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Attorney-at-Law, Partner, VB PARTNERS
Disclosure and Admissibility of Information from Criminal Proceedings in Administrative Disputes
The procedural law, which was substantially amended in 2017, has determined further development of the concept of evidence disclosure. Lawmakers have defined, through new procedural rules, the role of a court as an arbitrator which assesses rather than collects the evidence provided by litigants. However, this approach is not understood by all lawyers, and remains a matter of discussion with judiciary representatives and lawyers.
In the administrative process, Article 77 of the Code of Administrative Judicial Procedure of Ukraine obliged each litigant to prove the circumstances on which its claims and objections are based, but with the proviso that in administrative cases over the unlawfulness of an authority’s decisions, actions or omissions the burden of proof rests with the defendant.
In such cases, besides the burden of proving the lawfulness of its decision, an authority may not rely on evidence that is not the basis of a disputed decision.
Rules are unambiguous and clear, but my direct involvement in a number of administrative processes with the central authorities points to the fact that administrative courts refuse to comply with the principles of competition between litigants.
In particular, it is common practice for law-enforcement agencies to be involved in administrative processes on the side of the authorities, whose decisions or actions are being challenged. Such involvement occurs at the request of the authorities or at the court’s own initiative, and is justified by a reference to the abstract tasks of those law-enforcement agencies, but not to specific rights and obligations, which may be affected by a case decision.
Let us consider a particular situation. In June 2019, a governing authority provided the administrative court’s panel of judges with all the available evidence as the basis for a disputed decision. The panel of judges involved a law-enforcement agency in the case at the authority’s request. Such a ruling is not subject to appeal.
Initially, a law-enforcement agency (Third Party on Defendant’s side) violated the court’s deadline for submitting explanations and evidence, but later it began submitting to the court the materials related to various criminal proceedings before each court hearing in September, October, November and January. It was impossible not to raise objections to such evidence.
A. A court does not take into account evidence obtained in violation of the procedure established by law (Part 1 of Article 74 of the Code of Administrative Judicial Procedure of Ukraine)
In particular, in September 2019, the Third Party provided, together with written explanations regarding the claim, materials from two criminal proceedings considered in 2017 and 2018.
The information of a pre-trial investigation may be disclosed only with the written permission of an investigator or prosecutor and to the extent that they consider it possible (Part 1 of Article 222 of the Criminal Procedure Code of Ukraine). Unlawful disclosure of pre-trial investigation information entails criminal liability as established by law (Part 2 of Article 222 of the Criminal Procedure Code of Ukraine).
The plaintiff drew the attention of the panel of judges to the absence of such a permit. Therefore, the provided pre-trial investigation information was disclosed unlawfully and obtained in violation of the procedure as established by law. That is, the evidence provided is inadmissible.
To remedy the situation, in October 2019, the Third Party’s representative submitted the Resolution taken by a senior special investigator, of mid-October 2019, on allowing disclosure of a pre-trial investigation secret in five criminal cases, being considered in 2015-2018, at once. The resolution alleged that they had been combined into a “single criminal proceeding.”
First, the Plaintiff drew the court’s attention to the fact that pre-trial investigation information was unlawfully disclosed in September 2019, when the Third Party filed its explanations in respect of the claim together with the criminal proceeding materials, but the secret disclosure Resolution was issued only in mid-October, when the secret had been already unlawfully disclosed.
This clearly demonstrates a simplified understanding of law by law-enforcement agencies, when the fact of illegal, and even criminal action, seems to be legitimized by executing a document in the future.
Second, the Plaintiff drew the court’s attention to an apparent inaccuracy in the investigator’s Resolution. One of the combined criminal proceedings had already been pending before a court since 2017, while the other two are being investigated by a structural unit of the law-enforcement agency in another region, which the senior investigator has no connection with. No other criminal proceeding exists. This resulted in a new postponement of court hearings.
In November, in response to the Plaintiff attorney’s inquiry, an investigator acknowledged an inaccuracy, stating that he/she “mistakenly indicated four criminal proceedings.” A permit was granted for disclosing the secrecy of only one criminal proceeding.
After a lengthy break, in January 2020, the Third Party provided two volumes of various documents which contained the minutes of investigative actions in two more criminal proceedings considered in 2015 and 2017. A permit for disclosure was not granted. No connection with the single case, being considered by the senior investigator, has been confirmed.
As of the date of this Article, an administrative court panel had not yet finally assessed the evidence provided by the Third Party, but it is obvious that the criminal proceedings materials provided are inadmissible as evidence obtained in violation of the procedure, as established by law and disclosed illegally.
In December 2019, the State Bureau of Investigation registered criminal proceedings against the Resolution’s falsification and unlawful disclosure of secret.
B. A court does not consider evidence that is not relevant to the subject of proof (Part 4 of Article 73 of the Code of Administrative Judicial Procedure of Ukraine)
If we analyze the published materials of criminal proceedings, then they obviously have nothing to do with the dispute. In particular, the Third Party provided documents of varying commercial nature — contracts, certificates, reports, letters, etc., which confirm the Company’s usual financial and commercial activities in the period from 2000 to 2012. These documents have nothing to do with proving the lawfulness of the decision that was taken by the authority in 2018.
Likewise, the submitted minutes of certain investigative actions (witness interrogation, Internet documents and information reviews), carefully selected by the senior investigator from the criminal proceeding’s materials, are not relevant to the dispute either. For example, one of the witnesses only explained that he was the son of an individual working as an engineer and had been the Company head in the past. At the same time, none of the pre-trial investigations, as mentioned above, is conducted in respect of such an engineer, and he is not suspected of any criminal proceedings.
In addition, the minutes regarding the investigative actions in 2018-2019 could not be used to adopt a disputed decision in May 2018.
Consequently, it is a common practice when law-enforcement agencies, being third parties on the authority’s side, submit documents which have nothing to do with the subject of evidence and, therefore, are inadequate.
C. In cases related to a decision’s unlawfulness, an authority may not refer to the evidence, which was not the basis of the disputed decision (Part 2 of Article 77 of the Code of Administrative Judicial Procedure of Ukraine)
This requirement relates directly to an authority’s duty to prove that a decision is lawful. An exception is when the authority proves that it has taken all possible measures to obtain evidence before a disputed decision is taken, but it has not been obtained due to reasons that are beyond its control.
As noted above, the Third Party submitted 2018-2019 documents, which could not objectively be used to adopt a disputed decision in 2018. Moreover, the Defendant’s response to the claim has confirmed that the minutes of investigative actions and other criminal proceeding materials had not been submitted to it (authority) before the disputed decision was made. Therefore, in this category of disputes it is necessary to pay attention to what documents were used by the Defendant to adopt the disputed decision.
D. The circumstances of a case, which by virtue of legislation should be confirmed by certain means of proof, may not be confirmed by other means of proof (Part 1 of Article 74 of the Code of Administrative Judicial Procedure of Ukraine)
A Third Party’s explanations in respect of a claim contained allegations made against various individuals that they committed serious crimes. Such circumstances and conclusions may be established by a court indictment which has come into force (Article 62 of the Constitution of Ukraine, Article 2 of the Criminal Code of Ukraine, Article 17 of the Criminal Procedure Code of Ukraine, Part 6 of Article 78 of the Code of Administrative Judicial Procedure of Ukraine).
No indictment(s) was (were) filed by the Third Party against individuals or legal entities due to their absence. The pre-trial investigation in these criminal cases has not been completed or has even been suspended for years.
In addition, the above-mentioned individuals were not the Plaintiff’s officials or beneficial owners.
Therefore, by providing materials from criminal proceedings, the pre-trial investigation in respect of which has not been completed, law-enforcement agencies try to entrust administrative courts with the task of criminal justice and criminal process. Such tasks are defined in Article 2 of the Criminal Procedure Code of Ukraine, in particular, investigation of criminal proceeding materials and judicial examination in order to decide whether someone is guilty or innocent. However, they have nothing to do with the tasks of administrative justice courts.
In addition, the involvement of law-enforcement agencies to support authorities is not justified, and contradicts the principles of equality and competitiveness of litigants, and purposes to enable the authorities to justify disputed decisions. Moreover, the fact of provision by law-enforcement agencies of pre-trial investigation materials is aimed at distorting the internal conviction of judges, and creating a preconception when evaluating the evidence regarding the lawfulness of a decision.