Cancellation of an illegal notification of suspicion in case of violation by the investigator of the requirements of Art. 566 of the Criminal Procedure Code of Ukraine, illegal actions of the investigator in case of violation of guarantees when summoning a person who is outside Ukraine.
The Bar bears a high responsibility for the legality and legality of the criminal process. In this context, it is of particular importance to take into account the judicial practice, the analysis of the actions of the investigative bodies and the prosecutor’s office, in particular in the context of summoning suspects and accused persons who are outside Ukraine. Ignoring the specified procedural requirements may lead to a violation of the defendants’ rights and discredit the justice system. This publication, based on the general text of lawyer Dmytro Kasyanenko, will consider the violations committed when sending summons notices to the investigator in the event of the suspect’s departure abroad, with an emphasis on Article 566 of the Criminal Procedure Code of Ukraine (CPC of Ukraine).
Introduction
The legal status of the suspect, whose protection is entrusted with many procedural guarantees, is decisive for the effective implementation of the principles of the rule of law and a fair trial. The fundamental document that provides criminal justice in Ukraine, the Code of Criminal Procedure of Ukraine, establishes the rules of behavior of investigators and courts when interacting with suspects, in particular those who may be outside the country.
Judicial practice and analysis of Article 566 of the Criminal Code of Ukraine
Article 566 of the Criminal Procedure Code of Ukraine defines the mechanism of summoning persons who are currently abroad to participate in legal proceedings. The norm aims to create a balance between the need to perform procedural actions and protect the rights and legitimate interests of persons who may be irreversibly violated due to the actions of authorities. In particular, according to Art. 566 of the Criminal Procedure Code of Ukraine, a person who is abroad must be properly notified of the need to be present on the territory of Ukraine, including through international legal assistance, a certain period of time before the date of appearance.
According to judicial practice, it should be noted that not all investigative bodies comply with the requirements of the law, which may cause irreparable consequences for the legal status of the suspect or the accused. The presence of information that a person is abroad obliges the investigator to carry out all the necessary procedures for a proper summons, and in case of their unauthorized violation, there is a legal basis for canceling the notification of suspicion or other actions.
Violations committed when sending summons notices to the investigator
As judicial practice and the specific case considered in this publication show, there are situations when the investigator deliberately ignores information about the suspect’s stay abroad, simplifying the procedure of questioning and summoning a person without observing the established procedural order. The consequences of such actions may be illegal prosecution, violation of the right to choose a place of residence and freedom of movement.
If the suspect did not receive a proper summons notice because he was outside Ukraine at that time, investigators and prosecutors have no reason to conclude that he did not appear without valid reasons. It should be noted that such actions of the relevant authorities may lead to a violation of Article 62 of the Constitution of Ukraine, according to which no person can be convicted except on the basis of the law and on the basis of evidence obtained legally.
The illegality of the investigator’s actions when reporting a suspicion under Art. 566 of the Criminal Procedure Code of Ukraine – appeal possibilities
In criminal proceedings, an important aspect is compliance with norms and procedures, ensuring the rights of the subjects of the process, as well as protecting their interests within the framework of the law. In particular, when it comes to the actions of investigators to summon persons to participate in criminal proceedings who are abroad, the presence of clear regulation is key to the transparency and fairness of criminal prosecution. Unswerving compliance with Article 566 of the Criminal Procedure Code (CPC) of Ukraine is the duty of pre-trial investigation bodies and a guarantee of protection of the rights of persons summoned, as a manifestation of the principle of the rule of law.
However, real practice, unfortunately, reveals cases when investigators violate the specified rules and procedures. In such cases, the lawyer has the right, and in some cases, the duty, to seek recognition of the investigator’s actions as illegal and to challenge them.
Five possible variants of the grounds for contesting the actions of the investigator who reported a suspected violation of Art. 566 of the CPC of Ukraine.
Ground 1: Failure to provide written notification of suspicion to a person residing abroad
Article 566 of the Criminal Procedure Code of Ukraine provides that a person must be properly notified of a summons through the system of international legal assistance. If the client did not receive such a notification, it is possible to claim that the investigator did not fulfill his duties, and therefore – to challenge his actions.
Ground 2: Violation of the deadlines for sending a request (order) about a summons
According to the first part of Article 566 of the Criminal Procedure Code, a request to summon a person must be sent no later than sixty days before the date of the person’s appearance. If the investigator violated the specified term, this serves as another reason for challenging the actions.
Ground 3: Lack of notification of the amount and procedure for reimbursement of expenses.
Article 566 of the CPC states that the person who is summoned must be notified of the amount and procedure for reimbursement of expenses related to the summons. If this is not done, the client has the right to appeal due to non-compliance with his procedural rights.
Ground 4: Applying coercive measures to the summoned person is illegal.
According to the second part of Art. 566 of the CPC, coercive measures or restriction of personal freedom may not be applied to a person who has been summoned and arrived upon request, except for the cases specifically specified in the summons. If there has been a violation of these guarantees, a challenge to investigative actions is justified and necessary to restore justice.
Ground 5: Improper tracking of the guarantees of Art. 566 of the Code of Civil Procedure when crossing the state border.
If the investigator or other procedural manager intentionally does not inform a person who is already in the territory of Ukraine that he can cross the border without hindrance, this can also serve as a basis for challenging the actions of the investigator.
Conclusion:
It is important to note that the next step after recognizing the investigator’s actions as illegal is to take all necessary measures by the justice authorities to correct mistakes and ensure compliance with the rights of the individual in accordance with the law. This requires a lawyer to have deep knowledge of current legislation, the ability to analyze the circumstances of the case, and the effective use of the entire arsenal of procedural tools to protect the interests of his client. Despite the possible difficulties, it is important to remember that the basis of the criminal process is the principles of legality, justice and protection of human rights and freedoms – fundamental principles that are inviolable in any law enforcement activity.
Summary and grounds for challenging the investigator’s actions
In the considered situation, it is possible to see the disregard of procedural rules in terms of summoning a person who is abroad to participate in procedural actions on the territory of Ukraine. Such neglect lays grounds for challenging the illegal actions of the investigator on the basis of Art. 566 of the Criminal Procedure Code of Ukraine and constitutional guarantees. Protecting the rights of suspects is key in the context of legal and fair justice.
The lawyer representing the interests of the person must make every effort to immediately challenge the inaction or illegal actions of the investigator or prosecutor. In this case, an effective remedy would be to file a complaint with the court in order to cancel the notice of suspicion and other illegal measures that were applied on the basis of violation of Article 566 of the Criminal Code of Ukraine.
Failure of the investigator to comply with the requirements of the Criminal Procedure Code of Ukraine as a reason for the defense lawyer to cancel the report of suspicion
In accordance with Clause 5, Part 3 of Art. 42 of the Criminal Procedure Code of Ukraine “The suspect, the accused has the right to give an explanation, testimony regarding the suspicion, accusation or at any time refuse to give them.”
According to Clause 9, Part 3 of Art. 42 of the Criminal Procedure Code of Ukraine “The suspect, the accused has the right to participate in the conduct of procedural actions.”
Also, in accordance with Clause 10, Part 3 of Art. 42 of the Criminal Procedure Code of Ukraine “The suspect, the accused has the right to ask questions, submit his comments and objections regarding the order of actions, which are entered into the protocol, during procedural actions.”
Also, in accordance with Clause 16, Part 3 of Art. 42 of the Criminal Procedure Code of Ukraine “The suspect, the accused has the right to appeal the decisions, actions and inaction of the investigator, prosecutor, investigative judge in the manner prescribed by this Code.”
According to Part 1 of Art. 304 of the Criminal Procedure Code of Ukraine “Complaints against the decision, actions or inaction of an investigator, inquirer or prosecutor, provided for in the first part of Article 303 of this Code, may be submitted by a person within ten days from the moment of the decision, action or inaction. If the decision of the investigator, inquirer or prosecutor is formalized by a resolution, the deadline for submitting a complaint begins from the day the person receives a copy of it.”
Also, in accordance with Part 1 of Art. 306 of the Criminal Procedure Code of Ukraine “Complaints against the decisions, actions or inaction of the investigator, inquirer or prosecutor are considered by the investigating judge of the local court, and in criminal proceedings regarding criminal offenses referred to the jurisdiction of the High Anti-Corruption Court – by the investigating judge of the High Anti-Corruption Court in accordance with the rules of judicial proceedings provided Articles 318-380 of this Code, taking into account the provisions of this chapter.”
In addition, in accordance with Part 2 of Art. 306 of the Criminal Procedure Code of Ukraine “Complaints about decisions, actions or inaction during the pre-trial investigation are considered no later than seventy-two hours from the moment of receipt of the corresponding complaint, except for complaints about the decision to close criminal proceedings, which are considered no later than five days from the moment of receipt of the complaint.”
According to parts 1-7 of Art. 135 of the Criminal Code of Ukraine, a person is summoned to an investigator, prosecutor, investigating judge or court by serving a summons, sending it by mail, e-mail or fax, summoning by phone or telegram. In the case of a person’s temporary absence from the place of residence, the summons is handed over against receipt to an adult member of his family or another person who lives with him, to the housing and operating organization at the place of residence of the person or to the administration at the place of his work.
The legislator indicates (Article 136 of Chapter 11 of the Criminal Procedure Code of Ukraine) that such indirect delivery of a summons must be duly confirmed by the person who received the summons or familiarized himself with its contents in another way. This requires: the signature of the person receiving the summons, including on the postal message; a video recording of the summons being served to her; any other data confirming the fact that the person was served with the subpoena or familiarized with its contents.
If the person has previously informed the investigator, prosecutor, investigating judge, court about his email address, the subpoena sent to such address is considered received if the person confirms its receipt by the corresponding email. If the person, for one reason or another, did not receive the corresponding document about the summons or the investigation does not have proper confirmation of such a fact, then the person cannot be a suspect, since the summons did not take place and he was not notified of the suspicion.
An exhaustive list of the reasons for stopping the pre-trial investigation after informing the person of the suspicion is defined in Part 1 of Art. 280 of the CPC of Ukraine.
Article 136 of the Criminal Procedure Code of Ukraine establishes that proper confirmation of a person’s receipt of a subpoena or familiarization with its content in another way is a person’s receipt of a subpoena, including on a postal message, a video recording of the subpoena being served to a person, any other data confirming the fact of delivery summons to a person or familiarization with its contents.
Preparation as a lawyer: Preparation of documents for a lawyer involves at least the collection of the following materials:
- A copy of the summons, which was sent in response to a request (mandate) for international legal assistance, to confirm the official summons of a person to Ukraine.
- A copy of the request (mandate) for international legal assistance, demonstrating the legality of the summoning procedure.
- Evidence of receipt of the summons by the suspect. This can be a postal receipt or an electronic confirmation.
- Documents confirming that the person cannot be held criminally liable or taken into custody for other criminal offenses, in particular, the resolution on summons and materials of criminal proceedings.
- A copy of the international agreement that establishes the terms of preparation for the person’s appearance, if such agreements exist.
- Documentation indicating that the subpoenaed person is entitled to reimbursement of costs associated with the subpoena.
- Written confirmation from the pre-trial investigation body, the prosecutor’s office or the court that investigative or other procedural actions involving the suspect are not required.
- Evidence of a person’s ability to leave the territory of Ukraine within fifteen days or another term, if this is specified in an international agreement.
- Consulting with overseas legal advisors to accurately understand the difference between national law and the law of the country where the individual resides.
- A written notice (or petition) to the court, which indicates the rights and guarantees provided to the summoned person in accordance with Article 566 of the Criminal Procedure Code of Ukraine.
The importance of detailed work with documents for a lawyer is that any mistake or neglect of procedural details can adversely affect the client’s rights and cause a violation of his rights. A lawyer must be ready not only to collect these documents, but also to properly submit and argue them in court or before other bodies conducting criminal proceedings.
It should be remembered that the effective protection of the suspect’s rights is largely based on the lawyer’s ability to quickly and competently respond to all procedural requirements, as well as on a full understanding of the mechanisms of international legal assistance and procedures, comparing them with national legal norms.
Lawyer Dmytro Kasyanenko
Consultations of a lawyer in criminal proceedings
