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 The Criminal Procedure Code of 1960 did not explicitly admit that evidence in any circumstances should be declared inadmissible. Instead, the CCP in the 2012 edition has it. Let us consider the criteria used by the European Court of Human Rights to admit evidence admissible or inadmissible and to implement such an order in the legislation of Ukraine.

Intervention “in accordance with the law”

 The issue of admissibility of evidence is closely related to both the right to a fair trial and the presumption of innocence. The general rule is that evidence obtained improperly or illegally cannot be taken into account in a court case. It must be borne in mind that the assessment of specific evidence in terms of admissibility or inadmissibility is decided on a case-by-case basis.
Thus, part 2 of Article 87 of the CCP defines the court’s obligation to recognize a significant violation of human rights and fundamental freedoms, in particular in the case of “carrying out procedural actions that require the prior permission of the court, without such permission or with violation of its essential conditions”.

 In my view, the most striking case of non-compliance with this requirement is a violation of the right to respect for privacy and family life provided for in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Criteria for the ECtHR Convention and Practice?

 Thus, part 2 of Article 8 of the Convention states that the right to privacy and family life is not absolute and that such interference can take place only “by law”.

 Thus, in paragraph 43 of the judgment in Klass et al. V. Germany, the ECtHR stated that the interference would not violate Article 8 of the Convention if it had been carried out “by law”. Any surveillance measure must clearly comply with the requirements and procedural requirements set out in the law.

 In order not to contravene Article 8 of the Convention, the interference must take place “by law”, have a legitimate purpose and be necessary in a democratic society to achieve this objective (ECtHR decision in Kryvitska and Kryvitsky v. Ukraine, § 42; Silver and others v. the United Kingdom, § 84; Kuznetsov v. Ukraine, § 134; Shalimov v. Ukraine, § 84; Petra v. Romania, § 36).

 The expression “prescribed by law” specifies that the intervention was based on domestic law (ECtHR judgment in Michaud v. France, para. 94).

 At the same time, in the case of Kryvitskaya and Kryvitsky v. Ukraine (paragraph 43 of the decision), the ECtHR stressed that the phrase “in accordance with the law” not only envisages observance of national law, but also concerns the quality of that law, requiring that it does not contradict the rule of law. .

 Thus, paragraph 49 of the decision in the case of Volokhi v. Ukraine states: the rule of law is based on the fact that the interference of the executive authorities in the rights of persons should be subject to effective control, which is usually exercised by the judicial authority as a last resort, since judicial control gives the greatest guarantees independence, impartiality and due process.

 Thus, “in accordance with the law” requires that:
• the relevant measure had some basis in national law;
• the quality of the relevant legislation was ensured;
• it was accessible to a person who, among other things, should be able to anticipate its consequences for himself;
• this legislation is in line with the rule of law.
Admissibility criteria for evidence
Analyzing the ECtHR’s practice, we can identify the basic standards by which a court must consider three main criteria:
• the intensity of violations of constitutional rights in obtaining evidence;
• the role of evidence in the prosecution strategy (the more important the role, the more inadmissible is such evidence);
• whether the findings of the prosecution on the basis of evidence are supported by other case files.

 An example of the application of these criteria is the case of Schenck v. Switzerland (judgment of 12.07.88). In it, the Swiss national court used tape recordings as evidence and refused to declare them inadmissible, even though they had been obtained illegally because they had not been authorized by a competent judicial authority.

 Mr Schenk argued that recording his telephone conversations with Mr Poti and using them as evidence violated Article 6 § 1 of the Convention. He also insisted that the use of illegally obtained evidence was sufficient to admit the trial unfair and that his conviction was based mainly on a tape recorder.

 The ECtHR noted in its decision that the tape recording of telephone conversations was not the only evidence on which the sentence was based. The criminal court’s refusal to exclude the tape from the list of evidence was linked to the presence of Mr Poti’s testimony regarding the contents of the record and some other witnesses. The decision repeatedly emphasized that the court also proceeded from other evidence to support Mr Shenk’s finding of guilt stemming from the tape record.

 Consequently, the ECtHR concluded that the use of tape recording as evidence did not deprive the applicant of a fair trial and, as a consequence, did not violate Article 6 § 1 of the Convention.

 As to the violations of Article 8 of the Convention, the Court noted that this problem had already been absorbed by another, which had already been considered – about the use of the cassette during consideration (Article 6 § 1 of the Convention).

 Thus, it is only in the light of the above criteria that the ECtHR can recognize a national court’s judgment in violation of Article 6 of the Convention.

Alternative Removal

 However, Article 87 of the CPC contains no alternative in recognizing and removing such inadmissible evidence. In this case, in my opinion, it is possible to claim that there has been a violation of Article 6 § 1 of the Convention on the basis of another criterion: the non-alternative recognition and exclusion of inadmissible evidence under national law. It may take precedence over the above criteria on the basis of the application by the court of Article 6 of the Convention.

 Let us analyze the mechanism of admission of evidence inadmissible by the use of Article 87 (1) of Article 87 of the CCP, both at the stage of pre-trial investigation and during the trial, considering that the ECtHR does not consider in its practice a violation of Article 6 of the Convention at the stage of pre-trial investigation .

 For example, US citizen Sh. Was suspected by the body of pre-trial investigation into committing a crime under Part 1 of Article 201 of the Criminal Code, that is, transportation through the customs border of Ukraine outside the customs control of cartridges for rifle hunting weapons. These facts became known to the Security Service of Ukraine after the discovery of a parcel in which cartridges were moved from the United States to the territory of Ukraine. However, its opening took place without the order of the investigating judge, ie in violation of Article 31 of the Constitution and Article 14, 258 of the CCP.

 During consideration of the petition for election of a citizen of the United States Sh. A preventive measure in the form of remand in custody, the defense lawyer filed a petition in the order of item 1 of part 2, part 4 of Article 87, part 1 of article 94, part 2 of article 177 The CPC recognizes items that were removed from the excise label as inadmissible evidence.

 The investigating judge granted the request of the investigator, and refused the request for the admission of evidence inadmissible, referring to his prematureness, as well as the fact that this issue is to be decided during the trial of the merits. The Court of Appeal upheld this decision for similar reasons.

 Thus, Part 4 of Article 87 of the CCP states that the evidence provided for in this Article must be declared inadmissible by the court during any trial. However, in accordance with the provisions of paragraph 24 of Part 1 of Article 3 and Chapter 28 of the CPC, judicial review is the stage of criminal proceedings at which the merits of the case are considered, and this stage does not apply to pre-trial investigation. This makes it possible to conclude that part 4 of Article 87 of the CCP is not applied at the stage of pre-trial investigation.

 But what about Article 94 of the CCP, according to which an investigating judge, by his or her own belief, based on a comprehensive, complete and impartial examination of all circumstances of criminal proceedings, guided by law, evaluates each evidence in terms of belonging, admissibility, reliability, and totality the evidence collected – in terms of sufficiency and relationship to make the appropriate procedural decision?

 However, Part 2 of Article 177 of the CPC establishes that the reason for applying the preventive measure is, in particular, the existence of reasonable suspicion of committing a person of a criminal offense.

Protection at any stage

 Nowadays, the case-law is based on the fact that investigative judges mostly avoid examining the evidence and making a real assessment of the existence of reasonable suspicion. The statements of inadmissibility of the evidence substantiating the suspicion and other circumstances are ignored. Detention orders are not specified the evidence on the basis of which the investigating judge reached a certain conclusion, which in turn is indicated by lawyer Jaroslav Zeykan (see “ZiB” No. 3/2016. – Ed.).

 This is completely contrary to the provisions of these articles of the CCP. In accordance with Part 6 of Article 9 of this Code, in cases where its provisions do not regulate or ambiguously regulate criminal proceedings, the general principles set out in Part 1 of Article 7 of the CPC apply. Thus, given the provisions of Part 6 of Article 9, Part 1 of Article 94, Part 2 of Article 177, Part 1 of Article 178 of the CPC, I consider that, in deciding whether to elect a preventive measure, investigating judges are obliged apply the provisions of Article 87 of the CPC, including Part 4 of this Article.
Moreover, the phrase “in any court proceeding” also suggests. After all, if we proceed from a formal understanding of the term “trial”, then it is the only one provided for in Chapter 28 of the CCP, and begins from the moment specified in Article 347 of the CCP. This suggests that the phrase “in any judicial proceeding” is used by the legislator in the general sense, as is the word “court.”

 In my opinion, this problem can be solved by amending Part 4 of Article 87 of the CPC to avoid its ambiguous understanding or official interpretation of what should be understood by the phrase “in any judicial proceeding” and the word “court”. »Within the meaning of this article.
However, in practice, there is a problem with the application of Part 2 of Article 89 of the CCP, since in most cases, despite the apparent inadmissibility of evidence, the judges do not resolve this issue immediately, as provided for in Part 2 of Article 89 of the CPC, but only in the conference room under the time of the decision, which significantly violates the requirements of the CCP.

Author: Andrey Kubov

co-authored with Sharkov Alexander

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