This was emphasized by the Supreme Court by the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation in case No. 163/2245/17 .
The circumstances of the case
To justify its claims, the defense, acting in the interests of the convicted, referred to the inconsistency of the court's conclusions with the actual circumstances of the criminal proceedings, the incompleteness of the trial, the significant violations of the requirements of the Criminal Procedure Code of Ukraine committed by the court of first instance, including the failure to prove that the person's actions contained signs of incriminated criminal offenses in members of an organized group. In particular, she pointed out the inadmissibility of the protocol for taking samples for examination, since the results of this investigative action were obtained as a result of ill-treatment of the convict.
While considering the case, the Supreme Court noted that the appellate court, taking into account the arguments of the defense, did not find out whether an effective investigation was conducted into the defense's complaints about the ill-treatment of the convict during the forced collection of biological samples and did not state in the decision its conclusions regarding how it affected the admissibility of the evidence used to determine the guilt of the convicted.
At the same time, the appellate court did not check whether the prosecution took other measures to obtain samples in a different way and whether the collection of biological samples by force was justified. At the same time, the court refused to grant the request of the defense to call as witnesses witnesses who were present during the collection of biological samples, without reasoning for its decision, which is confirmed by listening to the audio recording of the court session from April 15, 2021, and in its decision indicated the absence of grounds for re-examination of the evidence, not taking into account the fact that the stated witnesses were not questioned in the court of first instance.
The Supreme Court recalled that the European Court of Human Rights in its practice paid attention to the prevention of the application of coercive measures to a person in order to obtain from him data that can be used as a basis for indicting such a person. The right not to testify against oneself presupposes, in particular, that in a criminal case the prosecution, trying to prove the guilt of the accused, cannot use evidence obtained against the will of the accused by means of coercion or pressure (the case of "Yalloch v. Germany", decision of 11.07.2006; "Funke v. France", decision dated 25.02.1993; "JB v. Switzerland", decision dated 05.03.2001). The conclusions of the ECtHR stated in these cases do not mean that the compulsory collection of biological samples is in any case contrary to the Convention, but in each case the legality of the obtained evidence must be checked.
Biological samples may be obtained from a person without his consent only when the purpose of taking such samples is not to obtain evidence against the person providing such samples.
The Supreme Court emphasized that the appellate court did not perform a proper analysis of the arguments presented in the appeals and did not check whether the proceedings were fair as a whole, including the way in which the evidence was obtained, and whether the evidence obtained in the criminal proceedings was compiled in compliance with the requirements of the Code of Criminal Procedure of Ukraine.
The Supreme Court annulled the decision of the appellate court and ordered a new trial in the appellate court.