Oral v. Written Evidence in Post-Soviet States Nikolai Kovalev

Oral v. Written Evidence in Post-Soviet StatesOral v. Written Evidence in Post-Soviet States

Nikolai KovalevNikolai Kovalev

What is oral and written evidence?What is oral and written evidence?

• Oral evidence – live courtroom testimony, delivered by witnesses, accused or expert who have knowledge or opinions in relation to the facts at issue

• Written evidence – includes written records completed by the investigative authorities and other parties in criminal cases, such as voluntary confession and surrender, examination record or expert opinion

Recorded evidenceRecorded evidence• Pre-trial evidence in audio and video format

• Not written (printed)– Present actual voice and demeanour of the interviewed

person – Argument: has more probative value than written record– Equal to live testimony?

• Not live – Audio and video records can be edited– Obtained without a second party – the defence, no

opportunity to cross-examine and challenge the witness– Easier to obtain by coercion during pre-trial investigation

• Oral v recorded evidence

• Common law tradition: oral v hearsay evidence

• Why and how courts can rely on written evidence?

Soviet Court Soviet Court

Oral and recorded evidence in Soviet lawOral and recorded evidence in Soviet law

• Principles of immediacy and orality, BUT

• Oral evidence was not a more preferred type of evidence

• Written evidence could easily replace testimony in court

• Definition of “immediacy and orality”:• • “The court must examine defendants, victims,

witnesses, hear opinions of experts, observe real evidence and read out protocols and other documents” (Article 240 of the CPC RSFSR)

Use of accused pre-trial statements by Soviet courtsUse of accused pre-trial statements by Soviet courts

• (1) if there were significant contradictions between accused pre-trial statements and his testimony in court

• (2) if the accused refused to testify in court

• (3) if the trial was held in the absence of the accused

Use of witnesses’ pre-trial statements by Soviet courts Use of witnesses’ pre-trial statements by Soviet courts

• (1) if there were significant contradictions

between pre-trial statements and testimony in

court

• (2) if the witness was not present in court due

to reasons making presence in court impossible

– Commentators: death, distant and prolonged

business trip, change of address

• Courts had access to written statements before

and during trial and during deliberation

Oral and recorded evidence in post-Soviet legislation Oral and recorded evidence in post-Soviet legislation

• Post-Soviet Codes proclaim principles of orality and immediacy, but vary in relation to use of recorded evidence

• Soviet approach: Armenia, Azerbaijan,

Kazakhstan, Kyrgyzstan (until 2004), Tajikistan

•

Codes of Turkmenistan and UzbekistanCodes of Turkmenistan and Uzbekistan

Codes of Turkmenistan and Uzbekistan allow pre-trial statements of absent witnesses regardless of the reasons

Courts are not obliged to determine whether witness cannot attend due to valid reasons

Intimidated witnesses in BelarusIntimidated witnesses in Belarus

• Code of Belarus allow judges to excuse witnesses, victims, experts and use their pre-trial statements without disclosing their identity if it is necessary in the interests of their safety or their relatives or their property

• Statements not tested during pre-trial investigation by the defense

• Live-link is an option, but not a legal requirement

Intimidated witnesses in UkraineIntimidated witnesses in Ukraine

• In exceptional cases courts may excuse witnesses, who are under protection program, to appear in court if there is a written confirmation of their pre-trial statements 

Use of written evidence in Moldova Use of written evidence in Moldova • CPC 2003: statements of absent and

intimidated witnesses are admissible only under additional conditions:– If investigative authorities conducted a

confrontation between witness and the accused

– If the investigating magistrate conducted examination of the witness and allowed the accused and his attorney to participate and put questions to the witnesses during pre-trial investigation

• Compatible with Article 6(3)(d) of ECHR?

• Confrontation v. cross-examination in court

Pre-trial confessions in Russia Pre-trial confessions in Russia

• Russian CPC 2002: the pre-trial statement of the accused given without a defence attorney is not admissible if the defendant recants his or her statement in court

• 2004 – Kyrgyzstan introduced similar provision

• Aim: prevent coercive interrogation and involuntary confessions

• Is it effective safeguard?

Pre-trial confessions (cont.)Pre-trial confessions (cont.)

• Torture and interrogation take place at different points of time: first torture then interrogation with the lawyer present

• Detention without official booking, forced “voluntary confession and surrender”

• Questioning suspect as a witness

• Police can appoint “pocket” or corrupt lawyers

Witness’ pre-trial statements in RussiaWitness’ pre-trial statements in Russia

• CPC 2002: witness pre-trial statements were admissible only with the consent of both parties

• Law of July 2003 introduced in Article 281(2) several exceptions from the general rule (exhaustive list)

– Death of the witness

– Serious illness, which prevents appearance in court

– Refusal of the foreign witness to appear in court

– Natural disaster or other emergency situations

Constitutionality of Article 281 CPC RFConstitutionality of Article 281 CPC RF

• In 2010-2011 – at least 10 applications to challenge constitutionality of Article 281 CPC

– Breaches adversary procedure

– Use of illegally obtained evidence

• Trial courts interpret exclusions very broadly:

– W. away for study or work

– W. whereabouts are unknown etc.

• Constitutional Court dismissed all applications on the ground that Article 281 itself does not violate any Constitutional rights

Written evidence and the role of courtWritten evidence and the role of court

• Case of Tarasov, Bal’ and Repnikov (2004)

• Prosecution submitted a motion to read out

pre-trial statements of 2 eyewitnesses in

murder trial due to illness and lack of travel

funds

• Judge excluded written evidence

• Jury acquittal and prosecution appealed

• Supreme Court dismissed the acquittal:

– Trial judge erred in failing to secure the

appearance of witnesses and failing to

investigate whether illness was serious enough

to use pre-trial statement

Coerced confessions and witness pre-trial statements in jury trialsCoerced confessions and witness pre-trial statements in jury trials

• Jury trials in Russia

• Trials with participation of lay assessors (jurors) in

Kazakhstan

• CPCs of Russia and Kazakhstan prohibits parties to

present inadmissible evidence to jurors, e.g. coerced

confession and witness testimony

• Courts often allow confessions and witness

testimony allegedly obtained by coercion

• Defence and witnesses are not allowed to attack

reliability and voluntariness of their own self-

incrimination and incriminating statements in the

presence of jurors

Trial of Tikhonov and KhasisTrial of Tikhonov and Khasis

ConclusionsConclusions

• Post-Soviet criminal process is inquisitorial

in nature

• Measures and safeguards aiming to

introduce equality of arms and adversary

procedure are not effective

• Judges not fully independent and impartial

(accusatorial bias)

• Jurors have limited access to the discussion

of admissibility of evidence

Questions?Questions?