Today, in my opinion, the question of whether or not to be a lawyer in Ukraine is being resolved. What is most confusing? I will try to explain it on the example of an appeal.
In the contested decision, the investigating judge notes the following:
"Suspicion is a procedural decision of the prosecutor, investigator (in agreement with the prosecutor), which is based on the evidence collected during the pre-trial investigation and in which an assumption is formed about the involvement of a specific person in the commission of a criminal offense, with notification of this to such a person and an explanation its rights and obligations in accordance with the current legislation .
The standard of "sufficient grounds (evidence) for suspicion" is lower than the standard of "reasonable suspicion". For the purposes of notifying a person of suspicion, it assumes the existence of evidence, as only objectively connects the suspect with a certain criminal offense (demonstrates involvement in its commission) and is sufficient to justify further investigation to bring charges or refute such suspicion » .
"The investigating judge also does not take into account the statement of the defense about the lack of subjective and objective aspects of the crime charged against him in the actions of Person 1, since at this stage of the pre-trial investigation it is not necessary for the pre-trial investigation body to establish the existence of all the elements of the crime, which is incriminated against the suspect, since in fact the pre-trial investigation is carried out precisely with the aim of establishing all four elements of the crime ( subjective side, subject, objective side, object), as well as to establish all the qualifying features of the corresponding crime ".
The investigating judge included these theses in the contested decision as justification. The defense does not agree with these theses.
An assumption is a judgment for which there is no proof. There is no definition of the term suspicion in the Criminal Procedure Code of Ukraine. A person's notification of suspicion cannot be an assumption. Thus, part 1 of article 2 of the Criminal Code of Ukraine "The basis of criminal liability is the commission by a person of a socially dangerous act, which contains the composition of a criminal offense provided for by this Code." Clause 3, Part 1, Article 276 of the Criminal Procedure Code states that the notification of suspicion is carried out in the case of: "the presence of sufficient evidence to suspect a person of committing a criminal offense."
What is sufficiency of the evidence? According to Clause 1 of Article 84 of the Criminal Procedure Code, " Evidence in criminal proceedings is factual data obtained in the manner prescribed by this Code, on the basis of which the investigator, prosecutor, investigating judge and court establish the presence or absence of facts and circumstances relevant to criminal proceedings and are subject to proof ". The sufficiency of the evidence is mentioned in paragraph 1 of Article 94 of the Criminal Procedure Code: "The investigator, prosecutor, investigating judge, court based on their internal conviction, which is based on a comprehensive, complete and impartial investigation of all the circumstances of the criminal proceedings, guided by the law, evaluate each piece of evidence from the point of view propriety, admissibility, credibility, and the totality of the collected evidence – from the point of view of sufficiency and interrelationship for making the appropriate procedural decision . That is, the investigating judge must first check the appropriateness, admissibility and reliability of the evidence, and the totality of the appropriate, admissible, reliable evidence – from the point of view of sufficiency.
That is, in order to notify a person of suspicion, there must be a composition of a criminal offense and reliable, proper, admissible, and in total sufficient evidence to notify a person of suspicion. That is, in order to notify a person of suspicion, at least the following must be available: the subjective side of the crime, the subject of the crime, the objective side of the crime, the object of the crime, and sufficient evidence to confirm the presence of these elements of the crime. It should also be noted that according to Clause 14, Part 1, Article 3 of the Criminal Procedure Code of Ukraine, "prosecution is a stage of criminal proceedings, which begins from the moment a person is notified of the suspicion of committing a criminal offense ." The defense, by the way, understands the difference between a report of suspicion and an accusation (Clause 13, Part 1, Article 1 of the Criminal Procedure Code of Ukraine, an accusation is an allegation that a certain person has committed an act provided for by the law of Ukraine on criminal responsibility, made in the manner established by this Code), and this in no way turns the suspicion into only a probable judgment, an assumption.
Provisions of Art. 276 and item 10, part 1 of Art. 303 of the Criminal Procedure Code of Ukraine indicate that during the review of complaints about reports of suspicion, the subject of examination by the investigating judge is the composition of the criminal offense and reliable, proper, admissible, and in the aggregate sufficient evidence for reporting a person about suspicion, and the issue of compliance with the procedural order of serving a report of suspicion The statement that "and the gathering of sufficient grounds (evidence) for the purposes of notifying a person of suspicion involves the presence of evidence that only objectively connects the suspect with a certain criminal offense (demonstrates involvement in its commission) and is sufficient to justify further investigation for the prosecution or refutation of such suspicion " – is in no way consistent with the provisions of Art. 276 and item 10, part 1 of Art. 303 of the CCP of Ukraine, but is only a free reflection on the topic of the CCP.
Regarding the invented thesis , the standard of "sufficient grounds (evidence) for suspicion " is lower than the standard of "reasonable suspicion". The definition of such standards is absent both in national legislation and in ECtHR decisions. That is, nowhere is there a clear definition of " the standard of sufficient grounds (evidence) for suspicion is – …." whether the standard of "reasonable suspicion" is – …". There is no comparison of standards, understanding why one is lower, smaller, narrower than the other, when it is appropriate to use the first, and when the second. It should be noted that the prosecution and the court sometimes still use the "reasonable suspicion standard" or reasonable suspicion. The term is also invented, unfortunately. How many types of suspicion are there in general? All this abracadabra is drawn from attempts to pull the practice of the ECtHR on its side. Here, it is appropriate to recall the decisions of the ECtHR "Hadgianastasiou v. Greece", "Boldia v. Romania" and "Papon v. France": " National courts must clearly state the reasons for their decisions in order to allow any party to effectively exercise the right to appeal ." " Although judges are not obliged to give a detailed answer to every argument presented, it should be clear from the decision that all the essential issues of the case have been considered ." " According to the established practice of the ECtHR, which reflects the principle related to the proper administration of justice, the decisions of judges and tribunals must properly state the arguments on which they are based ."
The practice of VAKS refers to the decision of the ECtHR. (Fox, Campbell and Hartley v. the United Kingdom), Murray v. the United Kingdom, Cebotari v. Moldova , "Brogan and others v. United Kingdom", "Nechiporuk and Yonkalo v. Ukraine" (Nechiporuk and Yonkalo v. Ukraine). STANDARDS OF PROOF, STANDARD OF "REASONABLE SUSPICION", STANDARD OF "SUFFICIENT GROUNDS (EVIDENCE)" are never mentioned in the CPC Regarding the decisions of the ECtHR:
1). The case "Fox, Campbell and Hartley v. the United Kingdom" dated August 30, 1990. Such a solution exists. The applicants were detained in Northern Ireland by a police officer who had a statutory power (since revoked) to detain for up to 72 hours any person he suspected of terrorism. The Court ruled that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention, finding that the evidence provided was insufficient to objectively establish "reasonable suspicion" for arrest. The decision also states that ""reasonable suspicion" of committing a criminal offense involves the presence of facts or information that could convince an objective observer that the person in question could have committed a crime ." If this is a decision, for example, to read, and not extract quotes from it, then it is clear that we are talking about the reasonableness of the detention of the person (the reasonableness of the suspicion at the time of detention), and not the reasonableness of the suspicion in the sense of paragraph 3, part 1, article 276 of the Criminal Procedure Code of Ukraine, where SUFFICIENT evidence for suspicion is a must. And it is about detention that is referred to in Article 5, subparagraph C, Clause 1 of the Convention: " the lawful arrest or detention of a person carried out with the aim of bringing him before a competent judicial authority in the presence of reasonable suspicion that he has committed an offense or if it is reasonably considered necessary to prevent him from committing an offense or his escape after its commission , "which VAKS falsely refers to. It is clear that at the time of arrest and serving the suspicion, it is enough " the presence of evidence that only objectively connects the suspect with a certain criminal offense." However, the national legislation provides for the possibility of contesting the suspicion exactly after two months have passed, and not from the moment of detention, as in some European countries. Therefore, the CPC attaches a completely different meaning to the challenge of suspicion, as well as to the presence of sufficient evidence. Here, it would be more appropriate to recall the decision of the ECtHR "Belle v. France", namely paragraph 38: " In order for the right to access to justice to be effective, a person must have a real opportunity to challenge an action that violates his rights ."
2). Regarding the ECtHR case "Nechiporuk and Yonkalo v. Ukraine" dated 04/21/2011. The applicants were suspected of premeditated murder. The reason for the detention was the suspicious behavior of the applicant. Narcotics were seized during a personal search upon arrest. Later, it was found out that the seized drugs were not narcotics, and the applicant was subjected to torture. The ECtHR stated the following in its decision: "Paragraph 175. The Court reiterates that the term "reasonable suspicion" means that there are facts or information that can convince an objective observer that the person in question may have committed an offense (see the decision in the case "Fox, Campbell and Hartley v. the United Kingdom" (Fox, Campbell and Hartley v. the United Kingdom) dated 3 August 1990, item 32, Series A, N 182). The purpose of detention for questioning is to facilitate the investigation of a crime by confirming or refuting the suspicions that led to the detention (see the decision in the case "Murray v. the United Kingdom" of October 28, 1994, para. 55, Series A, N 300-A). However, the requirement that the suspicion must be based on reasonable grounds is a significant part of the guarantee against arbitrary detention and detention. Moreover, in the absence of reasonable suspicion, a person cannot under any circumstances be detained or taken into custody for the purpose of forcing him to confess to a crime, to testify against other persons, or to obtain from him facts or information that may serve as a basis for reasonable suspicion." What do we see? Again, we are talking about detention. But the ECtHR notes the need for justified reasons for detaining a person. But even here, the practice of VAKS is reduced to extracting a few sentences from the paragraph of the ECtHR decision, in which, among other things, the ECtHR recognized the violation of the Convention.
3) The Murray v. United Kingdom case of October 28, 1994. From this case, a fictional thesis is drawn: "The ECtHR in its practice has repeatedly noted that the facts that are the cause of suspicion should not be as convincing as those that are necessary to justify a guilty verdict or charge a person." That being said, let us turn to the case, namely paragraph 55. “As regards the degree of “suspicion,'' the Court would first of all note that, as stated in its Judgment in Brogan and Others, “Article 5 § 1 "c " does not require the investigating authorities to have evidence sufficient to indict either at the time of arrest or during the period of detention: such evidence may not have been obtained or presented in court without endangering the lives of others persons" (see the above-mentioned Decision, p. 29, paragraph 53). The purpose of interrogation during detention in accordance with Article 5 paragraph 1 "c" is to further advance the criminal investigation by confirming or eliminating the specific suspicion that justifies the arrest; facts, that raise suspicion have not yet reached the level necessary for a conviction or even for the presentation of a charge, which occurs at the next stage of the criminal process.'' it is clear that during detention alone it is not possible to gather evidence for conviction or accusation. But how will this item be included in the judicial practice of VAKS!!!! If the relevant evidence confirming the suspicion could be collected immediately, the investigative authorities would probably immediately bring charges and transfer the person to the competent authority (Brogan and others v. United Kingdom judgment, para. 53) .
It should also be noted that all legal conflicts are interpreted in favor of the individual. This follows first of all from the practice of the ECtHR. Thus, the ECtHR in the case "Shchokin v. Ukraine" (applications No. 23759/03 and No. 37943/06, paragraphs 50-56) noted, in particular, " that the rule of law, one of the fundamental principles of a democratic society, is inherent in all articles of the Convention; the absence of the necessary clarity and precision in the national legislation, which provided for the possibility of different interpretations…, violates the requirement of "quality of the law" stipulated by the Convention " … In addition, clause 6 of Art. 9 of the Criminal Procedure Code says: " In cases where the provisions of this Code do not regulate or ambiguously regulate issues of criminal proceedings, the general principles of criminal proceedings defined by the first part of Article 7 of this Code shall be applied." P.10, Part 1, Article 7 of the Criminal Procedure Code says that criminal proceedings must comply with such principles as: " presumption of innocence and provision of proof of guilt ." The definition of presumption in the Criminal Procedure Code is contained in Art. 17. Yes, Part 3 of Art. 17 of the Criminal Procedure Code emphasizes: " Suspicion , accusations cannot be based on evidence obtained illegally " , and clause 4 of Article 17 " in all doubts regarding the proof of a person's guilt shall be interpreted in favor of such a person ". It is also necessary to mention Article 62 of the Constitution of Ukraine: " The accusation cannot be based on evidence obtained illegally, as well as on assumptions. All doubts regarding the proven guilt of a person are interpreted in his favor . It should also be mentioned the decision of the ECtHR "Veira Fernandez-Huidobro v. Spain" paragraphs 108-114, where the court noted: " Article 6 § 1 of the Convention can be recognized as applicable to the stage of pre-trial investigation ." And the decision of the ECtHR "Shabelnik v. Ukraine" dated February 19, 2009, paragraph 52 ("… the requirements of Article 6 (in particular, paragraph 3) may also be applied even before the case is referred to the court for consideration…)" .
Expediency cannot be greater than right. It is not clear when, on the one hand, suspicion is reported to the prosecutors, who signed the notice of suspicion to Maidan participants, and on the other hand, suspicion, this is only an assumption. What is included in the notice of suspicion of "Maidan prosecutors": "MADE A DECISION TO HOLD INNOCENT PERSONS CRIMINALLY RESPONSIBLE, while there was no sufficient evidence for this in the materials of the criminal proceedings…", "… the notice of suspicion is carried out in cases of detention at the place of the commission of a criminal offense or immediately after its commission, if there is sufficient evidence to suspect a person of having committed a criminal offense, he agreed by signing the written notice of suspicion given to him as a prosecutor in criminal proceedings…". How about this? In this case – "suspicion is also only an assumption about the involvement of a specific person in the commission of a criminal offense", " the standard of "sufficient grounds (evidence) for suspicion" is lower than the standard of "reasonable suspicion" , "at this stage of the pre-trial investigation there is no it is necessary for the pre-trial investigation body to establish the existence of all the elements of the crime," whether it is a crime for which liability under Art. 372 of the Criminal Code of Ukraine.
Also not clear is the fact that every time you come across a new version of the Criminal Procedure Code, with incomprehensible non-existent terms: with the standard of "sufficient grounds (evidence), the standard of "reasonable suspicion, reasonable suspicion, pre-trial investigation and it is carried out precisely with the aim of establishing all four elements of the composition of the crime, suspicion is an assumption and others. In order not to turn the legal profession into a witness of justice, is it possible to provide lawyers with a new version of the Code of Criminal Procedure, from which it will be clear, for example, whether reasonable suspicion is higher or lower than the standard of reasonable suspicion?
I also feel concern for the strong half of humanity. If for the notification of suspicion it is not necessary for the pre-trial investigation body to establish the existence of all the elements of the crime, how much is needed? Is one enough? Then, in the presence of the subject of the crime, it is possible to notify each man of suspicion under Art. 152 of the Criminal Code of Ukraine.
Author: Semyon Khanin, lawyer