The defense should take advantage of the prosecution’s obligation to gather evidence of the suspect’s innocence, according to Mykola Pashkovsky, Ph.D. in Law, scientific advisor at Barristers Law Firm and member of the Scientific Advisory Council of the Supreme Court, Associate Professor Mykola Pashkovsky

Nikolai Pashkovsky, Research Advisor at Barristers, JSC; member of the Scientific Advisory Council of the Supreme Court; Candidate of Legal Sciences; and Associate Professor, spoke to the audience at Legal High School about how to ensure that investigators fulfill their obligations to gather evidence of a person’s innocence.

He noted that a distinctive feature of the structure of the Russian criminal justice system, as established by the Criminal Procedure Code, is that the principle of “equality of arms” between the parties is not observed, since the prosecution has far more effective mechanisms for gathering evidence.

Meanwhile, the prosecution is required to gather not only evidence of the suspect’s guilt but also evidence of his innocence, in accordance with the provisions of Article 9, Part 2, of the Criminal Procedure Code (CPC) of Ukraine. The defense can and should make use of this.

How, then, can the investigative authorities be compelled to fulfill their obligations to gather evidence of a person’s innocence? The presumption of innocence is based on the principle that there is no need to prove one’s own innocence, since the prosecution (the investigator and the prosecutor) is obligated to first prove the person’s guilt. However, establishing a person’s innocence requires reasonable procedural activity on the part of the defense attorney, capable of compensating for the “inequality of arms” between the parties to the proceedings.

Is it appropriate to place on the investigator the duty to uncover not only incriminating evidence but also exculpatory evidence? A survey of law enforcement officials showed that some of them support retaining this obligation, while others oppose the requirement to comply with the defense’s request to conduct investigative actions.

What, then, constitutes evidence of innocence? The list of circumstances indicating innocence is set forth in Part 1 of Article 91 of the Code of Criminal Procedure.

Why is it necessary to ensure the collection of evidence of innocence? To build the defense’s evidentiary base, challenge the suspicion, and refute the charges, and to prevent the destruction of evidence of innocence, since such evidence may be destroyed pursuant to Article 255 of the Code of Criminal Procedure as inadmissible in criminal proceedings.

What problems may arise in proving innocence? Refusal by the prosecution to collect evidence of innocence during the pretrial investigation; failure by the prosecution to submit evidence of innocence to the court; and rejection of evidence of innocence by the court (investigating judge).

The lecturer described a model sequence of actions for a defense attorney in the initial stages of the defense, citing case law. He paid particular attention to appealing to the investigating judge regarding the investigator’s inaction, manifested in the failure to consider the defense’s motion to review the materials of the pretrial investigation pursuant to Article 303(1)(1) of the Code of Criminal Procedure, as well as appealing the investigator’s or prosecutor’s refusals to conduct investigative (search) actions pursuant to Article 222(6) of the Code of Criminal Procedure.