Monitoring of criminal proceedings of A. Melnik, A. Kryzhanovsky, I. Kunik (hearing 09/30/2020)

On September 30, 2020, a hearing was held in the Gadyatsky District Court of the Poltava Region in the case of A. Melnik, A. Kryzhanovsky, I. Kunik in the case of the murder of the mayor of Kremenchug A. Babaev and the judge of the Kremenchug court A. Lobodenko.

At the hearing, the examination of material evidence continued.

The prosecutor presented the mobile operator’s starter packs as evidence. Such material evidence was seized during a search in the place of residence of Alexandr Kryzhanovsky. The accused himself notes that the court was not provided with video filming of the investigative action, although it was made. In addition, he notes that he really used two starter packs and their numbers, but did not use the others. The accused believes that the attachment of evidence is illegal, since the search did not comply with the requirements of the law. The lawyer supported the position of the accused and once again drew attention to the fact that video filming was carried out during the search, but it was not provided to the court. The lawyer announced the suspicion that some of the evidence could have been deliberately planted on the accused during the search. Proceeding from the above, the lawyer stated that he was against admitting such evidence to the case materials, since they were obtained in violation of the law.

The defense filed a motion on the inadmissibility of the evidence obtained as a result of the search, citing the following grounds:

• the search was carried out by an unauthorized person;
• during the investigation, a lawyer was absent, which means that the accused was not provided with legal assistance;
• the package with evidence was opened and not sealed, no documents on the previous autopsy were provided by the prosecution;
• the prosecutor did not provide evidence of obtaining material evidence from a legal source;
• the court was not provided with video footage of the investigative action.

In the Resolution of the Cassation Criminal Court of the Supreme Court dated August 5, 2020, in case No. 334/5670/18, the issue of the inadmissibility of evidence obtained as a result of the search, which was filmed, was clarified, but the video was not provided to the court.

So, the requirements provided for in Part 10 of Art. 236 of the Criminal Procedure Code, Part 2 of Art. 104 of the Criminal Procedure Code, Parts 1 and 6 of Art. 107 of the Code of Criminal Procedure, aimed at improving the procedure for conducting a search of housing or other premises by the pre-trial investigation authorities, in particular, when inaccurate information about the evidence obtained during their conduct is added to the protocols of investigative actions. Given the content of Part 6 of Art. 107 of the Code of Criminal Procedure, negative consequences in the form of recognition of a procedural action and the results obtained as a result of its commission invalid can occur only in the case of non-use of technical means of fixation.

However, even in this case, this is not an unconditional basis for recognizing the evidence obtained during the search as inadmissible, since Part 6 of Art. 107 of the Code of Criminal Procedure provides for exceptions to this rule when the grounds for recognizing factual data as inadmissible as evidence can be “overcome” by consensus of the parties to criminal proceedings (the so-called conditionally consensual grounds for recognizing factual data as admissible as evidence).

A situation in which video recording of the search was not carried out should not be equated with a situation in which the prosecution did not submit the video to the court as a mandatory annex to the protocol.

At the same time, failure to provide a video recording of the inspection of the scene, which is an integral annex to the protocol, by the prosecution in the course of the trial is a violation of the requirements of Part 2 of Art. 104 of the Criminal Procedure Code.

Assessing the materiality of such a violation, the Court, taking into account the provisions of Art. 87 of the Code of Criminal Procedure does not consider that there are unconditional grounds for recognizing the results of the inspection of the scene and the derivative investigative (search) actions inadmissible as evidence.

On the existence of other (conditional) grounds for recognizing evidence as inadmissible, the courts need in each specific criminal proceeding to find out what consequences of violation of the requirements of the criminal procedural law have led and whether these consequences are irreversible (that is, those that cannot be eliminated in the course of judicial consideration). When it comes to recognizing evidence obtained in the course of investigative (search) actions as inadmissible, this mainly concerns the existence of doubts about the reliability of the information obtained as a result of their conduct.

In the Decree of the Cassation Criminal Court of the Supreme Court of November 19, 2019, in case No. 750/5745/15-k, a legal position is provided: if the admissibility of evidence is questioned, the obligation to prove the admissibility of evidence is imposed on the party that submits it.

When doubts arise about the credibility of the source of evidence, it becomes necessary to corroborate the circumstances with evidence from another source (“Jalloha v. Germany”, para. 96). In such situations, a question arises that must be answered: is the judicial review, including the methods of obtaining evidence, fair (“Bykov v. Russia”, para. 89).

In addition, the defense filed a petition to attract a specialist to examine the phone and sim cards (subscriber identification modules).

Also, the defense drew attention to the fact that as evidence the prosecutor attached a document, as indicated by the lawyer, – “a piece of paper”, which confirms the purchase of the phone on 12.31.2012. However, if you open the technical documentation, namely, pay attention to the warranty card, there is a different date of purchase of the phone.

The defense’s petition to involve a specialist was granted.

Further, after a technical break in the court session, the prosecutor filed a motion to investigate material evidence – a burnt car at the place of its storage, since it is impossible to deliver it to the court session. The prosecutor asked to involve a specialist for video recording by technical means of examining material evidence. In turn, the defense filed a petition to involve a specialist – automotive technician.

Prosecutor Moskalenko D.V. and the representative of the victims, lawyer A.P. Kononenko objected to the satisfaction of the petition for the involvement of a specialist – automotive technician, since at present the expert’s opinion on this material evidence has not been examined, the witness has not been questioned.

As a result of the trial, the prosecution’s petition was satisfied and the defense’s petition was denied.