Oral v. Written Evidence in Post-Soviet States Nikolai Kovalev.
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Transcript of Oral v. Written Evidence in Post-Soviet States Nikolai Kovalev.
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Oral v. Written Evidence in Post-Soviet StatesOral v. Written Evidence in Post-Soviet States
Nikolai KovalevNikolai Kovalev
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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
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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?
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Soviet Court Soviet Court
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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)
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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
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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
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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
•
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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
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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
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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
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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
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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?
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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
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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
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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
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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
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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
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Trial of Tikhonov and KhasisTrial of Tikhonov and Khasis
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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
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Questions?Questions?