General conditions of the admissibility of evidence in criminal proceedings

The requirement for the admissibility of evidence logically follows from the provisions of the Constitution and the Code of Criminal Procedure of Ukraine on the rule of law and the legality of criminal proceedings, and the presumption of innocence. The tasks of criminal procedure are also achieved through the application of rules on the admissibility of evidence. Evidence is considered admissible if two general conditions are met simultaneously: 1) positive – it was obtained with strict adherence to the procedure established by the current criminal procedural legislation (art. 86 of the Criminal Procedure Code of Ukraine); 2) negative – the evidence was formed without a significant violation of human rights and freedoms, guaranteed by the Constitution, Laws and ratified international treaties of Ukraine (art. 87 of the Criminal Procedure Code of Ukraine). Evaluation of the admissibility of evidence in light of сompliance with the current criminal procedural order during its receipt involves a comprehensive approach. We have outlined a complex of seven general procedural conditions for the collection (formation) and use of evidence, which are the general conditions for its admissibility. It was also pointed out that there are special rules (exceptions to the general rules of the Criminal Procedure Code of Ukraine and rules in force during martial law), that affect the admissibility of evidence. Evidence, obtained as a result of a significant violation of human rights and freedoms, guaranteed by the Constitution, Laws and ratified international treaties of Ukraine, is also inadmissible. The content and scope of the “poisonous fruit” rule as a basis for declaring derivative evidence inadmissible are considered. It is noted that the list of unconditional grounds for declaring evidence inadmissible in part 2 of art. 87 of the Criminal Procedure Code of Ukraine should include the norm on observing the witness’s right to a lawyer, the victim’s right to a representative, the right of persons, who do not speak the language of the criminal proceedings, to an interpreter, the rights to a legal representative for minors, limited or totally disabled persons. Proving the grounds for declaring evidence inadmissible due to significant human rights violations is carried out in a differentiated manner: when applied part 1 of art. 87 of the Criminal Procedure Code of Ukraine, it is necessary to indicate which right of the participant in the criminal proceedings has been violated and what is the significance of such a violation. If there is an unconditional basis for declaring evidence inadmissible (parts 2-3 of art. 87 of the Criminal Procedure Code of Ukraine), then it is sufficient for the court to state the relevant violation of rights, without giving a separate assessment of its significance. The trends and conflicts of the Supreme Court’s practice regarding the assessment of the admissibility of evidence and its recognition as inadmissible in criminal proceedings are summarized.