As mentioned in our Law-now eAlert of 14.04.2016, all clients who are or may become involved in criminal proceedings should be aware of a significant amendment of the Code of Criminal Proceedings (the “CCP”) and several other acts of law, which came into force on 15 April 2016 (the “April 2016 Amendment”) annulling many of the changes introduced by the amendment which came into force in July 2015.
The April 2016 Amendment makes it easier for the authorities to use evidence gathered during operational surveillance against any person and for any crime, without asking the court for additional consent. Moreover, the April 2016 Amendment has repealed the ban on using evidence obtained by way of a criminal act. Instead, currently the CCP expressly permits the use of evidence obtained with a violation of the proceedings or by way of a criminal act. Specific evidentiary bans which existed so far, such as the ban on using confession, testimony or statements obtained by usage of force or illegal threat still apply.
It is worth noting that before July 2015 the use of evidence obtained illegally had not been regulated in the CCP. However, the courts often excluded evidence obtained by unauthorized operational surveillance or other unauthorized actions of the authorities, such as an attempt of bribery set up by the police.
After the April 2016 Amendment, only evidence obtained by a criminal act consisting in homicide, wilful injury of a person or illegal restriction of a person’s freedom may be excluded. However, the exclusion applies only if the criminal act was committed in relation to the exercise of duties by a public official. This may mean that the court or any party to the criminal trial may be able to use evidence if it was obtained e.g. by:
- a criminal act of a person who is not a public official – e.g. by a hacker, robber or burglar, as well as by e.g. a private detective who used illegal tracking equipment;
- a criminal act or a different violation of the proceedings committed by a public official, as long as it does not include one of the criminal acts listed above – e.g. by way of unauthorized wire-tapping, illegal search, unauthorized set-up bribery.
The above changes may encourage the authorities to use operational surveillance and other operational activity more often to obtain evidence of criminal activity, in particular activity involving public officials. Clients, especially clients who are dealing with public sector entities or public officials, should be aware of the changes and increase their focus on compliance. It is important to implement compliance procedures and provide adequate compliance training for the staff.
Moreover, the April 2016 Amendment may have a significant impact on internal investigations (read more about internal investigations in our Law-now eAlert of 13.08.2015). As the April 2016 Amendment upheld the provisions permitting the use of private documents prepared specifically for the purposes of a criminal investigation, documents such as internal investigation reports may still be used as evidence in a criminal trial. The repealing of the ban may limit the risk that evidence of an employee’s criminal activity against the client gathered during an internal investigation would be excluded because e.g. it was marked by the employee as his private correspondence. However, please note that the April 2016 Amendment does not in any way exempt those who obtained the evidence illegally from criminal and civil sanctions for their actions. Therefore, clients considering conducting an internal investigation should seek professional legal assistance.