July 18, 2023 The Supreme Court, by the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation in case No. 192/1350/19, satisfied the cassation appeal of the prosecutor, who challenged the decisions of the courts, which declared the results of secret investigative (search) actions as inadmissible evidence.
The verdict of the district court, upheld by the appellate court, found the first deputy head of the district state administration not guilty of the criminal offense provided for h 2 Art. 369-2 Criminal Code, and was acquitted due to the lack of evidence that he had committed the specified criminal offense.
The appellate court agreed with the conclusion of the court of first instance that the NSRD results were inadmissible due to the violation of the requirements h 3 Art. 252 KPK when drawing up protocols on the conduct of NSRD after the expiration of the decision of the investigating judge on permission to conduct them .
After considering the cassation appeal of the prosecutor, the Supreme Court indicated that according to the conclusion set forth in the resolution of the Criminal Cassation Court of the Supreme Court dated April 8, 2020. in case No. 263/15845/2019 , “the procedural terms are divided into the terms of exercising the right and the terms of fulfilling the duty. Their non-compliance causes various legal consequences. Expiration of the terms for exercising the right leads to the loss of the opportunity for the bearer of this right to use it. Expiration of the duty performance period does not cause its termination. The mandatory action must be performed even after the expiration of the term, except for cases when the performance of the duty will lead to a violation of the procedural rights of the participants in the proceedings.
Since drawing up the protocol based on the results of the NSRD and sending it to the prosecutor is the duty of the employee of the operative unit, his failure to fulfill the duty does not cause its termination. Exceeding the time limit set by the criminal procedural law violates the order of the criminal process, an integral part of which is the legally established time limit for the transfer of the NSRD protocol to the prosecutor. However, such a violation does not have a significant impact on the rights of the suspect, in particular on the defense, and, in view of this, does not contain signs of a significant violation of the criminal procedural law. The committed violation can affect the efficiency of the pre-trial investigation and the timeliness of decision-making by the prosecutor in order to ensure it within the established procedural terms.”
And therefore the violation of requirements h 3 Art. 252 The CPC, when drawing up protocols on conducting NSRD , in itself cannot yet testify to the need to recognize the results of these NSRD as inadmissible .
However, given the prescriptions p. 1 hour 2 Art. 87 KPK (according to which the court is obliged to recognize as significant violations of human rights and fundamental freedoms the implementation of procedural actions that require the prior permission of the court, without such permission or in violation of its essential conditions) and content Art. 249 KPK (which regulates the issue of the period of validity of the decision of the investigating judge on permission to conduct the NSRD), in this case, special attention should be paid to checking compliance with the deadlines for conducting the NSRD determined by the decision of the investigating judge when receiving information about a criminal offense and the person who committed it (actually himself interference with private communication or other temporary restriction of a person’s constitutional rights in order to obtain relevant evidence).
However, in this criminal proceeding, the court, taking into account the above-mentioned provisions of the Criminal Procedure Code and the practice of the Criminal Court of Cassation of the Supreme Court, did not properly assess the fact that during the conduct of the specified NSRD, obtaining information about a criminal offense and the person who committed it, by interfering with private communication took place within the time limits determined by the relevant rulings of the investigating judge of the appeals court on granting permission to conduct these NSRD.
Therefore, the Supreme Court annulled the decision of the appellate court and ordered a new trial in the appellate court.
Prepared by Leonid Lazebnyi