Grade: 2. Should investigating judges evaluate the evidence?

When investigating judges review motions—particularly when deciding on the application of pretrial measures—defense attorneys often raise questions regarding the validity of the suspicion.

One of the criteria for assessing the validity of the suspicion is verifying whether the circumstances set forth in the notice of suspicion are corroborated by the evidence in the case file.

Unfortunately and surprisingly, when considering this criterion, investigating judges generally take the position that, at the pretrial investigation stage, an investigating judge has no authority to rule on the admissibility and relevance of evidence; therefore, they effectively refrain from evaluating it.

As an example, one may cite the ruling of the panel of judges of the Kyiv City Court of Appeal dated July 27, 2016, in Case No. 11-ss/796/2389/2016, in which the panel noted the following: “In this regard, the panel of judges deems it necessary to note that, at this stage of the proceedings, the investigating judge is not authorized to decide on matters that must be decided by the court when considering the merits of a criminal case, that is, is not authorized to evaluate evidence in terms of its sufficiency and admissibility for establishing the guilt or innocence of a natural or legal person for committing a criminal offense, but is only obligated, based on a reasonable assessment of the totality of the evidence obtained, to determine that a particular person’s involvement in the commission of a criminal offense is probable, and that the materials provided contain sufficient legal grounds for applying measures to secure criminal proceedings, one of which is the seizure of property.”

However, this position taken by the judges is quite controversial because, first, it is not based on any provision of procedural law, and second, it directly contradicts several provisions of procedural law.

Thus, in accordance with the provisions of Part 3 of Article 17 of the Criminal Procedure Code of Ukraine, suspicion cannot be based on evidence obtained unlawfully.

Thus, the legislature directly links the validity of suspicion to the legality of obtaining evidence; therefore, this provision not only grants the right but also obligates the investigating judge and the defense counsel to pay attention to materials that indicate the legality or illegality of the evidence on which the notice of suspicion is based, since the illegality of its collection indicates that the suspicion is unfounded; after all, it is already inappropriate to verify the validity of the suspicion at the trial stage.

Furthermore, the need to examine evidence at the pretrial investigation stage is also indicated by the content of Part 1 of Article 84 of the Criminal Procedure Code of Ukraine, according to which evidence in criminal proceedings consists of factual data on the basis of which the investigating judge, prosecutor, investigating judge, and the court establish the presence or absence of circumstances relevant to the criminal proceedings, as well as paragraph 1 of Part 1 of Article 178 of the Code of Criminal Procedure of Ukraine, which provides that when selecting a preventive measure, the investigating judge must assess the weight of the available evidence regarding the suspect’s commission of a criminal offense.

In this case, it is evident that the validity of the notice of suspicion—in terms of the circumstances set forth therein being corroborated by actual evidence (the weight of the evidence)—is of direct significance to the criminal proceedings; otherwise, the notice of suspicion is merely a fictional account by the investigator. Therefore, the investigating judge must examine the evidence and, based on it, establish the relevant circumstances.

This function of the investigating judge also follows directly from the definition set forth in Article 3 of the Criminal Procedure Code of Ukraine, according to which an investigating judge is a judge whose powers include exercising judicial oversight over the observance of the rights, freedoms, and interests of individuals in criminal proceedings. Whether it is possible to properly monitor compliance with a suspect’s rights without examining the substance of the evidence and the legality of the mechanism by which it was obtained is, I believe, a rhetorical question.

At the same time, Part 1 of Article 94 of the Code of Criminal Procedure of Ukraine, which regulates the concept of evidence evaluation, states, among other things, that the investigating judge evaluates each piece of evidence in terms of its relevance, admissibility, and reliability, and the body of evidence as a whole—in terms of sufficiency and interconnection—for the purpose of rendering the appropriate procedural decision.

Thus, based on the foregoing, it can be concluded that the investigating judge, when considering motions during the pretrial investigation stage, has the right and dutynot only to examine the evidence submitted by the parties but also to assess its admissibility and relevance and to substantiate the corresponding decisions with their conclusions on this matter.

Furthermore, the legislature has safeguarded the prosecution against any potential harm that such an assessment of evidence and the drawing of corresponding conclusions might cause to the investigation.

Thus, Article 198 of the Code of Criminal Procedure of Ukraine for example, it is provided that conclusions regarding any circumstances related to the suspicion, expressed in an investigating judge’s ruling following consideration of a motion to apply a preventive measure, shall not have prejudicial effect for the court or the investigator during this or any other criminal proceeding.

Thus, the above analysis of the legal provisions indicates that investigating judges have not only the right but also the duty to examine evidence and assess its admissibility and relevance when ruling on motions and complaints during the pretrial investigation; therefore, we urge representatives of the judiciary to be more demanding regarding the quality of law enforcement agencies’ work and to be bold in exercising judicial oversight over the observance of human rights.