, let alone examined in court. As a result, such documents become part of the criminal case materials despite not having been subject to judicial examination.

The trial court, in turn, does not object to this approach and accepts the inclusion of hundreds of documents from the case volumes without their actual examination during the hearing.

As a rule, courts of first instance interpret Article 358 of the CPC of Ukraine as granting the prosecutor a discretionary right to independently determine the tactics and strategy for examining documentary evidence that, in the prosecutor’s view, supports the charges set out in the indictment.

However, in our view, such an interpretation is untenable. The key issue is that if the prosecutor, when selecting specific documents for presentation and examination in court, identifies them as evidence, then only those specific documents should be included in the court record — not all other documents contained in the volumes that were neither examined nor presented in court. Otherwise, this approach contradicts the provisions of Article 358 of the CPC of Ukraine.

Part 1 of Article 358 of the CPC of Ukraine provides that protocols of investigative (search) actions and other documents attached to criminal proceedings, if they contain information relevant to establishing the facts and circumstances of the case, must be read out in court upon the initiative of the court or upon motion of the participants in the proceedings, and made available for review by the participants, and, where necessary, by other participants in the criminal proceedings.

Thus, where a participant in the proceedings requests it, the reading out and examination of documents and the information contained therein — if such information is considered relevant by the prosecution — constitutes a mandatory obligation of the prosecutor, rather than a discretionary power.

Furthermore, Article 23(1) of the CPC of Ukraine establishes that the court shall examine evidence directly. Testimony of participants is obtained orally.

Under Part 2 of Article 23 of the CPC of Ukraine, information contained in testimony, objects, or documents that have not been directly examined by the court cannot be recognized as evidence, except in cases provided for by the Code.

Accordingly, this practice not only fails to comply with criminal procedural law but also restricts the defense’s ability to effectively exercise its rights, as the prosecutor submits a large number of documents as evidence but:

– does not examine them in court;
– does not disclose their content;
– does not substantiate why these documents are considered evidence or which circumstances under Article 91 of the CPC they allegedly prove;
– and the defense is not given the opportunity to independently present or examine them in court.

The Supreme Court addressed the procedure and method of evidence examination in its ruling of 13 March 2024 (case No. 953/3558/22, proceeding No. 51-6103 km 23):

“Article 23 of the CPC of Ukraine provides that the court examines evidence directly. Direct examination of evidence means the statutory requirement for the court to examine all evidence collected in a criminal proceeding through interrogation of the accused, victims, witnesses, examination of physical evidence, reading of documents, and playback of audio or video recordings, etc.

This principle ensures full clarification of the circumstances of the case and its objective resolution. Direct perception of evidence enables the court to properly examine and verify each piece of evidence individually and in conjunction with others, assess them under Article 94(1) of the CPC, and form a complete and objective understanding of the factual circumstances of the case.

Article 358 of the CPC provides that documents attached to criminal proceedings must be read out in court if they contain information relevant to establishing facts and circumstances of the case.

Documents are read out either by the court or by the party submitting them. If participants do not read out documents, the court must do so to ensure that all parties are familiar with their content and able to provide comments.”

The Court also referred to its ruling of 9 October 2023 (case No. 707/996/18, proceeding No. 51-2942 km 23), where it held that no violation of the principle of immediacy occurred when documents were read out by name and briefly summarized in court, and when parties were able to comment and provide explanations during trial and closing arguments.

Thus, where each document is read out and examined in court, the Supreme Court considers such procedure compliant with Article 23 of the CPC of Ukraine.

Therefore, situations in which courts include documents in case files without their reading or examination during trial constitute violations of fundamental principles of criminal proceedings, including the right to defence, adversarial procedure, and equality of arms.

Article 20 of the CPC of Ukraine guarantees the right to defence, including the right to provide explanations, submit evidence, participate personally in proceedings, and use legal assistance.

Article 22 establishes the adversarial principle, requiring parties to independently defend their positions, while the court ensures necessary conditions for exercising procedural rights.

Accordingly, failure to ensure proper examination of evidence constitutes a violation of the adversarial principle and the court’s obligation to facilitate the defence.

This issue also relates to the principle of the presumption of innocence. Under Article 17(2) of the CPC of Ukraine, no one is obliged to prove their innocence, and a person must be acquitted if guilt is not proven beyond a reasonable doubt.

Under Article 92(1) of the CPC of Ukraine, the burden of proof lies with the prosecution.

In conclusion, the evolving practice of applying Article 358 of the CPC of Ukraine may simplify proceedings but does not ensure the proper fulfilment of the objectives of criminal justice. The reduction of procedural time comes at the expense of the quality of evidence examination, directly affecting the establishment of all circumstances relevant to the case.

Regardless of the volume of case materials, strict compliance with Article 358 of the CPC of Ukraine is required. All documents submitted by the parties must be properly examined and read out in court, with explanations of their evidentiary significance in establishing or refuting relevant facts, including those related to the elements of the alleged criminal offence.