Covert investigative results in severed proceedings

Positions of the trial and appellate courts: the lower courts found the defendants guilty and convicted one under Article 27(3), (4) and (5), read with Article 187(4), of the Criminal Code; another under Article 27(4) and (5), Article 187(4) and Article 263(1); and two others under Article 187(4). In the same judgment, the court found them not guilty of the offence under Article 257 of the Criminal Code and acquitted them because the elements of that offence had not been proved.

In the cassation appeal, defence counsel argued that the evidence obtained through covert investigative measures was inadmissible. Authorisation had been obtained in other criminal proceedings, and the material was later used to prove the charges in this case without an investigating judge’s order as required by Article 257 of the Criminal Procedure Code.

Position of the Criminal Cassation Court: the appellate ruling was upheld.

Reasoning of the Criminal Cassation Court: the panel stated that, under the Supreme Court’s established practice, proceedings severed from an original case may use the results of covert investigative measures conducted in that original case without additional authorisations or procedural decisions.

Article 257(1) applies where covert investigative measures in one set of proceedings reveal information about an offence not being investigated in that case and the information needs to be used in another case. By contrast, where proceedings are joined or materials severed into separate proceedings, additional authorisation from an investigating judge to use covert investigative results is unnecessary. The Supreme Court expressly distinguishes use in severed or joined proceedings from use in other criminal proceedings that are not connected by procedural decisions.