Challenging a Notice of Suspicion: Preconditions for an Effective Defense

Authors: Oleksandr Teleshetskyi, Partner at Grain Law Firm, Attorney
Iryna Barinova, Paralegal at Grain Law Firm

A notice of suspicion is a fundamental procedural act initiated by the prosecution at the pre-trial investigation stage of criminal proceedings. From a legal perspective, it represents a set of interrelated procedural decisions and actions taken by authorized subjects (an investigator, inquirer, or prosecutor) aimed at forming a lawful and substantiated suspicion against a specific person regarding the commission of a criminal offense.

In light of the core principle of criminal procedural law — the presumption of innocence — the basis for issuing a notice of suspicion is the existence of a sufficient body of evidence that allows for a reasonable conclusion regarding a high probability of the person’s involvement in the alleged offense. Such a body of evidence must exclude unfounded assumptions and ensure an adequate level of credibility for forming a suspicion, which includes:

1. The existence of evidence confirming the fact that a criminal offense has been committed.
2. The existence of evidence establishing a connection between a specific person and the alleged offense, allowing a reasonable assumption that this person was involved in its commission.
3. The presence of elements of a criminal offense in the person’s conduct (object, objective side, subject, and subjective side).
4. The absence of circumstances excluding criminal liability (such as necessary defense, extreme necessity, insanity, etc.).

The law also requires that a notice of suspicion be prepared in writing by a prosecutor or an investigator with the prosecutor’s approval and include mandatory details: the names and positions of the officials issuing the notice, personal details of the suspect, the criminal proceeding number, the substance of the suspicion, legal qualification of the offense with reference to the relevant article of the Criminal Code of Ukraine, a concise description of the factual circumstances (including time, place, and other essential details), the suspect’s procedural rights, and the signatures of the relevant officials.

An important aspect is the language of the notice. It must be drafted in the state language. However, to ensure the right to defense and proper understanding, it may be translated into another language sufficiently understood by the person concerned.

The notice of suspicion must be duly served on the same day it is issued by the investigator or prosecutor. If this is not possible, it must be served in accordance with the procedure established by the Criminal Procedure Code of Ukraine for delivering procedural documents. Service of the notice and explanation of rights mark the final stage of the suspicion procedure.

Judicial Review of a Notice of Suspicion

After a person acquires the procedural status of a suspect, the law provides a mechanism for judicial review of an allegedly unfounded suspicion through a complaint to an investigating judge under paragraph 10 of part 1 of Article 303 of the Criminal Procedure Code of Ukraine.

Under this provision, a notice of suspicion may be challenged by the suspect, their defense counsel, or legal representative after one month from the date of notification in criminal misdemeanor proceedings, or after two months in criminal offense proceedings, but no later than the closure of the proceedings by the prosecutor or the referral of the indictment to court.

Since grounds for annulment of a notice of suspicion are not explicitly defined by law, they may be grouped — based on Articles 276–278 of the Criminal Procedure Code — into three main categories.

The first category concerns the lack of substantiation of suspicion, which arises when there is insufficient evidence to reasonably link the person to the alleged offense or when the factual circumstances stated in the notice contradict the case materials.

The second category relates to procedural defects in drafting the notice of suspicion, including non-compliance with legal requirements regarding form and content, absence of mandatory details, unclear or incomplete description of the suspicion, incorrect legal qualification, issuance by an unauthorized person, or other violations of Article 277 of the Criminal Procedure Code of Ukraine.

The third category includes violations in the procedure of serving the notice of suspicion, such as failure to comply with statutory deadlines or methods of service, improper explanation of rights, or other procedural deficiencies under Article 278 of the Criminal Procedure Code.

Practical Effectiveness of Challenging a Notice of Suspicion

Despite the introduction of the mechanism for judicial review, its practical effectiveness remains limited. In most cases, defense complaints are examined formally, without a thorough assessment of all circumstances affecting the legality of the prosecution’s procedural decision. As a result, such complaints are often dismissed, left without consideration, or favorable decisions are later overturned on appeal.

Accordingly, the defense should regard this mechanism as an auxiliary, rather than primary, tool in criminal proceedings.

Nevertheless, a positive outcome is possible if the defense constructs a coherent, structured, and legally substantiated argument. Its effectiveness depends on the ability to develop a persuasive and comprehensive legal position that addresses all key procedural and factual aspects.

Key Elements of an Effective Defense Strategy

1. Thorough Analysis of Procedural Violations

The defense must conduct a comprehensive legal analysis of compliance with the Criminal Procedure Code of Ukraine in the preparation and service of the notice of suspicion. The objective is not only to identify violations but also to demonstrate their material significance and their impact on the legality of the suspect’s procedural status.

Each violation should be presented systematically:

• identify the relevant legal provisions;
• cite the specific part of the notice or factual circumstance demonstrating the violation;
• explain why the violation is material and how it affects the legality of the suspicion and the procedural rights of the person.

To strengthen arguments, references to Supreme Court case law on material procedural violations are advisable. This approach enhances the persuasiveness of the legal position and enables the court to clearly assess the nature of the violations.

2. Comprehensive Analysis of Evidence

A key component of challenging the “sufficiency of evidence” is a detailed examination of the case materials. Each piece of evidence should be analyzed individually and in its entirety, with arguments explaining why it does not meet the threshold of sufficiency required to establish a reasonable connection between the person and the alleged offense.

3. Scope of Powers of the Investigating Judge

When challenging a notice of suspicion on grounds of insufficient evidence, it is important to emphasize both the limits and the obligations of the investigating judge.

While the judge cannot determine issues reserved for trial — such as guilt or innocence, evidentiary admissibility, or full factual circumstances under Article 91 of the Criminal Procedure Code — they are nevertheless obliged to assess whether the suspicion is based on reasonable and sufficient grounds.

The standard of proof at this stage is lower than at trial; however, the available evidence must still be sufficient to reasonably suggest a person’s possible involvement in a criminal offense. The judge must therefore assess whether the suspicion is based on assumptions or unverified information and whether it meets the minimum threshold of plausibility required for procedural status.

4. Timing of the Appeal

Strict compliance with procedural deadlines under Article 303(1)(10) of the Criminal Procedure Code is essential, as failure to do so will result in the complaint being left without consideration.

The most effective time to submit a complaint is when the defense has access to the majority of case materials, typically during the disclosure stage under Article 290 of the Criminal Procedure Code. At this stage, the prosecution has already collected key evidence, allowing the defense to construct a full and substantiated argument rather than relying on preliminary assumptions.

This timing also limits the prosecution’s ability to argue that evidence is still being collected or requires further evaluation.

Conclusion

The judicial review of a notice of suspicion is one of the key mechanisms for countering unfounded criminal prosecution. A legal entity or individual subject to suspicion has full procedural tools to challenge the legality of such a procedural act.

However, the effectiveness of this mechanism depends entirely on the quality of the defense strategy. Only a structured, consistent, and well-supported legal position grounded in detailed procedural and evidentiary analysis can increase the likelihood of a successful outcome.

In practice, this mechanism should be viewed as a supplementary instrument within a broader defense strategy rather than a standalone remedy.