“NOTICE OF SUSPICION AND SEIZURE OF PROPERTY: EVALUATION OF EVIDENCE AND PROPER SUBSTANTIATION OF RESOLUTIONS OF INVESTIGATING JUDGES” - DENYS PONOMARENKO, PARTNER AND LAWYER OF BARRISTERS JSC

“NOTICE OF SUSPICION AND SEIZURE OF PROPERTY: EVALUATION OF EVIDENCE AND PROPER SUBSTANTIATION OF RESOLUTIONS OF INVESTIGATING JUDGES” - DENYS PONOMARENKO, PARTNER AND LAWYER OF BARRISTERS JSC

Introduction

I was motivated to refer to this topic by the controversial position of some investigating judges that "the admissibility of evidence is within the exclusive competence of the court during the proceedings." In most cases it is stated in the case-law that investigating judges may not carry out the evaluation of evidence, since it should be carried out at sentencing.

Here are some resolutions that outline this position.

In the ruling of the investigating judge of Kyiv District Court of Odesa as of February 15, 2018 (case No. 520/1784/18), the investigating judge stated that according to the current Criminal Procedure Code of Ukraine, the investigating judge is not a judge literally, and therefore the investigating judge is not entitled to resolve the issues to be resolved by the court when considering the criminal proceedings on the merits, in particular, as regards the evidence inadmissibility.

In the ruling of the investigating judge of Pecherskyi District Court of Kyiv as of 30.06.2015 (case No.757/20659/15-k), it is stated that according to the general rule established by part 1 of Art. 89 of the CPC of Ukraine, the court resolves on the admissibility of evidence during their evaluation in the consultation room when rendering the court resolution, and the investigating judge at the stage of pretrial investigation is not empowered to resolve this kind of issue by considering the complaint of the party of criminal proceedings filed in accordance with Art. 303 of the CPC of Ukraine.

In the ruling of the investigating judge of Zhovtnevyi District Court of Dnipropetrovsk as of 11.01.2018 (Case No.201/151/18), the investigating judge explained to the defense lawyers that part 1 of Art. 89 of the CPC of Ukraine established the procedure for the recognition of evidence as inadmissible, and this is premature. When considering a request for a pretrial restriction, it is first and foremost necessary to establish the existence of risks and the reasonableness of the suspicion.

In the ruling of the Court of Appeal of Odesa Oblast as of 21.12.2017 (proceedings No. 11-cc/785/2068/17), regarding recognition of evidence as inadmissible, the panel of judges stated that if literarily to interpret art. 89 of the CPC of Ukraine, which refers to a “court” but there is no  mention of an “investigating judge”, it can be concluded that the investigating judge who makes a decision at the pretrial stage is not empowered to recognize evidence as inadmissible and this issue should be resolved by the court during the trial of the criminal proceedings on the merits, since the issue of admissibility of evidence submitted by the participants of the criminal proceedings, without their verification and comparison with other evidence is possible only during the trial or even in consultation room when resolving the case on the merits and rendering the resolution (sentencing).

Does the investigating judge have the power to evaluate the evidence, including its admissibility, appropriateness, reliability and sufficiency (in their totality) or not?

Properties of resolutions of the investigating judge (lawfulness, substantiation and reasonableness)

The court resolution must be lawful, substantiated and reasonable (Part 1 of Article 370 of the CPC).

The resolution rendered by the court on the basis of objectively clarified circumstances supported by the evidence examined during the trial and evaluated by the court in accordance with Article 94 of the CPC of Ukraine (Part 3 of Article 370 of the CPC of Ukraine) is reasonable.

In practice, a fairly common ground for dismissing complaints of cancelation of notice of suspicion is the position of investigating judges that the evidence evaluation is not within their competence, since at this stage of the proceedings the investigating judge is not entitled to decide the issues to be resolved by the trial court when considering criminal proceedings on the merits, in particular, to evaluate evidence in terms of their sufficiency and admissibility for pleading a person guilty or not guilty of a criminal offense.

Here are some examples of rulings: Thus, in the rulings of Vinnytsia Court of Appeal, the investigating judges state: “the defense lawyer’s argument that there is no crime in PERSON_2's actions, presence of crime has not been proved by the prosecution, because the intent of PERSON_2. of fraud and mercenary motive for the acquisition of the right to property belonging to PE Firm Yasco and the land plot on which the property is located is not established, is not taken into account by the court, since at this stage of criminal proceedings it is not allowed to resolve those issues that the court must resolve when considering the case on the merits, namely, issues related to the evaluation of evidence in terms of their admissibility, appropriateness and sufficiency for pleading a person guilty or not guilty of a crime”.[1]

“The arguments of the appeal of the suspect's PERSON_3 defense lawyer, lawyer PERSON_2 regarding the inconsistency of the notice of suspicion with the criteria of “reasonable suspicion” are groundless, since the appellate court believes that the notice of suspicion of PERSON_3 of criminal offense under p.2,3 of Art 27, p. 5 of Art. 191, p. 1 of Art. 333 of the Criminal Code of Ukraine, meets the requirements of Art. 277 of the CPC of Ukraine. However, it should be noted that the investigating judge at the stage of pretrial investigation is not entitled to decide the issues that the court must resolve in the course of criminal proceedings on the merits, in particular, to evaluate the evidence in terms of their sufficiency and admissibility for pleading a person guilty or not guilty of a crime, and under what provision of the Criminal Code that person is liable, since the proper evaluation of the evidence submitted in the case will be made within the framework of court proceedings”[2].

Moreover, even "a violation of the search procedure is not a ground for cancelation of suspicion", whereby "the Court notes that the issue of inadmissibility of evidence is resolved during the court proceedings".[3]

The same is the position of investigative judges of the Court of Appeal of Dnipropetrovsk Oblast, where "analyzing the arguments of the defense party on the lack of evidence of committing incriminated crimes by PERSON_2 on suspicion, the court considers them unreasonable, since it emphasizes that at the stage of consideration of complaints the investigating judge cannot evaluate admissibility and appropriateness of evidence, since the pretrial investigation is pending, and according to Art. 89, 94 of the CPC of Ukraine, admissibility and appropriateness of evidence will be evaluated by the court of first instance when considering the criminal proceedings on the merits”[4].

Another example of the practice is the resolution of the Odesa Court of Appeal, thus "the arguments of the defense party that PERSON_5 is not an official holding a responsible position at this stage of the pretrial investigation cannot be grounds for canceling the notice of suspicion of PERSON_5, since the specified circumstances shall be given a legal evaluation when considering the criminal proceedings on the merits.

The evidence that prosecutor's office of Odesa Oblast is not authorized to conduct pretrial investigation in the said criminal proceedings is a ground for recognition of the evidence as inadmissible, however, the examination of the said arguments should also be carried out during the trial of the criminal proceedings in the court of first instance”[5].

On the basis of abovementioned, regardless of whether the defense party indicated the inadmissibility of evidence that substantiates the suspicion or not, this is not a ground for canceling the notice of suspicion.

At the same time, summarizing the stated information in the ruling it is pointed out that “During the appellate review the appellate court did not establish any grounds for recognizing evidence that substantiates the suspicion of PERSON_5 as inadmissible, in the context of the provisions of p. 4 of Article 87 of the CPC of Ukraine, that is, which were obtained by the pre-investigation body as a result of a substantial violation of human rights and freedoms, even though such grounds were established and the Court of Appeal itself stated that the evidence was inadmissible, but from the standpoint of the Court of Appeal, this could not be a ground for cancelation of the notice of suspicion.

A similar justification is given in the Ruling of Odesa Court of Appeal as of 21.03.2019, proceedings No. 11-cc/813/474/19, local court case number: 520/1876/19 1-кс/520/1393/19 (Presiding Judge Tolkachenko O.O., Judge: Kopitsy O.V., Potanina O.O.): “The Court of Appeal notes that in this case the issue of reasonableness of the suspicion is resolved, so the court cannot evaluate the admissibility and appropriateness of the evidence as pretrial investigation is pending, during which investigators conduct investigative actions aimed at identifying and documenting evidence of person’s involvement in the crime, and in accordance with Art. Art. 89, 94 of the Criminal Procedure Code of Ukraine, admissibility and appropriateness of evidence will be evaluated by the court of first instance when considering the criminal proceedings on the merits", therefore, the defense lawyer’s complaint against the notice of suspicion was also dismissed[6].

This position is contrary to the direct requirements of the CPC of Ukraine:

  • Article 94 of the CPC of Ukraine: Investigating Prosecutor, Investigating Judge, a court of its own conviction, based on a comprehensive, complete and impartial examination of all circumstances of criminal proceedings, guided by law, shall evaluate each piece of evidence in terms of appropriateness, admissibility, reliability and validity, and the totality of the collected evidence – in terms of sufficiency and interconnection for making the appropriate procedural decision;
  • Article 84 of the CPC of Ukraine: evidence in criminal proceedings is factual data obtained in accordance with this Code, on the basis of which the investigating prosecutor, investigating judge and court establish the presence or absence of facts and circumstances relevant to criminal proceedings and subject to proving;
  • Article 132 of the CPC of Ukraine: it is not allowed to apply interim remedies of criminal proceedings unless the investigating prosecutor proves that: 1) there is a reasonable suspicion of committing a criminal offense of such severity as may be a basis for the application of interim remedies of criminal proceedings; 2) the need of the pretrial investigation justifies the degree of interference with the rights and freedoms of the person referred to in the request of the investigating prosecutor; 3) the task for which the investigating prosecutor files the petition, may be performed. When considering interim remedies of criminal proceedings, the parties to criminal proceedings must provide the investigating judge or court with evidence of the circumstances to which they refer.
  • Article 194: when considering a petition for a pretrial restriction, the investigating judge, the court shall establish whether the evidence provided by the parties to the criminal proceedings prove: 1) the existence of reasonable suspicion of the suspect, the accused committing the criminal offense; 2) the existence of sufficient grounds to believe that there is at least one of the risks provided for in Article 177 of this Code, and which is indicated by the investigating prosecutor; 3) insufficient application of mild trial restrictions to prevent the risk or risks specified in the petition.

           It should be noted that such a position about the impossibility of evaluation by the investigating judge of evidence is also denied in a number of scientific researches, in particular, I.V. Hloviuk, T.V. Lukashkina, M.M. Stoianova, V.A. Zavtura and others.

            Moreover, back in 2013, in the Information Letter of the Higher Specialized Court on Civil and Criminal Cases “On Some Issues of Application of Pretrial Restrictions in Pretrial Investigation and Proceedings Pursuant to the Criminal Procedure Code of Ukraine”, judges were reminded that when deciding whether to apply, extend, amend or revoke a restriction when considering appropriate petitions, the investigating judge shall every time: check he existence of grounds and purpose of the application of a pretrial restriction in criminal proceedings, establish the validity of such grounds in the light of the facts, establish the specific circumstances of the criminal proceedings. This reaffirms the thesis of the duty of investigating judges to evaluate evidence.

Relevant questions also arise when considering petitions for the seizure of property, the application of pretrial restrictions, as well as when considering complaints against the notice of suspicion.

Reasonableness of suspicion as a general condition for the application of interim remedies of criminal proceedings

One of the general conditions (rules) for the application of any interim remedies of criminal proceedings (including the seizure of property) is proving by the investigating prosecutor that “there is a reasonable suspicion of committing a criminal offense of such severity that may be the basis for the application of interim remedies of criminal proceedings” (par. 1 of Part 3 of Article 132 of the CPC of Ukraine).

The reasonableness of the suspicion has two aspects. The first concerns the issue of law: the suspicion must relate to an offense under the law. The second is the issue of fact: circumstances must be proved which, in a reasonable and impartial interpretation, give rise to suspicion of a person's involvement in a particular criminal offense. In resolution in Nechyporuk and Yonkalo v. Ukraine case (p. 175), the European Court of Human Rights reiterated that the term "reasonable suspicion" means that there are facts or information that can persuade an objective observer that a person concerned could have committed an offense.

Scientific researches indicate that the standard of proof of "reasonable suspicion" is considered attained if the facts and information are sufficient to convince an objective observer that the person concerned could have committed an offense.

The reasonableness of a suspicion can only be established in respect of an act that has signs of an offense under the criminal liability law.

The reasonableness of a suspicion cannot be established in abstracto or based on subjective assumptions, but must be substantiated by specific evidence in criminal proceedings.

The "reasonable suspicion" standard of proof does not imply that the competent authorities must operate on evidence sufficient to admit a charge or the adoption of a conviction, which is less likely to be necessary in the early stages of criminal proceedings to limit the person’s rights.

The standard of proof of “reasonable suspicion” has a dynamic character, that is, over time such suspicion of committing a criminal offense cannot be an independent ground for further restriction of the rights of a person, appropriate and sufficient grounds (risks), supported by evidence, must be provided.

Even when making the first decision to apply a pretrial detention, national courts must cite evidence of reasonable suspicion and the corresponding risks cumulatively[7].

On evaluation of evidence at the seizure of property

When resolving on seizure of property, the investigating judge should take into account the existence of reasonable suspicion of committing a criminal offense or a socially dangerous act that falls within the scope of the act provided for by the law of Ukraine on criminal liability (if property seizure is imposed for the purpose of confiscation of property as type of punishment or measure of criminal and law nature in respect of a legal person or compensation for damage caused by a criminal offense (civil claim) or recovery from a legal entity of received undue benefits.

In cases related to the seizure of physical evidence, there are cases of a formal approach where investigating judges do not analyze whether certain objects have signs of physical evidence but base their decision on refusing to seize property in the absence of an investigator's or prosecutor's decision to admit certain physical objects as physical evidence. Although the CCP of Ukraine does not explicitly provide for the duty of an investigating prosecutor to adopt such decision, and its absence does not establish any legal consequences.

Practice of refusing to seize property in the absence of a resolution to admit physical evidence

An example from the ruling: “In view of the foregoing, the investigating judge not seeing the prerequisites for the arrest, would consider it advisable to recommend to the investigator, if there are reasonable grounds, to determine the status of this thing as physical evidence in criminal proceedings and to preserve it in the interests of an effective investigation to determine by virtue of Art. 100 CPC of Ukraine a proper storage place”[8]. Very broadly, this was substantiated in the ruling as follows: “The investigating judge considers that the conclusion of the pretrial investigation body regarding the conformity of property to certain features of Art. 98 of the CPC of Ukraine can be made only in the text of the resolution, which must meet the requirements of Part 5 of Art. 110 of the CPC of Ukraine, including the reasons for the decision made. The absence of a resolution on the admission of property as physical evidence as a separate procedural document, which captures the investigator's conclusion on the admission of the property as physical evidence and the reasons from which he came to such an opinion, deprives the investigating judge of the opportunity to analyze and conclude that the property corresponds to the provisions of Art. 98 of the CPC of Ukraine and the presence or absence of grounds for the seizure of property precisely for the purpose of preserving it as physical evidence, since the investigating judge is not empowered to determine independently the grounds provided for in Art. 98 of the CPC of Ukraine and should monitor the correctness of the decision taken by the investigator. Taking into account the aforementioned, as well as the fact that the investigator did not provide the investigating judge with the decision on the admission of property as physical evidence, which indicates that there are no grounds for seizure precisely with the purpose of ensuring the preservation of physical evidence, since without the relevant decision, the property cannot acquire the status of physical evidence, and the investigator's petition does not contain any other purpose, since it does not contain any information about whether any person in this proceeding was notified of the suspicion or whether it has a civil claim filed”[9].

Another example: “An investigating prosecutor who considers it necessary to file to an investigating judge with a petition for the seizure of property to ensure its preservation as physical evidence, should first and foremost recognize the property which he seeks to seize as physical evidence in criminal proceedings by making a resolution stating the grounds for recognition of the property as physical evidence, in view of the provisions of Art. 98 of the CPC of Ukraine, however, no such actions have been taken, given the absence in the materials attached to the petition of a resolution on the recognition of property as physical evidence[10]."

The ruling stated that the petition for seizure of property requested to seize a passport of a citizen of Ukraine in the name of PERSON_1 to establish her identity and stated the following reason: to ensure the preservation of physical evidence, however, the passport was not recognized as physical evidence in accordance with the CPC of Ukraine, and therefore the latter cannot be seized as physical evidence[11]. Attention was also drawn to the fact that the investigators did not prove in the petition that the property meets the criteria under Art. 170, Part 2, p. 1 of the CPC of Ukraine, namely, what probative value it has for criminal proceedings. When reviewing the petition, it was not clear on the basis of which investigative (search) actions the investigator concluded that the property seized during the examination was physical evidence. There is no resolution on the admission of physical evidence in the materials attached to the petition[12].

Application of pretrial restrictions

The pretrial restriction is based on the existence of reasonable suspicion of committing a criminal offense, as well as the presence of risks. Investigating prosecutor shall not have the right to initiate the application of a preventive measure without the reasons provided for in this Code. That is, the validity of the suspicion of fact aspect and of law aspect, as well as the risks, must be proved to the investigating judge, and the extent of their evidence must be reflected in the ruling. Otherwise, the resolution of the investigating judge will be arbitrary. This is completely correlated with the ECHR position under Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms: The concept of "arbitrariness" in par.1 of Article 5 has a broader meaning than simply non-compliance with national law, so that imprisonment may be lawful from the point of view of domestic law, but still arbitrary in the sense of the Convention thereby violating its provisions (Creangă v. Romania, par. 84; A. and Others v. the United Kingdom [A. and others v. the United Kingdom] [VP], par. 164; Saadi v. the United Kingdom (Saadi v. The United Kingdom) [VP], par. 68-74. Detention is, in principle, "legal" if it is based on a court order. The lack or insufficiency of justification in detention orders is one of the elements taken into account by the Court in evaluating the lawfulness of detention under par.1 Article 5. Thus, there is no reason in the decisions of the judicial authorities that authorize detention for a long period of time may be incompatible with the principle of protection against arbitrariness laid down in par.1 Article 5 (Stašaitis v. Lithuania, par. 66-67). Similarly, a too short resolution which makes no reference to any legal provisions that would allow detention cannot provide sufficient protection against arbitrariness (Khudoyorov v. Russia, par. 157).

The activities of investigative judges should be as a filter which, by promptly resolving the issue of inadmissibility of the evidence, would lead to the impossibility of directing to court of the criminal proceedings which do not have a judicial perspective because of the apparent inadmissibility of the evidence on which the suspicion is based.

Complaint against the notice of suspicion

The complaint against the notice of suspicion in Ukraine has been effective for more than a year. Undoubtedly, this is an important instrument of defense in criminal proceedings, since if the notice of suspicion is cancelled, the person loses the status of the suspect, no pretrial restrictions can be applied to him, in absentia pretrial investigation can be sought, and in some cases issue regarding the continued investigation may be raised, and depending on the grounds for the cancellation, the admissibility of the evidence giving rise to the suspicion. However, it has some difficulties in implementation, due to the fact that, first of all, the subject of judicial research when considering such complaint is not defined in the CPC of Ukraine, and therefore the case law is not always interpreted in the same way; there are also cases where the reasonableness of suspicion has already been checked if a pretrial restriction has been applied to the suspect; there are cases where investigating judges refuse to analyze the reasonableness of a suspicion. Therefore, as a whole, the right to appeal a notice of suspicion is effective, however, this mechanism needs to be improved.

When considering a complaint against a notice of suspicion, there are two areas in the court practice:

  • evaluation by the investigating judge of the reasonableness of the suspicion and the form and content of the document - notice of suspicion, as well as the procedure for notification of suspicion;
  • evaluation by the investigating judge only of the form and content of the document - notice of suspicion and the procedure for notification of suspicion.

The second approach is more common.

However, the CPC of Ukraine has no restrictions on the scope of the investigating judge's consideration of the complaint against a notice of suspicion. Therefore, when considering and resolving by the investigative judge of complaints against a notice of suspicion both the issue of law and the issue of fact must be resolved, since this corresponds to the essence of the appeal against a notice of suspicion as prevention of the prosecution of an innocent person.

Moreover, given the provisions of Art. 94 of the CPC of Ukraine, which is of a general nature with respect to all the resolutions of the investigating judge, the investigating judge should consider the issue of proving the reasonableness of the suspicion, and both the prosecution evidence and the defense evidence should be evaluated.

This approach, both regarding substantiating the use of interim remedies of criminal proceedings and regarding complaints against a notice of suspicion will facilitate prevention of referral of cases that are knowingly without a judicial perspective to the court.




Author: DENYS PONOMARENKO, PARTNER AND LAWYER OF BARRISTERS JSC

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