Matolych V. Protection of Professional Secrets in Criminal Proceedings

In conformity to the results of the analysis, it was proved that the terminology used by the legislator in criminal procedural legislation does not correspond to the terminology of legislation on information, this indicates the need to bring the norms of the CPC of Ukraine into compliance with the norms of legislation on information. The need to amend the criminal procedural law is substantiated, under which the list of types of information that constitute a secret protected by law and to which access is granted under a special procedure cannot be exhaustive. The following problematic aspects that arise within the criminal proceedings with certain types of professional secrets are highlighted in the research: - bank secret. It’s emphasized that it is necessary to become sure that items and documents, constituting bank secret, does not constitute, another type of professional secret as well, while deciding on granting of temporary access (in particular, information access to which is prohibited). The necessity of excluding legal norms from normative legal acts, which allow avoiding the procedure of judicial control over providing access to information, constituting bank secret, is substantiated. - commercial secret. The need for monitoring of the commercial secret status has been proven, taking into consideration the "temporality" of such status as its peculiarity. - notary’s secret. The necessity of using the term "notary’s secret" in the criminal procedural law, which is broader than the term "secret of notarial acts" used by the legislator, is substantiated. It is emphasized the need to include persons authorized by law to perform actions that are equivalent to notarial, into the range of persons who cannot be subjected to questioning as witnesses. - lawyer's secret. The necessity of changing the legislation through depriving the lawyer of the right to refuse to disclose a professional secret against the client's will, has been established. - the secret of making a court decision. Additional justifications are given to confirm that the legislative norm on the decision-making in a special room, "deliberation room", is outdated. It is suggested to fix in the criminal procedural legislation the meaning of the concept "secret of making a court decision". - the secret of confession or another rite similar to repentance. It is suggested to provide witness immunity not only to the priest, but also to the persons who were involved in the performance of this rite. Additional substantiations are made to support of opinion regarding exclusion from the CPC of Ukraine the legal norm, which entitles to release a clergyman from the obligation to keep the secret of confession. - confidential information of a professional nature in the possession of the media or journalist. There have been developed criteria which the information must correspond to, so that the source can have expectations of keeping the confidentiality. The need to amend the criminal procedural law with the provision on giving a journalist or media the right to appeal the decision of an investigating judge on temporary access to things and documents containing confidential data about the source of information is substantiated. - medical secret. It has been proven that in case of criminal offenses revealing, the criminal proceedings for which are carried out in the form of a private prosecution, it is efficient to find out the opinion of the injured person before receiving information that constitutes a medical secret. - The secret of adoption. It is suggested to distinguish the procedure of access to the secret of adoption depending on the purpose of obtaining such information at the legislative level. In addition, the need to improve procedures for collecting evidence containing information that constitutes a professional secret is substantiated. It has been proven that the inclusion of an expert into the list of persons with witness immunity is unfounded, since the purpose of implementing such a norm differs from the purpose of granting witness immunity. The need to establish at the legislative level the prohibition for a lawyer to be a whistleblower in criminal proceedings, if this would lead to the disclosure of the lawyer's secret is substantiated. In contrast to the theoretical concept of "secret of pre-trial investigation", it is suggested to use the term "secret of pre-trial investigation and information obtained as a result of procedural actions in connection with the commission of a criminal offense", as well as to supplement the list of subjects, which establish a ban on disclosure, by the inquirer. The position, under which the investigating judge grants temporary access to documents from another criminal proceeding, in which the pre-trial investigation has not been completed, has been criticized. It is substantiated the need to improve the procedure of making a decision on holding a closed court hearing.