Evidence Exists but Is Withheld: How the Defence Obtains Documents via Temporary Access

Imagine you are suspected of a crime, and the investigation claims that work under a contract was never performed. Another company holds documents that could prove the opposite. But it is in no hurry to hand them over voluntarily – when you ask, you are refused.

This is where temporary access to items and documents can help. It is not a tool reserved for the investigator or prosecutor – the defence can use it too.

What temporary access is

Temporary access means that the person holding items and documents gives a party to criminal proceedings the opportunity to examine them, make copies and seize them (part 1 of Article 159 of the Criminal Procedure Code of Ukraine, CrPC). It is granted on the basis of a ruling of an investigating judge or court (part 2 of Article 159 CrPC).

The defence collects evidence by, among other things, demanding and obtaining objects, copies of documents and information, and by initiating procedural actions (part 3 of Article 93 CrPC). Both parties to criminal proceedings may apply for temporary access – to the investigating judge during the pre-trial investigation, or to the court during the trial (part 1 of Article 160 CrPC).

What the motion must contain

• a brief description of the circumstances of the criminal offence and its legal classification;
• which items and documents are needed;
• why there are grounds to believe that they are, or may be, held by a particular individual or legal entity;
• their significance for establishing the circumstances in the proceedings;
• where items, original documents or copies are to be seized – the reasons for this (part 2 of Article 160 CrPC).

Where the documents contain secrets protected by law – such as medical, banking or commercial secrets – the party must also prove that the information in them can be used as evidence and that the relevant circumstances cannot be proved by other means (clause 6 of part 2 of Article 160, Article 162, part 6 of Article 163 CrPC).

How the motion is considered

• as a rule, the investigating judge or court summons the person holding the items and documents; if that person fails to appear without a valid reason, the motion can still be heard (parts 1 and 4 of Article 163 CrPC);
• the motion may be heard without summoning that person if a real threat that the items or documents will be altered or destroyed is proved (part 2 of Article 163 CrPC);
• access is granted if it is proved that the items or documents are, or may be, held by that person and are significant for establishing important circumstances in the proceedings (part 5 of Article 163 CrPC);
• the ruling is valid for no more than two months from the date it is issued, save in certain cases (clause 7 of part 1 of Article 164 CrPC).

If the ruling is not complied with

The holder of the items and documents must give access to the person named in the ruling (part 1 of Article 165 CrPC). If the ruling is not complied with, the investigating judge or court may, on a motion by the party that was granted access, authorise a search to find and seize those items and documents. Where the search was authorised on a motion by the defence, it is assigned to the investigator, the prosecutor or a body of the National Police, and is conducted with the participation of the person who applied for it (Article 166 CrPC).

The fact that documents are not handed over voluntarily does not mean they are out of the defence’s reach. For the advocates of DSA GROUP, defence is not only about finding flaws in the prosecution’s evidence, but also about finding and lawfully obtaining material in the client’s favour.

This material is general in nature and is not a substitute for advice on your specific situation.

Need documents for your defence? An advocate will assess whether there are grounds for temporary access and prepare the motion → Criminal defence · Temporary access to items and documents · Defence during the pre-trial investigation