ABOUT SOME ISSUES OF THE OPENING OF THE MATERIAL OF THE PRE-TRIAL INVESTIGATION RELATING TO COVERT INVESTIGATION PROCEDURES BY THE PROSECUTION

The article is dedicated to the examination of some issues related to such a procedural action as the opening of the material of the pre-trial investigation after its completion, more specifically, those one, which is the grounds of conducting covert investigation procedures. The authors examine the provisions of the international legal acts to determine essential elements of the right to a fair trial. It is being noted that the opening of the material of the pre-trial investigation after its completion is the procedural action which is enforcement of the right to a fair trial in its procedural content. On the basis ofthe analysis of legal positions of the Supreme Court of Ukraine, the Supreme Court and The European Court of Human Rights the authors identify two approaches to determination of the volume of the material of the pre-trial investigation relating to covert investigation procedures which should be opened. The first approach is based on assertion that it is necessary to open all the material related to covert investigation procedures, the second one is based on assertion that does not deny the possibility of reasonable restriction of the right of the defense to acquaint with the material. The authors examine some legal positions on the legal consequences when the material of the pre-trial investigation, more specifically, those one, which is related to covert investigation procedures, is not opened. The authors' special attention is concentrated on the fact that despite the fact that the character of the provision which declares the unopened by the defense and the prosecution evidence to be inadmissible is mandative the practical activity is very ambiguous. The conclusion is that the opening of the material of the pre-trial investigation after its completion, more specifically, those one, which is the grounds of conducting covert investigation procedures, is the essential elements of the right to a fair trial. However, in order to balance the interests of the defense and the prosecution the authors consider it to be possible to restrict reasonably the right of the defense to acquaint with the material of the pre-trial investigation relating to covert investigation procedures.