Appeal against a notice of suspicion

The right to appeal against the notice of suspicion was granted to the defence only in March 2018, after the relevant amendments to the criminal procedure legislation of Ukraine were introduced.

Thus, part 1 of Article 303 of the Criminal Procedure Code of Ukraine was supplemented by paragraph 10, which provides for the possibility to appeal against a notice of suspicion during pre-trial proceedings.

A notice of suspicion may be appealed by the suspect, his or her defence counsel or legal representative by filing a relevant motion with the investigating judge after 1 month from the date of notification of suspicion of a criminal offence or 2 months from the date of notification of suspicion of a crime, but not later than the prosecutor closes the criminal proceedings or files an indictment with the court.

The legislative amendments are quite logical and correlate with Article 55 of the Constitution of Ukraine, which guarantees everyone the right to appeal in court against decisions, actions or inaction of state authorities, local self-government bodies, officials and employees, i.e. it is an additional guarantee of protection of the rights of a suspect.

Grounds for appealing against a notice of suspicion

Given the case law and the current Criminal Procedure Code of Ukraine, there are three main grounds for appealing against a procedural decision such as a suspicion.

1. Improper subject of drawing up and serving a notice of suspicion, as well as non-compliance of its content with the requirements of the Criminal Procedure Code of Ukraine.

Ruling of the investigating judge in case No. 705/5916/19 of 24.03.2020. The text of the court decision shows that the notice of suspicion does not meet the requirements of Art. 277 of the Criminal Procedure Code of Ukraine, as it was drawn up by the investigator but not approved by the prosecutor, and is therefore invalid from the moment it is issued.

Ruling of the investigating judge No. 752/9795/19 of 26.02.2020. During the trial, it was established that the content of the notice of suspicion did not contain the date of preparation, the signature of the investigator and the prosecutor who issued the notice of suspicion, and the rights of the suspect were not specified. After considering the complaint, the investigating judge concluded that the procedure for serving the suspicion was not followed, and the content of the suspicion did not meet the requirements of Art. 277 of the Criminal Procedure Code of Ukraine.

Ruling of the investigating judge in case No. 554/6660/19 of 10.02.2020. After considering the complaint, the court concluded that the notice of suspicion was served on the village head in violation of Art. 481 of the Criminal Procedure Code of Ukraine, i.e. by an unauthorised person, as it could only be served by a prosecutor who held the position of the head of the regional prosecutor’s office, while the suspicion was actually served on the acting military prosecutor of the Central Region of Ukraine, who was not the procedural supervisor and prosecutor in this criminal proceeding.

2. Violation of the procedural procedure for serving a notice of suspicion

Ruling of the investigating judge in case No. 404/8582/18 of 06.03.2020. The grounds for cancelling the notice of suspicion were the violation of the procedure for its delivery identified by the investigating judge, in particular the fact that the pre-trial investigation had expired on the day the notice of suspicion was served.

Ruling of the investigating judge in case No. 712/1804/20 dated 03.03.2020. The court concluded that the notice of suspicion should be cancelled due to violation of the provisions of the current Criminal Procedure Code of Ukraine regarding the procedure for its delivery, since the investigator served the contested notice of suspicion in the absence of the criminal proceedings, to which the decision to cancel the decision to close the criminal proceedings was attached. In fact, the investigator received the criminal proceedings on 17 December 2019, and the person was notified of the suspicion one day earlier – on 16 December 2019.

3. Unreasonableness of the suspicion

Ruling of the investigating judge in case No. 490/12225/16 of 18.03.2020. The notice of suspicion does not comply with the requirements of Article 277 of the Criminal Procedure Code of Ukraine, does not contain legal qualification of each criminal offence (the case contains 11 different episodes of fraud) in which the person is suspected, indicating the part and article of the Criminal Code of Ukraine, which is a gross violation of the right to defence.

Ruling of the investigating judge in case No. 334/7498/19 of 24.02.2020. Taking into account the conclusions of the forensic construction and technical examination, the criminal proceedings do not contain any data indicating that the person caused material damage, therefore the notice of suspicion is unfounded and should be cancelled.

It should be noted that in practice, the ground of “unfounded suspicion” is quite controversial, since, according to the logic of the criminal procedure legislation of Ukraine, the investigating judge does not examine the evidence itself, but only its availability and weight.

At present, there is an ambiguous case law with contradictory conclusions. Some investigating judges believe that in order to determine whether a suspicion is unfounded, it is necessary to examine all the evidence, but it is not possible to assess the evidence in terms of sufficiency and admissibility to find a person guilty or innocent of a crime, as this is the direct prerogative of the court during the trial.

Thus, in their decisions, judges often refer to some judgements of the European Court of Human Rights, namely: “Nechyporuk, Yonkalo v. Ukraine, Fox, Campbell and Hartley v. the United Kingdom, Murray v. the United Kingdom, in which the term “reasonable suspicion” means that there are facts or information that could convince an objective observer that the person in question may have committed the offence.

However, there are other judges who still believe that it is necessary to request and examine the criminal proceedings to determine the availability and weight of the evidence on which the suspicion was based. If the defence provides evidence that, on the contrary, exonerates the person, why can’t the court examine it? After all, this would be a violation of fundamental human rights and freedoms.

In this case, the investigating judges refer to part 1 of Article 94 of the Criminal Procedure Code of Ukraine, which states that the investigator, prosecutor, investigating judge, court, in their internal conviction based on a comprehensive, full and impartial investigation of all the circumstances of the criminal proceedings, guided by law, evaluate each evidence in terms of relevance, admissibility, reliability, and the totality of the collected evidence in terms of sufficiency and interconnection to make an appropriate procedural decision.

Is it worth appealing a notice of suspicion?

Unfortunately, the statistics on appealing against notices of suspicion are not in favour of the defence. The courts will grant approximately 10-15% of the motions filed by defence counsels to cancel notices of suspicion.

As we can see, the decision of investigating judges to cancel a notice of suspicion is rather an exception, and investigators and prosecutors are prepared for its possible cancellation.

Important to know: The Criminal Procedure Code of Ukraine does not prohibit the prosecutor or investigator from drawing up and re-delivering a notice of suspicion to a person in the same criminal proceedings, nor from changing the suspicion already served.

There is a well-established practice when, after cancellation of the suspicion, the investigator eliminates the shortcomings of the previous notice and serves it again. That is why there is an opinion that appealing against the suspicion is ineffective, as the defence party thus prematurely discloses its line of defence.

However, there is a considerable positive side to cancelling a notice of suspicion. Thus, cancellation of the suspect status opens up the possibility of cancelling the preventive measure in the form of detention or house arrest, returning the bail and terminating measures to ensure criminal proceedings, including seizure of property or removal from office.

At the same time, it is possible to receive compensation from the state budget for unlawful criminal prosecution and, in the future, to obtain a positive decision following an application to the European Court of Human Rights.

Each case is individual and requires a detailed examination of whether it is advisable to appeal against a notice of suspicion during pre-trial proceedings. It may be better to draw the court’s attention to the shortcomings and illegality of the notice of suspicion at the stage of the trial, when neither the investigator nor the prosecutor will be able to correct their mistakes.