Vyacheslav Zoma Head of Judicial Practice of
NOBILI Law Firm
Subpoena and notices in criminal proceedings
Very often, acquaintance with law enforcement agencies begins precisely with the receipt of a summons to call the investigator. There is another category – where it all begins with the detention of a person. This happens more enchantingly and unexpectedly. In this case, a person does not have time to prepare or adapt to subsequent events.
But this article will be devoted specifically to calls to the investigator. I recall a joke when a man is at home and suddenly hears a doorbell:
– Who’s there?
-“Army calls you!”
– I have already served!
– Now you’ll also serve time – this is the summons to the investigator!
This joke is actually only a half-joke. Because it’s hard to call such good news. The agenda and procedure for its delivery is provided for in Article 135 of the Code of Criminal Procedure of Ukraine. In addition to the personal delivery of the summons by law enforcement officials, the law provides for sending it by mail, e-mail or fax, as well as making a call by phone or telegram.
But the most justified and understandable way remains precisely the delivery of the summons to call directly to the person against signature. Sometimes a handing over video is also used. Let us dwell on it in more detail, and then we will analyze other methods.
The fact of delivery of the summons must be further proved and may entail significant consequences. Such as the use of a pecuniary punishment or a drive, or the prosecution of a witness in case of malicious evasion of appearance (article 139 of the Code of Criminal Procedure of Ukraine). Regarding criminal liability under Art. 385 of the Criminal Code of Ukraine (witness’s refusal to testify) provides for the maximum punishment in the form of arrest for up to six months. But objectively, such cases are extremely rare.
And that is why, because of a simpler proof of such a fact, the delivery of the summons is directly applied to the called person. In addition – this is exactly what happened with the presentation of summonses under the Code of Criminal Procedure of Ukraine (from 1960), which was valid until 2012. Therefore, for investigators, and judges, prosecutors – this is a more familiar option. In addition, a call to law enforcement is sometimes a disguised pretext so that in the future, instead of interrogation, notify of suspicion. More details about the reporting of suspicion were covered in my separate article. https://nobili.ua/news/blog/povidomlenia-pro-pidozru/
The contents of the call agenda itself already provide certain information. Since the agenda should indicate:
– surname and position of the investigator, prosecutor, investigating judge, judge making the call;
– name and address of the court or other institution in which the call is made, phone number or other means of communication;
– name (name) of the person called and his address;
– name (number) of the criminal proceeding within which the call is made;
– the procedural status in which the called person is;
– time, day, month, year and place of arrival of the called person;
– procedural action (s) for participation in which a person is called;
– the consequences of the person not appearing on a call indicating the text of the relevant provisions of the law, including the possibility of using a drive, and the implementation of a special pre-trial investigation or special judicial proceedings;
– good reasons provided by the Code for which a person may not appear on call, and a reminder of the obligation to notify in advance of the impossibility of arrival;
– Signature of the investigator, prosecutor, investigator of the judge making the call.
What we can find out from this is first of all the law enforcement agency that is investigating this criminal proceeding. Their jurisdiction is clearly defined in Art. 216 Code of Criminal Procedure of Ukraine. In most cases, the investigation is carried out by the appropriate unit in the territory of the crime. If the crime is committed in the Pechersky district of the city of Kiev should be investigated taking into account the jurisdiction – the investigators of the Pechersky UP GUNP of Ukraine in Kiev. If, for example, the investigation is carried out by the SU of the FR GU DFS in Kiev, then most likely the crime was committed in the territory of the city of Kiev and concerns tax evasion.
If you don’t have the slightest understanding for what reason you are being called up, you have not witnessed any crime and so on. Better not go without an attorney for interrogation. Because this is a significant risk in the future to get a more vulnerable position. For example, when you are notified of a suspicion and you testify as a suspect. Or even interrogation as a witness, but during which you can actually testify against yourself. Because very often an ordinary ordinary citizen does not have deep knowledge – what is a crime, and in which case there is a likelihood of criminal prosecution. The recommendations for preparing for interrogation are described in more detail in the article TOP-5 tips before interrogation. https://nobili.ua/news/blog/top-5-porad-pered-dopytom/
Take for example the well-known events with the participation of P. Poroshenko Which until recent events had not actually arrived to conduct investigative actions in the DBD. This was probably a tactical defense defense. But as we can see, this could not prevent the notification of suspicion. Therefore, a notification of suspicion still took place. Although not everything went smoothly. A possible ground for appealing a notification of suspicion may be that the notification of suspicion was not personally executed by the Prosecutor General of Ukraine or by the Deputy Prosecutor General – the head of the Specialized Anti-Corruption Prosecutor’s Office. Since Poroshenko A.P. at the time of the notification of suspicion, he was and is a people’s deputy of Ukraine. And the corresponding restrictions regarding notification of suspicion to a People’s Deputy of Ukraine are established by Art. 481 Code of Criminal Procedure of Ukraine. Only if there is sufficient weighty evidence and subsequent notification of suspicion, for example, in an amended form or outlining additional crimes, can it justify such a strategy. Although there is not enough information for accurate forecasts.
Legislation provides good reason why a person may not appear on call:
– detention, detention or serving a sentence;
– restriction of freedom of movement as a result of a law or a court decision;
– force majeure circumstances (epidemics, military operations, natural disasters or other similar circumstances);
– the absence of a person in the place of residence for a long time as a result of a business trip, travel, and so on;
– a serious illness or stay in a health care facility in connection with treatment or pregnancy, provided that it is not possible to temporarily leave the facility;
– death of close relatives, family members or other close persons or a serious threat to their life;
– untimely receipt of the summons;
– other circumstances that objectively make it impossible for a person to appear on call.
Obviously, each of the grounds given must be supported by appropriate written evidence. And these reasons must be reported to the person who calls you.
In case you do not have a strategy and act independently at your own peril and risk. Then in this case, something is difficult to advise. Because these legal relations have an extremely high price – years of life that may be lost in places of deprivation of liberty. Counseling of the client and his support in criminal proceedings should be continuous. With timely adjustment in accordance with changes that occur dynamically and unexpectedly during the investigation. It is impossible in advance to draw up a universal algorithm of actions. Because it will be like carrying out a surgical operation on my own only according to the article from the textbook. You need to have experience, professional knowledge and endurance, the ability to assert your rights and much more. In most cases, protection by another person is morally more successful. Unlike defense by the suspect or the accused. Because his words in his defense are perceived in most cases biased.
Therefore, use these tips to your advantage, but carefully. And it is better to seek legal assistance from an experienced lawyer.
This article was written before the briefing with the participation of lawyers of the fifth President of Ukraine P. Poroshenko following a visit to the Sovereign Bureau of Investigation and the Prosecutor General of Ukraine.