Psychological and Procedural Coercion During Interrogation: The Limits of Legality

What is an interrogation?

If one turns to the provisions of the Criminal Procedure Code of Ukraine for an answer to this question, it is unlikely that one will find one.

Unfortunately, the essence of an investigative action such as an interrogation is not explicitly defined by the provisions of the Code of Criminal Procedure of Ukraine; therefore, it must be pieced together from various sources, specifically in Chapter 20 of the Code of Criminal Procedure of Ukraine, Article 2 of the Code of Criminal Procedure of Ukraine (Purpose of Criminal Proceedings), Article 18 of the CPC of Ukraine (Freedom from Self-Incrimination and the Right Not to Testify Against Close Relatives and Family Members), Article 65 of the CPC of Ukraine (Witness), Article 66 of the CPC of Ukraine (Rights and Obligations of a Witness), Article 84 of the CPC of Ukraine (Evidence), Article 351 of the CPC of Ukraine (Interrogation of the Accused), and Article 352 of the CPC of Ukraine (Interrogation of a Witness).

An analysis of these provisions leads to the conclusion that questioning during the pretrial investigation stage is an investigative action that constitutes a criminallyprocedural norms, aimed at obtaining information about facts known to the person being questioned (factual circumstances) that are relevant to achieving the objectives of the criminal proceedings.

Interrogation is an informational and psychological process of communication involving elements of criminal-procedural coercion, based on the provisions of Article 18 of the Code of Criminal Procedure of Ukraine; however, the Code lacks a legal definition of criminal procedural coercion, as well as limits and criteria for such coercion.

The permissibility of using criminal procedural coercion during interrogation, coupled with the lack of clear regulation of this legal category and the absence of a definition of psychological coercion and its limits—and given that these two forms of coercion are usually interrelated— this situation leads to significant abuse of power by those conducting the interrogation.

I. Article 2 of the Criminal Procedure Code of Ukraine, in defining the legal category of “Objectives of Criminal Proceedings,” identifies as one of the elements of these objectives “that no person be subjected to unjustified procedural coercion.”

At the same time, in a broad sense, the objectives of criminal proceedings referred to in Article 2 of the CPC of Ukraine are achieved through the fulfillment of the objectives of individual procedural or investigative actions.

What, then, constitutes “justified procedural coercion” and what are its limits during the conduct of specific investigative actions, such as interrogation? Unfortunately, the Code of Criminal Procedure of Ukraine does not provide a definition of this legal category or its limits.

Instead, “reasonable procedural coercion” can be understood as the obligation to appear before an investigator or prosecutor upon summons to give testimony regarding circumstances known to the witness, and as the liability established by law for an unjustified refusal to testify.

Accordingly, the legislature has determined that a refusal to testify must be justified; under such conditions, the exercise of procedural coercion does not result in liability for such a refusal.

In other words, in order for justified procedural coercion to be applied during an investigative action, it is necessary to observe all the rights and freedoms guaranteed to the individual when issuing a summons for questioning and ensuring its proper procedural documentation, as well as to observe all rights and guarantees during the questioning itself. If there is even a single violation of the individual’s rights and guarantees, or a procedural violation in the issuance of the summons, or a violation of the procedure for conducting the investigative action—there are grounds to assert that the procedural coercion is unjustified, to refuse to testify, and to petition for the termination of the investigative action.

II. When considering the psychological aspect of the interrogation process and psychological coercion, the following should be noted.

Psychological coercion is closely linked to the elements of testimony formation, as it is usually aimed at shaping testimony and, at times, manipulating the process of reconstructing the meaning of the testimony. Understanding these elements will enable the provision of higher-quality legal assistance to the person being interrogated.

In theory, there are three elements of testimony formation: perception, memorization, and recall.

Perception is the sum of the interviewee’s sensory experiences and cognitive processes. Sensory experiences are subjective in nature; therefore, perception and sensory experiences depend on the development of the nervous system, the physical condition of the body, and the level of development of the interviewee.

Temperament can also be considered a factor influencing perception.

The accuracy of perception in a specific situation depends on:

Subjective factors—the condition of the sensory organs, the ability to correctly perceive events, emotionality, and so on. These are subjective characteristics of the individual that can “color” their perception.

Objective factors—the conditions of perception, weather, lighting, the condition of the room, the conditions and duration of the interrogation, and so on.

Memory—the ability to form associative connections, retain them, and reproduce their traces. Memory is selective in nature; a person does not remember everything they perceive, but only what evokes certain emotions or is of significant importance. Over time, human memory has the ability to distort or misrepresent a perceived event.

Recall depends on a number of factors: a person’s ability to express their thoughts, their intelligence, cultural level, vocabulary, and their physical and psychological state at the moment of recall.

In psychology, there are two forms of recall, which, as a rule, are important to document in the protocol for the purpose of their accurate assessment.

Free recall of meaning with deviation from form—consists of presenting only the essence of the event and its main features.

Reconstruction of content while preserving form—a detailed and sequential account of the event, without distinguishing between main and secondary features.

Unfortunately, as already noted, the Criminal Procedure Code of Ukraine does not define “psychological coercion” as a legal category; consequently, it is nearly impossible to clearly delineate the boundary between procedural and psychological coercion unless the latter goes beyond the scope of explicit influence on a person’s will and the elements involved in the formation of testimony.

In theory, psychological coercion should be understood as influencing a person’s will in various ways (through facial expressions, words, actions, creating a certain atmosphere, etc.) with the aim of forcing them to provide testimony or manipulating the reproduction of its meaning.

Pursuant to Article 3 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, treatment is deemed inhuman upon reaching a minimum level of severity. The assessment of this minimum level is relative: it depends on all the circumstances of the case, such as the duration of such treatment, its physical and psychological consequences, and, in some cases, the gender, age, and state of health of the victim (the judgment in the case of “Valashinas v. Lithuania”). The Court considers the treatment to be “inhuman” because, inter alia, it was intentional, lasted for several consecutive hours, and resulted in either actual bodily injury or acute physical or mental suffering. In the Court’s view, treatment was “degrading” if it was intended to instill in the victims feelings of fear, anguish, and inferiority, and thereby to humiliate and disparage them (judgment in the case of Kudla v. Poland).

Based on the foregoing, it can be concluded that although coercive measures in criminal proceedings are not clearly defined by law, their limits are determined by restrictive legal provisions that, in particular, guarantee the human rights of individuals participating in criminal proceedings. Provided that all substantive and procedural legal norms are observed, the use of coercion in criminal proceedings is justified.

Psychological coercion, on the other hand, and its assessment are quite relative, since they depend to a greater extent on its direct manifestations, a person’s perception of such manifestations, and the impact on the process of reconstructing the meaning, but in any case, in our opinion, psychological coercion is impermissible, and its manifestations—given the absence of such a legal category in procedural law—are unlawful.

It is worth noting that procedural coercion is quite often applied in conjunction with psychological coercion, which is impermissible; and when applied simultaneously, it can even negate the results of justified procedural coercion, but unfortunately, Ukraine’s law enforcement and judicial systems—and certain individuals within them—are not yet ready for such a democratic understanding of the legal concept of “coercion.”