Inadmissible evidence in examinations

18.12.2024

Tetiana Kozachenko, attorney at law, partner at Capital Law Company

It is quite obvious that charges cannot be based on illegal evidence. The standards of proof in criminal proceedings should be clear and comply with the CPC. Is this really the case? Does the court exercise proper judicial control, does it evaluate evidence in accordance with the CPC?

The source: yur-gazeta.com.The material was prepared with the assistance of the Ukrainian Institute for Human Rights

Unfortunately, there is already a dangerous trend in this regard that needs to be addressed. Because, as you know, incorrect assessments lead to incorrect conclusions, and incorrect conclusions lead to catastrophic consequences.

Expertise — legal aspects

Evidence in criminal proceedings is factual data on the basis of which the investigator, prosecutor, investigating judge and court establish the presence or absence of facts and circumstances relevant to the criminal proceedings that are subject to proof. Such evidence must be obtained in the manner prescribed by the CPC of Ukraine.

Procedural sources of evidence include testimony, material evidence, documents, and expert opinions (Article 84 of the CPC of Ukraine).

Thus, expert opinions (expertise) are a source of evidence. In the field of corruption criminal offenses, examinations are conducted to determine:

the amount of property damage;
overstatement (understatement) of the value of property and goods;
documentary evidence of business transactions, etc.

Such conclusions (with calculations based on objective data, primary documents, etc.) are extremely important as a qualifying feature of the crime, as to whether and to what extent damage was caused, whether the price of the object was abused, etc. All of this affects the qualification, gravity of the crime, the level of public danger, and, as a result, the imposition of punishment or, conversely, the proof of innocence.

At the same time, compared to other sources of evidence, expert opinions have their own unique specific features. It is not allowed to conduct an expert examination to clarify issues of law. On other issues requiring special knowledge, examinations are conducted by an expert institution, an expert or experts who have this special knowledge and who are involved by the parties to the criminal proceedings or the investigating judge at the request of the defense in cases and in the manner prescribed by the CPC (Article 242 of the CPC of Ukraine)

Attention: the CPC of Ukraine contains the relevant conditions for engaging experts and conducting examinations: grounds, cases and procedure. This point is very important to understand the existing problem of replacing the principles of admissibility of evidence, distorted by the courts, in particular by the anti-corruption courts.

Here is a note for young lawyers and journalists: any evidence must be exclusively proper and admissible.

Proper evidence is evidence that directly or indirectly confirms the existence or absence of circumstances relevant to criminal proceedings (Article 85 of the CPC of Ukraine). Such evidence reveals the content of the circumstances, explains and reveals their essence.

Evidence obtained exclusively in accordance with the procedure provided for by the CPC is admissible (Article 86 of the CPC of Ukraine). That is, evidence must be obtained only in a legal manner.

Thus, by engaging an expert, a party to criminal proceedings or the court concludes that the assessment of certain circumstances of criminal proceedings goes beyond the law and requires special knowledge. These features determine the specific approach of the court to evaluate expert opinions as sources of evidence and establish their significance.

In particular, when verifying and evaluating an expert opinion, the court must find out:

whether the requirements of the law were complied with when appointing and conducting the expert examination;
whether there were any circumstances that excluded the expert’s participation in the case;
the competence of the expert and whether he/she went beyond his/her authority;
sufficiency of the objects of research submitted to the expert;
completeness of the answers to the questions raised and their compliance with other factual data; consistency between the research part and the final conclusion of the expert’s opinion;
the validity of the expert opinion and its consistency with other case materials (clause 17 of the Resolution of the Plenum of the Supreme Court of Ukraine No. 8 of May 30, 1997 “On Forensic Examination in Criminal and Civil Cases”).

However, due to the lack of specialized knowledge, the competence of the court or a party to criminal proceedings to assess the essence of the expert’s research is significantly limited. Under these circumstances, in practice, the court’s assessment of the expert’s opinion is mainly limited to checking the formal requirements for the procedure of such an examination. In fact, the court accepts the expert’s conclusions “on faith”, presuming that the expert has the appropriate qualifications and is independent from the parties to the criminal proceedings.

It is the independence of the expert in conducting the examination that guarantees the reliability and legitimacy of its conduct. This is what makes an expert’s opinion a full-fledged source of evidence.

How anti-corruption agencies can turn inadmissible evidence into admissible evidence

In reality, in the investigation of corruption-related criminal offenses, the pre-trial investigation body (NABU), faced with the complexity of conducting examinations (providing experts with the required amount of documents, etc.), implemented a scheme that substituted the standards of proof in criminal proceedings and undermined the independence of experts.

This scheme, quite expectedly, simplifies the work of detectives, where detectives “need” to prove something and there is not enough information or documents, NABU detectives fill in the gaps in the materials or documents with explanations from experts. Moreover, it is not uncommon for NABU detectives and SAPO prosecutors to try to identify such materials in court as expert opinions (examinations). However, a specialist is not an expert, and his or her opinion is not an examination.

And, as noted above, while the CPC contains the relevant conditions for examinations: grounds, cases and procedure (because it is evidence that may result in criminal prosecution), the CPC does not contain such conditions for specialists.

Neither the parties nor the court will receive answers to the questions:

whether the requirements of the law were met when appointing and conducting such conclusions, since they do not exist;
whether there were any circumstances that excluded the participation of the expert in the case;
the competence of the expert and whether he/she went beyond the scope of his/her authority;
sufficiency of the objects of research submitted to the expert;
completeness of the answers to the questions raised and their compliance with other factual data;
consistency between the research part and the final conclusion of the expert;
validity of the expert opinion and its consistency with other case materials.

All of this significantly distinguishes a specialist’s opinion from an expert’s conclusion. Moreover, a prerequisite for an expert examination is that the expert is liable for an unreliable conclusion. In contrast, all these requirements and warnings do not apply to a specialist. The pre-trial investigation body may engage any of the specialists, the standards of proof “do not need” to be applied, and this is a circumvention of legal procedures and the creation of alternative ways to strengthen the prosecution without evidence, which, obviously, without proper regulation of the independence of specialists at the legislative level, helps to ensure that the investigation body receives the expected and, perhaps, even agreed upon result of the “conclusion”.

Moreover, such specialists may be ex officio employees of the pre-trial investigation body. In this way, the pre-trial investigation body can not only collect evidence with its implemented know-how, but also create it independently through its own specialists, which contradicts the standards of impartiality and independence of conclusions.

All of this is made possible by the involvement of specialists by pre-trial investigation bodies who, on behalf of such bodies, investigate the facts and circumstances of criminal proceedings. Based on the results of such investigations, the specialists draw up various documents not provided for by the CPC of Ukraine, such as calculations, certificates, and conclusions. Such results of the specialists’ research are included in the protocols of investigative actions, mostly in the inspection protocols, to create a way to legalize them.

In order to legalize the results of such expert opinions/research, the pre-trial investigation authorities shall appoint appropriate examinations and submit the documents drawn up by the experts together with the criminal proceedings.

Experts are able and should evaluate and verify the materials of the criminal proceedings themselves, make their own conclusions based on the relevant documents and, accordingly, bear criminal liability for giving a knowingly false conclusion, refusing or evading to give a conclusion.

Detectives are literally looking for experts who are not ready to make their own research and conclusions, but are ready to “check, evaluate” the conclusions of other non-experts. Thus, the experts do not actually evaluate the materials, but rather evaluate another evaluation of the materials, in fact, make derivative conclusions. Moreover, the detectives directly mention in their questions to the experts the need to confirm the “conclusions” (studies, certificates, etc.) of the experts.

This shameful practice of replacing one’s own conclusions and research with a reassessment of other people’s assessments is not common to all experts. But even the existing cases pose significant risks to the standards of evidence in criminal proceedings.

I would like no one to have any naive expectations that modern evidence procedures are chastely carried out by pre-trial investigation bodies, we live in a time of distrust in officials, law enforcement and state institutions due to political, economic and military realities. We are only fighting and trying to create a state governed by the rule of law.

When we discuss uncompromising standards of proof, a story that demonstrates systemic problems with the unprofessional factor in the training or functioning of officials, whether detectives or even experts, is worthy of attention. In 2018-2020, I was one of five members of the NABU’s disciplinary commission, which draws up a conclusion on the presence or absence of a disciplinary offense in the actions of a NABU employee and the grounds for bringing him or her to disciplinary responsibility. One of the disciplinary cases involved a case where NABU detectives were transporting documents from a criminal proceeding to an expert institution in another city by train. These documents were in the expert institution for some time and then returned to the NABU. And after a while it turned out that several volumes of the criminal proceedings were missing..., which after a thorough search were found in the depot of the first train. The questions arise: how did the detectives hand over the documents to the experts, how did the experts accept the documents, how did the experts return the documents and how did the detectives receive them back? How is it possible that four levels of control did not see the discrepancy? This is not an isolated case, it is a demonstration of why it is important to have and follow procedures, to be able to check them to exclude abuse by officials or to exclude the “human factor”.

As a defense lawyer, I am afraid to imagine the “rampant” possibilities when the standards of proof are distorted and documents that are not a source of evidence are legalized.

On the status of specialists

The regulatory framework for the status and competence of a specialist in criminal proceedings prior to the amendments to the CPC of Ukraine by the Law of Ukraine No. 720-IX of June 17, 2020 was clear and transparent.

According to Art. 71(1-2) of the CPC of Ukraine (as amended), a specialist in criminal proceedings is a person who has special knowledge and skills in the use of technical or other means and can provide advice during pre-trial investigation and court proceedings on issues requiring relevant special knowledge and skills. A specialist may be engaged to provide direct technical assistance (photographing, drawing up diagrams, plans, drawings, taking samples for examination, etc.) by the parties to the criminal proceedings during the pre-trial investigation and by the court during the trial.

Thus, the function of a specialist is advisory and auxiliary, which is limited to technical assistance in recording evidence and providing advice during the pre-trial investigation and trial on issues requiring relevant specialized knowledge and skills. A specialist does not create new evidence. Pursuant to Article 84 of the CPC of Ukraine, neither oral nor written explanations (clarifications, consultations) are considered to be sources of evidence.

Written explanations of a specialist, either independently or as appendices to the protocols, are not documents — sources of evidence within the meaning of Article 99 of the CPC of Ukraine. The protocol and its annexes must contain obvious data that are perceived by all participants in the investigative action. The annexes to the protocols provided for in Article 105 of the CPC of Ukraine fully comply with these requirements, including the explanations of specialists.

The specialist performs advisory and auxiliary actions during investigative actions. Therefore, in the course of the specialist’s activities, no new evidence or information should be created that was not directly perceived (observed) by the authorized persons of the pre-trial investigation bodies and other participants in the investigative action in which the specialist provides assistance.

Moreover, the judges of the High Anti-Corruption Court have come to similar conclusions. And it is worth quoting these conclusions, because the correct obvious conclusions of the HACC do not correspond to the court’s further actions regarding the standards of proof.

The verdict of the Supreme Administrative Court of September 29, 2021, No. 757/60763/16-k, which acquitted the defendants, states:

“it is clear from the proceedings that on April 25, 2016 and November 07, 2016, the detective asked the director of the Research Information and Advisory Center LLC to conduct a study of the materials of the criminal proceedings No. 52015000000000014 and No. 52016000000000348, respectively, and to provide conclusions on certain issues, while the NABU detective uses the expressions “expert conclusions” and “expert study”. The conclusions of the expert study show that the person who made it, an expert of the Research Information and Consulting Center LLC, was not warned of criminal liability for knowingly giving a false conclusion and refusing to fulfill her duties without good reason.

In view of the provisions of Article 102(2) of the CPC of Ukraine, these conclusions are not expert opinions within the meaning of Chapter 4, paragraph 5 of the CPC of Ukraine.

In the court hearing, the prosecutor explained that these conclusions are expert opinions, however, the court, when answering the question about the status of these documents, proceeds from the following.

According to part 2 of Article 71 of the CPC of Ukraine in the version effective as of the date of the said opinion, a specialist may be involved to provide direct technical assistance (photography, drawing up diagrams, plans, drawings, taking samples for examination, etc.) by the parties to the criminal proceedings during the pre-trial investigation and by the court during the trial.

At the same time, the research part of these conclusions shows that the expert of the Research Information and Consulting Center LLC actually examined the materials of criminal proceedings and provided answers to questions that are directly relevant to the conclusion on the presence or absence of a criminal offense, and obviously do not have the nature of technical assistance.

Under such circumstances, the information contained in the conclusions of the expert study No. 1-31/05/2016-к of May 31, 2016 and No. 1-15/11/2016-к of November 15, 2016 is considered to be obtained by the pre-trial investigation body through the exercise of such powers that are not provided for by the CPC of Ukraine, and therefore the panel of judges recognizes this information as inadmissible evidence in accordance with paragraph 2 of Part 3 of Article 87 of the same Code” (https://reyestr.court.gov.ua/Review/99984451).

The verdict of the Appeals Chamber of the High Anti-Corruption Court of August 11, 2023 in case No. 991/7639/21 states: “The materials of the criminal proceedings contain the opinion of the Chief State Financial Inspector of the North-Eastern Office of the State Audit Service PERSON_26 dated March 29, 2021, the opinion of the specialist accountant PERSON_25 dated August 23, 2018.

The provisions of Part 1 of Article 71 of the CPC of Ukraine stipulate that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and opinions during the pre-trial investigation and trial on issues requiring relevant special knowledge and skills.

In part 2 of Art. 71 of the CPC of Ukraine, the legislator indicates the purpose of engaging a specialist is to provide direct technical assistance, and provides the forms in which such technical assistance may be expressed: photographing, drawing up diagrams, plans, drawings, taking samples for examination, etc.

Thus, the legislator has defined the scope of the specialist’s powers at the relevant stage of criminal proceedings and established the form in which such powers are exercised. (...)

In turn, determining the amount of material damage, if the victim cannot determine it and has not provided a document confirming the amount of such damage, the amount of non-property damage, environmental damage caused by a criminal offense, is the exclusive competence of the expert, which is imperatively enshrined in clause 6 of part 2 of Article 242 of the CPC.

The above leads to the conclusion that a specialist in criminal proceedings is not authorized to conduct research in order to provide a legal assessment of the established circumstances, as well as the right to determine the amount of property damage caused by a criminal offense. (...)

For the above reasons, the court also finds inadmissible and does not take into account as evidence the protocol of the review of documents on March 24-29, 2021, with the participation of the Chief State Financial Inspector of the North-Eastern Office of the State Audit Service as a specialist, after which the detective asked the said specialist questions about compliance with the requirements of the law during the public procurement procedure and determining the amount of damage” (https://reyestr.court.gov.ua/Review/112777606)

And now for the inconsistency of the HACC’s position on the standards of proof in terms of expert opinions.

For example, in two of the above cases, the courts refused to recognize as inadmissible the expert’s conclusions based on the inadmissible conclusions of specialists, while the pre-trial investigation body directly asked the experts to confirm the specialist’s conclusions.

In other words, the HACC, in accordance with the CPC, does not recognize expert opinions as evidence, while the court “turns a blind eye” to an examination based on inadmissible evidence — verification or evaluation of an expert opinion, while the expert has his or her own knowledge and obligation to make conclusions, but “for some reason” does not do so, but evaluates newly created and inadmissible evidence in the understanding of the CPC and the HACC itself.

At the same time, the HACC also ignores the source of law — the ECHR practice on the doctrine of “fruit of the poisonous tree”, according to which, if a source of evidence is inadmissible, all other data obtained with its help will be the same (judgment in Gefgen v. Germany, paragraphs 5052, judgment in Shabelnyk v. Ukraine (No. 2), paragraph 66 of the judgment in Yaremenko v. Ukraine (No. 2)). The criterion for classifying evidence as “fruit of the poisoned tree” is the existence of sufficient grounds to believe that the relevant information would not have been obtained in the absence of information obtained illegally (Resolution of the Grand Chamber of the Supreme Court of November 13, 2019 in case No. 107/07 https://reyestr.court.gov.ua/Review/85869105).

HACC replacing the ECtHR practice with the doctrine of inevitable discovery

How does the court justify the admissibility of expert opinions based on the conclusions of specialists that the same court recognizes as inadmissible evidence? How does the HACC ignore the “fruit of the poisoned tree” doctrine, irrelevantly replacing it with the “inevitable discovery” doctrine?

The essence of the “inevitable discovery” doctrine is that experts, even in the absence of an opinion in the case file, for example, of a specialist accountant, which the court recognized as inadmissible evidence, would inevitably come to the same conclusions, which is why there are no grounds to recognize these conclusions as inadmissible evidence under Part 1 of Article 87 of the CPC of Ukraine. In other words, the court argues that the presence or absence of a specialist’s opinion does not affect the expert’s conclusion, since the expert would have reached the same conclusions in any case.

However, it is obvious that such unfair application of the “inevitable discovery” doctrine by the courts has obvious flaws:

artificial legalization by the court of the expert’s opinion, which is inadmissible evidence on which the expert’s opinion is based, instead of allowing an expert with proven specialized knowledge to make his or her own conclusion,
encouraging the pre-trial investigation body to deliberately violate the requirements of the CPC of Ukraine by the prosecution, since the nature of the examinations intended to confirm the conclusions of experts is derivative and does not comply with the CPC and should have appropriate consequences.

Applying this doctrine, the court does not provide proper justification, does not disclose causal relationships, and is limited to general abstract phrases.

In view of the above, it is worth noting the existing practice of general courts, which in this part is fundamentally different from the practice of the HACC. And as a lawyer and citizen who supports the creation of anti-corruption structures and distrusts unreformed general courts, it is quite unexpected for me to be surprised by the legal conclusions of the opposite practice of general courts. For example, in the verdict acquitting the accused, the Pechersk District Court of Kyiv of December 25, 2023 in case No. 381/729/22, recognizing the expert’s opinion as inadmissible evidence, ruled that “the conclusion of the commission forensic examination of 07.09. 2021 No. 16933/22207 in criminal proceedings No. 42020000000001696 is clearly derivative of the expert’s opinion, based on the fact that in this case there is no situation of the so-called “inevitable discovery” of evidence, and there are no grounds to believe that this evidence would be guaranteed to be obtained by the pre-trial investigation authorities in another way, In such circumstances, the court declared the said expert’s opinion inadmissible evidence and rejected it.” (https://reyestr.court.gov.ua/Review/115900857)

Only if the pre-trial investigation body is aware that the consequence of substituting the standards of proof with the legalization of a specialist’s opinion through an expert examination, i.e. ordering a derivative examination, will be the recognition of it as inadmissible evidence and, accordingly, the possible adoption of an acquittal, will such abuses be stopped.

New challenges of legal regulation of evidence in criminal proceedings

At the same time, the development of procedural legislation in terms of the role and function of a specialist in criminal proceedings is not limited to the above problems of legal regulation of the relevant legal relations.

In particular, the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses” No. 2617-VIII of November 22, 2018, which introduced the institution of criminal misconduct, recognized the expert opinion as a procedural source of evidence (Article 298-1 of the CPC of Ukraine). Of course, the scope of its application is limited to criminal proceedings on criminal misdemeanors. However, part 2 of Article 298-1 of the CPC of Ukraine already states that such procedural sources of evidence cannot be used in criminal proceedings regarding a crime, except on the basis of a ruling of the investigating judge, which is issued at the request of the prosecutor. This provision actually allows the court to legalize expert opinions as a source of evidence not only for a criminal offense, but also for a crime, while the limits of the investigating judge’s discretion are not defined by law at all, which obviously creates room for abuse by the prosecution.

It turns out that expert opinions can be used as a source of evidence in criminal offenses, and with the permission of the investigating judge, they can be admitted as a source of evidence in the investigation of crimes, but it is not written at all why. This is the unlimited discretion of the court: there are no criteria, no limits, no grounds on which it can be recognized by the court, just an absolute right: the court wants to recognize it, it does not recognize it, and why?

At the same time, the legal regulation of experts does not apply to specialists, does not define the standards of verification, the level of their qualifications and experience, and most importantly, it does not provide for the independence of specialists from the investigation, on the contrary, in practice, direct dependence is possible, because detectives can be specialists. NABU employees and NABU detectives can be engaged as specialists, and their conclusions are legalized as evidence, where the specialist does not perform advisory or auxiliary functions, but creates new evidence — a “conclusion”. But this is a person fully controlled by the pre-trial investigation body, built into its staff system, and completely dependent on it.

Thus, as we can see, the involvement of specialists by the pre-trial investigation body to draw up various certificates and conclusions is a way for the prosecution to interfere with the independence of forensic experts, who are provided with the materials of the criminal proceedings and the said works of specialists who were involved by the prosecution with conclusions already prepared and agreed with the investigation on issues that are usually directly related to the subject matter of the examination. In such circumstances, there are experts who are inclined to support the conclusion agreed upon by the pre-trial investigation body and the specialist. To prevent this practice, the position of the courts must be unambiguous and principled. Recognizing expert opinions as inadmissible evidence, the court should also recognize as inadmissible evidence the relevant derivative expert opinions based on such inadequate research. In addition, as part of the improvement of procedural legislation, the functions of experts should be clearly and unambiguously limited to technical assistance and advice. Specialists should not create new evidence on their own. All issues requiring specialized knowledge should be resolved by a corps of forensic experts separate from the pre-trial investigation bodies, whose independence should be ensured and guaranteed by both procedural law and effective judicial control.

The role of expertise in criminal proceedings cannot be underestimated. Every person has the right to be subjected to exclusively legal procedures. The standards of proof must be met. Otherwise, this is not proving guilt, but rather a guilty verdict, and there is neither law nor justice in this.