The proper subject as a criterion for the admissibility of the evidence obtained, the terms of the pre-trial investigation and compliance with the procedure for conducting secret investigative (search) actions – in recent years, these issues have repeatedly been the subject of consideration by the Criminal Court of Cassation as part of the Supreme Court, in particular, the joint chamber of the Supreme Court of Justice, and relevant legal conclusions have been drawn up regarding them.
This was stated by Serhii Fomin, judge of the CCS of the Supreme Court, during the session "Working with evidence", which took place within the framework of the Legal Anti-Corruption Forum.
"The Supreme Court has formed a practice that pertains, in particular, to questions about under what conditions an investigator becomes a proper subject for gathering evidence, and a prosecutor – for conducting procedural management. An important achievement is that the Supreme Court determined what are the consequences of not complying with such a criterion of admissibility of evidence, as a proper subject in collecting this evidence," said the judge of the Supreme Court's CCS.
He recalled some of the conclusions of the OP of the Supreme Court of Justice. Thus, the joint chamber of the CCS of the Supreme Court indicated that the decision on the appointment of a prosecutor, a group of prosecutors who will exercise powers in a specific criminal proceeding, must necessarily be adopted in the form of a resolution. This resolution must be included in the materials of the pre-trial investigation to confirm the fact of the existence of powers. Its absence or non-signing by the head of the relevant prosecutor's office causes the inadmissibility of the evidence collected during the pre-trial investigation, as such collected under the supervision and procedural guidance of the prosecutor (prosecutors), who did not have the legal authority to do so (resolution of the OP of the Supreme Court of Justice of February 22, 2021 in case No. 754/7061/15, proceedings No. 51-4584kmo18).
Also, the OP of the CCS of the Supreme Court spoke about the implementation by the Prosecutor General and the leadership of the regional prosecutor's offices of the powers provided for in Part 5 of Art. 36 of the Criminal Procedure Code of Ukraine, and about the consequences of its non-compliance (resolution of the OP of the Supreme Court of Justice of May 24, 2021 in case No. 640/5023/19, proceedings No. 51-2917kmo20). The Joint Chamber emphasized that first of all it is necessary to determine the jurisdiction of the body of pre-trial investigation provided for in Art. 216 of the CPC of Ukraine. And after the prosecutor conducting the procedural management sees that the pre-trial investigation is ineffective, he can entrust this investigation to another body, motivating it in his resolution. Such a resolution, its justification and motivation should be the subject of a court investigation in each criminal proceeding, which is carried out taking into account its specific circumstances. The results of such research create grounds for further evaluation of the evidence obtained as a result of the conducted pre-trial investigation from the point of view of admissibility.
In practice, the speaker noted, there are cases when, on the very first day of entering information into the EDPR, prosecutors passed resolutions that criminal proceedings should be immediately assigned to another pre-trial investigation body.
In addition, the CCS of the Supreme Court concluded that the authority of the head of the pre-trial investigation body to determine the investigator (investigators) who will conduct the pre-trial investigation, in the form of a written "order" containing the same details as the resolution, is a sufficient document for granting such investigative powers to carry out a pre-trial investigation in a specific criminal proceeding. The adoption of a decision in such a written form (and not in the form of a resolution) does not prove that the pre-trial investigation was carried out by an unauthorized person and that the evidence obtained during such an investigation is inadmissible on these grounds (resolution of the Supreme Court of the Supreme Court of August 25, 2021 in case No. 663/ 267/19, proceedings No. 51-3344km20).
More details about the court decisions regarding the proper entity as a criterion for the admissibility of the received evidence – in Serhiy Fomin's presentation .
As for the question of the terms of the pre-trial investigation, the legislator provided: investigative (search) actions cannot be carried out after the expiry of the terms of the pre-trial investigation, except for their conduct by order of the court in the cases provided for in Part 3 of Art. 333 of the CPC of Ukraine. Any investigative (investigative) or covert investigative (investigative) actions carried out in violation of this rule are invalid, and the evidence established as a result of them is inadmissible (Part 8, Article 223 of the Criminal Procedure Code of Ukraine).
The Supreme Court passed a number of court decisions regarding the terms of pre-trial investigation, which must be taken into account, in particular, by pre-trial investigation bodies, in order to avoid negative consequences that may result from non-compliance with the provisions of the Criminal Procedure Code of Ukraine.
Serhii Fomin also noted that the results of secret investigative (investigative) actions are mostly the subject of court research in criminal proceedings regarding corruption, and in the practice of the Supreme Judicial Court there are a significant number of decisions that addressed the consequences of the prosecution's non-compliance with the procedure for conducting this type of investigative (investigative) actions
Learn more about this in the video recording of the forum at the link: https://bit.ly/3HQREWh .
The Legal Anti-Corruption Forum is organized by the "Legal Practice" publication.