Criminal defence

Searches, detention, questioning and notices of suspicion. Urgent steps and time limits.

Proceedings move through stages, and each successive stage closes off some of the options available at the previous one. Below is what is decided at each stage and what changes at each of them. This is a general orientation, not advice on a specific matter: the extent of the rights and the applicable time limits depend on the grounds, the wording of the procedural document and the stage of the proceedings.

Before notice of suspicion

The proceedings exist, but the person does not yet have a procedural status: the investigation begins when information is entered in the Unified Register of Pre-Trial Investigations (Article 214 of the Criminal Procedure Code of Ukraine). The person may be summoned as a witness, searches may be conducted, and covert investigative (search) actions may be used — the person learns of the latter later.

What is decidedthe status in which the person enters the case. A witness and a suspect have different rights, and status determines the accusation. The right not to testify against oneself or close relatives does not depend on status (Article 63 of the Constitution of Ukraine).

What closesnothing — this is the only stage at which nothing has yet been formally recorded against the person.

Search and detention

A search of a home is conducted under a reasoned ruling of an investigating judge (Article 30 of the Constitution of Ukraine; Article 234 of the Criminal Procedure Code), and without a ruling only in an urgent case (part 3 of Article 233 of the Code); what to do at the scene and the procedure for temporary seizure are set out separately. Detention without a ruling is permitted in the cases under Article 208 of the Code; the moment of detention, the maximum time limit, delivery before a court, and notification of close relatives and the free legal aid authority are governed by separate provisions (Article 29 of the Constitution of Ukraine; Article 5 of the Convention).

What is decidedwhat enters the record (протокол) and in what form. The text of the ruling, not oral explanations at the scene, defines the limits of what the investigators are permitted to do.

What closesthe possibility of reconstructing what was not recorded — a dispute about the contents of the record, without entries in it, becomes one person’s word against another’s.

Notice of suspicion

The notice must contain the information required by Article 277 of the Criminal Procedure Code and is served in accordance with Article 278. From that moment, the person acquires the status of a suspect, and the time limit for the investigation after notice of suspicion begins to run (Article 219 of the Code).

What is decidedthe legal classification, on which everything that follows depends — from the gravity of the offence to the applicable time limits. What matters is who prepared the notice, what is alleged and how the circumstances are described.

What closesthe option of treating the notice of suspicion as a formality: a complaint against it to the investigating judge is limited both as to grounds and as to time (Article 303 of the Criminal Procedure Code).

Preventive measure

The list of measures, the risks that the prosecution must establish and the circumstances to be taken into account are set out in Articles 176–178 of the Criminal Procedure Code; detention in custody is applied if no other measure is sufficient (Article 183 of the Code). The procedure for the hearing, the effective term of the ruling and a change of measure upon a motion by the defence are governed by separate provisions. The investigating judge reviews the lawfulness of a deprivation of liberty irrespective of any motion (Article 206 of the Code).

What is decidedwhether the person will remain at liberty while the investigation continues — and that affects the very ability to gather material in the person’s favour.

What closesthe opportunity to gather documents during the hearing. The matters used to rebut the risks — residence, employment, family, health and property for bail — either exist in documentary form or do not exist at all.

Pre-trial investigation

The investigation is subject to time limits (Articles 219 and 294 of the Criminal Procedure Code) and must be conducted within a reasonable time. At this stage, the defence may gather evidence in the manner prescribed by law, make motions, examine the case materials, and challenge decisions, actions and omissions before the investigating judge (Article 303 of the Code).

What is decidedthe volume of material with which the case proceeds to trial.

What closeswhat is not disclosed in accordance with Article 290 of the Criminal Procedure Code does not become evidence at trial. The rule operates in both directions.

Trial

The preparatory hearing sets the framework for the trial. The court determines the body of evidence to be examined: an agreement not to dispute particular circumstances narrows the later dispute. Admissibility is determined under Articles 86, 87 and 89 of the Criminal Procedure Code; an accusation cannot be based on evidence obtained unlawfully (Article 62 of the Constitution of Ukraine).

What closesan appeal reviews the case within the scope of the appeal, and circumstances are re-examined upon a motion; cassation neither examines evidence nor establishes circumstances. Circumstances are established at first instance.

Where the options for the defence narrow

Status. A person is questioned as a witness about that person’s own actions. The moment at which the status changed in substance does not always coincide with the moment at which it was formalised.

The ruling and the record. The full text of the ruling — both its reasoning and operative parts — defines the limits of what is permitted. A violation that is not entered in the record when it occurs must later be proved with material that may no longer exist.

Access to correspondence. A search ruling and a ruling attaching property do not authorise access to the contents of private communications (Article 31 of the Constitution of Ukraine; Article 8 of the Convention).

Time limits. An expired investigation time limit cannot be renewed (part 5 of Article 294 of the Criminal Procedure Code), and its expiry after notice of suspicion is named as a ground for closing the proceedings in п. 10 ч. 1 ст. 284 КПК. The case law is not uniform: the divergence between the High Anti-Corruption Court and the Supreme Court is examined in material on this site.

Time limits for covert actions. A covert action must be carried out and documented within the period for which it was authorised, and the procedure by which the evidence was obtained is a condition of admissibility.

What the association does in this area

The association’s practice includes defence in criminal proceedings during the pre-trial investigation and at trial, including:

• an acquittal on a charge of preparation for intentional murder and the closing of criminal proceedings on a charge of attempted abduction — on the basis of provocation of the offence established by the court.

No other proceeding with such an outcome — an acquittal on a charge of an offence against life on the basis of provocation established by the court — is known in Ukrainian case law.

The case spanned six years: the judgment of the Obukhiv District Court of Kyiv Region of 24 December 2015, appellate review, cassation review by the Supreme Court on 5 July 2018, and the ruling of the Kyiv Court of Appeal of 5 February 2021 in case No. 372/988/15-к. Public anonymised documents from the Unified State Register of Court Decisions.

The doctrine of provocation is examined separately — provocation of a criminal offence

Full legal analysis is published in Ukrainian.

What to do at a particular moment — during a search, detention or a summons for questioning — is set out separately. Situations