Procedural uncertainty: lack of rights of a person who is involved in criminal proceedings without declaring her status

In the criminal process, there are cases when the information entered into the unified register of pre-trial investigations and before the announcement of a suspicion is announced, the person who is the person involved in the criminal proceedings actually has no procedural rights and opportunities to protect his rights and interests.

According to the provisions of Art. 42 of the Criminal Procedure Code of Ukraine, at the stage of pre-trial investigation, have the right to familiarize themselves with the materials, receive copies of procedural documents and written communications, appeal against decisions, actions and inaction of the investigator, prosecutor, investigator judges have only those who are in the status of a suspect. Therefore, a person who does not have such a procedural status does not have any procedural rights. This position is mainly held by the pre-trial investigation authorities. Indeed, the procedural status of persons in respect of which criminal proceedings are being carried out is gathered in evidence of guilt without notifying them of suspicion, is not defined in the Code of Criminal Procedure of Ukraine. However, in accordance with Part 6 of Art. 9 of the Criminal Procedure Code of Ukraine in cases where the provisions of this code do not regulate or ambiguously regulate the issues of criminal proceedings, the general principles defined in its Part 1 of Art. 7. These include, in particular:

- the rule of law;

- legality;

- equality before the law and the court;

- ensuring the right to defense;

- Competitiveness of the parties and the freedom to present their evidence to the court and to prove their credibility before the court.

The principle of the rule of law in criminal proceedings is applied taking into account the practice of the European Court of Human Rights (article 8, part 5 of article 9 of the Code of Criminal Procedure of Ukraine). Article 17 of the Law “On the Implementation of Decisions and the Application of the Practice of the European Court of Human Rights” establishes that when considering cases, the courts apply the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the ECHR as a source of law at all stages of the proceedings on a par with the laws of Ukraine.

Let us give an example from our own practice ... One of our clients has become a hostage to such a situation regarding his company. After entering the information in Edrey to the enterprise, one of the contractors of which is our client, the investigators received orders for temporary access, in their request for such, the investigators, in particular, noted the name of our client’s enterprise. Due to the presence of this resolution in a single register of court decisions, some of our client’s contractors refused to cooperate with it, which caused significant damage to the client.

The European Court of Human Rights, in its numerous decisions, defines the notion of a “criminal charge” in a rather broad context. So, in the decision of September 6, 2005 in the case of Salov v. Ukraine, the notion of “accusation” has an “autonomous” meaning; it should be understood in the sense of a convention, and not only in the context of its meaning in national law. Thus, it can be defined as “the official communication of a person by the competent state authority, which states that the person committed a crime” (paragraphs 42, 46 decision of February 27, 1980 in the case of Deweer v. Belgium and paragraph 73 of the decision 07/15/1982 in the case of "Eckle v. Germany"). In some cases, this can be done “in the form of other activities, the implementation of which carries such an assertion and, in fact, also affects the position of the suspect” (decision in the case of “Eckle v. Germany”).

In the decision of February 19, 2009 in the case of Sabelnik v. Ukraine, the ECHR indicated that “the right to legal assistance arises at a time when a person’s situation becomes significantly vulnerable, even if it is not officially detained as a suspect.” The court explained that the applicant’s situation became much more vulnerable immediately after taking serious investigative measures to check suspicion of him and the preparation of the prosecution version. Therefore, a violation of §1 and p. “C” of §3 Art. 6 of the Convention, since the moment when the right to legal assistance arises does not depend on the formal status of the person suspected of committing a crime.

The European Court of Human Rights determines such circumstances as being considered the moment of the charge:

- the beginning of a pre-trial investigation in relation to a specific person or the arrest of her bank accounts (the decision in the case of Ringeisen v. Austria);

- arrest of a person (decision in the case of "Wemhoff v. Germany");

- an official report on the intention to prosecute him (the decision in the case of “Neumeister v. Avstria”).

In general, according to the ECHR, the prosecution covers the whole range of procedures - from the beginning of the pre-trial investigation of a person to a final decision.

Under the pre-trial investigation in relation to a particular person, under the current legislation of Ukraine, it can be understood to include in Yedrey information about the commission of a criminal offense.

Clause "c" §3 Art. 6 of the Convention establishes that everyone charged with a criminal offense has the right to defend himself personally or through his chosen discretion.

As indicated by the ECtHR in its decision of 11/24/1993 in the case of “Imbrioscia v. Switzerland ”(paragraph 36) the phrase“ when establishing a criminal charge ”in §1 Art. 6 of the convention does not mean that this article does not apply at the stage of pre-trial investigation.

At the same time, the Constitutional Court, in its decision of September 30, 2009 No. 23-rp / 2099, stated that the provision of Part 1 of Art. 59 of the Constitution should be understood as a guaranteed by the state the possibility for any person to freely, without undue restrictions, receive legal assistance in the scope and form as required. Even if this right is not provided for by the laws of Ukraine or other legal acts, a person may not be restricted in its exercise.

Thus, the criminal procedural law proceeds from the fact that a person in respect of whom a pre-trial investigation is initiated, even without notifying of suspicion, has the right to defense, which can be implemented by observing the rights of the suspect as defined in art. 42 of the CPC.

To defend a person in criminal proceedings carried out without notifying her of suspicion, a lawyer can follow this algorithm.

After receiving information confirming the implementation of a pre-trial investigation against a specific person without notifying her of suspicion (information from the media, decisions in the Unified State Register of Court Decisions, etc.), the documents determined by Art. 50 of the Criminal Procedure Code of Ukraine, in confirmation of the authority of the defender of the person, indicating the legal position.

The investigator, the prosecutor shall submit applications for familiarization with the materials of the pre-trial investigation in accordance with Article 220, 221 of the Code of Criminal Procedure of Ukraine.

In case of refusal of this investigating judge on the basis of paragraph 1 of part 1 of art. 303 of the Code, complaints are filed against the inaction of the investigator, the prosecutor, that the defense of a petition for reviewing the materials of the pre-trial investigation is not being considered.

When considering the complaint to the investigating judge, the legal position of the ECHR regarding the moment when a person has the right to defense is given.

Such a legal position and algorithm of actions is not purely theoretical. They have been successfully applied several times in practice, as evidenced, in particular, by the definitions of the investigating judges of the Pechersk District Court of Kyiv, dated 21.12.2017, in case No. 757/68524/17-к; from 03.11.2016, in case number 757/42254/16-k; from 01.11.2016 year in case number 757/42 270/16-к.

In addition, it can be used to invalidate evidence. According to Art. 87 of the Criminal Procedure Code of Ukraine are inadmissible evidence obtained as a result of a substantial violation of human rights and freedoms guaranteed by the Constitution and the laws of Ukraine, international treaties, consent to be bound by the Verkhovna Rada, as well as any other evidence obtained as a result of a substantial violation of human rights and freedoms.

According to Part 2 of Art. 86 of the Criminal Procedure Code of Ukraine inadmissible evidence cannot be used when making procedural decisions.

So, the evidence obtained at the stage of pre-trial investigation in a criminal proceeding, which is carried out against a person without notifying her of suspicion, violates her right to defense. And this is the basis for declaring such evidence inadmissible. Accordingly, they cannot be used when making any procedural decision.

So, the evidence obtained at the stage of pre-trial investigation in a criminal proceeding, which is carried out against a person without notifying her of suspicion, violates her right to defense. And this is the basis for declaring such evidence inadmissible. Accordingly, they cannot be used when making any procedural decision.

Thus, until a change is made to the Criminal Procedure Code of Ukraine regarding the settlement of the issue of procedural rights of persons under criminal proceedings and evidence is collected without notifying them of suspicion, one of the possible ways to protect the rights and interests of such persons can be the use of the ECHR practice by lawyers guarantees provided for in the convention. As practice shows, investigators judges get used to apply the legal position of the European Court and its precedents.