15 березня 2018 року в зв’язку зі зміною кримінального процесуального законодавства, а саме доповненнями до Кримінального процесуального кодексу України з’явилось право на оскарження повідомлення про підозру.
Відповідно до п. 10 ч. 1 ст. 303 Кримінального процесуального кодексу України на досудовому провадженні підозрюваним, його захисником чи законним представником можуть бути оскаржені повідомлення слідчого, дізнавача, прокурора про підозру:
- після спливу одного місяця з дня повідомлення особі про підозру у вчиненні кримінального проступку;
- після спливу двох місяців з дня повідомлення особі про підозру у вчиненні злочину, але не пізніше закриття прокурором кримінального провадження або звернення до суду із обвинувальним актом.
Повідомлення про підозру здійснюється за наявності достатніх підстав для такого. Воно повинно відображати наявний та достатній у сторони обвинувачення об`єм даних. Вважати, що особа причетна до вчинення кримінального правопорушення, та не повинно містити всі необхідні обставини для встановлення вчинення кримінального правопорушення, як то обвинувальний акт.
Procedure and Stages of Notice of Suspicion
The procedure for notifying a person of suspicion can be conditionally divided into three stages:
- decision-making stage on the necessity of notifying the person of suspicion;
- objectification stage – expressing the formed internal will of the authorized official regarding the decision made in an external form by drafting the text of the notice of suspicion and signing it;
- stage of informing the addressee about the information, for whom the decision on notifying of suspicion was made.
In cases where grounds arise during the pre-trial investigation, the investigator and prosecutor are empowered to both notify of a new suspicion and amend a previously notified suspicion (Art. 279 of the Criminal Procedure Code of Ukraine).
Common Violations in Serving Suspicion: Practice
In practice, during the delivery of suspicion, there are such common violations as:
Absence of Proper Notification Form of Suspicion
Yes, the form and content of the notice of suspicion should include:
- surname and position of the investigator and/or prosecutor delivering the notice, as well as their signature;
- formulation of suspicion (with indication of the circumstances of the offense);
- legal qualification of actions;
- explanation of the rights of the person provided for in Art. 42 of the Criminal Procedure Code;
- surname, first name, patronymic, date and place of birth, place of residence, citizenship of the person to whom the suspicion is handed over;
- criminal case number.
All these requirements are provided for in Article 277 of the Criminal Procedure Code. Non-compliance of the notice of suspicion with the specified requirements is a reason for recognizing such notice as illegal and its cancellation.
Violation of the Right to Defense and Legal Aid
According to the requirements of para. 2 of Art. 46 of the Criminal Procedure Code, if the suspect objects to the conduct of a procedural action in the absence of a defense attorney, the conduct of the procedural action is postponed or a defense attorney from the Center for Free Legal Aid is involved for its conduct by the decision of the investigator or prosecutor. There are cases when investigators, due to their ignorance of the mentioned norm of the Criminal Procedure Code, ignore the suspect’s objection to conducting procedural actions without a defense attorney. For example, an investigator may request the presence of two witnesses for participation in a procedural action or make a video recording of such procedural action. However, in any case, failure to involve a defense attorney and ignoring the mentioned norm of the Criminal Procedure Code not only leads to the inadmissibility of evidence obtained as a result of such procedural action but also constitutes a criminal offense – due to a gross violation of the person’s right to defense.
Failure to Explain the Rights to the Suspect as Provided for in Art. 42 of the Criminal Procedure Code
The suspect/accused has the right to:
- know the criminal offense they are suspected of committing or accused of;
- be clearly and timely informed of their rights provided for in this Code, as well as to receive explanations of them;
- at the first request: have a defense attorney and meet with them regardless of the time on working, non-working, holidays, and non-working days before the first interrogation with ensuring conditions that ensure the confidentiality of communication, and after the first interrogation – meetings without time and quantity restrictions on working, non-working, holidays, and non-working days;
- the participation of a defense attorney in conducting the interrogation and other procedural actions;
- refuse a defense attorney at any time during the criminal proceedings; to receive legal assistance from a defense attorney at the expense of the state in cases provided for by this Code and/or the law regulating the provision of free legal aid, including due to a lack of funds to pay for such assistance.
Lack of Information about Witnesses Who Certified the Person’s Refusal to Receive the Notice of Suspicion
Witnesses, as independent witnesses, confirm not only the fact of refusal but also the circumstances under which it occurred. Their signatures guarantee that the notice of suspicion was delivered properly, and the person was informed of their rights and obligations. The absence of this information may cast doubt on the legality of further procedural actions, as the delivery of the notice of suspicion is an important stage of the pre-trial investigation.
Pressure on the Suspect
Sometimes law enforcement officers, taking advantage of a person’s legal ignorance, exert moral or psychological pressure during the delivery of suspicion, accompanied by coercion to admit guilt or give statements, which violates Art. 18 of the Criminal Procedure Code and constitutes a criminal offense. Lack of authority in the investigator/prosecutor to notify the person of suspicion (signing the text of suspicion and its actual delivery to the person) as well as delegating such authority to other persons
Notification of Suspicion to a Person Previously Interrogated as a Witness
When at the time of receiving testimony from a witness there were already data that they would be recognized as a suspect or accused, but despite the person’s right to remain silent and freedom from self-incrimination, the investigator or prosecutor takes actions aimed at obtaining statements from them.
How to Protect Yourself from Unlawful Actions
First and foremost, it is necessary to involve a lawyer. At the same time, it is important to orally request immediate access to legal assistance from a defense attorney and submit a written notification to the investigator about refusing to conduct any investigative (search) or procedural actions without the participation of a defense attorney. Such notification must be registered in the office of the pre-trial investigation authority with a note on the second copy of the date and time of receiving the notification.
And the defense attorney files an appeal against the notice of suspicion on the grounds of procedural violations during the delivery of the notice of suspicion, groundlessness of the suspicion due to the absence of the elements of a criminal offense in the suspect’s actions, absence of the event of a criminal offense, or the person’s non-involvement in the commission of a criminal offense they are suspected of.
It should be noted that the lawyer has the right to record the delivery of the notice of suspicion, initiate disciplinary action against the investigator or prosecutor, appeal to the State Bureau of Investigations regarding the commission of a crime, file a complaint with the European Court of Human Rights.
The mentioned violations during the notification of suspicion may, in the future, be a reason for the court to declare evidence inadmissible under Art. 87 of the Criminal Procedure Code as obtained with a gross violation of the person’s right to defense or other significant violations of the requirements of the Criminal Procedure Code.
Judicial Practice
Violations of the procedure for delivering the notice of suspicion may lead to the recognition of such notice as illegal and to the inadmissibility of evidence obtained as a result of such violations.
The investigating judge, court when considering appeals against the notice of suspicion, within the framework of verifying the evidence of the groundlessness of the suspicion, must assess whether the prosecution has reached the standard of conviction ‘sufficient grounds’ for the purposes of notifying of suspicion, as provided for in para. 3 of Art. 276 of the Criminal Procedure Code.
By analyzing the judicial practice, it can be concluded that effective and timely submission of motions to cancel notices of suspicion to the court is justified.
Thus, the investigating judge of the Obukhiv District Court of Kyiv Oblast on 01/06/2025 in case No. 372/2673/24, satisfied the lawyer’s complaint to cancel the notice of suspicion due to a ‘gross violation by the prosecution of the procedure for delivering the notice of suspicion, namely, due to the expiration of the deadlines’ defined by Article 219 of the Criminal Procedure Code of Ukraine.
The panel of judges of the Criminal Division of the Lviv Court of Appeal by a ruling dated 04/16/2025 in case No. 463/2712/25 upheld the investigating judge’s ruling of the Lviv District Court of 04/04/2025 to cancel the notice of suspicion in the criminal proceedings, as ‘the notice of suspicion does not contain any information about the activities of economic activity in interaction with the aggressor state, and the conclusion regarding such activity contradicts the materials of the criminal proceedings.’ ‘No significant violations of the requirements of the Criminal Procedure Code that would entail the unconditional cancellation of the investigating judge’s ruling by the appellate court were established.’
The investigating judge of the Leninsky District Court of Kirovohrad in case No. 405/2625/22 on 01/15/2025 satisfied the suspect’s complaint to cancel the notice of suspicion, ‘since the suspicion under Art. 367 of the Criminal Code of Ukraine is not capable of convincing an impartial observer that the criminal offense incriminated under Art. 367 of the Criminal Code of Ukraine, based on the circumstances presented in the challenged notice of suspicion, actually took place as an event, and, moreover, that PERSON_3 under the specified circumstances may be involved in the specified criminal offense, therefore, in the understanding of the European Court of Human Rights practice and the provisions of the Criminal Procedure Code of Ukraine, the challenged notice of suspicion is obviously unfounded under para. 2 of Art. 367 of the Criminal Code of Ukraine, which is an unconditional reason for canceling the notice of suspicion of PERSON_3 dated 12/08/2021.’
In conclusion, it can be stated that despite the small statistics of satisfied complaints, it is advisable for defense attorneys to file such complaints with the court and try to challenge the notices of suspicion.