The procedure for informing a person of suspicion is one of the key stages of criminal proceedings. However, in practice, there are often cases of violations by pre-trial investigation authorities that can significantly affect the further course of the case, as well as the rights and freedoms of the suspect. Let’s consider typical unlawful actions of investigators during the notification of suspicion, legal means of person’s protection, and current judicial practice.
Legal Basis for Notification of Suspicion
According to the requirements of Article 276 of the Criminal Procedure Code, notification of suspicion is carried out in cases where the collected evidence provides sufficient grounds to believe that a person has committed a criminal offense.
Person’s Rights When Receiving Suspicion
After acquiring the status of a suspect, a person has a number of rights provided for in Article 42 of the Criminal Procedure Code, including:
- right to know the essence of the suspicion;
- right to a defense attorney;
- right not to testify against oneself;
- right to familiarize oneself with the case materials;
- right to challenge the actions of the investigator, prosecutor, etc.
Common Violations during Notification of Suspicion
The following typical violations are encountered in practice:
1. Lack of Proper Notification of Suspicion
The form and content of the notification of suspicion are provided for in Article 277 of the Criminal Procedure Code. Such notification must contain:
- the surname and position of the investigator and/or prosecutor who is delivering the notification, as well as their signature;
- formulation of the suspicion (with indication of the circumstances of the offense);
- legal qualification of actions;
- explanation of the person’s rights provided for in Article 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 being delivered;
- criminal case number.
Non-compliance of the notification of suspicion with the specified requirements is a ground for declaring such notification illegal and its cancellation.
2. Proper Delivery of Suspicion
In some cases, notifications of suspicion are sent by mail to an outdated or incorrect (inappropriate) address of the suspect or are handed over through other persons who are not authorized to deliver notifications, for example, employees of OSBB who work unofficially, whose term of office has expired, or who do not serve the building where the suspect resides. As a result, since the person has not actually acquired the status of a suspect, such notification of suspicion is illegal, as is conducting all investigative (search) and procedural actions with the suspect.
3. Violation of Deadlines for Notification
A written notification of suspicion is delivered on the day of its drafting by the investigator or prosecutor (Part 1 of Article 278 of the Criminal Procedure Code). Thus, if the date of delivery and drafting of the notification of suspicion differ, this is a reason to recognize the delivery of the notification of suspicion as illegal.
4. Pressure on the Suspect
Sometimes law enforcement officers, taking advantage of a person’s legal ignorance, exert moral or psychological pressure during the notification of suspicion, accompanied by coercion to admit guilt or give testimony, which violates Article 18 of the Criminal Procedure Code and constitutes a criminal offense.
5. Violation of the Right to Defense and Legal Aid
According to the requirements of paragraph 2 of Part 2 of Article 46 of the Criminal Procedure Code, if the suspect objects to conducting a procedural action in the absence of a defense attorney, the procedural action is postponed or a defense attorney from the center for the provision of free legal aid is involved for its conduct by the decision of the investigator or prosecutor.
Sometimes investigators, due to their ignorance of the mentioned provision of the Criminal Procedure Code, ignore the suspect’s objection to conducting procedural actions without a defense attorney. For example, an investigator may invite two witnesses to participate in a procedural action or make a video recording of such a procedural action. However, in any case, failure to involve a defense attorney and ignoring the mentioned provision of the Criminal Procedure Code not only leads to the recognition of evidence obtained as a result of such procedural action as inadmissible but also constitutes a criminal offense due to a gross violation of the person’s right to defense.
How to Protect Yourself from Unlawful Actions
1. Involvement of a Lawyer
The most effective way is to immediately involve a lawyer. It is important not only to orally request immediate access to legal assistance from a defense attorney but also to promptly submit a written notification to the investigator refusing to conduct any investigative (search) or procedural actions without the participation of a defense attorney. If possible, this notification should be registered in the office of the pre-trial investigation authority with a note on the second copy of the date and time of receipt of the notification.
2. Challenging the Notification of Suspicion
According to the requirements of paragraph 10 of Part 1 of Article 303 of the Criminal Procedure Code, a defense attorney or suspect has the right to challenge the notification of suspicion by the investigator, interrogator, or prosecutor after one month from the date of notifying the person of suspicion of committing a criminal offense or two months from the date of notifying the person of suspicion of committing a crime, but no later than the closure of the criminal proceedings by the prosecutor or referral to the court with an indictment.
Decisions of the investigating judge to cancel the notification of suspicion or refuse to satisfy a complaint about the notification of suspicion can be appealed in the appellate procedure, as provided for in Part 2 of Article 309 of the Criminal Procedure Code.
The current Criminal Procedure Code does not limit the defense side in the grounds for challenging the notification of suspicion. These grounds may include both procedural violations during the notification of suspicion and the groundlessness of the suspicion due to the absence in the actions of the suspect of the elements of a criminal offense, the absence of the event of a criminal offense, or the non-involvement of the person in the commission of a criminal offense of which he is suspected.
3. Video Recording of Violations
It is recommended to record the delivery of the notification of suspicion by video using personal technical means or to request video recording by the investigator or prosecutor. It is also recommended to make photocopies of all received documents, which can help the defense attorney in case of loss of paper copies.
4. Initiating Disciplinary Action against the Investigator or Prosecutor
Filing a complaint about the actions or inaction of the investigator with the internal security agencies or the Qualification and Disciplinary Commission of Prosecutors to initiate disciplinary proceedings.
5. Appeal to the ECHR with a Complaint
An effective mechanism for protection against illegal detention is the use of Rule 39 of the European Court of Human Rights Regulation, according to which the Court may apply interim measures that are mandatory for the state if the Court finds that the complaint is properly substantiated and the applicant will be at a real risk of irreparable harm if the measure is not applied. In fact, Rule 39 is an order for the government of a certain country to take certain actions immediately.
6. Appeal to the NABU or Prosecutor General’s Office with a Criminal Complaint
The grounds for filing a complaint include:
- refusal to admit a lawyer;
- delivery of suspicion without the presence of a lawyer in the presence of a relevant request or objection;
- psychological pressure on the suspect to refuse a defense attorney or to force a confession and testimony;
- unlawful seizure of documents from a lawyer or obstruction of access to the client;
- concealment of the fact of delivering suspicion from the defense attorney.
The actions of law enforcement officers may have signs of crimes provided for in Articles 397, 365 (exceeding authority or official powers by a law enforcement officer), 366 (forgery), 367 (negligence), 371 (knowingly illegal detention), 372 (knowingly bringing an innocent person to criminal responsibility), 373 (forcing to testify), 374 (violation of the right to defense), and Article 397 (obstructing the lawful activities of a defense attorney) of the Criminal Code.
In such cases, a criminal complaint should be filed with the State Bureau of Investigations and the Prosecutor General’s Office.
If the investigators or prosecutors do not enter the complaint into the ERDR, a complaint is filed with the investigating judge, in accordance with the requirements of paragraph 1 of Part 1 of Article 303 of the Criminal Procedure Code. Thus, a wide space for maneuvering is opened not only in criminal proceedings where a person has the status of a suspect but also in other proceedings where it is necessary to obtain the status of a victim of the actions of law enforcement officers and initiate the conduct of relevant investigative (search) and procedural actions.
7. Recognition of Evidence as Inadmissible
The above-mentioned violations during the notification of suspicion may subsequently be a reason for the court to recognize evidence as inadmissible in accordance with Article 87 of the Criminal Procedure Code, as evidence obtained with a gross violation of a person’s right to defense or other significant violations of the requirements of the Criminal Procedure Code.
Judicial Practice
Judicial practice in Ukraine demonstrates that violations of the procedure for delivering a notification of suspicion can lead to the recognition of such notification as illegal and to the recognition of evidence obtained as a result of such violations as inadmissible. Below are examples of court decisions illustrating various aspects of this issue.
1. Lack of Proper Notification of Suspicion
In case No. 752/9795/19 of 26.02.2020, the investigating judge established that the notification of suspicion did not contain the date of drafting, the signatures of the investigator and prosecutor, and the rights of the suspect were not indicated. The court concluded that the procedure for delivering the suspicion to the person was not observed, and the content of the suspicion did not correspond to the requirements of Article 277 of the Criminal Procedure Code.
2. Delivery of Suspicion by an Unauthorized Person
In case No. 554/6660/19 of 10.02.2020, the court found that the notification of suspicion was delivered by a person who was not authorized to do so. In particular, the suspicion was delivered by the acting military prosecutor of the Central Region of Ukraine, who was not the procedural leader in this criminal case. The court recognized such delivery as illegal.
3. Violation of Pre-Trial Investigation Deadlines
In case No. 404/8582/18 of 06.03.2020, the court canceled the notification of suspicion because it was delivered after the end of the pre-trial investigation deadlines, which is a violation of the procedural order.
4. Delivery of Suspicion without Proper Notification of the Person
In case No. 953/7047/23 of 15.03.2024, the Kyiv District Court of Kharkiv concluded that compliance with the rights of the person when delivering the notification of suspicion involves not only the actual delivery of the document but also the taking by the pre-trial investigation authority of all possible measures for the person to learn about the fact of drafting such notification and the essence of the circumstances set out in it.
5. Lack of Substantiation of Suspicion
In case No. 759/4471/19, the Sviatoshynskyi District Court of Kyiv found that the notification of suspicion did not contain the time and place of the offense, and the factual circumstances of the event confirmed by evidence were not clearly recorded. The court recognized such notification as unsubstantiated.
These examples of judicial practice testify to the importance of complying with procedural norms when delivering a notification of suspicion. Violations of such norms can have serious legal consequences, including the recognition of evidence obtained as inadmissible and the cancellation of the notification of suspicion.
Conclusions
The procedure for delivering a notification of suspicion is critically important for ensuring the rights of the suspect. Any violation is not only a reason for recognizing evidence as inadmissible and the suspicion as illegal but also an opportunity to use such violations in favor of the defense. Effective protection is possible only by actively using legal mechanisms provided for by Ukrainian legislation.