"Notices of Suspicion and Seizure of Property: Evaluation of Evidence and the Rationale Behind Investigating Judges’ Decisions" – Denis Ponomarenko, Partner and Attorney at BARRISTERS Law Firm

Introduction

I was prompted to address this topic by the controversial position of certain investigating judges that “the determination of the admissibility of evidence falls within the exclusive jurisdiction of the court during trial proceedings.” As a rule, judicial practice generally holds that investigating judges cannot evaluate evidence, since such evaluation should take place during sentencing.

Here are some decisions that set forth this position.

In a ruling by an investigating judge of the Kyiv District Court of Odesa dated February 15, 2018 (Case No. 520/1784/18), the investigating judge noted that, according to the current Criminal Procedure Code of Ukraine, an investigating judge is not a judge in the literal sense, and therefore an investigating judge is not authorized to resolve issues that a court must resolve during the trial phase of criminal proceedings, including, in particular, the admissibility of evidence.

In the ruling of the investigating judge of the Pechersk District Court of Kyiv dated June 30, 2015 (Case No. 757/20659/15-k), it is stated that, as a general rule established by Part 1 of Article 89 of the Code of Criminal Procedure of Ukraine, the court decides on the admissibility of evidence during its evaluation in the deliberation room when rendering a judicial decision, and the investigating judge, at the stage of the pretrial investigation, is not authorized to resolve such issues by considering a complaint filed by a party to the criminal proceedings in accordance with Article 303 of the Code of Criminal Procedure of Ukraine.

In the ruling of the investigating judge of the Zhovtnevy District Court of Dnipropetrovsk dated January 11, 2018 (Case No. 201/151/18), the investigating judge, regarding the admissibility of evidence, explained to the defense attorneys that Part 1 of Article 89 of the Code of Criminal Procedure of Ukraine establishes the procedure for declaring evidence inadmissible, and that it is currently premature to do so. When considering a motion to impose a preventive measure, it is first necessary to establish the existence of risks and the validity of the suspicion.

In the ruling of the Odesa Regional Court of Appeal dated December 21, 2017 (Case No. 11-ss/785/2068/17), regarding the exclusion of evidence, the panel of judges noted that if Article 89 of the Code of Criminal Procedure of Ukraine—which refers to a “court”—is interpreted literally, but there is no mention of an “investigating judge,” one can conclude that an investigating judge, who makes decisions during the pretrial investigation stage, does not have the authority to declare evidence inadmissible, and this issue must be resolved by the court during the trial of the criminal proceedings on the merits of the charges brought, since the question of the admissibility of evidence submitted by the parties to the criminal proceedings, without examining it and comparing it with other evidence, is possible only during a trial or even in the deliberation room when deciding the case on its merits and rendering a decision (passing sentence).

So, does the investigating judge have the authority to evaluate evidence—specifically, its admissibility, relevance, reliability, and sufficiency (taken collectively)—or not?

Characteristics of an Investigating Judge’s Decisions (Legality, Reasoned Nature, and Substantiation)

A judicial decision must be lawful, well-founded, and reasoned (Part 1 of Article 370 of the Code of Criminal Procedure of Ukraine).

A decision is well-founded if it is rendered by the court on the basis of objectively established circumstances that are supported by evidence examined during the trial and assessed by the court in accordance with Article 94 of the Code of Criminal Procedure of Ukraine (Article 370(3) of the Code of Criminal Procedure of Ukraine).

In practice, a fairly common ground for denying complaints seeking to overturn a notice of suspicion is the position of investigating judges that the evaluation of evidence falls outside their jurisdiction, since, allegedly, at this stage of the proceedings, an investigating judge is not authorized to resolve issues that must be resolved by the court during the trial on the merits of the criminal case, in particular, to evaluate evidence in terms of its sufficiency and admissibility for finding a person guilty or not guilty of committing criminal offenses.

In this regard, several examples from rulings can be cited: For example, in rulings by the Vinnytsia Court of Appeals, the investigating judges note: “The defense counsel’s arguments that PERSON_2’s actions do not constitute a crime, and that the prosecution has failed to prove the existence of a crime, since PERSON_2’s intent to aid and abet fraud and his self-serving motive for acquiring the right to the property belonging to Private Enterprise ‘Firma Yasko’ and the land plot on which said property is located have not been established, the court does not take these into account, since at this stage of the criminal proceedings it is not permissible to resolve issues that the court must address during the trial on the merits, namely, issues related to the assessment of evidence in terms of its admissibility, relevance, and sufficiency for finding a person guilty or not guilty of committing a crime”^[1].

“The arguments in the appeal filed by the defense attorney for suspect PERSON_3, Attorney PERSON_2, regarding the failure of the notice of suspicion to meet the criteria for ‘reasonable suspicion’ are unfounded, since, in the opinion of the appellate court, the notice of suspicion served on PERSON_3 regarding the commission of criminal offenses under Parts 2 and 3 of Article 27, Part 5 of Article 191, and Part 1 of Article 333 of the Criminal Code of Ukraine meets the requirements of Article 277 of the Criminal Procedure Code of Ukraine. At the same time, it should be noted that the investigating judge, during the pretrial investigation stage, is not authorized to resolve issues that must be decided by the court during the trial on the merits of the criminal proceedings, in particular, to evaluate evidence in terms of its sufficiency and admissibility for finding a person guilty or not guilty of committing a crime, and under which provision of the Criminal Code that person is liable, since a proper assessment of the evidence presented in the case will be conducted within the framework of judicial proceedings.”^[2]

Moreover, even “a violation of the procedure for conducting a search does not constitute grounds for dismissing the suspicion,” and “the Court notes that the issue of the inadmissibility of evidence is resolved during the trial.”^[3]

A similar position is taken by the investigating judges of the Dnipropetrovsk Regional Court of Appeal, where “upon analyzing the defense’s arguments regarding the lack of evidence that PERSON_2 committed the crimes alleged in the charges, the court finds them unfounded, as it emphasizes that, at the stage of reviewing complaints, an investigating judge cannot assess the admissibility and relevance of evidence, since the pretrial investigation is ongoing, and in accordance with Articles 89 and 94 of the Criminal Procedure Code of Ukraine, the assessment of the admissibility and relevance of evidence will be made by the court of first instance when considering the criminal proceedings on the merits”^[4].

Another example from case law is the ruling of the Odesa Court of Appeals, namely, “the defense’s arguments that PERSON_5 is not a public official holding a position of responsibility at this stage of the pretrial investigation cannot serve as grounds for revoking the notice of suspicion served on PERSON_5, since these circumstances must be subject to legal assessment during the trial on the merits of the criminal case.

The arguments that the Odessa Regional Prosecutor’s Office is not authorized to conduct a pretrial investigation in the aforementioned criminal proceedings constitute grounds for declaring the evidence inadmissible; however, the verification of these arguments must also be carried out during the trial of the criminal proceedings in the court of first instance”^[5].

That is, based on this, regardless of whether the defense raised the issue of the inadmissibility of the evidence supporting the suspicion or not, this does not constitute grounds for revoking the notice of suspicion.

Furthermore, summarizing the above, the ruling states that “During the appellate review, the appellate court found no grounds to deem the evidence supporting the suspicion against PERSON_5 inadmissible, in the context of the provisions of Part 4 of Article 87 of the Criminal Procedure Code of Ukraine—that is, evidence obtained by the pretrial investigation authority as a result of a substantial violation of human rights and freedoms,” despite the fact that such grounds were established and the appellate court itself noted the inadmissibility of the evidence; however, from the appellate court’s perspective, this cannot serve as grounds for revoking the notice of suspicion.

A similar rationale is set forth in the Ruling of the Odesa Court of Appeals dated March 21, 2019, case number: 11-ss/813/474/19, local court case number: 520/1876/19 1-ks/520/1393/19 (Presiding Judge O.O. Tolkachenko, Judges: O.V. Kopitsa, O.O. Potanina):  “The Court of Appeals notes that in this case, the issue at hand is the validity of the suspicion; therefore, the court cannot assess the admissibility and relevance of the evidence, since a pretrial investigation is ongoing, during which the investigator is conducting investigative (search) actions aimed at identifying and documenting evidence of the person’s involvement in the committed crime; and in accordance with Articles 89 and 94 of the Criminal Procedure Code of Ukraine, the assessment of the admissibility and relevance of the evidence will be made by the court of first instance when considering the criminal proceedings on the merits,” and therefore, the defense counsel’s complaint regarding the notice of suspicion was also denied[6].

This position contradicts the explicit requirements of the Code of Criminal Procedure of Ukraine:

• Article 94 of the CPC of Ukraine: the investigator, prosecutor, investigating judge, and court, based on their internal conviction—which is grounded in a comprehensive, complete, and impartial examination of all circumstances of the criminal proceedings and guided by the law—shall evaluate 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;
• Article 84 of the Criminal Procedure Code of Ukraine: Evidence in criminal proceedings consists of factual data obtained in accordance with the procedure prescribed by this Code, on the basis of which the investigator, the prosecutor, investigating judge, and the court establish the presence or absence of facts and circumstances that are relevant to the criminal proceedings and subject to proof;
• Article 132 of the Criminal Procedure Code of Ukraine: the application of measures to secure criminal proceedings is not permitted unless the investigator or prosecutor proves that: 1) there is reasonable suspicion that a criminal offense of such severity has been committed that it may constitute grounds for applying measures to secure criminal proceedings; 2) the needs of the pretrial investigation justify the degree of interference with the person’s rights and freedoms specified in the investigator’s or prosecutor’s motion; 3) the objective for which the investigator or prosecutor is filing the motion can be achieved. When considering the application of measures to ensure criminal proceedings, the parties to the criminal proceedings must submit to the investigating judge or the court evidence supporting the circumstances they cite.
• Article 194: When considering a motion to apply a preventive measure, the investigating judge, the court is required to determine whether the evidence provided by the parties to the criminal proceedings establishes the circumstances indicating: 1) the existence of reasonable suspicion that the suspect or defendant has committed a criminal offense; 2) the existence of sufficient grounds to believe that at least one of the risks provided for in Article 177 of this Code exists, as indicated by the investigating judge or prosecutor; 3) the inadequacy of applying less severe preventive measures to prevent the risk or risks specified in the motion.

            It should be noted that this position—that an investigating judge cannot evaluate evidence—is also contested in a number of scholarly studies, in particular those by I.V. Glovuk, T.V. Lukashkina, M.M. Stoyanov, V.A. Zavtur, and others.

            Moreover, as early as 2013, in an Information Letter from the High Specialized Court for Civil and Criminal Cases “On Certain Issues Regarding the Application of Pre-Trial Measures During Pre-Trial Investigation and Court Proceedings in Accordance with the Criminal Procedure Code of Ukraine,” judges’ attention was drawn to the fact that when deciding on the application, extension, modification, or revocation of a pre-trial measure while considering relevant motions, the investigating judge is required in each instance to: verify the existence of grounds and the purpose for applying a preventive measure in criminal proceedings, and determine the validity of such grounds in light of the factual data and the specific circumstances of the criminal proceedings. This once again confirms the principle that investigating judges are obligated to evaluate the evidence.

Related issues also arise when considering motions for the seizure of property, for the application of preventive measures, and when reviewing complaints regarding notices of suspicion.

The Substantiation of Suspicion as a General Condition for the Application of Measures to Secure Criminal Proceedings

One of the general conditions (rules) for applying any measure to ensure criminal proceedings (including the seizure of property) is that the prosecutor must prove or the prosecutor, that “there is reasonable suspicion regarding the commission of a criminal offense of such gravity that it may serve as grounds for applying measures to ensure criminal proceedings” (para. 1, part 3, Art. 132 of the Code of Criminal Procedure of Ukraine).

The reasonableness of the suspicion encompasses two aspects. The first concerns a matter of law: the suspicion must relate to an offense provided for by law. The second is a question of fact: circumstances must be established which, upon reasonable and impartial interpretation, give rise to suspicion regarding a specific person’s involvement in a specific criminal offense. In the decision “Nechiporuk and Yonkalo v. Ukraine” (para. 175), the European Court of Human Rights reiterated that the term “reasonable suspicion” means that there are facts or information   which could convince an objective observer that the person in question may have committed an offense.

Academic studies indicate that the standard of proof of “reasonable suspicion” is met if there are sufficient facts and information to convince an objective observer that the person in question could have committed a criminal offense.

Reasonable suspicion may be established only with respect to an act that meets the elements of an offense under criminal law.

Reasonable suspicion cannot be established in abstracto or based on subjective assumptions, but must be supported by concrete evidence in criminal proceedings.

The standard of proof of “reasonable suspicion” does not require that the competent authorities rely on evidence sufficient to bring charges or secure a conviction, which is associated with a lower degree of probability required in the early stages of criminal proceedings to restrict a person’s rights.

The standard of proof of “reasonable suspicion” is dynamic in nature; meaning that, over time, such suspicion of a criminal offense cannot serve as an independent basis for continuing to restrict a person’s rights; relevant and sufficient grounds (risks), supported by evidence, must be provided.

Even when making the initial decision to apply a pretrial measure in the form of pretrial detention, national courts must provide evidence of the existence of reasonable suspicion and the corresponding risks cumulatively^[7].

Regarding the Assessment of Evidence in Property Seizure

When deciding on the seizure of property, the investigating judge must take into account the existence of reasonable suspicion that the person has committed a criminal offense or a socially dangerous act that meets the criteria of an act provided for by Ukrainian criminal law (if the seizure of property is imposed for the purpose of confiscation as a form of punishment or a criminal-law measure against a legal entity, or to compensate for damage caused as a result of a criminal offense (civil claim), or to recover unlawful gains obtained by a legal entity.

In cases involving the seizure of physical evidence, there are instances of a formalistic approach, where investigating judges do not analyze whether certain objects possess the characteristics of physical evidence, but instead base their decision to refuse seizure of property on the absence of a ruling by an investigator or prosecutor recognizing certain physical objects as material evidence. Although the Code of Criminal Procedure of Ukraine does not explicitly require an investigator or prosecutor to issue such a ruling, and its absence does not entail any legal consequences.

The practice of refusing to seize property in the absence of a ruling recognizing it as physical evidence

Example from a ruling: “In light of the foregoing, the investigating judge, finding no grounds for imposing a seizure, would consider it appropriate to recommend that the investigator, if there are reasonable grounds, determine the status of this item as physical evidence in the criminal proceedings and, for the purpose of its preservation in the interests of an effective investigation, designate, pursuant to Art. 100 of the Criminal Procedure Code of Ukraine, a suitable place for its storage”^[8]. This was extensively justified in the ruling as follows: “The investigating judge considers that the conclusion of the pretrial investigation authority regarding the property’s compliance with certain criteria under Art. 98 of the Criminal Procedure Code of Ukraine can be made only in the text of a ruling, which must comply with the requirements of Part 5 of Article 110 of the Criminal Procedure Code of Ukraine, in particular by containing the grounds for the decision. The absence of a ruling recognizing the property as physical evidence—as a separate procedural document that records the investigator’s conclusion that the property has acquired the status of physical evidence and the grounds on which he reached that conclusion— deprives the investigating judge of the ability to analyze and conclude whether such property complies with the provisions of Article 98 of the CPC of Ukraine and whether there are grounds for seizing the property specifically for the purpose of preserving it as physical evidence, since the investigating judge is not empowered to independently determine the grounds provided for in Article 98 of the Code of Criminal Procedure of Ukraine and is required to verify the correctness of the decision made by the investigator. In light of the foregoing, as well as the fact that the investigating judge has not been provided by the investigator with a ruling recognizing the property as physical evidence—which indicates the absence of grounds for seizing the property specifically to ensure the preservation of physical evidence, since without such a ruling, the property cannot acquire the status of physical evidence— and the investigator’s motion does not contain any other purpose, since it does not specify whether any persons in this proceeding have been notified of suspicion or whether a civil claim has been filed in this case”^[9].

Another example: “An investigator or prosecutor who deems it necessary to apply to an investigating judge for a seizure of property in order to ensure its preservation as physical evidence should first recognize the property for which he is requesting seizure as physical evidence in the criminal proceedings by issuing a ruling to that effect, in which he must specify the grounds for recognizing the property as physical evidence, in accordance with Article 98 of the Code of Criminal Procedure of Ukraine; however, no such actions were taken, given the absence of a ruling recognizing the property as evidence in the materials attached to the motion^[10].»

The ruling noted that the motion to seize property requested the seizure of a Ukrainian passport in the name of PERSON_1 to establish her identity and cited the following ground: to ensure the preservation of physical evidence, however, the passport had not been recognized as physical evidence under the Code of Criminal Procedure of Ukraine, and therefore it could not be seized as physical evidence^[11]. Attention was also drawn to the fact that the investigator failed to demonstrate in the motion that the property met the criteria set forth in Article 170, Part 2, Paragraph 1 of the Criminal Procedure Code of Ukraine, specifically, what evidentiary value it has for the criminal proceedings. During the consideration of the motion, it was unclear on the basis of which investigative (search) actions the investigator concluded that the property seized during the search constituted physical evidence. There is no ruling designating the property as physical evidence in the materials attached to the motion^[12].

Application of Pre-Trial Measures

The basis for applying a preventive measure is the existence of reasonable suspicion that a person has committed a criminal offense, as well as the presence of risks. An investigator or prosecutor does not have the right to initiate the application of a preventive measure without the grounds provided for in this Code. In other words, the reasonableness of the suspicion—both in terms of the facts and in terms of the law—as well as the risks, must be proven to the investigating judge, and the degree to which it has been proven must be reflected in the ruling. Otherwise, the investigating judge’s decision will be deemed arbitrary. This is fully consistent with the position of the European Court of Human Rights (ECHR) regarding Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms: the concept of “arbitrariness” in Article 5 § 1 has a broader meaning than mere non-compliance with national legislation, so that a deprivation of liberty may be lawful under domestic law but still arbitrary within the meaning of the Convention, thereby violating its provisions (Creangă v. Romania, § 84; A. and Others v. the United Kingdom [GC], § 164; Saadi v. the United Kingdom [GC], §§ 68–74). The duration of detention is, in principle, “lawful” if it is based on a court order. The absence or insufficiency of reasoning in detention orders is one of the factors taken into account by the Court when assessing the lawfulness of detention under Article 5 § 1. Thus, the absence of any grounds in the decisions of judicial authorities authorizing detention for a prolonged period may be incompatible with the principle of protection against arbitrariness enshrined in Article 5 § 1 (Stašaitis v. Lithuania, §§ 66–67). Similarly, an excessively brief decision that fails to cite any legal provisions justifying pretrial detention cannot provide sufficient protection against arbitrariness (Khudoyorov v. Russia, § 157).

The role of investigating judges must serve as a filter, which, by promptly resolving the issue of the inadmissibility of evidence, would prevent the referral to court of criminal proceedings that have no prospect of success due to the manifest inadmissibility of the evidence on which the suspicion is based.

Appealing a Notice of Suspicion

The right to appeal a notice of suspicion has been in effect at the legislative level in Ukraine for over a year. Undoubtedly, this is an important tool for the defense in criminal proceedings, since if the notice of suspicion is revoked, the individual loses the status of a suspect, preventive measures cannot be applied to them, a pretrial investigation in absentia is not possible, and in certain cases, questions may be raised regarding the failure to extend the time limits for the pretrial investigation; depending on the grounds for revocation, the admissibility of the evidence supporting the suspicion may also be challenged. However, its implementation presents certain challenges related to the fact that, first, the subject matter of judicial review when considering such a complaint is not defined in the Code of Criminal Procedure of Ukraine and is therefore not always interpreted uniformly in judicial practice; there are instances where it is argued that the validity of the suspicion has already been verified if a preventive measure has been applied to the suspect; there are also cases where investigating judges refuse to analyze the validity of the suspicion.  Therefore, overall, the right to challenge a notice of suspicion is effective; however, this mechanism requires improvement.

When considering complaints regarding a notice of suspicion, two approaches can be identified in judicial practice:

• the investigating judge’s assessment of the validity of the suspicion and the form and content of the document—the notice of suspicion—as well as the procedure for issuing the notice of suspicion;
• the investigating judge’s assessment of only the form and content of the document—the notice of suspicion—as well as the procedure for issuing the notice of suspicion.

The second approach is actually more common.

However, the Code of Criminal Procedure of Ukraine does not contain any restrictions regarding the scope of the investigating judge’s review of a complaint against a notice of suspicion. Consequently, when an investigating judge reviews and decides on complaints regarding a notice of suspicion, both questions of law and questions of fact must be addressed, as this corresponds to the essence of challenging a notice of suspicion—namely, to prevent the criminal prosecution of an innocent person.

Furthermore, given the provisions of Article 94 of the Code of Criminal Procedure of Ukraine, which applies generally to all rulings of the investigating judge, the investigating judge must examine the question of whether the suspicion is substantiated, and both the prosecution’s evidence and the defense’s evidence must be evaluated.

It is precisely this approach—both regarding the justification for applying measures to ensure criminal proceedings and regarding appeals against notices of suspicion—that will help prevent cases that are known to have no prospect of success in court from being referred to the court.

^[1] http://www.reyestr.court.gov.ua/Review/80114612

^[2] http://www.reyestr.court.gov.ua/Review/81585019

^[3] http://www.reyestr.court.gov.ua/Review/81585056

^[4] http://www.reyestr.court.gov.ua/Review/77144517

^[5] http://www.reyestr.court.gov.ua/Review/79510008

[6] http://www.reyestr.court.gov.ua/Review/80805947

^[7] https://zib.com.ua/ua/print/136819-yak_minimum_5_kriteriiv_obruntovanosti_pidozri_mae_vrahovuva.html

^[8] http://reyestr.court.gov.ua/Review/77506502

^[9] http://reyestr.court.gov.ua/Review/75005938

^[10] http://www.reyestr.court.gov.ua/Review/74788926

^[11] http://www.reyestr.court.gov.ua/Review/65540406

^[12] http://www.reyestr.court.gov.ua/Review/81684604