Vyacheslav Zoma Head of Judicial Practice of
NOBILI Law Firm
What is a Notice
of Suspicion with a
Historical Taste
A statement of suspicion, in simple terms, is a statement of the fact that there are sufficient grounds (beyond a reasonable doubt) to consider as reasonable the assumption that a person has committed a criminal offense on the basis of the available evidence. And also a message about suspicion is an action, it is an official procedure during which law enforcement authorities give a document to a suspect – a written notice of suspicion. Relevance of the issue For the opinion of an ordinary citizen, the expression “message about suspicion” is not very clear. Moreover, even Mr. Roman Truba – the former head of the State Security Committee didn’t actually formulate answers to the contents of the suspicion report during his interview with journalists. He made this topic very popular. At the moment he has reported through the media that he also has the intention to report the suspicion. That’s Mr. Roman Truba I can prove to the whole society about practical knowledge and experience in this field by my own example. And for my part, I propose to consider that the head of the State Security Committee during the interview was just a little nervous because of the journalists. A little story about the CCP of Ukraine 1960 fate. A little history, because it is in this that there is a share of understanding of this concept by law enforcement agencies. When the code was changed, law enforcement officers also perceived the new code with the new norms through the old code familiar to them (the Code of Criminal Procedure of 1960 – the Code of Criminal Procedure of Ukraine in 1960). This is exactly the code by which Vasily Stus and other political prisoners were convicted. And for the most part, he met the requirements of precisely the totalitarian regime. Where the purpose of applying the Code of Criminal Procedure of Ukraine was to prosecute citizens and form a gratuitous labor market at the expense of convicts. This code owes a large number of amendments for its inconsistency with the requirements of international acts, in particular the European Convention for the Protection of Human Rights and Fundamental Freedoms and others. The norms of this old code also did not have a clear definition of the suspect. It was noted that the suspect is a person (Art. 43-1), who was detained on suspicion of committing a crime, and the person against whom a preventive measure was applied (for example, bail or recognizance not to leave). And in articles 106, 148 of this code, the opposite was noted – “… measures are applied to the suspect, the accused …”. That is, the status arose – either by applying a preventive measure, then by applying a preventive measure it was possible based on the presence of this status. And an inextricable circle is formed without a root cause. What reminds an old joke about money in a bedside table which the woman puts in the bedside table her husband, and he has it from the same woman. A certain vicious cycle in jurisprudence. The Code did not provide for the drawing up of a separate procedural document to establish the status of a suspect. The suspect received a copy of the detention protocol in accordance with Article 106 or 115 of the Code of Criminal Procedure of Ukraine in 1960 in accordance with the inquiry officer or investigator, respectively. Or a decision on the election of a preventive measure against him. Moreover, if after applying the preventive measure, within 10 days the suspect did not acquire the status of the accused. All precautions against him were considered canceled and he was no longer a suspect. Therefore, the message about the suspicion in the minds of law enforcement officers was perceived as the drafting of the usual decision to attract as an accused. And the proceeds of a copy of this decision in the old code were formalized by drawing up a separate relevant protocol on handing it to the accused and an explanation of his rights. And in the future, some law enforcement officers perceived the message of suspicion in exactly the same procedure a little to a new order. The current code does not really have a clear definition of the term suspect report. That is, the legislators did not formulate a solid concept in this. The adoption of the relatively “new” code took place in parliament at the time of V.F. Yanukovich – April 13, 2012, had a political connotation and was happening in a hurry. Therefore, the presence of errors and gaps in the code becomes clear. But high-profile processes in relation to the former Prime Minister Timosheko Yu.V. and the head of the Ministry of Internal Affairs of Ukraine Lutsenko Yu.V. managed to complete shameful sentences to avoid the uncertainty of the application of the new code. The European Court of Human Rights in the Decision “Nechiporuk and Yonkalo v. Ukraine” dated April 21, 2011 determined that: “… the suspicion is justified – means the presence of facts or information that can convince an objective observer that a person could have committed this offense” . The current code establishes that a report of suspicion in accordance with Article 276 of the Code of Criminal Procedure of Ukraine is necessarily carried out in the following cases: detention of a person at the scene of the crime or immediately after its commission; the election of one of the measures in the person, the availability of sufficient evidence to suspect the person of a criminal offense.
That is, in fact, the new existing code included the same reasons that were reflected in the previous invalid code and added an additional third reason – the availability of sufficient evidence for Suspicion. In this case, a message of suspicion should be handed over to the suspect on the day of its preparation – Article 278 of the Code of Criminal Procedure of Ukraine. And in case of impossibility of such delivery – by the method provided by this Code for delivery of messages. “This method” is defined in Articles 134 – 136 of the Code of Criminal Procedure of Ukraine. And it establishes that the person must report the call no later than three days before the day when the person is obliged to arrive on the call, after which the person has to receive a corresponding message of suspicion. Therefore, this person acquires the status of a suspect and all possible coercive measures provided for in the Code of Criminal Procedure of Ukraine can be applied to her. And accordingly, it acquires the entire list of rights of the suspect provided for by this code. For the same event, the period of pre-trial investigation begins to be calculated. The Code provides for sending notifications of suspicion by mail, sending it by e-mail, video of delivery, delivery to an adult family member, housing and operational organization at the place of residence or administration at his place of work – they raise more questions than give a clear understanding of the content and fixation of the action. And in fact, it is a ghost from the past – after all, the administration at the place of work and the housing maintenance organization is precisely the post-Soviet legacy in the “pro-European code.” It was according to the norms of the Ukrainian SSR that most of the houses were in the service of the Housing Office and even penetration into the home was legal in the presence of the representative of the Housing Office on the basis of a warrant issued by the prosecutor. There was just another power in the administration of enterprises with an obligatory party component, party assemblies, strict subordination and hierarchy, “comradely courts” and so on.
Practical use
Practical benefit for lawyers and the suspects themselves, provided for by Part 3 of Art. 278 of the Code of Criminal Procedure of Ukraine – if a person is not given a notice of suspicion after twenty-four hours from the moment of detention, such a person is subject to immediate release. Or if the report of the suspicion was committed in an improper way – this is the basis for the annulment of an unjustified suspicion by a court by appealing it to the investigating judge.
Of course, it is advisable to use both indications of tactical defenses flexibly, in accordance with the conditions of a particular case, with the coordination of such a strategy with the client.
World practice and definitions
The practice of applying in criminal proceedings under the “in absentia” procedure is very interesting. That is, for the absence of the suspect. Moreover, this procedure, on the one hand, makes it possible to carry out production more quickly and bring the perpetrator to justice, and on the other hand leads to a possible violation of the human right to a fair trial.
But this thorough topic requires a separate article for its thorough study.
In US law, through precedents, the concept of “smart suspicion” was formed, which means the legal standard of proof, which consists in the existence of a solid reason for arrest or other coercive actions against a person. This reason means more than “initial and unspecific suspicion”; it should be based on “concrete and flexible facts,” “in conjunction with clever conclusions from these facts.” Suspicion must necessarily be associated with a specific person.
In the Law “On Prevention and Counteraction to the Legalization (Laundering) of Criminally Received Incomes, the Financing of Terrorism and the Financing of the Proliferation of Weapons of Mass Destruction”. For the purposes of this Law, suspicion is an assumption based on the analysis of available information and may indicate that the financial transaction or its participants, their activities or sources of assets are related to the legalization (laundering) of proceeds from crime or the financing of terrorism with the commission of another socially dangerous act, which is defined by the Criminal Code of Ukraine as a crime or for which international sanctions are provided.
Conclusion
It is imperative to amend the current Code of Criminal Procedure of Ukraine in order to resolve gaps, deprive echoes of the post-Soviet past, and formulate a clear definition of the concept of a message about suspicion, reduce the ways in which the procedure for delivering a notice of suspicion to an understandable clearly defined means. Therefore, clear and understandable rules of the game – in our case, the norms of the Code of Criminal Procedure of Ukraine, will benefit all participants in this process. Uncertainty – on the contrary, the path to corruption and the possibility of interpreting legislation at its discretion