Your Evidence Is Not Evidence: Strasbourg Sets the Standard

The principle of the presumption of innocence, which is intended to ensure a fair trial and due process, must be strictly observed during the criminal prosecution of an individual. However, it is quite often violated. In such circumstances, it is important to understand the consequences that such actions by a judge or investigator may entail.

Strasbourg Sets the Standard

The Civil Code provides guarantees for the implementation of this principle, namely, it stipulates that “the name of a natural person who has been detained, is suspected of, or is accused of committing a crime, or of a person who has committed an administrative offense, may be disclosed (made public) only if a court’s conviction against that person has become final or a ruling has been issued in a case involving an administrative offense,” and in other cases established by law (Art. 296(4) of the Civil Code).

However, a violation of civil law provisions can only serve as a basis for civil liability and may partially relate to procedural consequences that may arise under the Code of Criminal Procedure.

To begin with, it is necessary to analyze the case law of the European Court of Human Rights regarding the interpretation of the principle of the presumption of innocence and its application.

The presumption of innocence, enshrined in Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, is one of the most important elements of a fair criminal trial. If a court’s decision regarding an individual reflects the view that the person is guilty, but this view was formed before the person’s guilt was proven in accordance with the law, that decision violates the requirement of Article 6(2) of the Convention. Such a violation occurs even in the absence of formal statements regarding the person’s guilt, but when there are grounds to believe that the national court considers the person guilty. This position of the ECHR is enshrined in a number of judgments, including the decisions in the cases of “Deweer v. Belgium,” “Minelli v. Switzerland,” and “Allenet de Ribemont v. France.”

Article 6(2) of the Convention guarantees “the right to be presumed innocent until proven guilty according to law.” In addition, according to the judgment in the case of “Allen v. the United Kingdom,” the presumption of innocence—which is regarded as a procedural guarantee in the context of criminal proceedings themselves—defines the requirements regarding:

• the burden of proof;

• legal presumptions of fact and law;

• the privilege against self-incrimination;

• pretrial disclosure of case details;

• premature statements by the court or other state representatives regarding a person’s guilt.

And in the decision in the case of “Hrabchuk v. Ukraine,” it was emphasized that the principle of the presumption of innocence was violated if a statement by a public official regarding a person accused of committing a crime reflects the view that the person is guilty, when this has not been established in accordance with the law.

The principle of the presumption of innocence may be violated not only by judges or the court, but also by other state authorities, including the prosecutor’s office, as noted in the judgment in the case of “Daktaras v. Lithuania.” This occurs particularly often when a prosecutor performs a quasi-judicial function, as he or she decides on the applicant’s motions to dismiss charges during the pre-trial investigation phase, which is under the prosecutor’s full control.

In the aforementioned judgment in the case of “Hrabchuk v. Ukraine,” the ECHR emphasized that the decisions to close the criminal case against the applicant were worded in such a way that there was no doubt as to the view that the applicant had committed a crime. In particular, the investigator used the phrases: “…the [applicant’s] actions constitute a crime” and “…the moment when [the applicant] committed the crime,” while the Volodymyr-Volynskyi City Court of Volyn Oblast noted that the applicant’s actions “exhibit signs of a crime under Article 167 of the Criminal Code.” The proceedings before the Volodymyr-Volynskyi Court, as emphasized in Strasbourg, were not criminal in nature; they lacked certain key elements that typically characterize criminal court proceedings. Under these circumstances, the ECHR found that the reasoning used by the investigator and the court resulted in a violation of the presumption of innocence.

Thus, the Court emphasizes that a violation of this principle occurs even when statements regarding a person’s guilt are made before that fact has been established in accordance with the law.

At the same time, the Court also points out that a violation of the presumption of innocence occurs not only during the trial phase but also during the pre-trial investigation phase.

National Safeguards

It is worth examining what procedural consequences a violation of the presumption of innocence may have under the current Code of Criminal Procedure.

Article 17 of the CPC and Article 62 of the Constitution stipulate that every person is presumed innocent until proven guilty by a final and binding conviction.

However, the provisions of the CPC establish principles under which the court, while maintaining objectivity and impartiality, creates the necessary conditions for the parties to exercise their procedural rights and fulfill their procedural obligations. These provisions are aimed at ensuring the objective and impartial administration of justice.

This is also confirmed by the provision of paragraph 2 of clause 5 of Part 4 of Article 291 of the CPC, according to which the submission of other documents to the court prior to the commencement of the hearing is prohibited. The implementation of these mechanisms is ensured by the provisions of Articles 75–79 of the CPC.

Thus, paragraph 5 of Part 1 of Article 75 of the Code provides that an investigating judge, a judge, or a juror may not participate in criminal proceedings if there are other circumstances that cast doubt on their impartiality.

If the grounds specified in Articles 75–79 of this Code exist, an investigating judge, a judge, a juror, a prosecutor, an investigator, a defense attorney, a representative, an expert, a specialist, an interpreter, or a court clerk is required to recuse themselves.

At the same time, a court’s violation of the presumption of innocence during the consideration of a case has very specific procedural consequences: the reversal of the decision and the ordering of a new trial in the court of first instance, as provided for in paragraph 2 of Part 1 of Article 415 of the Code of Criminal Procedure.

Incorrect Wording

However, does a violation of the presumption of innocence—for example, during the pretrial investigation—have other procedural consequences?

As mentioned above, in the case of “Hrabchuk v. Ukraine,” the European Court of Human Rights (ECHR) noted that a violation of this principle occurs even when an investigator, in a motion, refers not to a suspicion of having committed a crime but specifically to the commission of a crime.

The most common way to counter such a violation is to file a challenge against the investigator, the supervising prosecutor, or the investigating judge.

However, it is worth analyzing the following question: Does a violation of the presumption of innocence affect the admissibility of evidence in criminal proceedings?

Evidence is deemed admissible if it is obtained in accordance with the procedure established by the Code of Criminal Procedure. At the same time, the presumption of innocence is a guarantee enshrined in the Constitution.

Pursuant to Part 1 of Article 87 of the CPC, evidence obtained as a result of a substantial violation of human rights and freedoms guaranteed by the Constitution and laws, as well as by international treaties ratified by the Verkhovna Rada, is inadmissible, as is anyother evidence obtained through information acquired as a result of a substantial violation of human rights and freedoms.

In practice, there are quite often cases where, when filing motions for temporary access to property and documents, for conducting a search, or for imposing a seizure, investigators or prosecutors do not state that the person is suspected of committing a crime—which would ensure compliance with the principle of the presumption of innocence—but instead state: “committed a crime…,” “guilt is confirmed…,” “through their criminal actions….” This violates Article 17 of the Code of Criminal Procedure and Article 62 of the Constitution.

When granting such motions, the investigating judge relies on the information provided by the investigator and, as a result, agrees with it and quite often repeats the wording. Consequently, in such cases, investigating judges “automatically” violate the presumption of innocence.

Therefore, the admission of evidence in criminal proceedings based on procedural decisions that violate this principle may constitute grounds for declaring such evidence inadmissible.