USE OF MATERIALS FROM CRIMINAL PROCEEDINGS AS EVIDENCE IN COMMERCIAL (ECONOMIC) LITIGATION

Author: Lidiia Karpliuk, Attorney, Partner Grain Law Firm

It is not uncommon for the prosecution, during a pre-trial investigation, to collect evidence that is subsequently used by parties to substantiate their positions and the circumstances within proceedings considered under other jurisdictions.

In some cases, only one or several pieces of evidence from criminal proceedings are transferred into the evidentiary record in commercial litigation — such as an expert report. However, there are also situations where all evidence submitted with a claim (for example, by the prosecutor acting in the interests of a state authority) consists exclusively of materials from criminal proceedings. Accordingly, the commercial court is required to consider the case solely on the basis of such evidence and assess it, including through the lens of criminal procedural law in the context of compliance with the procedure for obtaining such evidence within criminal proceedings, potentially reaching conclusions that may border on establishing the existence of a criminal offence.

This article outlines the relevant case law on the use of pre-trial investigation materials in commercial disputes and analyzes how commercial courts should assess the admissibility of evidence obtained within criminal proceedings.

On the possibility of using materials from criminal proceedings in commercial litigation

At present, judicial practice regarding the use of evidence obtained in other types of proceedings is well-established and permits the use of materials from criminal proceedings in both civil and commercial cases. In most instances, this concerns expert opinions prepared within the framework of criminal proceedings.

Thus, according to the ruling of the Grand Chamber of the Supreme Court dated 14 December 2022 in case No. 477/2330/18, current procedural legislation does not prohibit the use, in civil proceedings, of evidence obtained within other proceedings. In other words, evidence collected in criminal proceedings may be used in civil cases provided that such information is relevant to the subject matter of proof. The court assesses the reliability and sufficiency of such evidence based on the circumstances of each specific case.

Commercial courts, when resolving commercial disputes, must also examine expert opinions prepared within the framework of other proceedings, including civil, criminal, or administrative cases (Supreme Court ruling of 27 June 2018 in case No. 907/651/17).

An expert opinion appointed within criminal proceedings is assessed by commercial courts together with other evidence on a general basis in accordance with Article 86 of the Commercial Procedural Code of Ukraine (hereinafter – the CPC of Ukraine). The parties are not deprived of the opportunity to submit rebuttal evidence, request the court to summon the expert who prepared the report, and so on (Supreme Court ruling of 11 March 2021 in case No. 923/188/20).

An expert opinion obtained in compliance with the law within criminal proceedings constitutes admissible and reliable evidence in civil proceedings, which the court must assess and provide reasoning as to whether it accepts or rejects such evidence (Supreme Court ruling of 7 February 2024 in case No. 201/11458/20).

When resolving commercial disputes, courts may also examine expert opinions prepared in other proceedings, including civil, criminal, or administrative cases. Such expert opinions are assessed on a general evidentiary basis, provided that they address issues relevant to the dispute and are submitted in duly certified copies (Supreme Court ruling of 30 April 2020 in case No. 924/497/19).

In its ruling of 5 February 2020 in case No. 461/3675/17, the Supreme Court took into account the admissibility of an expert opinion obtained in criminal proceedings, noting that it contained information relevant to the subject matter of proof in civil proceedings, even though no criminal judgment had yet been rendered at the time of consideration.

These legal positions have been consistently reaffirmed in numerous other Supreme Court decisions.

Preconditions for using materials from criminal proceedings as evidence in other types of proceedings

Judicial practice in this area is inconsistent. In some cases, courts require authorization for the use of pre-trial investigation materials and declare such evidence inadmissible in the absence of consent from an investigator or prosecutor. In other cases, courts conclude that no such authorization is required.

For instance, in its ruling of 6 July 2022 in case No. 914/1979/18, with reference to Articles 221 and 222 of the Criminal Procedure Code of Ukraine (CPC), the Supreme Court held that the appellate court had wrongly admitted copies of pre-trial investigation materials submitted by the defendant as evidence in the absence of authorization from the investigator or prosecutor to disclose pre-trial investigation data, including permission to use copies of criminal case materials in commercial proceedings, or other evidence confirming such consent and the scope of permissible disclosure.

A similar approach regarding the necessity of consent for disclosure of pre-trial investigation materials was reflected in Supreme Court rulings of 11 November 2021 in case No. 910/8482/18 (910/4866/21), 20 October 2021 in case No. 910/10222/19, and 30 September 2021 in case No. 927/741/19.

At the same time, in its ruling of 29 April 2025 in case No. 910/5079/23, the Supreme Court rejected arguments concerning the inadmissibility of an expert opinion obtained in criminal proceedings due to the absence of consent from an investigator or prosecutor to disclose pre-trial investigation materials when submitting the claim. The Court referred to the Grand Chamber ruling of 9 February 2021 in case No. 381/622/17, which was interpreted as establishing that no separate authorization from an investigator, nor a final criminal conviction, is required for the admissibility of an expert opinion lawfully obtained within criminal proceedings.

However, in case No. 381/622/17, the Grand Chamber held that a forensic handwriting expert report cannot be considered inadmissible merely on the grounds asserted by the bank in its cassation appeal. The claimant submitted a copy of the report derived from a copy certified by the investigator. For its use as evidence, no separate authorization from the investigator or a final criminal conviction was required. Such an expert report, lawfully obtained within criminal proceedings, was relevant to the subject matter of proof in the civil case.

Thus, in case No. 381/622/17, the court emphasized that the document had been lawfully obtained through certified copies provided by the investigator, which formed the basis for its admissibility in separate proceedings.

Accordingly, the precondition for using materials from criminal proceedings as evidence in other types of proceedings is their lawful acquisition. This requirement may be interpreted differently depending on the stage of criminal proceedings and the existence of the confidentiality regime governing pre-trial investigation data at the relevant time.

Assessment by commercial courts of materials from criminal proceedings as evidence

The rules governing the evaluation of evidence in commercial proceedings are set out in Article 86 of the CPC of Ukraine. Under this provision, the court evaluates evidence based on its internal conviction formed through a comprehensive, full, objective, and direct examination of all available evidence. No evidence has predetermined force. The court assesses relevance, admissibility, and reliability of each piece of evidence individually, as well as the credibility and interrelation of all evidence in their entirety, and must justify acceptance or rejection of each item or group of evidence.

Given that evidence in criminal proceedings must be collected in strict compliance with criminal procedural law, it is essential that commercial courts fully assess the admissibility of such evidence specifically through the lens of compliance with proper legal procedure.

Article 77 of the CPC of Ukraine defines admissibility of evidence. Pursuant to parts 1 and 2 of this article, circumstances that must be proven by certain means of evidence under the law cannot be proven by other means. Evidence obtained in violation of the law shall not be accepted by the court. In relation to criminal case materials, such “law” is the Criminal Procedure Code of Ukraine. Therefore, commercial courts must carefully assess whether such evidence was obtained in compliance with the CPC.

The Supreme Court has repeatedly held that admissibility of evidence has both a general and a special character.

The general character requires compliance with legally defined means of proof, as well as the procedure for collection, submission, and examination of evidence regardless of the category of case. The special character refers to mandatory means of proof for certain categories of cases or prohibitions on the use of certain types of evidence for establishing specific circumstances (Grand Chamber Supreme Court ruling of 7 December 2021 in case No. 905/902/20; Supreme Court rulings of 31 May 2022 in case No. 904/3242/18, 7 June 2022 in case No. 922/605/15, 5 July 2022 in case No. 904/3866/21, and others).

Inadmissible evidence is evidence obtained in violation of the law or evidence that cannot establish circumstances which, under legal requirements, must be proven by specific means. The burden of proving inadmissibility lies with the party alleging it (Supreme Court ruling of 31 May 2022 in case No. 904/3242/18).

At the same time, some Supreme Court decisions provide a narrower interpretation, according to which admissibility of evidence means that in certain cases provided by substantive law, specific circumstances must be proven by specific means of evidence (rulings of 5 March 2025 in case No. 916/103/23, 8 April 2025 in case No. 910/14228/21, and others). However, this approach addresses only one aspect of admissibility under Article 77(1) of the CPC and does not fully account for procedural legality, which is particularly significant in relation to evidence obtained in criminal proceedings.

A more comprehensive approach was set out in the Supreme Court ruling of 6 May 2025 in case No. 927/224/24, according to which admissibility is determined by the legality of the sources, conditions, and methods of obtaining evidence. These elements constitute the procedural dimension of evidence, which is especially important when assessing materials originating from criminal proceedings.

If only one or several pieces of evidence in a case originate from a pre-trial investigation, the court’s conclusions are not based exclusively on them. However, issues arise where a prosecutor files a claim for damages based entirely on materials identical to those of an ongoing criminal investigation, where no final determination of a criminal offence has yet been made. This raises the question of whether such claims effectively substitute criminal proceedings, as the commercial court is required to establish facts identical to those under criminal investigation.

In our view, where a prosecutor’s claim is filed separately from an ongoing criminal case but is based exclusively on its materials, the commercial court should ascertain the status of such criminal proceedings and consider suspending the commercial case until the criminal case is resolved. This would prevent commercial courts from addressing issues of criminal procedural admissibility and from effectively determining facts that fall within the scope of criminal proceedings.