Verification of the Origin and Completeness of Evidence: How to Protect the Principle of Equality of Arms
In criminal proceedings, equality of arms begins not in the courtroom but at the stage of familiarisation with the evidence. One of the main guarantees of the right to a fair trial is the principle of adversarial proceedings and equality of arms, which provides a genuine opportunity for the prosecution and defence to familiarise themselves with each other's evidence and present their objections.
However, modern judicial practice reveals a problem: often, the right to access materials is implemented only formally. Providing copies of documents or access to digital media without the possibility of verifying the origin, completeness, and procedural reliability of the evidence deprives the defence of a real ability to prepare objections. If the defence is denied the opportunity to verify the origin or procedural admissibility of the evidence, the right to defence loses practical meaning, which contradicts the standards of a fair trial guaranteed by the Convention on Human Rights.
The Doctrine of Materiality of Evidence and the Obligation to Disclose to the Defence
One of the main procedural guarantees of the right to a fair trial is the obligation of the prosecution to disclose to the defence all materials that may be relevant to the proper resolution of the criminal case. In the practice of the European Court of Human Rights, particularly in the case of Rowe and Davis v. the United Kingdom, the doctrine of "materiality" of evidence was established. According to this doctrine, the prosecutor must provide the defence not only access to evidence supporting the prosecution but also to materials that may exonerate the person, mitigate their responsibility, or question the reliability of the prosecution's evidence base. The concept of "material evidence" is interpreted broadly and includes any information that could potentially affect the assessment of the circumstances of the case or the procedural position of the defence.
At the same time, the right to access criminal case materials is not absolute. The ECHR recognises that in certain cases, the state may restrict the disclosure of certain information if it is necessary to protect national security, ensure witness safety, preserve the confidentiality of operational methods, or other socially significant interests. However, such restrictions are allowed only if strictly necessary, proportionate to the aim pursued, and accompanied by effective procedural guarantees that compensate the defence for the inability to directly familiarise themselves with the relevant materials.
The problem becomes particularly acute when the decision on which materials are relevant for disclosure is effectively made by the prosecution itself. Without independent judicial control, the prosecution is in a position to unilaterally determine the scope of information available to the defence, creating an obvious conflict of procedural interests. Such an approach contradicts the principle of equality of arms because the defence is deprived of the opportunity to verify the completeness of the evidence base, timely identify exculpatory evidence, or challenge the reliability of certain materials.
That is why the ECHR repeatedly emphasises that the right to access evidence must be real and effective, not merely formal. The disclosure procedure must ensure the defence's ability to fully participate in the criminal proceedings, verifying the legality of the evidence's origin, its authenticity, completeness, and procedural admissibility. Only under such conditions is a true adversarial process ensured, and a balance achieved between the interests of criminal prosecution and the guarantees of the right to a fair trial.
Verification of Digital Data
In modern proceedings, where information volumes are measured in terabytes, a formal approach is especially critical. In the case of Rook v. Germany, the defence faced 14 million electronic files encrypted with proprietary software costing over 4,000 euros. Although the court ultimately found no violation because the defence was given sufficient time and alternative formats, this case highlighted an important standard: the state must provide an effective opportunity to identify relevant data.
Similar problems are observed in modern Ukrainian practice. For example, in complex economic cases, the defence often points out that attachments to inspection protocols (printouts from disks) do not reflect the full content of the information on the media. Issues of completeness, reliability, and relevance of the reflected information are key. If the defence cannot verify metadata or the full context of correspondence, the evidence loses its procedural reliability.
Destruction of Evidence and Procedural Reliability
The case of Natunen v. Finland is an example of how formalism undermines the right to defence. The police destroyed part of the telephone conversation recordings they considered irrelevant before the defence could evaluate them. The ECHR ruled that a procedure where the investigative body independently assesses the relevance of materials does not meet the requirements of Article 6 § 1 of the Convention. The inability to verify the defence's assumptions about the importance of this evidence renders the proceedings unfair.
In modern realities, this applies not only to audio recordings but also to documents obtained through international assistance. Issues of translator qualifications, legal grounds for third-party access to materials, and completeness of translation are often ignored by courts. If the defence is not given access to documents confirming the authority of persons who prepared the evidence base (e.g., reports or translations), the ability to effectively challenge their evidentiary value is nullified.
The Court's Obligation to Provide Reasoned Assessment of Defence Objections
One of the main guarantees of a fair trial is the court's obligation not only to examine the evidence but also to provide a proper response to key arguments of the parties regarding their admissibility, reliability, and sufficiency. The practice of the European Court of Human Rights holds that the right to a fair trial cannot be considered fulfilled if the court formally rejects the defence's objections without proper reasoning. In particular, in the case of Saakashvili v. Georgia, the ECHR emphasised that national courts must give a clear and reasoned assessment of significant objections of the parties that may affect the outcome of the criminal proceedings.
In this context, it is not enough merely to state that the materials were disclosed to the defence in accordance with Article 290 of the Criminal Procedure Code of Ukraine. If the defence questions the legality of obtaining evidence, points to their incompleteness, contradictions, violations of disclosure procedures, or selective concealment of materials, the court is obliged to examine these arguments and provide a reasoned response to each of them. A formal reference to compliance with procedural procedure without analysing the substance of objections does not meet the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
This approach is especially important when assessing evidence through the lens of the "beyond reasonable doubt" standard. In the decision Kobets v. Ukraine, the ECHR noted that a conviction can only be based on sufficiently weighty, clear, and consistent evidence forming a coherent and uncontradicted system. If the defence reasonably demonstrates that the evidence base is incomplete, formed due to selective disclosure of materials, or contains significant contradictions, the court must examine these circumstances as they may raise reasonable doubt about the proof of guilt.
Thus, the court's obligation to respond with motivation to the defence's objections is an integral element of the principles of adversarial proceedings, equality of arms, and the right to effective defence. Only a full and impartial analysis of all significant arguments ensures the legality of the court's decision and compliance of the criminal proceedings with the standards of a fair trial established in the ECHR practice.
The Principle "Justice Must Be Seen to Be Done"
The fairness of proceedings depends not only on paperwork but also on the conduct of the court. The ECHR (cases Kroi and Nocka v. Albania, Ismailaj and Others v. Albania) consistently reminds that justice must not only be done but also be seen to be done. This concerns both the impartiality of judges who may have been involved in the case at earlier stages in technical roles and even external manifestations of the court's attentiveness during hearings. Public trust in the court is undermined if the defence feels that its arguments about the incompleteness of evidence are ignored "for procedural economy."
From Formal Access to Real Guarantee of the Right to Defence
Analysis of the European Court of Human Rights practice indicates a gradual shift in the approach to the right to access criminal case materials. Modern standards of Article 6 of the Convention require not formal fulfilment of procedural duties but ensuring the defence a real opportunity to verify the legality, completeness, and reliability of the evidence base. Access to materials must be an effective tool for realising the right to defence, not merely a procedural formality.
First and foremost, the mere fact of opening materials does not guarantee a fair trial. The right to defence acquires real meaning only when the party can verify the origin of evidence, its integrity, method of obtaining, completeness, and absence of interference with its content. Formal familiarisation with copies of documents or digital files without the possibility of verifying their authenticity does not meet the standards of effective defence established in the ECHR practice.
Equally important is the state's obligation to ensure full and impartial disclosure of evidence. Pre-trial investigation bodies and the prosecution cannot arbitrarily decide which materials are sufficiently important to be transferred to the defence. Any selective disclosure of evidence or concealment of information that could potentially affect the assessment of the circumstances of the case violates the principle of equality of arms and calls into question the fairness of the criminal proceedings.
In the context of the digitalisation of criminal proceedings, the technical competence of the court becomes especially significant. Evidence is increasingly formed using electronic registries, information systems, digital platforms, mobile devices, and cloud services. Therefore, the court should not limit itself to formal verification of procedural documents but must assess technical aspects of obtaining, storing, and processing digital evidence if their admissibility and reliability depend on this.
At the same time, the burden of proving the legality of obtaining and reliability of evidence lies with the prosecution. The defence should not have to prove so-called "negative facts," including the absence of certain events, documents, or information that were not preserved or disclosed by the investigative body. It is the state, as the bearer of authoritative powers, that must confirm that the evidence base was formed legally, is complete, and complies with the requirements of criminal procedural law.
Modern standards of a fair trial imply a transition from formal fulfilment of procedural requirements to ensuring a real and effective right to defence. Only full disclosure of materials, the possibility of verifying their origin and reliability, proper judicial assessment of all defence arguments, and adherence to the "beyond reasonable doubt" standard ensure the compliance of criminal proceedings with the guarantees of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Subscribe to our Telegram channel t.me/sudua, follow SUD.UA on Google News , and join us on VIBER, WhatsApp, Facebook and on Instagram to stay informed about the important events.
