Transfer of the criminal case to another body: the Supreme Court named the condition when the evidence becomes inadmissible

In the case of the transfer of the case by the prosecutor to another body within the framework of Part 5 of Art. 36 of the Criminal Procedure Code, the ineffectiveness of the preliminary investigation must be justified. Otherwise, the evidence collected in the future will be considered inadmissible.

This is the conclusion reached by the United Chamber of the Cassation Court of the Supreme Court in case No. 640/5023/19. The text of the corresponding resolution recently appeared in the Unified State Register of Court Decisions.

The issue, which became the subject of consideration of high judges, was associated with the use as evidence of data obtained as a result of investigative and covert investigative (search) actions after the implementation of the prosecutor's powers under Part 5 of Art. 36 of the Criminal Procedure Code.

Recall, according to Part 5 of Art. 36 of the Code of Criminal Procedure, the Prosecutor General, the head of the regional prosecutor's office, their first deputies and deputies, by their motivated decision, have the right to entrust the pre-trial investigation of any criminal offense to another pre-trial investigation body, including a higher-level investigative unit within one body, in the event of an ineffective pre-trial investigation.

The defense side insisted that there were no grounds for the prosecutor to exercise these powers, and therefore the pre-trial investigation body and the prosecutor's office acted outside the procedural framework.

The Supreme Court, having analyzed the provisions of the legislation and practice of the European Court of Human Rights, came to the conclusion that a prerequisite for the implementation of the prosecutor's powers under Part 5 of Art. 36 of the Code of Criminal Procedure, is the assessment of the pre-trial investigation by the body of pre-trial investigation, established by Art. 216 of the Criminal Procedure Code, as ineffective and the reflection of such an assessment in the decision indicating the appropriate motivation.

In each specific case, the existence of grounds must be substantiated in the order on entrusting the pre-trial investigation of a criminal offense to another body of pre-trial investigation, which must be motivated, provide a reasoned explanation regarding the factual and legal grounds for the decision.

Such a ruling should be the subject of a court examination in every criminal proceeding. In addition, the results of such a study form the basis for further assessment of the evidence obtained as a result of the pre-trial investigation from the point of view of admissibility.

If the prosecutor instructs another pre-trial investigation body to carry out the pre-trial investigation of a criminal offense without establishing the ineffectiveness of the pre-trial investigation by the pre-trial investigation body, these authorized persons will act outside their powers. In this case, there will be a failure to comply with the due process of application of Part 5 of Art. 36 of the Code of Criminal Procedure and violation of other requirements of the Code of Criminal Procedure.

However, the consequence of non-compliance with due process as an integral element of the rule of law is the recognition of evidence obtained in the course of the pre-trial investigation inadmissible on the basis of Art. 86, paragraph 2, part 3 of Art. 87 of the Code of Criminal Procedure as collected (received) by unauthorized persons (body) in specific criminal proceedings, in violation of the procedure established by law.