What evidence should be deemed inadmissible, taking into account the criteria of the ECHR?

The 1960 Code of Criminal Procedure did not contain an explicit provision stating when evidence must be deemed inadmissible under any circumstances. However, the 2012 version of the Code of Criminal Procedure does include such a provision. Let us examine the criteria applied by the European Court of Human Rights to determine whether evidence is admissible or inadmissible, as well as the implementation of these standards in Ukrainian law.

Interference “in accordance with the law”

The issue of the admissibility of evidence is closely linked to both the right to a fair trial and the presumption of innocence. The general rule is that evidence obtained improperly or unlawfully may not be considered during court proceedings. At the same time, it must be understood that the assessment of a specific piece of evidence in terms of its admissibility or inadmissibility is determined on a case-by-case basis.

Thus, Part 2 of Article 87 of the Code of Criminal Procedure establishes the court’s obligation to recognize a substantial violation of human rights and fundamental freedoms, in particular, in cases where “procedural actions requiring prior court authorization are carried out without such authorization or in violation of its essential conditions.”

The most striking example of non-compliance with this requirement, in my view, is the violation of the right to respect for private and family life, as provided for in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

What criteria are established for this by the Convention and the case law of the European Court of Human Rights?

Thus, Article 8(2) of the Convention states that the right to private and family life is not absolute and that such interference may take place only “in accordance with the law.”

For example, in paragraph 43 of its judgment in the case of “Klas and Others v. Germany,” the ECHR noted that an interference would not violate Article 8 of the Convention if it was carried out “in accordance with the law.” Any surveillance measure must strictly comply with the requirements and procedural rules set forth in the law.

To be consistent with Article 8 of the Convention, an interference must be “in accordance with the law,” have a legitimate aim, and be necessary in a democratic society to achieve that aim (ECHR judgments in the cases of “Kryvitska and Kryvitsky v. Ukraine,” para. 42; “Silver and Others v. the United Kingdom,” para. 84; “Kuznetsov v. Ukraine,” para. 134; “Shalimov v. Ukraine,” para. 84; “Petra v. Romania,” para. 36).

The phrase “prescribed by law” means that the interference was based on domestic law (ECHR judgment in the case of “Michaud v. France,” para. 94).

In this regard, in the case of “Kryvitska and Kryvitsky v. Ukraine” (para. 43 of the judgment), the ECHR emphasized that the phrase “in accordance with the law” not only requires compliance with national law but also concerns the quality of that law, demanding that it not contradict the principle of the rule of law.

Thus, paragraph 49 of the judgment in the case of “Volokha v. Ukraine” states: the rule of law is based on the principle that interference by executive authorities with the rights of individuals must be subject to effective judicial review, which is usually exercised by a court as the final instance, since judicial review provides the greatest guarantees of independence, impartiality, and due process.

Thus, “in accordance with the law” requires that:

• the measure in question have a specific basis in national law;

• the quality of the relevant legislation be ensured;

• it be accessible to the person concerned, who, among other things, must be able to foresee its consequences for themselves;

• such legislation comply with the principle of the rule of law.

Criteria for the Admissibility of Evidence

Analyzing the practice of the European Court of Human Rights (as noted by Stanislav Shevchuk in his book *Judicial Protection of Human Rights*), one can identify the main standards according to which the court must consider three key criteria:

• the severity of the violation of constitutional rights during the collection of the evidence;

• the role of the evidence in the prosecution’s strategy (the more significant the role, the more inadmissible such evidence is);

• whether the conclusions drawn by the prosecution based on the evidence are corroborated by other materials in the case.

An example of the application of these criteria is the case of “Schenk v. Switzerland” (judgment of July 12, 1988). In that case, a Swiss national court admitted tape recordings as evidence and refused to declare them inadmissible despite the fact that they had been obtained unlawfully, as they had not been authorized by a competent judicial authority.

Mr. Schenk argued that the recording of his telephone conversations with Mr. Poti and their use as evidence violated Article 6(1) of the Convention. He also insisted that the use of illegally obtained evidence was sufficient to render the trial unfair and that his conviction was based primarily on the tape recording.

In its decision, the ECHR noted that the tape recording of the telephone conversations was not the sole evidence on which the conviction was based. The criminal court’s refusal to exclude the tape from the list of evidence was due to the testimony of Mr. Poti regarding the content of the recording, as well as that of several other witnesses. The judgment repeatedly emphasized that the court also relied on other evidence confirming the conclusion of Mr. Schenk’s guilt, as inferred from the tape recording.

Consequently, the ECHR concluded that the use of the tape recording as evidence did not deprive the applicant of a fair trial and, as a result, did not violate Article 6(1) of the Convention.

Regarding violations of Article 8 of the Convention, the Court noted that this issue was already subsumed by another issue already addressed—the use of the tape during the proceedings (Article 6(1) of the Convention).

Thus, only by taking these criteria into account can the ECHR find that a national court’s judgment violates the requirements of Article 6 of the Convention.

No Alternative to Exclusion

However, Article 87 of the Code of Criminal Procedure does not provide for an alternative regarding the admission and exclusion of such inadmissible evidence. In this case, in my view, a violation of Article 6(1) of the Convention can be asserted on the basis of yet another criterion: the lack of alternatives to the admission and exclusion of evidence deemed inadmissible under national law. This criterion may take precedence over the criteria cited above, based on the principles governing the court’s application of Article 6 of the Convention.

Let us analyze the mechanism for declaring evidence inadmissible using the example of the application of Article 87(2)(1) of the Code of Criminal Procedure both during the pretrial investigation and during the trial, bearing in mind that the European Court of Human Rights (ECHR) does not, in its case law, consider such conduct a violation of Article 6 of the Convention at the pretrial investigation stage.

Thus, U.S. citizen Sh. was suspected by the pre-trial investigation authority of committing a crime under Part 1 of Article 201 of the Criminal Code, namely, transporting cartridges for rifled hunting weapons across Ukraine’s customs border without customs control. These facts came to the attention of the Security Service of Ukraine after a parcel containing the cartridges being transported from the United States to Ukraine was opened. However, the parcel was opened without a ruling by an investigating judge, thus in violation of Article 31 of the Constitution and Articles 14 and 258 of the Code of Criminal Procedure.

During the hearing on the motion to impose a preventive measure in the form of pretrial detention on U.S. citizen S., the defense attorney filed a motion pursuant to paragraph 1 of part 2, Part 4 of Article 87, Part 1 of Article 94, and Part 2 of Article 177 of the Code of Criminal Procedure, requesting that the items seized from the parcel be declared inadmissible as evidence.

The investigating judge granted the investigator’s motion but denied the motion to declare the evidence inadmissible, citing its prematurity and the fact that this issue is to be resolved during the trial on the merits. The appellate court upheld this ruling for similar reasons.

Thus, Part 4 of Article 87 of the Code of Criminal Procedure stipulates that the evidence specified in this article must be deemed inadmissible by the court during any judicial proceedings. However, in accordance with the provisions of paragraph 24 of Part 1 of Article 3 and Chapter 28 of the CPC, a trial is the stage of criminal proceedings at which the case is considered on its merits, and this stage does not pertain to the pretrial investigation. This leads to the conclusion that Part 4 of Article 87 of the CPC does not apply during the pretrial investigation stage.

But what about Article 94 of the CPC, according to which the investigating judge, based on his or her inner conviction grounded in a comprehensive, complete, and impartial examination of all circumstances of the criminal proceedings, and guided by the law, evaluates each piece of evidence in terms of its relevance, admissibility, and reliability, and the body of evidence collected—in terms of sufficiency and interconnection—for the purpose of rendering the relevant procedural decision?

At the same time, Part 2 of Article 177 of the Code of Criminal Procedure establishes that the grounds for applying a preventive measure include, in particular, the existence of reasonable suspicion that a person has committed a criminal offense.

Defense at Any Stage

Current judicial practice is based on the premise that investigating judges generally avoid examining the evidence and making a substantive assessment of whether there is reasonable suspicion. Motions challenging the admissibility of the evidence on which the suspicion is based, as well as other circumstances, are ignored. Rulings on pretrial detention do not specify

the evidence on which the investigating judge based his or her conclusion, as pointed out by attorney Yaroslav Zeikan (see “ZiB” No. 3/2016. — Ed.).

In my view, this completely contradicts the provisions of the aforementioned articles of the Code of Criminal Procedure. Pursuant to Part 6 of Article 9 of this Code, in cases where its provisions do not regulate or ambiguously regulate issues of criminal proceedings, the general principles set forth in Part 1 of Article 7 of the Code of Criminal Procedure shall apply. Thus, taking into account the provisions of Part 6 of Article 9, Part 1 of Article 94, Part 2 of Article 177, and Part 1 of Article 178 of the CPC, I believe that when deciding on the imposition of a preventive measure, investigating judges are required to apply the provisions of Article 87 of the CPC, including Part 4 of that article.

Moreover, the phrase “in any court proceeding” also supports this view. After all, if we proceed from a formal understanding of the term “judicial proceedings,” then it refers exclusively to those provided for in Chapter 28 of the Code of Criminal Procedure and begins at the time specified in Article 347 of the Code of Criminal Procedure. This leads to the conclusion that the phrase “in any judicial proceeding” is used by the legislature in a general sense, just like the word “court.”

In my view, this issue can be resolved by making appropriate amendments to Part 4 of Article 87 of the Code of Criminal Procedure to avoid ambiguity or by providing an official interpretation of what is meant by the phrase “in any court proceeding” and the word “court” as used in this article.

At the same time, in practice, a problem arises regarding the application of Part 2 of Article 89 of the CPC, since in most cases, despite the evident inadmissibility of evidence, judges do not resolve this issue immediately, as required by Part 2 of Article 89 of the Code of Criminal Procedure, but only in the deliberation room while rendering a decision, which substantially violates the requirements of the Code of Criminal Procedure.