Yulia DUBINA, Associate at BARRISTERS Law Firm: "An Analysis of the Admissibility Criteria for Evidence in the Context of Search Procedures"

Although Ukraine is designated in the Constitution as a state governed by the rule of law, pretrial investigation authorities, aware of their impunity, typically exceed their authority nonetheless. How can law enforcement officials be compelled to comply with the provisions of the Code of Criminal Procedure—particularly during searches—and does this require any further amendments to the law?

European Trends

Today, considerable effort and resources are devoted to combating corruption. However, no attention is paid to incompetence or the actual lack of legal and disciplinary consequences for law enforcement officials regarding the performance of their official duties.

To some extent, the introduction in the new Code of Criminal Procedure of a criterion for evaluating evidence in terms of admissibility was intended to reverse this trend. After all, the court—either at the initiative of the defense or on its own—may deem evidence obtained through a substantial violation of human rights and freedoms to be manifestly inadmissible and halt its examination. This helps counter the arbitrary actions committed by pretrial investigation authorities during searches and protects rights and freedoms.

Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms declares, in particular, that everyone is entitled to a fair hearing

by an independent and impartial tribunal, which must determine the merits of any criminal charge brought against a person. However, neither the Convention nor the European Court of Human Rights establishes specific requirements for assessing evidence in the context of admissibility.

An analysis of the ECHR’s case law leads to the conclusion that national courts must ensure that the accused has the opportunity to challenge the admissibility of evidence, to object to it, and to demonstrate circumstances that would render the evidence inadmissible (see the judgments in Jalloh v. Germany dated July 11, 2006, and Bykov v. the Russian Federation dated March 10, 2009). Furthermore, when examining and evaluating evidence, courts must take into account the observations and arguments submitted by the parties. Only in this case will the proceedings be considered fair under Article 6(1) of the Convention.

The Court’s task under the Convention is to determine whether the proceedings as a whole, and in particular the manner in which evidence was obtained, were fair. In this context, the Strasbourg Court applies the “fruits of the poisonous tree” doctrine, that is, an assessment of the admissibility of the entire chain of evidence, rather than each piece individually. This approach means that if one piece of evidence is deemed inadmissible, it calls into question the admissibility of other related pieces of evidence as well.

In other words, the ECHR does not establish a mandatory rule regarding the application of the criterion of inadmissibility of evidence by national courts, but merely allows them to decide, at their own discretion, on the admissibility or inadmissibility of evidence, taking into account compliance with the right to a fair trial enshrined in the Convention.

Safeguards Against Violations

Part 1 of Article 87 of the Code of Criminal Procedure stipulates that “evidence obtained as a result of a substantial violation of human rights and freedoms,

guaranteed by the Constitution and laws of Ukraine, as well as by international treaties ratified by the Verkhovna Rada, and any other evidence obtained through information acquired as a result of a substantial violation of human rights and freedoms.”

The Code also contains a list of acts that the court must recognize as substantial violations of human rights and freedoms, and information obtained as a result of such acts must be deemed inadmissible evidence (Part 2 of Article 87 of the Code of Criminal Procedure). With regard to searches, this applies to procedural actions that require prior court authorization but are conducted without such authorization or in violation of essential conditions or a person’s right to defense.

However, the legislature did not overlook the issue of a defense attorney’s presence and amended Part 3 of Article 87 of the Code of Criminal Procedure (amendments introduced by the law of November 16, 2017) with a provision that deems evidence obtained during the execution of a search warrant for a person’s residence or other premises inadmissible if a defense attorney was denied access. The defendant is required to prove that a lawyer was denied access during the court proceedings.

With the adoption of the new Code of Criminal Procedure—in particular, the introduction of categories such as “admissibility of evidence”—the legislature has focused on such principles of the administration of justice as fairness, adversarial proceedings, the right to a defense, and legality. That is, on the one hand, the rights of the defense have been expanded with regard to the reasoned challenge of procedural decisions, law enforcement agencies’ investigative actions regarding the collection and submission of evidence to the court, and the justification of the legality of charges for committing a criminal offense. On the other hand, the prosecution is obligated to substantiate its charges exclusively with evidence obtained in the manner prescribed by criminal procedural law. In practice, this should prevent the errors typically committed by law enforcement officials.