The procedure for notifying a person of suspicion is one of the key stages of criminal proceedings. However, in practice, there are often instances of violations by pretrial investigation authorities that can significantly affect the further course of the case, as well as the rights and freedoms of the suspect. Let’s examine typical unlawful actions by investigators when serving a notice of suspicion, the legal remedies available to the individual, and current case law.
Legal Grounds for Serving a Notice of Suspicion
In accordance with the requirements of Article 276 of the Criminal Procedure Code, notification of
suspicion is served in cases where the evidence gathered provides sufficient grounds to believe that the person has committed a criminal offense.
What rights does a person have upon being served with a notice of suspicion?
Once a person has been designated as a suspect, they have a number of rights provided for in Article 42 of the Criminal Procedure Code, including:
the right to know the nature of the suspicion;
the right to an attorney;
the right not to testify against themselves;
the right to review the case file;
the right to challenge the actions of the investigator, prosecutor, etc.
Common Violations During the Service of a Notice of Suspicion
In practice, the following typical violations occur:
1. Failure to properly draft the notice of suspicion as required by Article 277 of the Code of Criminal Procedure. Such a notice must contain:
the name and title of the investigator and/or prosecutor issuing the notice, as well as their signature;
a statement of the suspicion (specifying the circumstances of the offense);
the legal classification of the actions;
an explanation of the person’s rights as provided for in Article 42 of the Code of Criminal Procedure;
the last name, first name, patronymic, date and place of birth, place of residence, and citizenship of the person to whom the notice of suspicion is being served;
the case number.
Failure of the notice of suspicion to comply with these requirements constitutes grounds for declaring such a notice unlawful and for its revocation.
2. Proper Service of the Notice of Suspicion
In some cases, the notice of suspicion is sent by mail to an outdated or incorrect (inappropriate) address of the suspect or is delivered through other persons who do not have the authority to deliver the notice, such as employees of a homeowners’ association who are working unofficially, whose terms of office have 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 a notice of suspicion is unlawful, as is the conduct of all investigative (search) and procedural actions involving the suspect.
3. Violation of Requirements Regarding the Date and Time of Service
A written notice of suspicion must be served on the day it is drafted by an investigator or prosecutor (Part 1 of Article 278 of the Code of Criminal Procedure). Thus, if the date of service differs from the date the notice of suspicion was drawn up, this constitutes grounds for deeming the service of the notice of suspicion unlawful.
4. Pressure on the suspect
Sometimes law enforcement officers, taking advantage of a person’s lack of legal knowledge, exert moral or psychological pressure during the service of the notice of suspicion,
The form and content of the notice of suspicion are accompanied by coercion to admit guilt or give testimony, which violates Article 18 of the Code of Criminal Procedure and constitutes a criminal offense.
5. Violation of the right to defense and legal assistance.
In accordance with the requirements of paragraph 2 of Part 2 of Article 46 of the Code of Criminal Procedure, if a suspect objects to the conduct of a procedural action in the absence of a defense attorney, the procedural action shall be postponed, or a defense attorney from the center for the provision of free legal aid shall be appointed to participate in the action by order of the investigator or prosecutor.
Sometimes, due to their lack of familiarity with this provision of the CPC, investigators ignore a suspect’s objection to the conduct of procedural actions without a defense attorney. For example, an investigator may request the participation of two witnesses in the procedural action or record such a procedural action on video. However, in any case, failing to involve a defense attorney and disregarding this provision of the CPC not only results in the evidence obtained as a result of such a procedural action being deemed inadmissible, but also constitutes a criminally punishable offense due to a gross violation of the individual’s right to defense.
How to Protect Yourself Against Unlawful Actions
1. Engaging a defense attorney
The most effective way is to immediately retain a defense attorney. It is important not only to verbally request immediate access to legal assistance from a defense attorney but also to promptly submit a written notice to the investigator stating your refusal to participate in any investigative (search) or procedural actions without the presence of a defense attorney. If possible, this notice should be registered with the office of the pretrial investigation authority, with the date and time of receipt noted on the second copy.
2. Appealing a Notice of Suspicion
In accordance with the requirements of paragraph 10 of Part 1 of Article 303 of the Code of Criminal Procedure, the defense counsel or the suspect has the right to appeal a notice of suspicion issued by an investigator, an inquiry officer, or a prosecutor after one month has elapsed from the date the person was notified of suspicion of committing a criminal offense, or two months from the date the person was notified of suspicion of committing a crime, but no later than the prosecutor’s closure of the criminal proceedings or the filing of an indictment with the court.
Please note that a ruling by an investigating judge to revoke a notice of suspicion or to deny a complaint against a notice of suspicion may be appealed, as provided for in Part 2 of Article 309 of the CPC.
The current Code of Criminal Procedure does not restrict the defense’s grounds for appealing a notice of suspicion. Such grounds may include both procedural violations during the service of the notice of suspicion and the lack of basis for the suspicion due to the absence of the elements of a criminal offense in the suspect’s actions, the absence of a criminal offense, or the person’s lack of involvement in the commission of the criminal offense of which they are suspected.
3. Video Recording of Violations
It is recommended to video-record the service of the notice of suspicion using your own technical equipment, or to file a motion requesting that the investigator or prosecutor perform the video recording. It is also recommended to make photocopies of all documents received, which may assist the defense attorney in the event that the paper copies are lost.
4. Initiating disciplinary proceedings against the investigator or prosecutor
File a complaint regarding the investigator’s actions or inaction with the internal security authorities or the Qualification and Disciplinary Commission for Prosecutors, with the aim of initiating disciplinary proceedings.
5. Filing a complaint with the ECHR
An effective mechanism for protection against unlawful detention is the use of Rule 39 of the Rules of Procedure of the European Court of Human Rights, pursuant to which the Court may order interim measures that are binding on the State if the Court concludes that the complaint is well-founded and the applicant would face a real and serious risk of irreparable harm if the measure is not applied. In effect, Rule 39 is an order for the government of a particular country to take certain actions immediately.
6. Filing a Report of a Crime with the State Bureau of Investigation (SBI) or the General Prosecutor’s Office (GPO)
The grounds for filing a complaint are:
refusal to allow a lawyer to be present;
service of a notice of suspicion without a lawyer present, despite the existence of a relevant motion or objection;
psychological pressure on the suspect, with the aim of forcing them to waive their right to counsel or to coerce a confession and testimony;
unlawful seizure of documents from a lawyer or obstruction of access to the client;
concealment of the fact that a notice of suspicion was served from the defense attorney.
The actions of law enforcement officers may constitute crimes under Articles 397, 365 (abuse of power or official authority by a law enforcement officer), 366 (official forgery), 367 (official negligence), 371 (knowingly unlawful detention), 372 (bringing a knowingly innocent person to criminal liability), 373 (coercion to testify), 374 (violation of the right to defense), and Article 397 (obstructing, in any form, the lawful activities of a defense attorney) of the Criminal Code.
In such cases, a report of the crime should be filed with the State Bureau of Investigations and the Office of the Prosecutor General.
If investigators or prosecutors fail to enter the report into the Unified Register of Pre-trial Investigations (URPI), a complaint should be filed with the investigating judge in accordance with the requirements of paragraph 1, part 1 of Article 303 of the Code of Criminal Procedure.
Thus, this opens up considerable room for maneuver not only within criminal proceedings in which a person has the status of a suspect, but also in other proceedings where it is advisable to obtain the status of a victim of law enforcement actions and to initiate the relevant investigative (search) and procedural actions.
7. Admissibility of Evidence
The aforementioned violations during notification
of suspicion may subsequently serve as grounds for a court to declare evidence inadmissible under Article 87 of the CPC, as evidence obtained in gross violation of the human right to defense or through other material violations of the requirements of the CPC.
Case Law
Judicial practice in Ukraine demonstrates that violations of the procedure for serving a notice of suspicion may lead to such a notice being deemed unlawful, as well as to the exclusion of evidence obtained as a result of such violations. Below are examples of court decisions illustrating various aspects of this issue.
1. Failure to Properly Draft a Notice of Suspicion
In Case No. 752/9795/19 dated February 26, 2020, the investigating judge found that the notice of suspicion did not include the date of issuance, the signatures of the investigator and the prosecutor, and did not specify the suspect’s rights. The court concluded that the procedure for serving the notice of suspicion on the individual had not been followed, and the content of the notice did not meet the requirements of Article 277 of the Code of Criminal Procedure.
2. Service of the Notice of Suspicion by an Unauthorized Person
In Case No. 554/6660/19 dated February 10, 2020, the court found that the notice of suspicion was served by a person who lacked the authority to do so. Specifically, the notice of suspicion was served by the acting military prosecutor of the Central Region of Ukraine, who was not the lead prosecutor in this criminal proceeding. The court ruled that such service was unlawful.
3. Violation of Pre-trial Investigation Time Limits
In Case No. 404/8582/18 dated March 6, 2020, the court annulled the notice of suspicion because it was served after the expiration of the pretrial investigation deadlines, which constitutes a violation of procedural rules.
4. Service of a notice of suspicion without proper notification of the individual
In Case No. 953/7047/23 dated March 15, 2024, the Kyiv District Court of Kharkiv concluded that respecting a person’s rights when serving a notice of suspicion involves not only the actual delivery of the document but also the pre-trial investigation authority taking all possible measures to ensure that the person is aware of the fact that such a notice has been drawn up and of the substance of the circumstances set forth therein.
5. Lack of reasonable grounds for suspicion
In Case No. 759/4471/19, the Svyatoshynsky District Court of Kyiv found that the notice of suspicion did not specify the time and place of the commission of the criminal offense, nor did it clearly set forth the factual circumstances of the incident, supported by evidence. The court ruled that such a notice was unfounded.
These examples of judicial practice demonstrate the importance of complying with procedural rules when serving a notice of suspicion. Violations of such rules can have serious legal consequences, including the exclusion of the evidence gathered and the annulment of the notice of suspicion.
Conclusions
The procedure for serving a notice of suspicion is critically important for ensuring the rights of the suspect. Any violation is not only grounds for declaring the evidence inadmissible and the suspicion unlawful, but also an opportunity to use such violations to the defense’s advantage. An effective defense is possible only through the active use of the legal mechanisms provided for by Ukrainian law.
Author: MYKHAILO YAKOVCHUK, Attorney at Law (Barrister)
Source: https://zib.com.ua/ua/167076.html