IVANNA BLOKHINA, ATTORNEY AT BARRISTERS, LLC: “EVALUATION OF EVIDENCE DURING THE HEARING OF APPEALS AGAINST NOTIFICATIONS OF SUSPICION: TO BE OR NOT TO BE?”

EVALUATION OF EVIDENCE DURING THE HEARING OF APPEALS AGAINST NOTIFICATIONS OF SUSPICION: TO BE OR NOT TO BE? 

On March 16, 2018, amendments to the Criminal Procedure Code of Ukraine came into force. According to the current version of paragraph 10 of Part 1 of Article 303 of the Criminal Procedure Code of Ukraine, a notice of suspicion issued by an investigator or prosecutor may be appealed during pretrial proceedings 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—by the suspect, his or her defense counsel, or legal representative.

Based on the results of reviewing a complaint regarding a decision, action, or inaction during the pretrial investigation, the investigating judge’s ruling may, in particular, revoke the notice of suspicion (Art. 307 of the Criminal Procedure Code of Ukraine).

These changes have enabled the defense to counter unlawful criminal prosecution of an individual.

However, not everything is as positive and effective as it seemed at first glance. The reason lies in differing interpretations of the provisions of the Code of Criminal Procedure of Ukraine. The whole situation boils down to Leonid Glibov’s well-known fable “The Swan, the Crayfish, and the Pike,” in which the main characters set out to pull a cart, but each pulled in their own direction, so the cart did not move from the spot. The defense faced the same problem as when deciding on the selection of a preventive measure (its extension, modification, etc.) or the application of measures to ensure criminal proceedings—namely, the disregard by investigating judges of the provision regarding the evaluation of evidence under Article 94 of the CPC of Ukraine concerning the validity of the suspicion.

After analyzing decisions from the Unified State Register of Court Decisions, one can conclude that in most cases, following the consideration of complaints against notices of suspicion, the complaints were denied.

For example, by a ruling of the Kominternivskyi District Court of Kharkiv dated May 2, 2019 (case No. 1-ks/641/1857/2019, case No. 641/2897/19), the defense counsel’s complaint regarding a notice of suspicion of committing a criminal offense under Part 1 of Article 263 of the Criminal Code of Ukraine was denied. The denial was justified on the grounds that the procedural rules governing the notification of suspicion are regulated by the provisions of Chapter 22 of the Criminal Procedure Code of Ukraine: the procedure for notifying a suspect is set forth in Article 278 of the Criminal Procedure Code of Ukraine, the circumstances under which a suspect must be notified are set forth in Article 276 of the Criminal Procedure Code of Ukraine, and the content of the notification of suspicion is set forth in Article 277 of the Criminal Procedure Code of Ukraine. Thus, in the opinion of the investigating judge, the grounds for appealing the procedural decision consist solely of violations of the aforementioned procedural rules. At the same time, the relevant ruling noted that reviewing the notice of suspicion in terms of the validity of the suspicion, taking into account the provisions of Article 17 of the CPC of Ukraine, does not appear to fall within the scope of the judicial review conducted by the investigating judge in accordance with the provisions of Part 1 of Article 303 of the CPC of Ukraine at the pretrial investigation stage, but can only be the subject of direct judicial review of the criminal proceedings by the court, since at the pretrial investigation stage, the investigating judge is not authorized to assess the evidence obtained by the investigation or the manner in which it was obtained, nor to evaluate the collected evidence in terms of its admissibility, and without such an assessment, it is impossible to conclude whether the suspicion communicated to the person is well-founded.

Furthermore, the investigating judge, citing the case law of the European Court of Human Rights, noted that the determination of the admissibility of evidence falls exclusively within the jurisdiction of the court during the trial (Article 89 of the Code of Criminal Procedure of Ukraine). In accordance with the provisions set forth in numerous decisions of the European Court of Human Rights (“Nechiporuk, Yonkal v. Ukraine” No. 42310/04 dated April 21, 2011, “Fox, Campbell, and Harty v. the United Kingdom” ” Nos. 12244/86, 12245/86, 12383/86 dated August 30, 1990, “Murray v. the United Kingdom” No. 14310/88 dated October 28, 1994, and others), the term “reasonable suspicion” means that there are facts or information that could convince an objective observer that the person in question may have committed an offense.”

By a ruling of the investigating judge of the Kamianko-Buzkyi District Court of Lviv Oblast dated February 18, 2019 (Case No. 446/2337/18), the defense counsel’s motion to dismiss the suspicion was denied.

The investigating judge concluded that the subject matter of the complaint is determining whether the charges brought comply with the requirements of the law and whether there are grounds for revoking such a notice of suspicion, while the issues regarding the validity of the charges brought, as well as the persuasiveness and veracity of the prosecution’s evidence, are to be decided by the trial court during the substantive review of the criminal proceedings and were therefore not examined by the investigating judge during the consideration of this complaint.

The investigating judge considered the applicant’s assertion in the complaint—that the notice of suspicion was served without sufficient evidence to justify such a procedural action—to be unfounded, relying on the findings of the European Court of Human Rights in the case of “Fox, Campbell, and Hartley v. the United Kingdom” which states that “reasonable suspicion” means that there are facts or information that could convince an objective observer that the person in question may have committed an offense, and that the requirement of reasonable suspicion entails the existence of evidence that objectively links the suspect to a specific crime. This evidence need not be sufficient to secure a conviction, but must be sufficient to justify further investigation or the filing of charges, and such evidence is currently presented in the aforementioned materials.

By a ruling of the Petrykivka District Court of Dnipropetrovsk Oblast dated December 7, 2018 (Case No. 187/1336/18, Proceedings No. 1-ks/0187/625/18), the attorney’s complaint regarding the notice of suspicion was also denied. In the opinion of the investigating judge, the grounds for revoking the notice of suspicion or for determining that the individual has not acquired the status of a suspect can be exclusively a violation of the procedure (order) for issuing the notice of suspicion or the absence of mandatory elements of the notice of suspicion. Regarding a detailed assessment of all evidence of the person’s guilt in committing the crime with which he is charged—specifically, regarding the admissibility and sufficiency of such evidence to establish that guilt, which the defense attorney cited in support of the complaint— the investigating judge noted that such an analysis—and, accordingly, such conclusions—can be provided only as a result of a full examination of the evidence and its evaluation in its entirety during the consideration of the charges on their merits. At the same time, the investigating judge concluded that, at the pretrial investigation stage, he is not authorized to resolve issues that must be decided by the court during the trial on the merits of the criminal proceedings; in particular, he is not authorized to evaluate evidence in terms of its relevance, admissibility, reliability, and sufficiency to find a person guilty or not guilty of committing a crime, and under which provision of the Criminal Code that person is liable.

On May 16, 2019, an investigating judge of the Bilhorod-Dnistrovskyi City and District Court of the Odesa  (Case No. 495/149/19) issued a ruling denying the defense attorney’s motion to set aside the notice of suspicion pursuant to Article 303 of the Criminal Procedure Code of Ukraine. The main reason for denying the complaint seeking to annul the notice of suspicion was that “the court proceedings did not reveal any evidence of a violation of Articles 276 and 277 of the Criminal Procedure Code of Ukraine that would justify annulling the notice of suspicion against Person 1 regarding the commission of a criminal offense, as provided for in Part 1 of Article 187 of the Criminal Code of Ukraine.” Thus, the investigating judge’s position in this ruling was that a notice of suspicion may be challenged only on the grounds of a violation of Articles 276 and 277 of the Criminal Procedure Code of Ukraine during the service of the notice of suspicion.

Consequently, the position of the investigating judges largely boils down to the following:

  a) a notice of suspicion may be challenged only on the grounds of a violation of the provisions of the current Code of Criminal Procedure of Ukraine, namely Articles 276 and 277 of the Code of Criminal Procedure of Ukraine; therefore, in the absence of such violations, the validity of the suspicion cannot in itself be considered grounds for its revocation;

b) no violations were found in the notification of suspicion, and the suspicion is well-founded, relying exclusively on the decision of the European Court of Human Rights, according to which: “a reasonable suspicion presupposes the existence of circumstances or information that would convince an impartial observer that the person in question may have committed a specific crime”;

c) the assessment of the collected evidence for its reliability and admissibility falls within the court’s jurisdiction following the trial on the merits of the criminal proceedings, and therefore should, in principle, be conducted exclusively during the trial on the merits.

Thus, as a rule, the investigating judge does not in any way refute the arguments and evidence presented by the defense, does not examine the circumstances and evidence cited by the defense, and does not comply with the requirements of Article 94 of the Criminal Procedure Code of Ukraine.

However, the relevant rulings rejecting the defense’s appeals against the notice of suspicion are not based on the requirements of current Ukrainian law, particularly in light of the following.

First, the Criminal Procedure Code of Ukraine does not contain an exhaustive list of grounds and reasons on the basis of which a notice of suspicion may be challenged. If the legislature had limited appeals against a notice of suspicion exclusively to violations of its procedural form (i.e., Articles 276 and 277 of the CPC of Ukraine), it would have explicitly stated so in paragraph 10 of Part 1 of Article 303 of the CPC of Ukraine.

At the same time, if the legislature had limited the grounds for challenging a notice of suspicion solely to violations of its procedural form (i.e., Articles 276 and 277 of the CPC of Ukraine), it would have permitted an immediate challenge, rather than one filed two months after the date the person was notified of the suspicion, as provided for in paragraph 10 of Part 1 of Article 303 of the Criminal Procedure Code of Ukraine for appealing a notice of suspicion of committing a crime.

Thus, pursuant to paragraph 10 of Part 1 of Article 303 of the CPC of Ukraine, a notice of suspicion may be appealed both on the grounds of a violation of procedural requirements (Articles 276 and 277 of the CPC of Ukraine) and on the grounds of the validity of the suspicion at the time of the appeal.

At the same time, based on judicial practice, not all violations of the requirements of the Code of Criminal Procedure of Ukraine are, in the opinion of investigating judges, procedural violations that would serve as grounds for revoking the notice of suspicion.

For example, providing the suspect with a memorandum on procedural rights and obligations along with the notice of suspicion, without specifying them in the notice of suspicion itself, constitutes sufficient compliance with the provisions of current Ukrainian law and does not constitute a gross violation of the Code of Criminal Procedure of Ukraine. Although paragraph 7 of Part 1 of Article 277 of the Code of Criminal Procedure of Ukraine explicitly states “the notice of suspicion must contain information about the suspect’s rights,” this provision is mandatory.

Furthermore, since procedural violations regarding the notice of suspicion encompass not only its drafting and approval but also, undoubtedly, its service, special attention should be paid to the investigator’s or prosecutor’s compliance with the requirements of Part 4 of Article 278 of the CPC of Ukraine. Specifically, failure to enter or delay in entering into the Unified Register of Pretrial Investigations the date and time of the notice of suspicion, the legal classification of the criminal offense of which the person is suspected, with an indication of the article (or part of the article) of the Law of Ukraine on Criminal Liability.

Failure to comply with the relevant provisions, either individually or collectively, constitutes grounds for annulling the notice of suspicion; ignoring these violations of the Code of Criminal Procedure of Ukraine undermines the very essence of trust in the justice system as a whole.

Second, in fact, from the perspective of the European Court of Human Rights, suspicion in and of itself constitutes a minimum standard in terms of evidence; here, minimal indications and information that “may  convince an objective observer that the person in question could have committed  an offense» (para. 175 of the judgment in the case of «Nechiporuk and Yonkalo v. Ukraine» (Application No. 42310/04) dated April 21, 2011, final on July 21, 2011).

However, suppose that among the evidence in the criminal case file that allegedly provides grounds to suspect a person of committing a crime, there is only a transcript of the victim’s interrogation, a transcript of a witness’s interrogation, and a report.

If the report is an internal document and cannot serve as evidence within the meaning of Article 84 and Part 1 of Article 103 of the Criminal Procedure Code of Ukraine, and the victim’s interrogation transcript is inadmissible evidence (the witness was interrogated before the information was entered into the Unified Register of Pre-trial Investigations or   by a person who lacked the authority to do so, etc.), can the victim’s interrogation protocol alone, after the two-month pretrial investigation period has expired, serve as a basis for suspicion? Of course not, since according to the same case law of the European Court of Human Rights (para. 175 of the judgment in the case of “Nechiporuk and Yonkalo v. Ukraine” (Application No. 42310/04) dated April 21, 2011, final on July 21, 2011), once a certain period has elapsed and a pretrial investigation is underway—specifically, investigative actions— then, undoubtedly, the level of substantiation of the suspicion must increase, since the purpose of the pretrial investigation is to confirm or refute the suspicion. Unfortunately, investigating judges tend to forget this.

At the same time, the Code of Criminal Procedure of Ukraine does not define clear criteria for the validity of a notice of suspicion.

However, in accordance with paragraph 3 of Part 1 of Article 276 of the Criminal Procedure Code of Ukraine, a notice of suspicion is issued, among other things, when there is sufficient evidence to suspect a person of committing a criminal offense.

  According to paragraph 6 of Part 1 of Article 277 of the Criminal Procedure Code of Ukraine, the notification must contain a brief summary of the factual circumstances of the criminal offense of which the person is suspected, including the time and place of its commission, as well as other material circumstances known at the time the notification of suspicion is issued. Therefore, there must be evidence confirming these circumstances, since it is impossible to assert suspicion based solely on the fact that the person suffered the relevant harm.

Thus, “reasonable suspicion” entails not only the existence of a written notice of suspicion but also the existence of sufficient evidence to support it.

Such evidence must be evaluated.

The necessity of evaluating evidence at the pretrial investigation stage is specified in the following articles of the Criminal Procedure Code of Ukraine.

Evidence in criminal proceedings consists of factual data obtained in accordance with the procedure 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 that are relevant to the criminal proceedings and subject to proof (Part 1 of Article 84 of the Criminal Procedure Code of Ukraine).

In criminal proceedings, the occurrence of a criminal offense (the time, place, manner, and other circumstances of the commission of the criminal offense) is among the matters subject to proof (Paragraph 1, Part 1 of Article 91 of the Criminal Procedure Code of Ukraine).

The presentation of evidence consists of the collection, verification and evaluation of evidence for the purpose of establishing the circumstances relevant to criminal proceedings (Part 2 of Article 91 of the Criminal Procedure Code of Ukraine).

The investigator, prosecutor, investigating judge, and court, based on their internal conviction—which is grounded in a comprehensive, complete, and impartial examination of all circumstances of the criminal proceedings and guided by the law—evaluate each piece of evidence in terms of its relevance, admissibility, and reliability, and the body of evidence collected—in terms of sufficiency and interconnection—for the purpose of rendering the appropriate procedural decision (Parts 1 and 2 of Article 94 of the Criminal Procedure Code of Ukraine).

Suspicion cannot be based on evidence obtained unlawfully (Article 17(3) of the Code of Criminal Procedure of Ukraine).

A court decision must be lawful, well-founded, and reasoned. A decision is well-founded if it is rendered by the court on the basis of objectively established circumstances that are confirmed by evidence examined during the trial and assessed by the court in accordance with Article 94 of the Code of Criminal Procedure of Ukraine (Parts 1 and 3 of Article 370 of the Code of Criminal Procedure of Ukraine).

The reasoning section of the ruling sets forth the circumstances established by the court with reference to the evidence, as well as the grounds for disregarding certain pieces of evidence(para. 2, part 1 of Article 372 of the Code of Criminal Procedure of Ukraine).

Thus, the legislature has determined that the assessment of evidence for admissibility and relevance also falls within the jurisdiction of the investigating judge at the pretrial investigation stage.

This is also evidenced by the provisions of Article 88 of the Criminal Procedure Code of Ukraine, titled “Inadmissibility of Evidence and Information Concerning the Suspect or Accused,” pursuant to the first part of which the legislature has specified that evidence concerning the suspect’s or the accused, or the commission by them of other offenses that are not the subject of these criminal proceedings, as well as information regarding the character or specific personality traits of the suspect or accused is inadmissible to establish the guilt of the suspect, the accused, in committing a criminal offense.

Given the phrase “inadmissible as evidence to establish the guilt of the suspect,” one may conclude that the legislature provides for the evaluation of evidence and its determination as inadmissible at the pretrial investigation stage.

At the same time, what is the point of the suspect’s right, provided for in Part 1 of Article 20 and paragraph 8 of Part 3 of Article 42 of the Code of Criminal Procedure of Ukraine, to collect and submit evidence to the investigating judge, if there is a view that it is impossible to examine and evaluate it?!

In their rulings denying complaints against notices of suspicion, investigating judges—adhering to the position that it is impossible to examine and evaluate evidence during the pretrial investigation stage—quite often cite the provisions of Article 23 of the Criminal Procedure Code of Ukraine (direct examination of testimony, objects, and documents), which states that evidence is examined directly by “the Court», referring to the court of first instance, which has the right to render a verdict or issue a ruling to dismiss criminal proceedings (para. 22, part 1, Art. 3 of the Criminal Procedure Code of Ukraine).

However, Article 23 of the CPC of Ukraine pertains to the general principles of criminal proceedings set forth in Article 7 of the CPC, which include, in particular, access to justice and the binding nature of court decisions (Article 21 of the CPC of Ukraine) as well as the adversarial nature of the proceedings and the parties’ freedom to present their evidence to the court and to demonstrate its persuasiveness before the court (Article 22 of the CPC of Ukraine).

Thus, in accordance with the provisions of, for example, Parts 1 and 2 of Article 21 of the CPC of Ukraine, everyone is guaranteed the right to a fair hearing and resolution of their case within a reasonable time by an independent and impartial “court,” established by law. Everyone has the right to participate in the hearing before “a court” of any instance in a case concerning their rights and obligations, in the manner prescribed by this Code.

In accordance with Parts 2 and 6 of Article 22 of the Criminal Procedure Code of Ukraine, the parties to criminal proceedings have equal rights to collect and submit to “the court” items, documents, other evidence, motions, and complaints, as well as to exercise other procedural rights provided for by this Code. The “court,” while maintaining objectivity and impartiality, creates the necessary conditions for the parties to exercise their procedural rights and fulfill their procedural obligations.

Does this mean, then, that when considering any complaints or motions during the pretrial investigation stage, the substance and form of the criminal proceedings need not comply with the general principles of criminal proceedings set forth in Article 7 of the Criminal Procedure Code of Ukraine, simply because the word “court” appears there?

From this perspective, one can also consider the provisions of Parts 2 and 4 of Article 87 and Part 1 of Article 89 of the Criminal Procedure Code of Ukraine (Section I “General Provisions,” Chapter 4. “Evidence and Proof”), which also contain the word “court”: “The court is obligated to recognize as substantial violations of human rights and fundamental freedoms…”; “…must be deemed inadmissible by the court…”; “The court decides on the admissibility of evidence…,” “…the court finds this evidence inadmissible…”

So, when considering complaints and motions at the pretrial investigation stage, should investigating judges not be guided by the provisions of Section I of the Criminal Procedure Code of Ukraine, which are general in nature?

Therefore, in light of the above, one can reach the final conclusion that when considering a complaint against a notice of suspicion, it is necessary to determine whether the materials provided by the investigator/prosecutor constitute evidence (Part 1 of Article 84 of the CPC of Ukraine) and to assess this evidence as relevant and admissible (Part 1 of Article 94 of the CPC of Ukraine). The investigating judge is required, during the pretrial investigation stage, to comply with the relevant provisions of the Code of Criminal Procedure of Ukraine.

How should the investigating judge proceed if it is determined that the evidence supporting the suspicion is inadmissible?

Pursuant to Part 1 of Article 306 of the Code of Criminal Procedure of Ukraine, complaints regarding decisions, actions, or inaction by an investigator or prosecutor are considered by an investigating judge of a local court in accordance with the rules of judicial proceedings set forth in Articles 318–380 of this Code, taking into account the provisions of this chapter.

Evidence specified in Article 87 of the Code of Criminal Procedure of Ukraine must be deemed inadmissible by the court during any judicial proceedings, except when the issue of liability for committing the specified substantial violation of human rights and freedoms—as a result of which such information was obtained—is being decided (Part 4 of Article 87 of the Code of Criminal Procedure of Ukraine).

The court decides on the admissibility of evidence while evaluating it in the deliberation room during the rendering of a judicial decision.

If the evidence is found to be manifestly inadmissible during the trial, the court shall declare such evidence inadmissible, which precludes the examination of such evidence or requires the termination of its examination in court if such examination has already begun.

The parties to criminal proceedings, the victim, and the representative of the legal entity against which the proceedings are being conducted have the right during the court proceedings to file a motion to have evidence declared inadmissible, as well as to raise objections to the declaration of evidence as inadmissible (Art. 89 of the Criminal Procedure Code of Ukraine).

Thus, even at the pretrial investigation stage, taking into account the provisions of Part 1 of Article 306, Part 1 of Article 84, and Part 1 of Article 94 of the Code of Criminal Procedure, when deciding on the revocation of a notice of suspicion, participants in criminal proceedings have the right to file a motion to declare evidence inadmissible. If evidence is found to be inadmissible, the investigating judge must declare it inadmissible, refrain from examining it, or terminate the examination if it has already begun. If no such motion has been filed but the evidence is inadmissible, the investigating judge must do so on his or her own initiative.

Declaring evidence inadmissible during the pretrial investigation stage will help protect the rights of the person facing criminal charges, improve the quality of the pretrial investigation, and facilitate the court’s work during the trial, should the case proceed to trial with an indictment.

At the same time, this will encourage the prosecution to obtain evidence in accordance with the procedure set forth in the Criminal Procedure Code of Ukraine, without substantially violating human rights and freedoms. 

Given the above, it can be concluded that when reviewing a complaint against a notice of suspicion, the investigating judge must take into account the following circumstances: 1) the drafting and service of the notice of suspicion in accordance with the requirements of Articles 276–278 of the Criminal Procedure Code of Ukraine; 2) the presence in the criminal case file of evidence confirming the validity of the suspicion; 3) the increasing validity of the suspicion as the pretrial investigation period elapses; 4) demonstrating to the investigating judge the weight and sufficiency of the available evidence; 5) the investigating judge’s assessment of the aforementioned evidence.

It is not possible to assert that the suspicion is well-founded at the time of consideration of a complaint against a notice of suspicion in the absence of the aforementioned elements.

At the same time, it should be noted that the use by investigating judges of the ECHR’s conclusions regarding the reasonableness of suspicion in a one-sided and selective manner, in and of itself negates the possibility of appealing the notice of suspicion. Since, without a proper assessment of the evidence and an examination of the circumstances of the case in accordance with the requirements of Article 94 of the Code of Criminal Procedure, any notice of suspicion containing the information specified by the investigator—and especially when combined with the victim’s testimony—may “convince an independent observer of the person’s involvement in the commission of the crime.”

Moreover, the validity of the suspicion, as assessed through the lens of the evidence, reveals the very essence of such provisions of the Code of Criminal Procedure of Ukraine as Articles 2, 3, and 9, since:

- the objectives of criminal proceedings are to protect individuals, society, and the state from criminal offenses, to safeguard the rights, freedoms, and legitimate interests of participants in criminal proceedings, and to ensure a prompt, thorough, and impartial investigation and trial so that anyone who has committed a criminal offense is held accountable to the extent of their guilt, no innocent person is charged or convicted, no person is subjected to unjustified procedural coercion, and due process is applied to every participant in criminal proceedings(Part 1 of Article 2 of the Criminal Procedure Code of Ukraine);

- the prosecutor, the head of the pretrial investigation body, and the investigator are obligated to investigate the circumstances of the criminal proceedings comprehensively, fully, and impartially, to uncover both the circumstances that incriminate and those that exonerate the suspect or accused, as well as circumstances that mitigate or aggravate their punishment, provide them with a proper legal assessment, and ensure that lawful and impartial procedural decisions are made (Part 2 of Article 9 of the Criminal Procedure Code of Ukraine);

- Pretrial investigation—the stage of criminal proceedings that begins when information about a criminal offense is entered into the Unified Register of Pretrial Investigations and ends with the closure of the criminal proceedings or the submission to the court of an indictment, a motion to apply coercive measures of a medical or educational nature, or a motion to exempt a person from criminal liability (Paragraph 5, Part 1 of Article 3 of the Criminal Procedure Code of Ukraine);

- An investigating judge is a judge of a court of first instance whose powers include exercising, in accordance with the procedure provided for by this Code, judicial oversight of the observance of the rights, freedoms, and interests of individuals in criminal proceedings … (para. 18, part 1, Art. 3 of the Code of Criminal Procedure of Ukraine).

Pursuant to Part 1 of Article 47 of the Code of Criminal Procedure of Ukraine, a defense attorney is obligated to use the defense measures provided for by this Code and other laws of Ukraine to ensure respect for the rights, freedoms, and lawful interests of the suspect or defendant and to ascertain the circumstances that refute the suspicion or the charges, or that mitigate or exclude the criminal liability of the suspect or accused.

Thus, determining the validity of a suspicion is of great importance for the pretrial investigation, since its purpose is either to confirm the suspicion or to refute it. At the same time, if the suspicion is unfounded—namely, in the absence of proper, admissible evidence—the person should not be granted the status of an accused. At the same time, it is worth remembering that reasonable suspicion is an important safeguard against the arbitrary detention or arrest of a person, and thus a guarantee of Ukraine’s compliance with Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Why, then, is the provision of Article 94 of the Code of Criminal Procedure of Ukraine so often ignored by investigating judges? This disregard most likely indicates a reluctance to assume responsibility for assessing the suspicion, properly substantiating it, and justifying the judicial decision due to a lack of time and the heavy caseload of investigating judges.

Unfortunately, investigating judges fail to distinguish between verifying the validity of the suspicion and verifying the proof of a person’s guilt. The latter is and has always been the prerogative of the court at the trial stage; no one disputes this. By filing the relevant complaints, the defense is not attempting to exonerate its client; it is merely insisting on compliance with the provisions of Ukraine’s current Code of Criminal Procedure, since if the legislature provides for such a possibility, it must be implemented. The defense primarily seeks to draw the investigating judge’s attention to the inadmissibility of certain evidence, and sometimes to the incorrect legal classification of the crime, which results in an unfounded suspicion.

After all, an unfounded notification of suspicion causes irreparable harm to justice and to the individual, because nothing causes greater offense and more painful emotional trauma than groundless suspicion or an accusation of committing a crime. Any one of us could find ourselves in that person’s shoes; we must not forget this.

Undoubtedly, the Supreme Court’s case law can put an end to this issue—namely, by providing relevant generalizations and conclusions. However, unfortunately, pursuant to the provisions of Part 4 of Article 424 of the Code of Criminal Procedure of Ukraine, such rulings are not subject to appeal in cassation… But this issue is already a separate topic for discussion.

Thus, we are left with no choice but to use all the remedies provided for by the Code of Criminal Procedure of Ukraine and other laws of Ukraine, to ensure that the rights, freedoms, and legitimate interests of our clients are respected, to challenge before the appellate court the unfounded refusals by investigating judges to grant complaints against notices of suspicion, and to hope that sooner or later we will have positive, effective judicial precedent on this matter.