GROUNDLESSNESS OF SUSPICION AS A GROUND FOR APPEAL

Abstract

The discussion on the limits of judicial control when challenging a notice of suspicion under clause 10, part 1, Article 303 of the CPC is essentially reduced to two completely opposite approaches: 1) the validity of the suspicion should be subject to verification in accordance with clause 10, part 1, Article 303 of the CPC; and 2) verification of the validity of the notice of suspicion is beyond the scope of judicial control in accordance with clause 10, part 1, Article 303 of the CPC.The court practice of appealing against notices of suspicion is characterized by the following specific features: 1) the number of complaints under clause 10, part 1, Article 303 of the CPC of Ukraine is increasing (compared to the beginning of the functioning of the provision of clause 10, Article 303 of the CPC of Ukraine); 2) the grounds for appeal are not only violations of formal procedural requirements, but also substantive / substantive defects of the notice of suspicion. At the same time, it should be considered correct that investigating judges do not limit themselves to analyzing/evaluating procedural issues when considering complaints in accordance with clause 10 of part 1 of Article 303 of the CPC, but also analyze/evaluate the validity of the suspicion from the standpoint of the sufficiency of evidence. After all, a notice of suspicion must be served if there is sufficient evidence to suspect a person of committing a criminal offense (clause 3, part 1, Article 276 of the CPC). And the investigating judge exercises judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings (Article 3(1)(18) of the CPC), evaluates each evidence in terms of relevance, admissibility, reliability, and the totality of the collected evidence in terms of sufficiency and interconnection for making a procedural decision (Article 94(1) of the CPC). In addition, according to Article 17 of the CPC, suspicion and accusation cannot be based on evidence obtained illegally. This means that the evidence substantiating the suspicion is subject to assessment at the pre-trial investigation stage and complaints under clause 10 of part 1 of Article 303 of the CPC provide for such judicial control. However, should the substantiation itself end with the verification of the sufficiency of evidence to serve a notice of suspicion? Shouldn’t the validity of the suspicion also include verification of the correctness of the qualification of the person’s actions? Can the investigating judge control the correctness of the qualification of a person’s actions at this stage of the pretrial investigation? The article analyzes the latest trends in complaints under clause 10, part 1, Article 303 of the CPC and provides answers to the questions raised.