Report of suspicion
A comprehensive analysis of judicial practice and numerous client appeals allows us to assert that it is precisely the identification of the state of compliance with the criminal procedural legislation of Ukraine at the stage of reporting suspicion that allows us to identify, and subsequently use as a basis for the defense strategy in court, the shortcomings of the prosecution’s position, which will serve as a weighty basis for an acquittal in the case. It is no secret that domestic legislation contains a significant number of gaps, contradictions and other shortcomings that cause ambiguity in its interpretation, forming a guarantee for the unequal application of legal norms in situations similar in legal content. The reason for this paradox is the subjectivism inherent in subjects who practically implement legal norms in social, including procedural, relations, implementing the competence granted to them in the form of administrative acts in various branches of law.
Despite the importance of the issues that are the subject of legal regulation of the criminal procedural legislation of Ukraine, it is in this area of legal relations that the apogee of voluntarism, inherent in the bearers of power (investigators, prosecutors, judges) in their interaction with ordinary people who, due to life circumstances, have entered into an extremely difficult confrontation with the repressive apparatus of power, is noted. Obviously, the interpretation and proof of the legality of one’s own behavior or the illegality of certain actions of the prosecution requires special skills and considerable experience, therefore, legal assistance from a qualified lawyer at the stage of reporting suspicion is a factor that can change the entire course of the case.
By reporting suspicion, one should understand both a separate stage of the criminal process and a properly executed document. The Criminal Procedure Code of Ukraine provides for the possibility of a prosecutor (procedural manager) or an investigator, acting in agreement with the appointed procedural manager, to notify a person of suspicion in one of three cases (grounds for reporting suspicion):
1) If such a person was detained at the scene of a crime or immediately after its commission;
2) In the event of the application of one of the preventive measures to the person;
3) If there is sufficient evidence to suspect the person of committing a crime.
If the first two procedural grounds for reporting suspicion are characterized by relative certainty and are understandable, then the third ground requires a more detailed analysis. Determining whether the collected evidence is sufficient to suspect a person of committing a crime involves the intellectual activity of the representatives of the prosecution, and therefore tends to subjectivity of interpretation, which may be based on a biased or negligent attitude of such participants in the criminal process to the exercise of their procedural competence and may be used by the defense to prove the illegality of the notification of suspicion.
Since the investigating judge (at the stage of the pre-trial investigation) or the court (after the indictment is submitted for its consideration) can comprehensively assess the validity of the prosecution’s arguments only if the defense comprehensively covers the reasoned evidence of a violation of criminal procedure legislation, including those that indicate that an unfounded report of suspicion occurred, the involvement of a highly qualified defense attorney is a key guarantee of avoiding unfounded accusations.
A significant number of lawyers, for one reason or another, do not use such an effective means of protection as appealing a notice of suspicion, although, in our opinion, given the establishment of this tool of protection in criminal procedural legislation, such a position is unjustified inaction and does not improve the client’s procedural situation in any way.
For example, the most common grounds that may serve as prerequisites for canceling a notice of suspicion are the untimely delivery of such a procedural document or violation of the requirement for personal delivery to the addressee of such a notice.
The legislation stipulates that the report of suspicion must be served on the day of its preparation (meaning the procedural formalization of the act and its approval by the prosecutor) personally to the person in respect of whom it was drawn up, or in accordance with the procedure provided for the service of reports (i.e. to an adult family member of the person in respect of whom such a report was drawn up). Often, failure to comply with even such basic requirements for the procedural provision of a person’s acquisition of the status of a suspect serves as a guarantee for the devastating discrediting of the prosecution’s position in court and serves as effective evidence of the illegality of the entire proceedings according to the principle of the “fruits of the poisonous tree” concept, according to which evidence formed on the basis of an initial violation of procedural requirements, despite its content and importance, cannot be used in the process of proving guilt, since it was obtained in the mode of an initial violation of the procedural order, and therefore without proper legal basis.
Significant experience in human rights activities allows me to effectively implement the methodology of “early” protection, in which the illegal actions of the prosecution are neutralized by forming a substantiated complaint to cancel the report of suspicion, which eliminates all the repressive staging inherent in cases aimed at concealing the true perpetrator of criminal acts through illegal manipulation by the investigation and prosecutor’s office.
All problematic issues of the report of suspicion mechanism require a thorough and individual approach to the situation, therefore, urgent legal assistance is one of the keys to eliminating possible groundless punishment.
