Appealing a Notice of Suspicion Issued by an Investigating Judge: A Formal Approach

With the adoption and entry into force of amendments to the Code of Criminal Procedure of Ukraine pursuant to the Law of Ukraine “On Amendments to the Commercial Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine, and Other Legislative Acts” dated October 3, 2017, No. 2147-VIII—specifically, the provisions of Article 303 of the Code of Criminal Procedure of Ukraine—we now have the opportunity to appeal a notice of suspicion.

Since the entry into force of the aforementioned law and, specifically, the amendments to paragraph 10 of part 1 of Article 303 of the Code of Criminal Procedure of Ukraine (March 16, 2018), case law has established that in “old” cases, in the Unified Register of Pre-trial Investigations (URPI) that were entered prior to March 16, 2018, it is not possible to challenge a notice of suspicion, pursuant to the requirements of § 2, para. 4 of the Final Provisions of the aforementioned Law No. 2147-VIII dated October 3, 2017. At the same time, many different scholarly and practical articles have been written and published, all of which conclude that, in accordance with Article 5 of the Criminal Procedure Code of Ukraine, such judicial precedent is incorrect and the provisions of § 2, para. 4 of the Final Provisions of the aforementioned Law No. 2147–VIII dated October 3, 2017, should not be applied; that is, most of these articles address the temporal application of procedural law (Levkovets, A.Y. On Challenging Suspicions Under the Code of Criminal Procedure of Ukraine [Electronic Resource] / Resonance—on corruption, bribes, judges, and authorities: http://resonance.ua/oskarzhennya-pidozri-u-provadzhennyakh-ro/; Zhovtan, Yu.V. Judges Refuse to Initiate Proceedings on Complaints Regarding Unfounded Suspicions [Electronic resource] / Legal Practice. http://pravo.ua/news.php?id=0654232Note that the author also shares these views).

However, in this article, we propose to analyze not the temporal application of the law, but rather how exactly § 2, para. 4 of the Final Provisions of the aforementioned Law No. 2147–VIII dated October 3, 2017, should be applied, based solely on a formal interpretation of these provisions.

Here is the verbatim text of § 2, para. 4 of the Final Provisions of the aforementioned Law No. 2147–VIII dated October 3, 2017: “Subparagraphs 11–27, 45 of paragraph 7 of § 1 of this section shall take effect three months after this Law enters into force; shall not have retroactive effect, and shall apply to cases in which information regarding a criminal offense has been entered into the Unified Register of Pre-trial Investigations after these amendments take effect.”

What constitutes “information regarding a criminal offense entered into the Unified Register of Pre-trial Investigations”?

Let’s try to answer this question by analyzing the provisions of Ukraine’s current criminal procedural legislation, since there is no direct definition of this concept.

According to Part 5 of Article 214 of the Code of Criminal Procedure of Ukraine, the Unified Register of Pre-trial Investigations shall contain information regarding:

1) the date of receipt of a complaint, a report of a criminal offense, or the discovery from another source of circumstances that may indicate the commission of a criminal offense;

2) the last name, first name, and patronymic (or name) of the victim or complainant;

3) the other source from which the circumstances indicating that a criminal offense may have been committed were identified;

4) a brief summary of the circumstances that may indicate the commission of a criminal offense, as provided by the victim or the complainant or as identified from another source;

5) preliminary legal classification of the criminal offense, specifying the article (or part of an article) of the Law of Ukraine on Criminal Liability;

6) the last name, first name, patronymic, and position of the official who entered the information into the registry, as well as the investigator or prosecutor who entered the information into the registry and/or initiated the pretrial investigation;

7) other circumstances provided for in the Regulations on the Unified Register of Pre-trial Investigations.

According to paragraph 1 of Section 1 of the Regulations on the Procedure for Maintaining the Unified Register of Pretrial Investigations, approved by Order of the Prosecutor General’s Office of Ukraine dated April 6, 2016, No. 139 (hereinafter referred to as the “Regulations”), the registry is an electronic database created using an automated system, through which the collection, storage, protection, and accounting of searching, and summarizing the data specified in paragraph 1 of Chapter 2 of this section, which is used to generate reports, as well as to provide information regarding the entries made in the Register, in compliance with the requirements of criminal procedural law and legislation governing the protection of personal data and access to restricted information.

Pursuant to paragraph 1 of Section 2 of Regulation 1, the following information shall be entered into the Register:

the time and date of receipt of a complaint, a report of a criminal offense, or the discovery from another source of circumstances that may indicate the commission of a criminal offense;

the last name, first name, and patronymic (or name) of the victim or complainant;

the other source from which the circumstances that may indicate the commission of a criminal offense were identified;

a brief summary of the circumstances that may indicate the commission of a criminal offense, as provided by the victim or the complainant or as identified from another source;

a preliminary legal classification of the criminal offense, specifying the article (or part of the article) of the Law of Ukraine on Criminal Liability;

the transfer of materials and information to another pretrial investigation authority or to the location where the pretrial investigation is being conducted (Article 36(5), Article 214(7), Articles 216 and 218 of the Criminal Procedure Code of Ukraine);

the last name, first name, and patronymic of the head of the prosecutor’s office, the pretrial investigation body, the investigator, and the prosecutor who entered the information into the Register and/or initiated the pretrial investigation and/or is conducting the pretrial investigation or providing procedural supervision;

the date of the person’s detention;

the imposition, modification, and revocation of a preventive measure (Articles 176–178, 200, 202, 492, 493, 508 of the Code of Criminal Procedure of Ukraine);

the time and date of notification of suspicion, any amendment to the notification of suspicion, and the person notified of suspicion; the legal classification of the criminal offense of which the person is suspected, specifying the article (or part of an article) of the Law of Ukraine on Criminal Liability (Part 4 of Article 278, Article 279 of the Code of Criminal Procedure of Ukraine);

the time and date of the preparation of the notice of suspicion, the person in respect of whom the notice of suspicion was prepared, the legal classification of the criminal offense of which the person is suspected, specifying the article (or part of an article) of the Law of Ukraine on Criminal Liability in cases where it is impossible to notify such a person of the suspicion for objective reasons (Article 277 of the Code of Criminal Procedure of Ukraine);

the legal entity against which criminal law measures may be applied (Part 8 of Article 214 of the Criminal Procedure Code of Ukraine);

the date and grounds for conducting (terminating) a special pretrial investigation (Part 6 of Article 297-4 of the Criminal Procedure Code of Ukraine);

the suspension and resumption of a pretrial investigation (Part 4 of Article 280, Part 2 of Article 281, and Part 3 of Article 282 of the Criminal Procedure Code of Ukraine);

the issuance of a warrant for the arrest of a suspect (Article 281 of the CPC of Ukraine);

consolidation and separation of pretrial investigation materials (Article 217 of the Code of Criminal Procedure of Ukraine);

extension of the terms of pretrial detention and the pretrial investigation (Articles 197, 199, 219, and 294 of the Code of Criminal Procedure of Ukraine);

established and compensated property damages, amounts of claims filed in criminal proceedings, and the value of seized property;

the conclusion of the pretrial investigation (Part 3 of Article 283 of the Code of Criminal Procedure of Ukraine);

other information specified in the primary accounting documents.

Thus, we can conclude that the information regarding a criminal offense entered into the Unified Register of Pre-trial Investigations —is information regarding the facts and circumstances of criminal proceedings, the entry of which is required by the Code of Criminal Procedure of Ukraine and the Regulations on the Procedure for Maintaining the Unified Register of Pre-trial Investigations, approved by Order of the Prosecutor General’s Office of Ukraine dated April 6, 2016, No. 139.

Suppose that information regarding the commission of a criminal offense was entered into the Unified Register of Pre-trial Investigations by an investigator on January 1, 2017, in accordance with Article 214 of the Criminal Procedure Code of Ukraine, and a notice of suspicion was served in this criminal proceeding on March 17,March 2018, or that the notice of suspicion was served on January 1, 2018, and on April 17, 2018, a notice was served amending the previously served notice of suspicion. This raises the question: Are such notices of suspicion subject to appeal in accordance with paragraph 10 of Part 1 of Article 303 of the Criminal Procedure Code of Ukraine, taking into account paragraph 4 of § 2 of the aforementioned final provisions?

In our view, the answer is yes, and here is why:

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, shall be entered without delay by the investigator or prosecutor into the Unified Register of Pretrial Investigations (Part 4 of Article 278 of the Criminal Procedure Code of Ukraine)—this also applies to amendments to the notice of suspicion (Part 1 of Article 279 of the Criminal Procedure Code of Ukraine).

Information regarding both the notice of suspicion and any amendments to the notice of suspicion constitutes information about criminal offenses entered into the Unified Register of Pre-trial Investigations; and therefore, if such information was entered into the Unified Register of Pre-trial Investigations after March 15, 2018, regardless of whether the Unified Register of Pre-trial Investigations existed prior to March 16, 2018, such notices of suspicion and amendments to notices of suspicion may be appealed to an investigating judge in accordance with paragraph 10 of Part 1 of Article 303 of the Criminal Procedure Code of Ukraine, and this will comply with the requirements of § 2, paragraph 4 of the Final Provisions of the aforementioned Law No. 2147-VIII dated October 3, 2017, since paragraph 4 of the Final Provisions does not refer to information regarding the initiation of a pretrial investigation or the initial, initial information entered into the Unified Register of Pre-trial Investigations, but rather information regarding a criminal offense entered into the Unified Register of Pre-trial Investigations after these amendments came into effect.

Thus, the key factor for the application of paragraph 10 of Part 1 of Article 303 of the Code of Criminal Procedure of Ukraine is not the date on which the pretrial investigation was initiated, but the date on which information regarding the notice of suspicion or an amendment to the notice of suspicion was entered—that is, precisely what you have decided to challenge before the investigating judge.