According to the verdict of the local court, which was upheld by the appellate court, the person was convicted of committing the crime provided for in Part 2 of Art. 121 of the Criminal Code of Ukraine, to imprisonment for a term of eight years and six months.
The panel of judges of the First Trial Chamber of the Criminal Court of Cassation as part of the Supreme Court referred this criminal proceeding to the Grand Chamber of the Supreme Court. The decision of the board of judges stated that, according to the materials of the proceedings, the investigator of the police department, according to whose decision the forensic medical examination was conducted, was not part of the investigative team.
The following follows from the legal position set forth in the decision of the Supreme Court of Appeals of Ukraine dated August 7, 2019 in case No. 555/456/18 in similar legal relations: if the decision, on the basis of which the expert study was conducted, was made by an investigator who is not part of the group of investigators who investigation is commissioned, then the expert's opinion is inadmissible evidence. Disagreeing with this conclusion, the panel of judges of the First Judicial Chamber believes that the issue in this case constitutes an exceptional legal problem, as it concerns a conceptual approach to determining the admissibility / inadmissibility of evidence, and the formulated rule is not related to ensuring the rights and freedoms of a person and is focused on those persons who carried out certain procedural actions.
The sequence of presentation in the disposition of Art. 2 of the Criminal Procedure Code of Ukraine, which defines the tasks of criminal proceedings, gave the Grand Chamber of the Supreme Court grounds for the conclusion that the application of due legal procedure is not an end in itself, but an important condition for achieving the results of criminal proceedings, which the legislator defined as a priority – the protection of the individual, society and the state from criminal encroachments, protection of human rights and freedoms, provision of prompt and effective disclosure of criminal offenses and fair trial.
Non-compliance with certain requirements of the law nullifies the probative value of information obtained as a result of relevant procedural actions, not in any case, but only if it led to a violation of human rights and fundamental freedoms or calls into question the origin of evidence, their reliability and credibility. After all, in order to make a legal and well-founded decision, the court must receive the most complete information about the circumstances that belong to the subject of evidence, giving the parties in the competitive procedure sufficient opportunities to verify and deny this information.
The basis of the rules of admissibility of evidence established by the criminal procedural law is the concept, according to which the focus of the court's attention should be human rights and the justification of state intervention in them, regardless of which official restricts the rights. In favor of such a conclusion, the content of Art. 87 of the Criminal Procedure Code of Ukraine, which defines the criteria for the inadmissibility of means of proof in connection with non-observance of the legal procedure for obtaining them.
The VP of the Supreme Court stated that the imperative legal prohibition to use the results of procedural actions as evidence covers cases where non-compliance with the procedure for conducting them led to the violation of conventional and/or constitutional human rights and freedoms – the prohibition of torture and inhumane treatment (Article 3 of the Convention on the Protection of Human Rights and fundamental freedoms, part 1 of article 28 of the Constitution of Ukraine), the rights of the suspect, the accused to protection, including professional legal assistance (point "c" of part 3 of article 6 of the Convention, article 59 of the Constitution of Ukraine), to participate in interrogation of witnesses (point "d" part 3 of Article 6 of the Convention), human rights to respect for one's private life, inviolability of home (Article 8 of the Convention), refusal to testify about oneself, members of one's family and close relatives (Part 1 of Article 63 of the Constitution of Ukraine).
In each of the above-mentioned cases, a clear connection between the rules of admissibility of evidence and fundamental human rights and freedoms guaranteed by the Convention and/or the Constitution of Ukraine can be traced.
Therefore, in the case of the appointment of an expert opinion by an investigator who is not part of the investigative group determined in the criminal proceedings, the court, deciding on the admissibility of the expert's opinion as evidence, must check within the arguments of the parties whether the method of appointment of the expert opinion led to the violation of certain rights and human freedoms provided for by the Convention and/or the Constitution of Ukraine. If the evidence is declared inadmissible, the court must justify its conclusions about a significant violation of the requirements of the criminal procedural law, noting exactly which and whose rights and freedoms were violated and how this was expressed.
Evaluating evidence for admissibility in accordance with the criteria established by the criminal procedural law, the court proceeds from the circumstances of a specific case and must also motivate its decision.
Based on the results of the review of the Supreme Court, the Supreme Court canceled the decision of the appellate court and ordered a new review in the appellate court. The Grand Chamber of the Supreme Court was guided by the fact that, despite the imperative requirement of the procedural law, the appellate court did not decide on the defense's request for recognition in accordance with Art. 89 of the Criminal Procedure Code of Ukraine as inadmissible evidence of the conclusion of a forensic medical expert. In the decision of this court, there are no reasons for rejecting the arguments of the petition or agreeing with them. In addition, the appellate court admitted another significant violation of the requirements of the criminal procedural law, namely, Art. 419 of the CCP of Ukraine. In particular, the decision of the appellate court did not contain any judgments regarding the arguments of the defense side, which relate to the possible incorrect qualification of the person's actions and the failure of the pre-trial investigation body to inspect the scene of the incident.
Resolution of the Great Chamber of the Supreme Court of August 31, 2022 in case No. 756/10060/17 (proceedings No. 13-3кс22) – https://reyestr.court.gov.ua/Review/106141457 .