“The ECHR takes a firm and consistent stance on deeming evidence obtained through torture inadmissible,” said Iryna Hlovyuk, attorney and research advisor at Barristers Law Firm.

At LHS, Iryna Hlovyuk, an attorney at Barristers JSC, delivered a lecture titled “The Fruit of the Poisonous Tree Doctrine: Challenging the Use of Evidence Obtained Through the Use of Force. The ECHR’s Ruling in the Case of ‘Fefilov v. Russia.’”

“The ECHR takes a firm and consistent stance in deeming evidence obtained through torture inadmissible,” said Iryna Hlovyuk, attorney and research advisor at Barristers JSC.

At the beginning of the lecture, Iryna Hlovyuk emphasized that the concept of the “fruit of the poisonous tree” is enshrined in Article 87 of the Criminal Procedure Code of Ukraine, “Inadmissibility of Evidence Obtained as a Result of a Substantial Violation of Human Rights and Freedoms.”

If we look at the history of the term’s origin, the roots of this concept can be traced back to American case law. Thus, the doctrine known as “fruit of the poisonous tree” states: any additional evidence derived from illegally obtained evidence is also considered illegal and cannot be admitted in court. If the tree is poisoned (i.e., the evidence was obtained unlawfully), then the fruit (information based on that unlawful evidence) is also poisoned. However, there are exceptions to this rule. For example, if the investigation can prove that the derivative evidence was obtained from another source, the court will consider it. Evidence is also admissible if the prosecutor can prove that the disputed information “would inevitably have been obtained by lawful means.”

Only in certain cases is the ECHR, contrary to the position of a national court, prepared to conclude that a particular piece of evidence was entirely unreliable due to the suspicious circumstances under which it was obtained (the judgment in Lisica v. Croatia).

The ECHR’s position is consistent regarding the admissibility of evidence obtained in violation of the prohibition against torture and inhuman or degrading treatment. For example, in the case of “Nechiporuk and Yonkalo v. Ukraine” (Application No. 42310/04), the Court noted: the admissibility as evidence of testimony obtained through torture, for the purpose of establishing the relevant facts in criminal proceedings, renders the proceedings unfair as a whole, regardless of the probative value of such testimony and whether its use was decisive for the court’s conviction of the defendant.

Regarding access to legal assistance, the ECHR’s decision in the case of “Fefilov v. Russia” was particularly instructive. The ECHR concluded that the applicant had not been given the opportunity to obtain legal advice before he signed a confession and was officially designated as a suspect in the criminal case. The Court also concluded that the applicant’s ability to consult with a lawyer from the moment of his de facto detention had been restricted without any “compelling reasons,” and thus there had been a violation of Article 6 of the Convention.