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Ukraine: Court Ruling on Evidence Makes Former President Immune from Prosecution

(Dec. 15, 2011) On October 20, 2011, the Constitutional Court of Ukraine interpreted constitutional provisions on due process and rules of evidence. This ruling was issued in response to a request sent to the Court by the Security Service of Ukraine last July, which insisted on the Court's reviewing article 62 of the Ukrainian Constitution. This article states that “prosecution cannot be based on illegally obtained evidence,” and the Security Service asked for clarification of the evidence to which this provision applies.”

The request was submitted in connection with the case of the former Security Service officer who allegedly taped conversations between the former Ukrainian President, Leonid Kuchma, and the nation's Police Chief, the Attorney General, and the President's Chief of Staff while serving as the President's bodyguard. Based on the recorded conversations, the bodyguard accused the former President of ordering the murder of a famous Ukrainian opposition journalist in 2000. (Svetlana Bocharova & Sergei Smirnov, Sniali Vopros po Kuchme [Kuchma Question is Resolved], (Oct. 21, 2011).)

The Constitutional Court stated that accusations of committing a crime cannot be based on facts discovered in violation of someone's constitutional rights, in violation of procedures prescribed by law, or by an unauthorized individual. Additionally, the Court ruled that only evidence obtained in accordance with the requirements of criminal procedural legislation can be admitted. “Investigative activities cannot be conducted by public or private organizations or by individuals other than those defined by the Code of Criminal Procedure.” (Constitutional Court Ruling No. 12rp/2011 [in Ukrainian], Constitutional Court website (last visited Dec. 14, 2011).) The Court said that investigative activities undertaken on one's own initiative contravene existing legislation and violate the constitutional rights and freedoms of Ukrainian citizens. (Id.)

The Court ruled that the constitutional provision that protects individuals from accusations based on illegally obtained evidence must be interpreted as a protection from accusations based on facts obtained by a person who conducted an investigation without following legal requirements or by an authorized individual, even if the investigative methods were permitted under Ukrainian law. In regard to the President's case, it means that the tapes in question cannot be used as evidence to accuse the former Ukrainian President of involvement in murder, because they were recorded on the bodyguard's own initiative. (Bocharova & Smirnov, supra.) Because the Constitutional Court's decisions are final and cannot be appealed, some observers believe that this decision was made to remove all accusations of involvement in the journalist's murder against the former President. (For analysis of the ruling and its implications see Lev Hodakovskii, Constitutional Court on Applicability of Evidence [in Russian], Advokatura Ukrainy (website of the Ukrainian Bar Association) (last visited Dec. 10, 2011).)

Speculation that the Constitutional Court ruling might be a part of a deal concluded between the former President and the current administration, under which the former President will stay outside of politics and will not criticize the administration and his case will be closed in exchange (Bocharova & Smirnov, supra), appeared to be correct when, on December 14, 2011, a Kyiv district court where the case of abuse of office had been opened against former President Kuchma in March 2011 decided to drop charges against Kuchma and close the case because, according to the court, there are no legal grounds for prosecution due to the October Constitutional Court ruling. (Court Ruling: Case Against Kuchma is Closed [in Ukrainian], 5 KANAL (Ukrainian private TV channel) (Dec. 14, 2011).)