підозрюваний та обвинувачений

Suspect and accused: their rights and obligations

The status of a suspect or accused in a criminal case is a critical situation for almost any unprepared person, as it is quite easy to lose self-control and make a lot of irreparable mistakes. Most often, this affects those who did not commit a crime, trying desperately to prove their innocence, despite the fact that the Constitution of Ukraine guarantees the presumption of innocence to everyone suspected of committing a crime.

In other words, no one is obliged to prove his or her innocence of committing a crime; these functions are assigned to pre-trial investigation bodies and the prosecutor’s office. A person is presumed innocent of committing a criminal offence and may not be subjected to criminal punishment until his or her guilt is proved in accordance with the procedure provided for by law and established by a court verdict that has entered into force.

However, you should not rely solely on law enforcement and sit back and wait for all the circumstances and truth to be established. It is necessary to be aware of the rights and obligations of the suspect and the accused in order to be able to use them effectively in your favour.

Suspect and accused: concepts and differences

First of all, let’s look at such procedural statuses as suspect and accused.

A suspect is a person who has been notified of suspicion or a person who has been detained on suspicion of committing a crime or a person in respect of whom a notice of suspicion has been drawn up but not served due to failure to establish his or her whereabouts, but measures have been taken to serve it in the manner prescribed by the Criminal Procedure Code of Ukraine.

A written notice of suspicion is drawn up by the prosecutor or investigator in agreement with the prosecutor and served by them on the day it is drawn up, or if such service is not possible, in the manner prescribed for service of notices in criminal proceedings.

In other words, the fact that the notice of suspicion was not delivered, so to speak, “in person”, does not in any way mean that the person is not a suspect. The investigator or prosecutor may send a notice of suspicion by mail to the person’s last known address of residence, which is sufficient grounds for further acquiring the status of a suspect.

A detained person shall be served with a notice of suspicion no later than 24 hours after his or her detention. If a person is not served with a notice of suspicion within this period, he or she must be released immediately.

Simultaneously with the notification of suspicion, the prosecutor or investigator must inform the suspect of his or her rights under Article 42 of the Criminal Procedure Code of Ukraine and, if necessary, explain their content.

The need to establish procedural status is quite important, because from this point on, a person can fully exercise his or her right to defend against the prosecution and not to incriminate himself or herself.

The accused or defendant is a person against whom an indictment has been submitted to the court.

An indictment is drawn up by an investigator or coroner and then approved by the prosecutor; it may also be drawn up by the prosecutor, in particular if the latter disagrees with the indictment drawn up by the investigator or coroner.

Therefore, we conclude that the main difference between these procedural statuses of a person is the stage of criminal proceedings: a suspect – during the pre-trial investigation, an accused – after the case is sent to court for further consideration and sentencing.

Rights and obligations

What are the procedural rights and obligations of the suspect and the accused?

The list of rights is enshrined in the Criminal Procedure Code of Ukraine and is quite substantial in content, providing a real opportunity to fully defend oneself against the suspicion or accusation.

So, the suspect and the accused have the right:

  • Know what offence he or she is suspected or accused of committing.
  • To be clearly and timely informed of his/her rights, and to receive explanations of them, if necessary.
  • To have a defence counsel upon request and to meet with him/her before the first interrogation, subject to conditions ensuring confidentiality of communication.
  • To have a defence counsel participate in the interrogation and other procedural actions.
  • To refuse a defence counsel at any time during criminal proceedings, as well as to receive legal assistance from a defence counsel at the expense of the state.
  • Not to say anything about the suspicion against him or her, the accusation or refuse to answer questions at any time.
  • To give explanations, testimony regarding the suspicion, accusation or refuse to give them at any time.
  • To demand a review of the validity of the detention.
  • In case of detention or application of a preventive measure in the form of detention, to immediately notify family members, close relatives or other persons of the detention and their location.
  • To collect and submit evidence to the investigator, prosecutor, investigating judge.
  • Participate in the conduct of procedural actions, ask questions, submit comments and objections to the procedure, which are recorded in the protocol.
  • To use technical means in the conduct of procedural actions in which he/she participates.
  • To file a petition for procedural actions, to ensure the safety of themselves, their family members, close relatives, property, housing, etc.
  • To file a challenge.
  • To get acquainted with the materials of the pre-trial investigation and demand their disclosure.
  • Receive copies of procedural documents and written notifications.
  • To appeal against decisions, actions and inaction of the investigator, prosecutor, investigating judge, court.

At the same time, the accused also has the right:

  • To participate in the examination of prosecution witnesses during the trial or to demand their examination, as well as to demand the summoning and examination of defence witnesses under the same conditions as prosecution witnesses.
  • Collect and submit evidence to the court.
  • To express their opinion on motions filed by other participants in the court proceedings.
  • Participate in court debates.
  • To read the court record and the technical record of the trial and submit comments on them.
  • To appeal against court decisions and initiate their review, to be aware of appeals and cassation appeals filed against them, applications for their review, and to file objections to them.
  • Participate or refuse to participate in the preparation of the pre-trial report, provide the representative of the probation staff with the information necessary for its preparation, get acquainted with the text of the report itself, submit comments and clarifications.

A suspect or accused person who is a foreigner and is being held in custody has the right to meet with a representative of a diplomatic or consular institution of his/her country, which the administration of the place of detention is obliged to provide.

Along with procedural rights, there are also procedural obligations.

The suspect or accused is obliged:

  • To appear when summoned by the investigator, prosecutor, investigating judge, court, and in case of impossibility to appear when summoned within the appointed time, to notify the said persons in advance.
  • Fulfil the duties imposed on him/her by the decision to apply measures to ensure criminal proceedings.
  • Obey the legal requirements and orders of the investigator, prosecutor, investigating judge, and court.
  • Provide reliable information to a representative of the probation staff necessary for the preparation of a pre-trial report.

As you can see, the list of obligations is significantly smaller than the list of rights, but failure to fulfil obligations can lead to serious adverse consequences, so in each situation it is necessary to act carefully and reasonably.

The right to defence

It should be noted that everyone is guaranteed the right to professional legal aid. In cases stipulated by law, this assistance is provided free of charge at the expense of the state. Everyone is free to choose a defender of their rights.

A defence counsel in criminal proceedings may only be an advocate whose information is included in the Unified Register of Advocates of Ukraine.

Given the complexity and specificity of the criminal process, we would advise you to seek the assistance of a criminal lawyer who will be able to fully assess the situation and provide practical advice on further actions aimed at protecting yourself from criminal prosecution.

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