The recent Constitutional Court (CC) ruling – “an accusation of committing a crime may not be based on the evidence gathered by unconstitutional means or by violating the law” – has raised a lot of questions. Can the Luhansk cafe video recording, which shows local council member Roman Landyk beating up a girl, be now evidence in court? How should we treat the “Melnychenko tapes” which figure as evidence in the Leonid Kuchma criminal case (if, of course, all this was not devised for this very purpose)? Or can, for example, an audio recording a student made when the teacher demanded a bribe be evidence? There are lots of examples.
To take a closer look into the matter, let us quote the resulting part of the CC interpretation: “The Constitutional Court of Ukraine has ruled… that an accusation of committing a crime may not be based on factual data found as a result of investigation and search operations conducted by an authorized individual who has failed to obey constitutional provisions or breached the law-prescribed procedure, as well as a result of deliberate actions to gather and handle information with methods stipulated by the Law of Ukraine ‘On Investigation and Search Operations’ by an individual who has not been authorized to do so.” It will be recalled that the Security Service of Ukraine (SBU) requested the CC to interpret the following provision of Part 3, Article 62, of the Constitution: “An accusation may not be based on the evidence gathered in an unlawful way.”
As soon as this query was submitted, Melnychenko’s lawyer Mykola Nedilko said he did not believe that the SBU’s query to the CC was not linked to the “Melnychenko tapes” and investigation into the Gongadze case because such “coincidences” are usually not typical of the SBU by force of its professional activities. Nedilko said the CC ruling was one that “narrows the evidential field for solving crimes.” “Unless the court rules that Melnychenko made these recordings illegally, they will remain absolutely legitimate,” Nedilko stressed. Incidentally, Kuchma’s lawyers lost no time announcing that they will be guided by the CC ruling. “Naturally, we will be appealing [to pretrial investigation, following the CC decision]. We have not yet done so, for we are still studying things,” Kuchma’s lawyer Viktor Petrunenko said.
Does this mean that, in an attempt to solve “the Kuchma problem,” the Constitutional Court has in fact further complicated the matter? Some experts have already said that this CC ruling will make it more difficult to investigate ordinary cases. In their view, from now on, video footage from the robbed banks or stores cannot be evidence, and a videoed bribe-taking bureaucrat will not be brought to justice.
What do you think this CC ruling mean? Will it have a positive effect on the judicial system? What consequences are to be expected?
Oleh BEREZIUK, president, Ukrainian Law Associtaion:
“If the law-stipulated evidence gathering procedure has been violated, the accusation is illegal. But the point is not in that an ordinary individual has used their possibilities to record some offenses. The question is that our governmental bodies, such as the Interior Ministry and the SBU, often dig up evidence in an unlawful way. When the state conducts video surveillance on an individual without a court sanction or carries out investigation and search operations without a criminal case being opened, the gathered information, naturally, cannot be used as evidence in court. As for security cameras on the territory of private enterprises or the actions of a private person who has recorded a bureaucrat taking a bribe, these things should be considered as evidence, for this has not been done in an unlawful way.
“The main thing, in my opinion, is that there is no such thing as Constitutional Court of Ukraine today, for the latter has turned into a body that legitimizes illegal decisions. We can remember the CC ruling that President Kuchma can run for a third term, although the Constitution sets out that one can only run for two consecutive terms. The CC also overturned the Verkhovna Rada decision on constitutional reform, thus reenacting the 1996 Constitution, which it had no right to do. The situation in this country is so complicated that the entire judicial system, not only the CC, does not work. For example, you don’t need to be a lawyer to understand what is going on around Tymoshenko and Lutsenko. And there are so many ordinary people who are in a similar situation, but very few, if any, know about their cases.
“So nothing will change until the people can exercise control over the government and the bureaucrat or the elected person bears responsibility for their actions. The Constitution should enshrine the rules of life in this country and the powers of office-holders, executive and legislative bodies, and the court. When the fundamental law clearly sets out the rules, this will lay the groundwork for a rule-of-law state.”
Ihor KOLIUSHKO, chairman, Center for Political and Judicial Reforms:
“It is in the procedural law that all countries usually determine the idea of admissible and inadmissible evidence. As a human rights measure, it is forbidden to illegally gather information or evidence and produce it in court. But what does illegal way mean? If this entailed the breach of law or of somebody’s rights, it is, naturally, an inadmissible way. This kind of evidence must not be produced in court. But when it is about the information gathered without violating human rights, for example, by using a security camera installed with public knowledge and consent, this information should undoubtedly be accepted by the court. The only debatable point here is how to classify certain information and what importance to attach to the evidence found by way of video surveillance: their may be different interpretations of various pieces of evidence. What I cannot understand is why the Constitutional Court simplified this problem in its ruling.”
Roman MARCHENKO, senior partner of the law firm Ilyashev & Partners:
“What is the legal and illegal gathering of information? To illegally gather information means to gather information by hidden means, when the person or persons in question are unaware of this. But if a shop openly warns at the entrance or in other places that there is a security camera, it is a legal way. If a company office says video surveillance and recording is underway, it is also a legal gathering of information. Therefore, this information can be furnished in court. But if the videoing is hidden, when people are unaware of being filmed (the camera is hidden), this video recording is unlawful unless the court has given a sanction to install the security camera and gather this kind of information.
“As for the gathering of information by Mykola Melnychenko in the president’s office room, this was done secretly – nobody knew that recordings were done there, – there are no signs of legality here. Besides, there was no court order to do so. Thus, Melnychenko was illegally gathering information. This means he is subject to a certain criminal code article, while Mr. Kuchma, who took some unlawful actions exposed thanks to the Melnychenko tapes, is liable under some other articles. The Melnychenko tapes will not be evidence, for that was done in an illegal way. But this does not mean that they cannot be used as material in a criminal case or that the prosecution cannot study circumstances in this respect. Let me give an example. An illegal audio recording says Mr. Ivanov will be murdered tomorrow. The police take action and catch the killer. So the recording was not evidence – it was just an additional factor for the law-enforcers.
“But if this was done in case of extreme necessity, it is a mitigating circumstance for the accused. As for the individual whose office was illegally bugged, these tapes will not matter in the court. I think it will be far more difficult now to prove the guilt of citizen Kuchma. To tell the truth, the provision that the illegally gathered evidence should not be taken into account has always existed. In reality, the CC said nothing new, nor did it aggravate the situation.”
Yurii VASYLENKO, former judge, Kyiv’s Court of Appeal:
“The video footage of a crime in a public place can be evidence at a trial. This contradicts neither the Constitution nor the Crime Procedure Code.
“The Melnychenko tapes can be considered evidence. For they are part of what is known as extreme necessity, when one is taking some unlawful actions that are less grave than the consequences that might have arisen otherwise. Melnychenko recorded on the tapes that journalist Gongadze was going to be kidnapped and murdered, which is a more essential damage than the one he had inflicted. This is behavior in case of extreme necessity. Besides, these recordings were seized under Article 186 of the Criminal Procedure Code. Therefore, there is no corpus delicti in Melnychenko’s actions.
“Investigation and search operations can only be carried out by police operatives. They can bug somebody’s office with court permission only. It is they to whom this CC ruling applies. It does not apply to the Melnychenko tapes which have been pronounced authentic. I think the CC handed down this ruling to bail out Kuchma – they are looking for some loopholes. We know only too well how the Constitutional Court can make decisions. Do you remember them saying one plus one makes three? I mean the ruling about Kuchma’s third term, even though this totally ran counter to the Constitution and laws of Ukraine. There were also other decisions of this kind.”
Vitalii BIVALKEVYCH, chairman, Zhytomyr oblast branch of the Ukrainian League of Lawyers:
“In general, it is a very delicate problem in today’s criminal justice. Under the law, if a court has allowed videoing certain persons or having their office bugged, this kind of actions can be taken. Should any other documents be furnished to confirm the facts recorded on video or audio tapes, this information can be evidence if an expert examination has proved their authenticity. Naturally, the consequences of the abovementioned Constitutional Court ruling will be an object of public and official comment. What is going to matter? If this evidence was gathered in contravention of the current law, it will be considered unfounded. The court must not take it into account. For the person being brought to criminal justice, any doubt in their being guilty should be in their favor. But the court should not be guided by such things as being positive or negative because, under the law, it must not take sides with the prosecution or the defendant. The court can only pronounce the defendant guilty if there is proof of their guilt. The judge should take an unbiased attitude, as a referee does on the soccer field. The judge also has two teams to deal with – the prosecution and the defense. And he or she should put all doubts about the defendant’s guilt in their favor. If there is no proof of guilt, the judge should take the defendant’s side.
“But let us analyze what really occurred, for example, this year. Did judges bring in any acquittals in criminal cases? I can recall just one or two instances. This is the situation defense attorneys are in now. But even those who once held top offices at the prosecution service are complaining in private conversations that, for example, sentences are in fact drawn up at prosecutor’s offices, for they fully quote the materials of the prosecution. What does this mean? On the whole, the current judicial system differs from that of the Soviet era. The same applies to the principles of society. Defense lawyers are not silent, but the tendency I have spoken of before still continues.”
