An ERDR extract and the powers of investigators and prosecutors

Positions of the trial and appellate courts: the lower courts found the person not guilty and acquitted them under Article 369(3) of the Criminal Code because the elements of the offence had not been proved.

In the cassation appeal, the prosecutor argued that the courts had wrongly declared prosecution evidence inadmissible because of the absence of a decision conferring the relevant powers on the prosecutor and investigator. The appellant maintained that the ERDR extracts established their procedural status in these proceedings and the investigator’s authority to notify a person of suspicion.

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

Reasoning of the Criminal Cassation Court: the panel stated that only an investigator or prosecutor designated by law may apply for covert investigative measures under Chapter 21 of the Criminal Procedure Code. The court, namely the appellate court’s investigating judge, must verify that the person applying and appearing is the authorised person.

The case materials showed that the trial court reasonably found inadmissible the appellate court’s orders authorising covert investigative measures on applications by a prosecutor who lacked authority in the proceedings at the time. The resulting covert material and records of inspections of objects, conducted and prepared under those orders, were derivative evidence and could not be regarded as admissible under Article 87(1) of the Criminal Procedure Code. Naming the prosecutor in an ERDR extract did not confer the relevant powers.

The trial court also reasonably noted that the investigator had no authority to prepare and sign the notice of suspicion served on the acquitted person. The decision assigning the pre-trial investigation to a team did not include that investigator, nor did the indictment list the investigator among those conducting the investigation. The investigator’s name appeared only among other investigators in the ERDR extract.

The panel stated that an ERDR extract cannot replace the procedural decision determining the investigation team or the prosecution office head’s decision appointing a prosecutor or team of prosecutors to exercise powers in a particular case. It is not a criminal procedural decision giving rise to those legal consequences in the specific proceedings.

The Supreme Court concluded that, when considering an application for covert investigative measures, the investigating judge must check identity documents, such as an official service identification card, and documents establishing procedural status. These include an assignment, a decision determining the investigation team, or the prosecution office head’s decision appointing a prosecutor or team of prosecutors. They must confirm authority in the specific proceedings both when the application was prepared and submitted and when it is considered. The judge must also verify that the pre-trial investigation authority employing the investigator or prosecutor who applied and appeared falls within the relevant appellate court’s territorial jurisdiction, or that the criminal proceedings fall within the High Anti-Corruption Court’s jurisdiction if its investigating judge is considering the application.

The investigating judge must examine the grounds for seeking covert investigative measures under Chapter 21 outside the territorial jurisdiction of the pre-trial investigation authority conducting the investigation.

The investigating judge must return an application for a covert investigative measure if the investigator’s or prosecutor’s authority to act in the particular proceedings is not confirmed both at preparation and submission and at consideration of the application. The same applies where an application is made outside the investigation authority’s territorial jurisdiction without the grounds prescribed in Article 247(2) of the Criminal Procedure Code.