We sat down with J.Byambaa, one of the founding members of the Constitutional Court of Mongolia, Honored Lawyer, Doctor of Laws and Professor, to discuss some of the pressing issues surrounding evidence and investigation in criminal procedure law. Professor J.Byambaa earned his academic degrees from Irkutsk University and the Moscow Academy of Social Sciences. Following his graduation, he began his professional career as a lawyer at the Khovd Provincial Legal Advisory Office, before taking on various key roles, including instructor responsible for legal and supervisory affairs at the Central Committee of the then Mongolian People’s Revolutionary Party, senior researcher and scientific secretary at the Institute of State and Law of the Mongolian Academy of Sciences, and First Deputy Prosecutor General of Mongolia. Since 1993, he has also been sharing his extensive knowledge and experience with future generations of legal professionals as a professor at the School of Law of the National University of Mongolia. Readers may remember that his co-authored book, “Basic Issues of Criminal Procedure Law,” written together with Dr. J.Erkheskhulan, received the prestigious B.Chimid Award in January this year.
Recently, various approaches in forensic science have gained increasing attention, particularly methods aimed at improving the collection, evaluation and strengthening of evidence for crime detection, investigation and prevention. What is your perspective on the use of modern techniques such as criminal profiling and polygraph examinations in investigative processes?
The Italian scientist, Cesare Lombroso, widely regarded as the “father” of criminology, devoted much of his research to studying people who had committed crimes or were considered likely to commit them. He attempted to identify criminal tendencies based on physical and social characteristics, such as facial features, bright eyes, prominent chins and certain patterns of movement. However, these theories have not been scientifically proven or accepted in modern criminology. Human beings are shaped by both nature and society. There is no such thing as a person being born a criminal, rather, criminal behavior is influenced by a range of social and environmental factors. In recent years, technologies such as the polygraph have emerged as tools in criminal investigations. Mongolian scientist J.Boldbaatar earned his PHD degree through his research titled “Theory and Methodology of Using Polygraphs in Crime Detection”. While polygraph examinations may assist investigations and, in certain cases, be considered as supporting material, they are not recognized as an independent legal source of evidence.
How developed is the study of the causes and underlying conditions of crime in Mongolia from the perspective of modern scientific approaches?
Many scholars have conducted research on this subject, although it remains unclear to what extent some of these approaches fully meet modern scientific standards. Researchers in the USA, Japan and several European countries have suggested that studying criminal behavior from a genetic perspective is an important area that requires further investigation. The process of collecting and evaluating evidence is carried out in accordance with the procedures established under the Criminal Procedure Code. The theory of evidence is not limited solely to criminal law, it is a fundamental concept that applies across all areas of procedural law. Each type of legal proceeding has its own principles and methods for examining and evaluating evidence. However, in criminal proceedings, evidence must meet three essential requirements to be considered admissible. First, it must be obtained by an authorized person during the legally established investigation process. Second, it must come from a type of evidence source recognized under the Criminal Procedure Code. Lastly, all procedural requirements must be strictly followed. For instance, in the Netherlands, evidence obtained through trained sniffer dogs may be recognized as a source of evidence, whereas this is not currently the case in Mongolia. The methods mentioned earlier may be used as investigative tools to assist in criminal investigations. However, relying on them as the primary basis for proving a case would constitute a violation of procedural rules.
Discussing this topic in excessive detail may unintentionally provide guidance or motivation to potential offenders. So from a legal perspective, how important is the theory of evidence in criminal proceedings?
Chapter 16 of the current Criminal Procedure Code is dedicated specifically to “Evidence”. It defines evidence as “any documentary information that is relevant to the investigation of a criminal case and obtained in accordance with the grounds and procedures established by law”. Many countries have their own legal frameworks governing criminal evidence. For example, while the UK does not have a separate Criminal Procedure Code, it regulates evidence through laws such as the Police and Criminal Evidence Act 1984. This demonstrates that evidence remains one of the most fundamental elements of any legal system.
Educator Ch.Davaadash translated the late Georg Wilhelm Friedrich Hegel’s Science of Logic and explored Hegel’s concept of the rational state. According to this philosophy, the state exists as a defender, protector and servant of society and its citizens. Not every dispute or matter can be resolved directly by the state, however, the responsibility to fairly determine guilt and ensure impartial justice must remain with the state. Therefore, the duty to investigate crimes, distinguish right from wrong, and establish the facts of a case belongs to state institutions. The principle of establishing the objective truth is a fundamental concept and is often regarded as the “golden rule” of the Romano-Germanic legal tradition. Investigators and prosecutors have an obligation to determine the facts of a case through a comprehensive, objective, and impartial examination and evaluation of all evidence. To achieve this, investigators and prosecutors must take all measures required by law and establish, beyond reasonable doubt, all circumstances related to the accusation, exoneration and any factors that may aggravate or mitigate the responsibility of the accused or defendant.
However, the view that establishing objective truth is no longer relevant to court proceedings has increasingly appeared both in legal theory and practice in Mongolia. In my opinion, some participants in the legal process are moving away from established theoretical principles and methods of procedure, adapting them in ways that may overly reflect domestic interpretations rather than universal legal standards.
Should the defense be given greater rights to independently collect evidence?
The court should ideally remain as neutral as possible. The facts of a case should be established based on the arguments and evidence presented by the parties involved. However, there is currently no sufficient legal guarantee that allows the defense to independently collect evidence. In many cases, the law merely states that the defense may collect evidence, without providing a clear mechanism to exercise that right. Under the current system, investigators and prosecutors are required to take all measures prescribed by law and conduct all necessary procedures to establish circumstances related not only to the prosecution of the accused or defendant, but also to their exoneration, as well as any factors that may aggravate or mitigate their responsibility.
In the future, it cannot be ruled out that the defense may be granted not only the right to obtain evidence but also broader legal opportunities to independently collect evidence. However, Mongolia currently does not have a Private Investigators Law, nor does it have a system of private prosecution similar to that of the UK. Likewise, it does not operate under a model found in some Romano-Germanic legal systems where parties are permitted to conduct their own investigations and gather evidence independently. For example, the prolonged public discussions and hearings surrounding the “Coal” case have raised many questions. In my view, this approach and the standards applied are fundamentally misguided. Public hearings alone cannot establish objective truth. When such proceedings are not part of a formal investigation aimed at determining the facts of a case, they risk becoming political performances for public consumption. Instead of uncovering the truth, simply presenting competing claims from different sides and creating public divisions may only serve to confuse society and undermine citizens’ trust in the justice system. Ultimately, such practices risk turning legal processes into tools for political influence rather than mechanisms for justice.
A well-known scholar once wrote that “politics is above the law”. I strongly disagree. Rather, politics may sometimes attempt to use the law to conceal its own undesirable or wrongful actions. The true purpose of law, however, is to distinguish right from wrong and ensure justice. Politics does not possess the same mechanism of final and impartial judgment that belongs to the courts.
Public hearings are considered a way to bring important issues to the attention of the public. How do you evaluate their role in the legal process?
From a political perspective, there may be an intention or objective to provoke public anger and dissatisfaction. However, if such processes ultimately result in neither side being found guilty, these hearings serve only to create controversy and deepen public distrust. Furthermore, state authorities should not interfere by issuing instructions or directing the work of investigative bodies. If outside individuals or institutions attempt to influence an investigation, there must be clear legal procedures and strict accountability measures to prevent such interference. When political interests begin to influence legal processes, they can undermine public trust and contribute to the corruption of social values and institutions. The independence of investigations and the rule of law must be protected from political pressure.
There has been considerable debate over how to balance effective crime detection and investigation with the protection of human rights. How do you view this balance?
Detecting and exposing criminals is, in fact, a highly humane and fair process. Behind every solved case are investigators and detectives who endure significant pressure and hardship in their pursuit of justice. They often feel a strong sense of responsibility and fulfillment when they successfully resolve a case. But in recent years, there has been a growing tendency to impose excessive restrictions on law enforcement activities in the name of protecting human rights. For instance, there are ongoing discussions about limiting the ability to arrest and detain suspects, and even restricting the use of force in certain situations. In reality, it is not always possible to evaluate every situation from a completely impartial perspective based solely on judicial decisions. Therefore, society must also place trust in state institutions, including the police and prosecutors, and provide them with the necessary conditions to perform their duties effectively.
In particular, in the UK, under specific legal grounds, police may detain a person for a certain period without notifying others. In Mongolia, however, similar measures are often immediately viewed as violations of human rights. We sometimes judge such issues without examining the specific circumstances of each case, relying instead on general assumptions. If we approach law enforcement through an abstract and idealized understanding that is disconnected from real-life conditions, it may ultimately harm society rather than protect it. At the same time, it is no secret that investigators may face pressure, including threats of dismissal or interference from higher authorities, during the investigation process. Therefore, there may be a need to consider establishing an independent investigative institution that can operate free from external influence and ensure both effective law enforcement and the protection of legal rights.
Does this mean that investigative agencies should be merged into a single, independent institution?
It would be beneficial to have a dedicated institution responsible for investigating and prosecuting crimes. The question is whether we truly need an independent investigative body that is separated from other branches of government and free from external influence. Of course, it is necessary to clearly define its structure, authority and procedures for appointing its leadership. In other words, such an institution must be protected from political interference and operate independently. Therefore, it would be appropriate to provide it with special legal guarantees similar to those granted to institutions such as the Constitutional Court and the judiciary, ensuring its independence and allowing it to carry out its duties effectively and impartially.
