Regarding an Appeal Against a Suspicion Under the Criminal Procedure Code of Ukraine

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On October 10, 2017, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Procedure of Ukraine, and Other Legislative Acts” (hereinafter—the Law).

Subparagraph 23 of Paragraph 7 of Section 1 of Chapter 4 of the aforementioned legislative act amends Article 303 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the “CPC of Ukraine”) regarding the possibility of appealing a notice of suspicion in criminal proceedings. In particular, it is specified that during a pretrial investigation, a notice of suspicion issued by an investigator or or a prosecutor regarding suspicion may be appealed 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, their defense counsel, or their legal representative.

At the same time, paragraph 4 of Section 2 of Chapter 4 of the Law states that subparagraphs 11–27 and 45 of paragraph 7 of Section 1 of this chapter 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 was entered into the Unified Register of Pretrial Investigations after these amendments took effect

However, despite the provision that the provisions of subparagraphs 11–27 and 45 of paragraph 7 of § 1 of Section 4, including those regarding appeals against notices of suspicion, do not have retroactive effect, doubts remain regarding the impossibility of applying them to criminal proceedings that were ongoing at the time these provisions took effect.

Thus, Part 1 of Article 58 of the Constitution of Ukraine provides that laws and other normative legal acts do not have retroactive effect, except in cases where they mitigate or abolish a person’s liability.

At the same time, the amendments to the Code of Criminal Procedure of Ukraine do not establish liability for individuals but merely define the procedure for criminal proceedings; therefore, these amendments do not have retroactive effect. The Supreme Court of Ukraine expressed this position in its decision of December 17, 2015 (Case No. 5-205кс 15 (15)

However, it should also be noted that retroactive effect provides for the possibility of conducting procedural actions and rendering decisions in accordance with amended rules that are more favorable to the individual. Therefore, given the Supreme Court’s conclusion that, unlike substantive criminal law, new criminal procedural law does not have retroactive effect even in cases where its rules are more favorable to the parties to criminal proceedings, and therefore a reversal of the proceedings (procedural actions) is impossible, is logically sound; for example, it would be illogical to select a new preventive measure if the grounds or procedure for its application had changed.

Nevertheless, let us return to the text of paragraph 4 of Section 2 of Chapter 4 of the Law, where, in particular, it states: “shall not have retroactive effect and shall apply to cases in which information regarding a criminal offense was entered into the Unified Register of Pretrial Investigations after these amendments took effect.” Thus, this paragraph contains two legal categories: “shall not have retroactive effect” and “shall apply to cases in which information regarding a criminal offense has been entered…”

The issue of retroactive effect has been analyzed; however, the question of the application of the relevant provisions remains open.

Thus, Part 5 of the Criminal Procedure Code of Ukraine provides that a procedural action shall be carried out and a procedural decision shall be made in accordance with the provisions of this Code in effect at the time such action is initiated or such decision is made.

Therefore, in the case of an appeal against a notice of suspicion, the issue is not one of retroactive application—which would be the case if the law established new requirements for the notice of suspicion— but rather the application of a new law that does not alter the old rules and is in effect at the time the relevant procedural action—the appeal of a notice of suspicion—is taken.

At the same time, the Law effectively establishes a conflict of laws, where two mutually exclusive provisions apply simultaneously, since paragraph 4 of Section 2 of Chapter 4 of the Law contradicts Part 5 of the Criminal Procedure Code of Ukraine, which in this case takes precedence, as it directly defines the rules governing the temporal application of procedural law.

Furthermore, such a legal conflict constitutes a violation of the principle of the rule of law, an integral part of which is the principle of legal certainty and the predictability of legislation.

I have previously noted that the requirement of “predictability” was formulated by the European Court of Human Rights (see the judgment in the case of “Malone v. United Kingdom,” dated August 2, 1984, para. 67, and the judgment in the case of “Amann v. Switzerland,” application No. 27798/95, para. 56, ECHR 2000-II) and is as follows: a legal rule is “foreseeable” if it is formulated with sufficient clarity to enable any individual—if necessary, with appropriate advice—to regulate his or her conduct.

Consequently, the existence of two mutually exclusive provisions is not only illogical but also unlawful, as it violates a fundamental legal principle; therefore, in light of the general principles of criminal procedure, when deciding on the possibility of appealing a notice of suspicion in criminal proceedings that existed at the time subparagraphs 11–27, 45 of paragraph 7, § 1, Section 4 of the Law, one should be guided specifically by Article 5 of the Criminal Procedure Code of Ukraine, which expands the rights of the individual.