The Constitutional Court of Ukraine in its Ruling 12-rp/2011 of 20 October 2011 (the "Ruling") provided a binding interpretation of Article 62(3) of the Constitution of Ukraine. Article 62(3) reads as follows: "an accusation shall not be based on the evidence obtained unlawfully".

The Ruling was solicited by the Security Service of Ukraine in connection with the well-publicised criminal cases brought against former President Leonid Kuchma. These cases were brought on the basis of discussions between President Kuchma and top officials secretly recorded by Mayor Melnichenko, one of President Kuchma's guards. In particular, the Security Service requested the Court to rule upon the admissibility of evidence obtained other than by the law-enforcement agencies in the course of the formal investigations.

In its Ruling, the Court had to define the limits on admissibility of evidence in a criminal case obtained by the general public, journalists and so on in light of Article 62(3) of the Ukrainian Constitution.

To that end, the Constitutional Court has articulated the admissibility of evidence test under Article 62(3). In particular, the Court has held that the evidence in a criminal case shall be deemed inadmissible where it is obtained:

  • in violation of the constitutional rights and freedoms of a citizen;

  • in violation of the order, means and sources of collecting evidence, stipulated by law;

  • by a non-authorised person.

In its Ruling the Constitutional Court focused on the "non-authorised person". According to its interpretation, criminal accusations may not be based on the evidence purposefully gathered by individuals or juridical entities. Except as set out below, they may only be based on evidence gathered by law-enforcement agencies in accordance with the Code of Criminal Procedure and other policing laws.

Following such interpretation, Ukrainian courts may not accept within a criminal procedure various audio or video recordings, photos or other evidence intentionally produced by an "unauthorized person", i.e. anyone other than a law-enforcement officer.

However, in its Ruling the Constitutional Court has made an exception with regard to evidence obtained by accident. According to the Ruling, facts accidentally detected in the course of private video-recording, photography or caught by surveillance cameras may be accepted by a court within the criminal procedure. In each particular case a court must determine whether the evidence was obtained deliberately or by accident in order to make a decision about its admissibility.

The Ruling is expected to have a big impact on the criminal procedure in Ukraine. For instance, as a result of the Ruling a person who intentionally records a public officer extorting a bribe will not be able to produce this recording to the court as this person is not legally authorised to use audio or video-recording as a special investigation technique. In other words, only authorised law-enforcement officers in the course of formal investigations may deliberately gather and produce evidence for a criminal case.

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The original publication date for this article was 25/11/2011.