Some Issues Regarding the Notice of Suspicion

Some Issues Regarding the Notice of Suspicion

Acquiring the status of a suspect in criminal proceedings is of paramount importance, as it effectively marks the beginning of one of the most active phases of the defense.

A person acquires the status of a suspect from the moment they are notified of suspicion, detained on suspicion of committing a criminal offense, or when a notice of suspicion has been drawn up against them, but the notice has not been served on them because their whereabouts are unknown, provided that steps have been taken to serve it in the manner prescribed by this Code for the service of notices (Part 1 of Article 42 of the Criminal Procedure Code of Ukraine—hereinafter the CPC).

Notice of Suspicion

First, it is necessary to clearly define what a notice of suspicion is: a procedural decision or a procedural action.

The CPC does not contain a clear definition of the term “notice of suspicion,” but Article 110 of the CPC clearly defines what constitutes a procedural decision, a category that does not include a notice of suspicion. At the same time, Part 1 of Article 278 of the CPC states that if a notice of suspicion cannot be served on the day it is drawn up, it must be served in the manner prescribed by this Code for the service of notices.

Thus, based on Part 1 of Article 111 of the CPC, a notification in criminal proceedings is a procedural act.

Thus, a notice of suspicion is a procedural act that is initiated by the drafting of a written notice of suspicion, for which the legislature has established certain requirements.

Written Notice of Suspicion

The CPC specifies the specific content of a written notice of suspicion—that is, what such a notice must include and the circle of persons authorized to draft it.

Thus, a notice of suspicion must contain the following information:

1. the last name and position of the investigator or prosecutor issuing the notice;
2. the personal details of the person (last name, first name, patronymic, date and place of birth, place of residence, citizenship) who is being notified of the suspicion;
3. the name (number) of the criminal proceeding within the scope of which the notice is being issued;
4. the substance of the suspicion;
5. the legal classification of the criminal offense of which the person is suspected, with reference to the article (or part of the article) of the Law of Ukraine on Criminal Liability;
6. 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 of the notification of suspicion;
7. the suspect’s rights;
8. the signature of the investigator or prosecutor who issued the notification (para. 2, part 1, Art. 277 of the CPC).

This provision of the law is mandatory; however, unfortunately, the Code of Criminal Procedure does not contain provisions regarding the legal consequences of the absence of even one of the above-mentioned elements.

We have concluded unequivocally above that a notice of suspicion is not a procedural decision but rather a procedural act.

Since a notice of suspicion is not a procedural decision, such a notice cannot be revoked or appealed.

However, what are the procedural consequences of the absence of at least one of the elements specified in Article 277 of the CPC of Ukraine 

for a procedural act such as a written notice of suspicion?

In our view, given that Article 277 of the CPC establishes the precise content of a written notice of suspicion and specifies its mandatory nature, the absence of even one of the elements defined in that article in a written notice of suspicion such a notice should not be considered a notice of suspicion within the meaning of the Code of Criminal Procedure and, therefore, should not entail any procedural consequences for the person to whom it was served.

In practice, this issue has not yet been definitively resolved; however, in our view, this position may be valid.

The Person Authorized to Serve a Notice of Suspicion, Its Significance, and Procedural Consequences

Along with the above, an equally interesting and relevant question is who is authorized to notify a suspect of suspicion in accordance with the requirements of the CPC of Ukraine and what the legal consequences are for failing to comply with such requirements.

An investigator, prosecutor, or other authorized official (a person granted the right by law to carry out an arrest) is required to immediately inform the suspect of his or her rights as provided for in Article 42 of this Code (Article 276(2) of the CPC).

The notification of suspicion must include the last name and position of the investigator or prosecutor making the notification (Article 277(1)(1) of the Code of Criminal Procedure), as well as the signature of the investigator or prosecutor who issued the notification (Article 277(1)(8) of the Code of Criminal Procedure).

A written notice of suspicion is served on the day it is drawn up by the investigator or prosecutor (Part 1 of Article 278 of the CPC of Ukraine).

If the notification of suspicion was issued by a prosecutor, only a prosecutor has the right to issue a notification of a new suspicion or to amend a previously notified suspicion (Article 279 of the Code of Criminal Procedure of Ukraine).

Thus, it follows from the aforementioned provisions of procedural law that the notice of suspicion is served by the person who signs the written notice of suspicion.

In practice, there are cases where a written notice of suspicion is signed by a prosecutor but served by an investigator, or is signed by one prosecutor or investigator but served by another prosecutor or investigator.

This issue becomes particularly acute in cases involving the notification of suspicion in criminal proceedings against a specific category of individuals (Chapter 37 of the CPC), where only the Prosecutor General, his deputy, or the head of a regional prosecutor’s office may serve a notice of suspicion to a lawyer, a local council member, a deputy of the Verkhovna Rada of the Autonomous Republic of Crimea, or a village, settlement, or city mayor may only be served by the Prosecutor General, his deputy, or the head of a regional prosecutor’s office within the scope of their authority  (para. 1, part 1, Art. 481 of the Code of Criminal Procedure);

a People’s Deputy of Ukraine, a candidate for President of Ukraine, the Human Rights Commissioner of the Verkhovna Rada of Ukraine, the Chair or another member of the Accounting Chamber, a prosecutor of the Specialized Anti-Corruption Prosecutor’s Office, the Director or another employee of the National Anti-Corruption Bureau of Ukraine, the Deputy Prosecutors General, or a member of the National Agency for the Prevention of Corruption; in such cases, the notice of suspicion is served by the Prosecutor General (or the Acting Prosecutor General) (para. 2, part 1, section 481 of the Code of Criminal Procedure);

A judge, a judge of the Constitutional Court of Ukraine, a juror while performing his or her duties in court, the Chair, Deputy Chair, or member of the High Council of Justice, the Chair, Deputy Chair, or member of the High Qualification Commission of Judges of Ukraine, and employees of the National Anti-Corruption Bureau of Ukraine are notified of the suspicion by the Prosecutor General or his deputy (para. 3, part 1, Art. 481 of the Code of Criminal Procedure);

The Prosecutor General is notified of the suspicion by the Deputy Prosecutor General (para. 4, part 1, Art. 481 of the Code of Criminal Procedure);

The Code of Criminal Procedure does not provide for the delegation of such powers, and the procedural law provision governing this matter is mandatory.

From the foregoing, it can be concluded that in the event that a notice of suspicion is signed by one official but served by another—for example, when a written notice of suspicion is signed by the Prosecutor General, and the service of such a notice by an investigator or another prosecutor (who is not the Prosecutor General or his deputy), just like the signing of the notice of suspicion by the Prosecutor General, and the service of such a notice by his deputy is unlawful, that is, it does not comply with the aforementioned provisions of the Code of Criminal Procedure.

Thus, if a written notice of suspicion is signed by one official but served by another, such a written notice of suspicion will not meet the requirements of paragraphs 1 and 8 of Part 1 of Article 277 of the Code of Criminal Procedure,  and consequently, the person cannot be considered to have been notified of the suspicion, meaning they are not a suspect.

The CPC does not explicitly regulate the question of who, in the case of criminal proceedings against a specific category of persons (Chapter 37), is required (has the authority) to draft and approve the indictment, that is, must such an entity be a specialized one by analogy with the procedural provision set forth in Article 481 of the CPC?

In providing a preliminary answer to this question, the author, based on the general provisions of the CPC and a systematic analysis of the norms of criminal procedural law, on this matter, as well as based on the practice of the European Court of Human Rights (ECHR), concludes that the indictment must also be drawn up—by analogy with the provision of Article 481 of the CPC of Ukraine—by a special entity with respect to a specific category of persons.

However, this issue is the subject of a separate study and will be addressed by the author in another article.