Appeal against a notice of suspicion: first case law

Amendments to the Criminal Procedure Code, allowed the defense to challenge the notice of suspicion. Elimination of suspicion has a number of advantages. However to predict what position the court will take, impossible. So should the defense make an effort to make such appeals?

Abolition of PPP: two benefits for protection

A year has passed since the defense was given the opportunity to appeal the suspicion in court. During this time, an interesting and ambiguous case law emerged, sometimes contradictory in its conclusions. The general trend is that investigating judges are still determined by the subject of the inspection: to evaluate the evidence at the pre-trial investigation stage or to analyze the validity of the suspicion or to pay attention only to procedural violations during the service of the suspicion.

If last year the decisions of investigating judges on the abolition of the PPP were rather exceptions, in 2019 there are many positive decisions at the level of local and appellate courts. Unexpected court decisions began to create problems for investigators and prosecutors. However, they quickly adapted to the possible premature dismissal of the suspicion. The CPC does not prohibit an investigator from drawing up and re-serving a similar notice of suspicion. It has already been the practice that, after the suspicion has been dismissed, the investigator has remedied the shortcomings of the previous report and handed it to the person, and in the best case to protect the case, the same message.

That is why many defenders spoke of the ineffectiveness of appealing the suspicion. First, you open the client's line of defense prematurely, you spend time considering the complaint in court, and you get a positive court decision with a low probability. So why are there more and more complaints about suspicions?

First, the loss of the status of a suspect opens the possibility to cancel the measure of restraint (detention, house arrest) and measures to ensure criminal proceedings (seizure of property, removal from office).

Secondly, the abolition of suspicion significantly strengthens the position of the defense during the consideration of criminal proceedings on the merits. The absence of suspicion may affect the judge's inner conviction: if the suspicion was unfounded during the pre-trial investigation, have the violations that were grounds for revoking the suspicion been eliminated?

Therefore, it makes sense to file a complaint with the PPP. What decisions do courts make based on the results of such complaints?

Grounds for satisfaction: what violations are committed by investigators

In March 2019, the Donetsk Court of Appeal in the case №263 / 11808/18 abolished the PPP under Part 2 of Article 296 of the Criminal Code.

The grounds for revocation were procedural violations related to the service of suspicion. The court concluded that the notice of suspicion had been served before the data on the crime had been entered into the Unified Register of Pre-trial Investigations. In addition, the descriptive part of the PPP indicates one investigator, and after the description of the facts, the signature of another investigator, who did not make the PPP.

The Court of Appeal also pointed out that the method of delivery of the PPP by mail was illegal. Interestingly, the trial court did not find any violations during the drafting and service of the PPP and dismissed the defense counsel's complaint.

In March 2019, the Sviatoshynskyi District Court of Kyiv in the case №759 / 4471/19 conducted an analysis of the validity of the suspicion under Part 4 of Article 187, Part 2 of Article 345 of the Criminal Code, assessed the evidence, checked the availability of its mandatory details.

During the examination of the complaint, the investigating judge found that the PPP did not contain the time and place of the commission of the criminal offense. Also in the content of the PPP there are no clearly recorded factual circumstances of the event, confirmed by evidence that indicates the presence of a crime in the actions of the suspect.

The investigating judge took into account that:

• the investigator did not even question the suspect in the case;
• did not consider the defense's request for interrogation of persons;
• failed to comply with the decision of the investigating judges on the investigator's obligation to consider the defense's motion;
• did not acquaint the defense with the materials of the criminal proceedings.

The investigating judge found that the pre-trial investigation body did not clearly indicate the indisputability of the facts set out in the text of the report during the notification of suspicion and did not refer to the evidence gathered in this regard. In particular, the ruling states: “False notification of a person of suspicion is one of the most undesirable acts. It causes irreparable harm to justice and man, because nothing seems to cause more insult and more painful mental trauma than a baseless accusation of a crime. "

Given the above violations, the investigating judge upheld the complaint and quashed the PPP.

In March 2019, the Shevchenkivsky District Court of Kyiv in the case №761 / 8619/19 considered a complaint against the PPP under Part 5 of Article 191 of the Criminal Code. The investigation suspected the man that, being a financially responsible person, on the basis of cash disbursement orders, he received the funds and appropriated them without depositing them with another company.

The investigating judge assessed the evidence supporting the suspicion and found it to be unfounded. In this case, the defense proved the suspect's alibi and provided other evidence to refute his guilt.

Initially, the investigating judge checked the procedural order of delivery of the PPP, which the investigator sent by mail. The judge concluded that the notification of the PPP was made in the manner prescribed by the CPC, but the content of such notification does not meet the requirements of the Criminal Procedure Code.

In the ruling, the court noted that in order to resolve the issue of the validity of the reported suspicion, the assessment of the evidence provided to the investigating judge is carried out in order to determine the sufficiency of grounds for suspicion of a person involved in a criminal offense. The judge concluded that the investigation did not refute the arguments of the defense regarding the forgery of the suspect's signature on the financial documents. However, the prosecution did not appoint any forensic handwriting examinations to establish whether the signature belonged to the suspect.

In addition, the defense provided information received from the State Border Guard Service that the suspect was outside Ukraine at the time of the criminal offense. Therefore, the investigating judge concluded that the content of such materials could not indicate the existence of facts and information that could convince an objective observer that the person in question could have committed an offense, and therefore the existence of reasonable suspicion of committing a criminal offense.

Interestingly, in this case, the investigator and the prosecutor did not object to the cancellation of the notice of suspicion, which is rare. Therefore, the investigating judge had no reason to take any other position than to cancel the notice.

Reasonable suspicion: controversial positions of the court

Among the reasons for refusing to satisfy complaints about the PPP, the following should be singled out. There are cases when the investigating judge analyzes the complaint of the suspect or defense counsel on the merits, but comes to the conclusion that it is unfounded.

For example, in March 2019, the investigating judge of the Kovpakivsky District Court of Sumy in the case №592 / 3554/19 considered a complaint against a notice of suspicion under Part 2 of Article 191 of the Criminal Code and Part 1 of Article 366 of the Criminal Code. The defense referred to the unfoundedness of the suspicion, incorrect indication in the notice of suspicion of information about the place of residence of the suspect, service of the notice by an unauthorized person.

Following the review of the complaint, the investigating judge found that the notice had been served by the prosecutor. In addition, the investigator and the prosecutor referred to the sufficiency of the evidence gathered to declare suspicion. In such circumstances, the defense, contrary to the principle of adversarial proceedings, did not provide evidence of unfounded suspicion, handing it over by an unauthorized person. Incorrect indication of a person's address is not an unconditional ground for revoking a notice of suspicion.

Thus, the court denied the complaint.

In March 2019, the investigating judge of the Pechersk District Court of Kyiv in the case №757 / 9039/19-k considered the complaint on PPP under Part 4 of Article 190 of the Criminal Code. The defense noted that the PPP lacks a summary of the circumstances of the actual data of the criminal offense, namely: the time of its commission, as well as other significant circumstances.

However, the court ruled that the defense's arguments were unfounded, as the suspicion itself had been investigated by the investigating judges in deciding whether to choose a measure of restraint. The suspicion was found to be well-founded, as such a conclusion of the judicial authorities can be only if the suspicion itself meets the requirements of Article 277 of the CPC.

The position is very controversial, as the conclusions from the previous rulings of the investigating judge are not of preliminary significance for further court proceedings. This is more like the reluctance of the court to take responsibility for assessing suspicion.

Leaving the PPP in force: the most common grounds

There are many decisions in the USSR in which investigating judges refuse to assess the validity of the suspicion and the evidence on which it is based. Consider a few examples.

In March 2019, Uman City District Court of Cherkasy region in the case №705 / 4396/18 considered a complaint against the PPP under Part 1 of Article 366 of the Criminal Code. The investigation suspected the official of entering knowingly false information into official documents.

The investigating judge noted in the decision that the examination of the PPP from the point of view of the validity of the suspicion is not the subject of the trial, which the investigating judge carries out at the pre-trial investigation stage, but can only be the subject of direct criminal proceedings. But in the same decision the court for an assessment and evidence, and a procedural order of delivery of suspicion. The investigating judge noted that the suspicion met the requirements of the law, was confirmed by evidence and served without violations.

A similar position on the lack of authority of the investigating judge to verify the validity of the PPP was taken by the Lysyansky District Court of Cherkasy region (decision of 4.03.2019 in the case №700 / 184/19), Lviv Court of Appeal (decision of 11.03.2019 in the case №461 / 1213/19).

There are cases when at the time of consideration of the complaint of the defense the pre-trial investigation has already been completed. That is, the investigator acquainted with the materials, the prosecutor handed over the indictment and sent it to court. In such cases, the investigating judge refuses to consider the complaint, as the PPP can be appealed only during the pre-trial investigation (decision of the Kyiv District Court of Odessa from 19.03.2019 in the case №520 / 4899/19; decision of the Poltava Court of Appeal of 27.02.2019 in the case №527 / 125/18).

Many refusals concern cases of filing complaints in criminal proceedings, which were submitted to the ERDR before March 16, 2019. After all, only from March 16, 2019, the defense got the opportunity to appeal the PPP, and these changes do not have retroactive effect. Similar explanations of the amendments to the CPC are contained in the rulings of the Drohobych City District Court of the Lviv Region of March 19, 2019 in the case №442 / 8669/17, Kharkiv district court of Kharkiv region from 03/18/2019 in the case №635 / 931/18, Barvinkivsky District Court of Kharkiv region from 7.03.2019 in the case №611 / 539/18.

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Numerous court rulings indicate that the defense is actively exercising its right to appeal suspicions. However, the case law is very diverse, so there is a need to analyze and summarize the practice by the Supreme Court. But at the profile events, judges of the Supreme Court note that the number of cases of this category is still insignificant, so it is too early to talk about generalizations.

The article was published in the publication Law and Business