Investigative Jurisdiction and Inadmissibility of Evidence
Investigative jurisdiction is the set of statutory characteristics of a criminal proceeding that determine which pre‑trial investigative body must conduct the investigation in that proceeding. Jurisdiction is an element of proper legal procedure, intended to ensure procedural economy and investigative efficiency, notably through specialization and preventing duplication of investigations. The importance of correctly determining investigative jurisdiction is due, not least, to its potential impact on judicial jurisdiction. The most consequential effect of violating jurisdictional rules lies in its influence on the admissibility of evidence.
The “Gold Standard” of Proof
The Constitution of Ukraine (Article 62 §3) provides that an accusation cannot be based on evidence obtained unlawfully. Interpreting this norm, the Constitutional Court of Ukraine (Decision No. 12‑rp/2011 of 20 October 2011) distinguished between evidence obtained with violations of constitutional rights and freedoms and evidence obtained by an unauthorized person—both being independent grounds for deeming evidence inadmissible. This is echoed in CPC Article 86(1): “Evidence shall be deemed admissible if obtained in accordance with the procedure established by this Code.” The logical corollary—that evidence obtained otherwise is inadmissible—has given rise in judicial practice to the concept of proper legal procedure as the yardstick for testing admissibility.
Mainstream Practice
The Supreme Court (SC) has articulated the view that conducting a pre‑trial investigation in violation of investigative jurisdiction—i.e., by unauthorized bodies or officials—constitutes a substantial violation of human rights and fundamental freedoms and results in the inadmissibility of the evidence obtained. This position is most fully elaborated, expanded, and synthesized in the Judgment of the Joint Chamber of the Criminal Cassation Court (JCCC) of the SC of 24 May 2021 in case No. 640/5023/19.
The Joint Chamber held that investigative jurisdiction under the CPC is strict and does not allow prosecutorial discretion: “The strategic aim of the jurisdictional institute is to guarantee the person’s right to an objective and impartial investigation, and, as a result, ensure the right to a fair trial as guaranteed by the Convention.” The consequence of failing to comply with proper legal procedure, as an element of the rule of law, is the inadmissibility of evidence obtained during pre‑trial investigation (under CPC Article 86 and Article 87 §3(2)), as evidence collected by unauthorized persons (or bodies) and in breach of the procedure established by law.
This legal position emerged in 2020, was most comprehensively formulated by the JCCC in May 2021, and has been consistently applied by the Criminal Cassation Court in 2021, 2022, 2023, and 2024. It remains the mainstream practice, with no departures. One could have put a period here…
The Supreme Court as Guardian of Stability and Uniformity
Before proceeding, recall that by law the Supreme Court is mandated to ensure the stability and uniformity of case‑law, an element of legal certainty—itself part of the rule of law—because:
(a) courts are obliged to take account of the SC’s legal positions in adjudication; and
(b) the European Court of Human Rights views case‑law as part of “law” that must be accessible and foreseeable.
Stability is ensured, inter alia, by the rule that on questions already addressed in SC legal positions, subsequent approaches must either follow them or depart from them. At the same time, the legislature intended that departures occur rarely. Safeguards include:
(a) procedural—a case must be referred to the Joint or Grand Chamber to depart (CPC Article 434‑1);
(b) filtering—the compared legal relationships must be similar; and
(c) substantive—limited grounds for departure (prior decisions must be erroneous, ineffective, unreasoned, inconsistent, or the approach must be clearly outdated due to developments in social relations or regulation).
This should prepare the reader for the ensuing developments in SC positions.
A Bifurcation Point
Irrespective of investigative jurisdiction, the Grand Chamber of the Supreme Court (GC SC), in its judgment of 31 August 2022 in case No. 756/10060/17, analyzing the consequences of an expert examination ordered by an investigator not included in the designated investigative group, reached notable conclusions on inadmissibility that spread unexpectedly.
Competing in boldness with Nietzsche’s Zarathustra, the GC SC touched the “sacred” and concluded that application of proper legal procedure is not an end in itself. Procedural violations in obtaining evidence vitiate its probative value only if they resulted in violations of human rights and fundamental freedoms or cast doubt on the provenance, reliability, or trustworthiness of the evidence. Hence a court must “ascertain the impact of such violations on specific Convention or constitutional rights, including the extent to which procedural defects ‘destroyed’ or narrowed these rights or restricted the person’s ability to effectively exercise them.”
At this juncture, nothing seemed to change regarding investigative jurisdiction: the relationships examined by the GC SC were irrelevant to jurisdiction (they did not concern it), and there was no departure from the JCCC’s position. Moreover, the GC’s conclusions harmonize with the JCCC’s view that violations of investigative jurisdiction do infringe specific Convention rights.
Yet this was, if not Pandora’s box, then likely a bifurcation point.
A Knight’s Maneuver
On 1 November 2022 (case No. 991/492/19) and 28 February 2023 (case No. 761/34746/17), relying on the GC SC’s conceptual approach, panels of the Criminal Cassation Court stepped onto terrain close to investigative jurisdiction: they held it incorrect to deem evidence inadmissible where a prosecutor acting as procedural supervisor obtained evidence after the statutory deadline for transferring materials to the investigative body (CPC Article 214 §7).
The latter ruling—something of a Trojan horse—articulated two conclusions going far beyond prosecutorial powers (the actual dispute) and directly contradicting the JCCC’s position:
- To declare evidence inadmissible, courts must, in each case, present proof and arguments (concrete facts) indicating bias of the investigator or prosecutor, showing personal interest in the outcome of the criminal proceeding, or demonstrating other direct prohibitions on participation provided by the CPC.
- If an investigative body conducts investigative actions expressly provided by the CPC, such actions cannot be regarded as “exercising powers not provided by the CPC” within the meaning of CPC Article 87 §3(2), and cannot automatically lead to inadmissibility.
The first conclusion imports a reference to a wholly different legal institute—recusal—which does not clarify the reasoning but reveals the aim, further developed in the second conclusion: to pre‑empt “automatic” inadmissibility in future where investigative jurisdiction is violated.
The second conclusion effectively translates the GC SC’s message into plain language: “Was the act investigative? If yes—who else but an investigator should conduct it?”
In fact, both conclusions derive from legal positions in irrelevant relationships—conceptually from the GC SC’s judgment of 31 August 2022 (No. 756/10060/17), which does not concern investigative jurisdiction, and literally from the Criminal Cassation Court’s ruling of 28 February 2023 (No. 761/34746/17), which addressed prosecutorial powers to collect evidence, not the consequences of determining or changing investigative jurisdiction.
Moreover, in case No. 761/34746/17, the Criminal Cassation Court attempted to refer the matter to the Joint Chamber precisely to depart from positions in jurisdiction cases—but the JCCC (Order of 12 January 2023) returned the file due to the irrelevance of the legal relationships.
Despite these already obvious points—reiterated by the JCCC—certain CCC panels nonetheless ushered this “horse” into the bastions of their decisions, improperly extending those conclusions (without accounting for different relationships) to situations where evidence is collected by an investigative body designated in violation of investigative jurisdiction.
Thus, without any formal departures from established positions, two opposing lines of CCC SC case‑law operate in Ukraine:
(1) the more prevalent line oriented toward the JCCC judgment of 24 May 2021 in case No. 640/5023/19 (in similar relationships); and
(2) another line employing the conceptual approach of the GC SC’s judgment of 31 August 2022 in case No. 756/10060/17, as well as the CCC SC’s legal conclusion in case No. 761/34746/17 (the Trojan horse)—in irrelevant relationships.
This situation is yet another example of the high level of accessibility and foreseeability of the highest court’s practice. Such practice offers clear signposts for litigants to craft prosecution and defense strategies with only two ultimate perspectives: evidence collected in violation of investigative jurisdiction will be deemed inadmissible by some instance—or not.
Endgame: Not Yet Lost
Evidently, the match is not yet lost, and the Supreme Court’s “main” position still appears more resilient. Defense lawyers, however, will need to exert additional effort, going beyond citing relevant SC case‑law. The defense’s task is to vividly demonstrate to the court—like in a kaleidoscope—all facets of the client’s rights brutally broken or brazenly narrowed due to violations of investigative jurisdiction in the specific case.
Source: Yurgazeta