Key Quote

An investigating judge’s review of the reasonableness of the suspicion should serve as a barrier against unfounded criminal prosecution and as a means of properly fulfilling the general objectives of criminal proceedings — so that no person is subjected to unwarranted procedural coercion and so that due process is applied to every participant in criminal proceedings.

An investigating judge’s review of the reasonableness of suspicion as a means of countering unfounded criminal prosecution

Achieving the objectives of criminal proceedings, as defined in Article 2 of the Criminal Procedure Code of Ukraine, requires clear normative and theoretical guidelines regarding the activities of the investigating judge in the context of countering unfounded criminal prosecution.

Undoubtedly, the Code of Criminal Procedure of Ukraine contains no provisions that would explicitly impose such a duty on the investigating judge. However, given the grim realities of modern law enforcement practice—in which it is not uncommon for charges to be “exaggerated” to serve as an additional argument when selecting a preventive measure and for conducting covert investigative (search) operations— the equating of legal assistance provided by attorneys with the actual business and other activities of their clients, the classification of attorneys’ actions in providing legal assistance as criminal, the concealment from investigating judges of the special status of persons and objects regarding whom motions are filed, and so on, such an assessment is necessary. All the more so because certain provisions of the Criminal Procedure Code of Ukraine require an assessment specifically of the reasonableness of the suspicion. It does not, however, require an assessment of the existence of a document titled “notice of suspicion” that has been served on a person (often in violation of the CPC’s requirements regarding the procedure for service, including with respect to special subjects).

In particular, Article 132 of the CPC of Ukraine provides that the application of measures to secure criminal proceedings is not permitted unless the investigator or prosecutor proves that: 1) there is a well-founded suspicion that a criminal offense of such severity has been committed that it may constitute grounds for applying measures to secure criminal proceedings; 2) the needs of the pretrial investigation justify the degree of interference with the person’s rights and freedoms specified in the investigator’s or prosecutor’s motion; 3) the objective for which the investigator or prosecutor is filing the motion can be achieved. When considering the application of measures to ensure criminal proceedings, the parties to the criminal proceedings must submit to the investigating judge or the court evidence supporting the circumstances they cite. Accordingly, Article 194 of the Criminal Procedure Code of Ukraine provides that when considering a motion to apply a preventive measure, the investigating judge, the court is required to determine whether the evidence provided by the parties to the criminal proceedings establishes the circumstances indicating: 1) the existence of reasonable suspicion that the suspect or defendant has committed a criminal offense; 2) the existence of sufficient grounds to believe that at least one of the risks provided for in Article 177 of this Code exists, as indicated by the investigating judge or prosecutor; 3) the inadequacy of applying less severe preventive measures to prevent the risk or risks specified in the motion.

The validity of the suspicion encompasses two aspects. The first concerns a matter of law: the suspicion must relate to an offense provided for by law. The second is a question of fact: circumstances must be established which, upon reasonable and impartial interpretation, give rise to suspicion regarding a specific person’s involvement in a specific criminal offense[1]. In the judgment “Nechiporuk and Yonkalo v. Ukraine” (para. 175)  the ECHR reiterated once again that the term “reasonable suspicion” means that there are facts or information capable of convincing an objective observer that the person in question may have committed an offense. At the same time, the interpretation of the concept of “reasonableness” will depend on all the circumstances of the case (Fox, Campbell, and Hartley v. the United Kingdom, § 32)[2].

1. the investigating judge’s assessment of the validity of the suspicion and the form and content of the document—the notice of suspicion—as well as the procedure for issuing the notice of suspicion;
2. the investigating judge’s assessment of only the form and content of the document—the notice of suspicion—as well as the procedure for issuing the notice of suspicion.

The second approach is actually more common.

To illustrate, consider the following reasoning: “The arguments in the appeal filed by the defense counsel for suspect PERSON_3—Attorney V.P. Moroz—regarding the failure of the notice of suspicion to meet the criteria for ‘reasonable suspicion’ are unfounded, since, in the opinion of the appellate court, the notice of suspicion served on PERSON_3 regarding the commission of a criminal offense under Part 3 of Article 345 of the Criminal Code of Ukraine meets the requirements of Article 277 of the Criminal Procedure Code of Ukraine. At the same time, it should be noted that the investigating judge, during the pretrial investigation stage, 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, to evaluate evidence in terms of its sufficiency and admissibility for finding a person guilty or not guilty of committing a crime, and under which provision of criminal law that person is liable, since a proper assessment of the evidence presented in the case will be conducted within the framework of judicial proceedings”[7]. Another example: “The grounds for revoking a notice of suspicion or for determining that a person has not acquired the status of a suspect are violations in the process of serving the notice of suspicion, the absence of mandatory elements of the notice of suspicion, which in this case was not confirmed by the case materials” (although in the same ruling, the investigating judge noted: “the investigating judge’s assessment of the evidence on which the suspicion is based is possible only within the scope of verifying their sufficiency for notifying the person of suspicion”)[8]; “in accordance with the provisions of current criminal procedural law, grounds for revoking a notice of suspicion may include procedural violations committed during its drafting (formulation) and service”[9]. In addition, it was noted that “However, reviewing the notice of suspicion from the perspective of the reasonableness of the suspicion, taking into account the provisions of Art. 17 of the Code of Criminal Procedure of Ukraine, is not within the scope of judicial review conducted by an investigating judge in accordance with the provisions of Part 1 of Article 303 of the Code of Criminal Procedure of Ukraine at the pretrial investigation stage, but may only be the subject of direct judicial review of 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, to evaluate the collected evidence in terms of its admissibility, and without such an assessment, it is impossible to conclude whether the suspicion notified to the person is well-founded”[10]. It is also not uncommon to state that “the suspicion … was found to be well-founded by the investigating judge … when deciding on a preventive measure”[11]. However, the Code of Criminal Procedure of Ukraine does not contain any restrictions regarding the scope of an investigating judge’s review of a complaint against a notice of suspicion, and therefore it is difficult to understand what standards judges follow when refusing to assess the validity of the suspicion (if this is raised in the complaint). We note the doctrinal position that, given the legal rule regarding the lack of prejudicial effect of conclusions expressed in an interim court ruling concerning any circumstances relating to the substance of the suspicion or the charges (Part 1 of Article 198 of the Code of Criminal Procedure), we consider that various court decisions—one of the elements of which is the legality of the notification of suspicion—are precisely such, relatively independent of one another: the ruling of the investigating judge on the application of a preventive measure and the ruling adopted following the consideration of a complaint against the notice of suspicion. Therefore, the conclusion regarding the validity of the notice of suspicion contained in the ruling on the application of a preventive measure against a person cannot be considered prejudicial to the investigating judge who will consider the complaint against the notice of suspicion, just as the conclusion on this matter provided by the investigating judge when ruling on an appeal against the notice of suspicion cannot be considered prejudicial to the investigating judge when deciding on the application of a measure to ensure criminal proceedings. In other words, a reference to such a prior decision by the investigating judge, who is ruling on a complaint against the notice of suspicion pursuant to paragraph 10 of Part 1 of Article 303 of the Code of Criminal Procedure or the issue of applying measures to secure criminal proceedings—is legally unfounded[12].

Consequently, when an investigating judge reviews and decides on complaints against a notice of suspicion, both questions of law and questions of fact must be addressed, as this corresponds to the essence of challenging a notice of suspicion—namely, to prevent the criminal prosecution of an innocent person.

Thus, the investigating judge’s review of the specific grounds for the suspicion should serve as a barrier against unfounded criminal prosecution and as a means of properly fulfilling the general objectives of criminal proceedings —so that no person is subjected to unwarranted procedural coercion and so that due process is applied to every participant in criminal proceedings.