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05.01.2022

Part of the appeal against the decision of the investigating judge of the VAKS

Gaps in the Criminal Procedure Code, especially in the part of the pre-trial investigation, the validity of the suspicion, create risks for the defense side of the leveling of the lawyer's profession. Today, the defense side, having received the decision of the investigating judge, is forced to state discrepancies in the interpretation of legal norms, the leveling of direct norms specified in the Criminal Procedure Code, and the use of terms that are not in it.

"The decision of the investigating judge of the VAKS from … in the case … refused to satisfy the complaint of the defense attorney of the suspect … – lawyer …. on a report of suspicion".
In the contested decision, the investigating judge, arguing his position, cites the following statements: "At the same time, the standard of "sufficient grounds (evidence) for suspicion" is lower than the standard of "reasonable suspicion." For the purposes of notifying a person of suspicion, it assumes the existence of evidence that only objectively links the suspect to a certain criminal offense (demonstrates involvement in its commission) and is sufficient to justify further investigation to indict or refute such suspicion.
In this regard, during the review of the complaint, the investigating judge decides whether the circumstances referred to by the defense in the complaint have been proven, and whether such circumstances can be the basis for concluding that the evidence is insufficient for the notification of suspicion…. in the commission of a crime.
At the same time, trying to reduce the limits of the examination of the contested notice of suspicion only to the assessment by the investigating judge that the evidence on which the notice of suspicion is based was collected in a manner contrary to the requirements of the law and contains signs of a provocative, artificially created version of events that actually there was no, solely on the basis of the notification of suspicion and part of the materials of the criminal proceedings, without evaluating other materials, the defense actually raises the question of carrying out such an inspection outside the competence of the investigating judge and contrary to the requirements of Art. 370 of the CCP of Ukraine.
Yes, verification of the notification of suspicion from the point of view of the reasonableness of the suspicion, taking into account the provisions of Art. 17 of the Criminal Procedure Code of Ukraine is not included in the subject of the trial, which is conducted by the investigating judge in accordance with clause 10, part 1 of Article 303 of the Criminal Procedure Code of Ukraine at the stage of pre-trial investigation, and can only be the subject of a direct trial of criminal proceedings by the court, since at the stage of pre-trial investigation the investigating judge is not authorized to evaluate the evidence obtained by the investigation and the procedure for obtaining it, to evaluate the collected evidence from the point of view of their sufficiency and admissibility, and without such an assessment, a conclusion regarding the validity of the person notified of the suspicion is impossible.
According to Art. 89 of the Criminal Procedure Code of Ukraine, recognition of evidence as inadmissible belongs exclusively to the competence of the court during the trial. At the stage of the pre-trial investigation, the investigating judge can only evaluate the sufficiency of the collected evidence to suspect a certain person of committing a criminal offense, without resorting to evaluating them as admissible. (clause 3, part 1, article 276 of the Criminal Procedure Code of Ukraine)".
Previously, the investigating judge justified these paragraphs by referring to the decision of the ECtHR. However, these decisions either did not contain references to the specified terms and conclusions, or the judge referred to ECtHR decisions that do not exist. It should be noted that the defense side considers these paragraphs to be false, i.e. they do not correspond to the essence and content of national legislation, the Convention and decisions of the ECtHR. In addition, the practice of the ECtHR cannot be used against the suspect/accused. This is precisely what emerges from the decision of the Supreme Court of the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation in case No. 607/14707/17 of proceedings No. 51-2604 km 19: "The arguments of the prosecutor in the cassation complaint about the need to apply the practice of the ECHR are an important aspect of the protection of human rights, but in this criminal proceeding, the ECtHR practice specified in the cassation complaint will not be used in favor of the convicted person, which may pose risks for the justice of the criminal proceeding in terms of compliance with the law when obtaining evidence."
Further, clause 3, part 1, art. 276 of the Criminal Code of Ukraine requires "the presence of sufficient evidence to suspect a person of committing a criminal offense" (the Criminal Code never mentions the standard of "sufficient grounds (evidence) for suspicion" and the standard of "reasonable suspicion").
What is sufficiency of the evidence?
According to Clause 1 of Art. 84 of the Criminal Procedure Code, "evidence in criminal proceedings is factual data obtained in the manner prescribed by this Code, on the basis of which the investigator, prosecutor, investigating judge and the court establish the presence or absence of facts and circumstances that are significant for criminal proceedings and subject to proof." It is the sufficiency of the evidence that is mentioned in Clause 1 of Art. 94 of the Criminal Procedure Code: "The investigator, prosecutor, investigating judge, court, according to their internal conviction, which is based on a comprehensive, complete and impartial investigation of all the circumstances of the criminal proceedings, guided by the law, evaluate each piece of evidence from the point of view of appropriateness, admissibility, credibility, and the totality of the collected evidence – from the point of view of sufficiency and interrelationship for making the relevant procedural decision". That is, the investigating judge must first check the propriety, admissibility and reliability of the evidence, and the set of proper, admissible, reliable evidence – from the standpoint of sufficiency. Therefore, the thesis of the investigating judge that the sufficiency of evidence is checked at the pre-trial investigation without checking admissibility is false. The investigating judge refers in the decision to Clause 1 of Art. 89 of the Code of Civil Procedure: "The court decides on the admissibility of evidence during its evaluation in the deliberation room during the adoption of a court decision."
It should be noted that all legal conflicts are interpreted in favor of the individual. First, it follows from the practice of the ECtHR. In particular, the ECtHR in the case "Shchokin v. Ukraine" (applications No. 23759/03 and No. 37943/06, paragraphs 50-56) noted that "the rule of law, one of the fundamental principles of a democratic society, is inherent in all articles of the Convention; the absence in the national legislation of the necessary clarity and precision, which provided for the possibility of different interpretations…, violates the requirement of "quality of law" provided for by the Convention". In addition, according to Clause 6 of Art. 9 of the Criminal Procedure Code, "in cases where the provisions of this Code do not regulate or ambiguously regulate issues of criminal proceedings, the general principles of criminal proceedings defined by the first part of Article 7 of this Code shall be applied."
According to paragraphs 10 clause 1 of Art. 7 of the Criminal Procedure Code, criminal proceedings must comply with such principles as "presumption of innocence and provision of proof of guilt." The definition of presumption in the Criminal Procedure Code is contained in Art. 17. In particular, in clause 3 of Art. 17 of the Criminal Procedure Code states: "Suspicion, accusations cannot be based on evidence obtained illegally", and in paragraph 4 of Art. 17 – "all doubts regarding the proven guilt of a person are interpreted in favor of such a person." It is also worth mentioning Art. 62 of the Constitution of Ukraine: "The accusation cannot be based on evidence obtained illegally, as well as on assumptions. All doubts regarding the proven guilt of a person are interpreted in his favor." That is, the investigating judge, deciding the issue of canceling the notification of suspicion, must check the evidence for sufficiency, appropriateness, admissibility and reliability.
It should be mentioned the decision of the ECtHR "Veira Fernandez-Huidobro v. Spain" paragraphs 108-114, where the court stated: "Art. 6 § 1 of the Convention can be recognized as applicable to the stage of pre-trial investigation", as well as the decision of the ECtHR "Shabelnik v. Ukraine" dated February 19, 2009, paragraph 52 ("…the requirements of Article 6 (in particular, paragraph 3) may also be applied even before the case is referred to the court…)".
Therefore, the investigating judge and the court must check the sufficiency, appropriateness, admissibility and reliability of the evidence. This is also confirmed by para. 10 clause 1 of Art. 303 of the Criminal Procedure Code, where the possibility of an appeal is specified: "notification of the investigator, inquirer, prosecutor about the suspicion after the emergence … two months from the date of notification to the person about the suspicion of committing a crime…". The legislator does not provide an opportunity to appeal immediately, but only after two months have passed. If the legislator had intended to challenge only the procedural order of serving the notice of suspicion, he would have provided such an opportunity immediately. However, it is clearly stated in the CPC – not earlier than in two months. Why did the legislator take this time? Precisely for the prosecution's justification of the raised suspicion from the standpoint of propriety, admissibility, credibility and sufficiency. Therefore, the thesis of the investigating judge about "checking … without evaluating other materials" is false.
It is not about a verdict, but only about the presence of sufficient evidence for suspicion. After all, the suspicion was justified by the available evidence. And the investigating judge's reference to Art. 370 of the CCP is not clear at all. The content of this rule does not relate to the judge's thesis at all. In addition, the judge forgets p. 18, part 1 of Article 3 of the Code of Criminal Procedure: "an investigating judge is a judge of a court of first instance, whose powers include the exercise of judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings in accordance with the procedure provided for by this Code…".
It is only necessary to distinguish which evidence can be evaluated by the investigating judge, and which needs to be carefully examined during the judicial investigation. The answer is clear and simple. The investigating judge can assess the evidence that obviously violates the propriety, admissibility, credibility, and overall sufficiency. In this context, it is appropriate to recall the decision of the ECtHR "Cress v. France" dated 06.07.2021: "Each party must be given a reasonable opportunity to present its position under such circumstances that do not place the party in a significantly disadvantageous position vis-à-vis the opposing party." If, in the end, the prosecution did not manage to collect sufficient evidence within two months, then cancel the notification of suspicion. For example, Art. 87 of the Criminal Procedure Code "Inadmissibility of evidence obtained as a result of a significant violation of human rights and freedoms." Evidence provided for in this article shall be deemed inadmissible by the court during any trial.
Pp. 3 clause 2 of Art. 87 of the Criminal Procedure Code recognizes evidence as inadmissible if there has been a "violation of a person's right to defense." In this case, the statement of the person with changed data, Person 1 from Date 1, about the commission of the crime and the Interrogation Protocol of the same person from Date 1 became the basis for the introduction of criminal proceedings NUMBER from DATE 1 and the start of a pre-trial investigation. However, in the protocol of the interrogation of the witness PERSON 1, there is no signature in the column "Consent to give evidence without a lawyer", which violates exactly para. 3 clause 2 of Art. 87 of the CCP. In view of this, the registration of the CP, the materials of the NSRD and other collected evidence, according to the principle of the fruit of the poisonous tree, are considered inadmissible. Moreover, it is obvious and the investigating judge should have established it. Only this fact, according to the defense, is enough to make sure that there is no sufficient evidence and cancel the report of suspicion.
However, many such violations (namely, paragraph 3, paragraph 2 of Article 87 of the Criminal Procedure Code) were committed during the pre-trial investigation. In particular, the case file contains two declassified NSRD protocols, which have numerous shortcomings. The defense repeatedly tried to appoint an expert opinion (or to achieve the inclusion of defense questions) and made appropriate requests to the prosecution, the investigating judge, appointed an expert opinion independently and applied (after receiving the expert's request) for temporary access to things and documents. He was refused every request. The defense drew attention to the following violations in the NSRD protocols: the memory cards specified in the protocols could not be used in the specified equipment, that is, they may be copies.
According to the decision of the Supreme Court of the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation in case No. 149/745/14 of proceedings No. 51-4269km19 dated March 11, 2020, copies of video phonograms are inadmissible evidence. It was noted that in the Protocol in different places the same file is marked as made by different devices. It was stated that protections were not provided for memory card copying of declassified NSRD protocols (although they are an integral part of the protocols). The prosecution motivated the refusal by the fact that such copying "may harm the pre-trial investigation." The defense pointed out that even in the provided printouts of the records and in the text of the suspicion, these records are presented differently.
For example, from the NSRD protocol: "TEXT 1". The body of the pre-trial investigation stated: "TEXT 2" as a suspect. Are these signs of a provocative, artificially created version of events that did not actually happen? The very fact that in the end, given the above circumstances, the defense was refused to copy the memory cards, to take into account defense issues when appointing expert opinions or in the appointment of expert opinions, is a violation of the right to defense, namely para. 3 clause 2 of Art. 87 of the CCP". The ECtHR expressed the same opinion in the case "Khodorkovsky, Lebedev v. Russia", where the prosecution's examination was conducted at the pre-trial investigation without the participation of the defense. Thus, the court believes that the defense was deprived of the opportunity to challenge the experts and formulate their questions. That is, the ECtHR recorded a violation of the Convention.
The icing on the cake is the fact that, according to cash warrants, the prosecution receives the funds before the suspect has allegedly expressed a desire to receive them. However, the warrants issue an AMOUNT of dollars more than required. The prosecution explains these surprising facts that they only "demonstrate the legitimacy of the origin of the funds." The investigating judge did not evaluate these evidences in the decision, although they are obviously not proper and admissible. In history, I remember only one similar case. When, during the times of the USSR, it was the USSR that expressed its condolences to the USA regarding the death of the Challenger spaceship an hour before its death, and then explained it by the difference in time zones. It is also worth drawing the court's attention to the fact that there is no description of the objective side of the criminal offense in the suspicion.
Regarding the fictional thesis, the standard of "sufficient grounds (evidence) for suspicion" is lower than the standard of "reasonable suspicion". The definition of such STANDARDS is absent both in national legislation and in ECtHR decisions. That is, nowhere is there a clear definition of "the standard of "sufficient grounds (evidence) for suspicion is – …." whether the standard of "reasonable suspicion" is – …". There is no comparison of standards, understanding why one is lower, smaller, narrower than another, when it is appropriate to use the first and when the second. It should be noted that the prosecution and the court sometimes still use the "reasonable suspicion standard" or "reasonable suspicion". Unfortunately, this is an invented term.
How many types of suspicion are there? All this abracadabra is drawn from attempts to pull the practice of the ECtHR on its side. Here, it is appropriate to recall the decisions of the ECtHR "Hadgianastasiou v. Greece", "Boldia v. Romania" and "Papon v. France": "National judges must state the reasons for their decisions clearly enough to allow any party to effectively exercise the right of appeal." "Although judges are not required to provide a detailed response to every argument presented, it should be clear from the decision that all the material issues of the case have been considered." "According to the established practice of the ECtHR, which reflects the principle related to the proper administration of justice, the decisions of judges and tribunals must properly state the arguments on which they are based."
In the review of VAX practice, disputed theses are also substantiated by Art. 157, 163, 234, 260, item 1, part 3, Art. 132 of the CPC and others). However, for example, Art. 2 clause 2 of Art. 157 of the Criminal Procedure Code states that "the investigating judge, when suspending, takes into account the "sufficiency of the evidence indicating that a person has committed a criminal offense." This does not lead to controversial theses at all. Or clause 7 of Art. 163: "The investigating judge, the court, in the decision on granting temporary access to things and documents, may give an order to provide the possibility of seizing things and documents, if the party to the criminal proceedings proves that there are sufficient grounds to believe that without such seizing there is a real threat of changing or destroying things or documents, or such removal is necessary to achieve the goal of obtaining access to things and documents." This is also useless. Or item 1 part 3 of Art. 132 of the Criminal Procedure Code: "There is a well-founded suspicion of committing a criminal offense of such severity that it may be grounds for the application of measures to ensure criminal proceedings." This also does not explain the contradictory theses.
As far as the ECtHR is concerned, the practice of the ECJ refers to the decision "John Murray v. the United Kingdom" dated October 28, 1994. There is no such decision at all. Indeed, there are a number of ECtHR decisions where the court defines the term "reasonable suspicion". For example, the case "Nechiporuk and Yonkalo v. Ukraine" dated 04/21/2011, paragraph 175: "…the term "reasonable suspicion" means that there are facts or information that can convince an objective observer that the person about whom it is said, she could have committed a crime…". The ECtHR came to the same conclusion in the case of Fox, Campbell and Hartley v. the United Kingdom dated August 30, 1990, Kavala v. Turkey dated December 10, 2019 (paragraphs 126-128) and others. It was from them that the investigating judge wrote: "For the purposes of notifying a person of suspicion, he (the standard of "sufficient grounds (evidence) for suspicion) requires the presence of evidence that only objectively links the suspect to a certain criminal offense (demonstrates involvement in its commission) , and they are sufficient to justify further investigation for the purpose of indicting or disproving such suspicion."
However, if you read those decisions, it is about DETENTION. Also, it is about detention that is referred to in Art. 5 pp. "c" paragraph 1 of the Convention: "Lawful arrest or detention of a person carried out for the purpose of bringing him before a competent judicial body, in the presence of reasonable suspicion that he has committed an offense or if it is reasonably considered necessary to prevent him from committing an offense or his escape after committing it." which VAKS falsely refers to. It is clear that at the time of arrest and service of the suspicion, it is sufficient "the presence of evidence that only objectively connects the suspect with a certain criminal offense."
However, as already mentioned above, the national legislation provides for the possibility of contesting the suspicion exactly after two months, and not from the moment of detention, as in some European countries. Therefore, the CPC attaches a completely different meaning to both the challenge of suspicion and the presence of sufficient evidence. Here it would be more appropriate to recall the decision of the ECtHR "Belle v. France", namely paragraph 38: "In order for the right to access to justice to be effective, a person must have a real opportunity to challenge the case that violates his rights." VACS practice notes that the level of reasonableness of suspicion must be correlated with the degree of restriction of the suspect's rights and freedoms. Given that correlation is one of the main terms of probability theory, which shows the level of dependence between two or more random variables, one would like to ask, what is a random variable here?
Finally! The investigating judge points out that the pre-trial investigation is still ongoing. The defense is critical of this thesis. First, the legislator provided for the possibility of challenging the suspicion precisely at the pre-trial investigation, that is, before its completion. Secondly and most importantly, the specified shortcomings of the pre-trial investigation cannot be corrected by the further course of the pre-trial investigation, conducting investigative actions, declassification of documents, presentation of evidence still unknown to the defense and the court. In addition, as the investigative judge notes in the contested decision: "According to part 1, 2 of Art. 22 of the Criminal Procedure Code of Ukraine, criminal proceedings are conducted on the basis of adversarial proceedings, which provides for independent defense by the prosecution and the defense of their legal positions, rights, freedoms and legitimate interests by the means provided for by this Code. Parties to criminal proceedings have equal rights to collect and submit to the court things, documents, other evidence, petitions, complaints, as well as to exercise other procedural rights provided for by this Code." That is why the court must proceed from the evidence available today, assessing the sufficiency of the evidence for suspicion and cancellation of the notification of suspicion.
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