Challenging a Notice of Suspicion: Recent Case-Law Developments

Author: Iryna Barinova, Paralegal at Grain Law Firm

The right of the defence to challenge a notice of suspicion serves as an important safeguard against unfounded accusations at the very early stage of criminal proceedings.

At the legislative level, the possibility to challenge a notice of suspicion was introduced on 15 March 2018 following the adoption of Law of Ukraine No. 2147-VIII of 3 October 2017, which supplemented Article 303(1) of the Criminal Procedure Code of Ukraine (hereinafter – the CPC) with paragraph 10. Prior to this amendment, the defence was deprived of any procedural tool for preventive intervention or response to unfounded suspicions.

At the same time, over the past seven years since this legal mechanism was introduced, there have been relatively few court decisions annulling notices of suspicion. This is primarily due to the lack of clearly defined statutory grounds for challenging a suspicion, which has resulted in inconsistent approaches among investigating judges regarding the scope of their powers when reviewing such complaints. It has also led to excessive procedural formalism and, in practice, to the inability to challenge a notice of suspicion earlier than one or two months after its issuance, depending on the category of offence.

Thus, the institution of notice of suspicion in Ukraine combines European human rights standards with the specific features of the national criminal procedure system. It reflects the principle of timely and clear notification of suspicion, enshrined in the European Convention on Human Rights, but at the same time remains highly formalised.

Under Ukrainian law, a notice of suspicion is issued in writing and contains a detailed description of factual circumstances, legal qualification, and the rights of the suspect. In this respect, it bears similarities to a formal indictment. This is explained by the fact that in most EU member states, the pre-trial phase is governed by the concept of formal charges, which function as an analogue to the Ukrainian indictment.

However, a notice of suspicion and a formal charge differ significantly. While an indictment is a final procedural act concluding the pre-trial investigation, a notice of suspicion is only an interim procedural decision that may be modified under Article 279 of the CPC. This distinction reflects a fundamental difference between Ukrainian criminal procedure and those of many European jurisdictions.

Notice of Suspicion under German Law

For example, in Germany, a suspicion communicated to a person is purely informational in nature and does not immediately trigger procedural consequences. At this stage, the defence has limited procedural tools: defence counsel mainly ensures basic legal assistance, may advise the suspect, and be present during interrogations, but has no real influence on the course of the investigation. Since German law does not provide for a formally structured notice of suspicion comparable to Ukraine, judicial review is generally available only at the stage of formal indictment.

Notice of Suspicion under French Law

French law also does not establish a distinct institution of “notice of suspicion” in the Ukrainian sense. An exception applies when the investigation is conducted by an investigating judge, who may assign the status of a suspect (mise en examen). This procedural step occurs during the first formal hearing (interrogatoire de première comparution), where the judge informs the person of the factual circumstances, explains their rights, conducts an initial questioning, and determines whether there are sufficient grounds to assign suspect status (mise en examen) or a less restrictive status such as assisted witness (témoin assisté).

Accordingly, mise en examen is functionally comparable to the Ukrainian notice of suspicion, as it grants procedural rights and obligations and enables full participation in the defence, although it does not constitute a final indictment.

French law also provides for the possibility of challenging this status. However, such a challenge is limited to a six-month period from the date of notification.

Importantly, the annulment of mise en examen does not automatically remove a person from the criminal proceedings; instead, it may result in a change of status to assisted witness (témoin assisté), meaning the person is no longer formally suspected but remains within the investigative framework. Full termination of proceedings occurs only through an order of non-lieu, issued when evidence is insufficient to proceed.

Notice of Suspicion under Lithuanian Law

The Lithuanian model is the most similar to the Ukrainian one in form. Under Lithuanian law, a notice of suspicion serves to inform a person of the commencement of criminal prosecution. Article 187 of the Lithuanian Code of Criminal Procedure provides that, prior to the first interrogation, a written notice of suspicion or a prosecutorial decision must be served on the suspect.

The notice must include information about the alleged criminal act (time, place, and circumstances), the relevant criminal law provision, and the rights of the suspect. However, unlike in Ukraine, it may be delivered in a more flexible manner—either in writing or orally recorded in the procedural protocol, at the discretion of the investigator or prosecutor.

Importantly, service of the notice does not affect the time limits of the pre-trial investigation.

Lithuanian criminal procedure does not allow for direct judicial appeal against the notice of suspicion itself. However, procedural actions related to its service may be challenged, provided that a prior complaint has been submitted to the prosecutor.

Ukrainian Model in Comparative Perspective

Unlike Germany, France, and Lithuania, Ukraine formally provides for judicial review of a notice of suspicion. However, the key issue is not the formal availability of such a mechanism, but its effectiveness in practice.

Recent case-law from 2025 indicates that courts generally refuse to uphold defence complaints challenging the lack of grounds for suspicion.

At the same time, the Unified State Register of Court Decisions contains examples where courts have satisfied such complaints. For instance, in case No. 757/30772/25-к (11 July 2025), the Pechersk District Court of Kyiv found the suspicion to be unfounded due to insufficient factual evidence and procedural violations of Article 276(1)(3) of the CPC.

Similar reasoning was provided in the ruling of the Shevchenkivskyi District Court of Kyiv in case No. 761/27199/25 (30 July 2025), where the court held that the notice did not contain facts or information convincingly linking the person to the alleged offence.

Other decisions concern procedural defects in service or competence of the issuing authority, including cases from courts in Lviv, Kyiv, Kharkiv, and Dnipro regions, where suspicions were annulled due to improper service, failure to establish the suspect’s language comprehension, or issuance by an unauthorised official.

Statistical Observations

According to data from the State Judicial Administration for 2024, complaints in this category are grouped under “other complaints,” which include challenges to notices of suspicion.

In 2024, courts considered 3,299 such complaints. Of these, 456 were granted, 438 returned, 1,235 rejected, and 170 left unexamined. Data on 1,170 complaints was not separately disclosed. Overall, approximately one third of complaints in this category were successful.

At the appellate level, 1,165 appeals were lodged. Courts upheld 803 first-instance rulings, while 362 were overturned.

Effectiveness of Judicial Review

Analysis of 2025 case-law and 2024 statistics demonstrates that the mechanism for challenging notices of suspicion remains largely ineffective for the defence. First-instance courts predominantly reject such complaints.

Where suspicions are annulled, courts usually focus on procedural defects rather than substantive issues such as evidentiary sufficiency or legal qualification. Courts often avoid assessing the substantiation of suspicion on the grounds that it falls outside the scope of judicial review, which creates legal uncertainty and limits the effectiveness of this remedy.

Need for Legislative Improvement

In light of the above, there is a clear need to improve the procedural framework governing challenges to notices of suspicion by introducing explicit statutory grounds for their annulment, including:

• improper drafting of the notice of suspicion;
• lack of competence of the issuing authority;
• procedural violations in service of the notice;
• lack of sufficient evidentiary basis;
• inconsistency between the notice and factual circumstances.

Additionally, under Article 303 of the CPC, a notice of suspicion may only be challenged after one month (misdemeanours) or two months (crimes) from its service, and only during the pre-trial stage. In practice, indictments are often sent to court before these deadlines expire, effectively depriving the defence of the opportunity to use this remedy.

It is therefore proposed to reduce this waiting period to at least two weeks, ensuring practical access to judicial review.

It is also advisable to align the timing of such challenges with the disclosure stage under Article 290 of the CPC, when the defence gains access to investigative materials and can properly substantiate its objections.

Conclusion

Clear legislative definition of grounds for challenging a notice of suspicion and reduction of procedural time limits would significantly enhance the effectiveness of defence rights, provide real protection against unfounded criminal prosecution, and reduce unnecessary judicial workload.