CERTAIN PROBLEM ISSUES OF JUSTIFICATION BY THE PROSECUTOR AS A SUBJECT OF PROOF OF NOTIFICATION OF SUSPICION
Authors:   Kharkiv National Academy of Internal Affairs, Symonenko O. 
Published: May 2024

The article stipulates that criminal procedural legal relations that arise when a prosecutor performs the function of accusation during the notification of suspicion are defined as relations regulated by the rules of criminal procedure, which arise, develop and terminate during the pre-trial investigation, within which the prosecutor’s powers regarding the report of suspicion. The purpose of the article is to identify problematic issues of criminal procedural legal relations that arise when the prosecutor notifies of suspicion and make suggestions for their solution. The author points out that the standard of proof «reasonable suspicion», which is used by the prosecutor in the implementation of the function of prosecution in the pre-trial investigation, in the practice of the ECtHR is characterized by the following criteria: 1) reasonable suspicion presupposes the existence of facts or information that could convince an objective observer that the person concerned could have committed an act that falls under the signs of a criminal offense, responsibility for which at the time of its commission was established by the Criminal Code; 2) a reasonable suspicion must be based on evidence obtained by the prosecutor, sufficient in its entirety to make a decision, and may not be based on assumptions; 3) the existence of a reasonable suspicion is established by national courts and reflected in court decisions by stating the content of the suspicion, the circumstances of the case and the evidence that allows a reasonable suspicion of a person in the commission of a criminal offense; 4) the burden of proving the existence of a reasonable suspicion rests with the prosecutor and cannot be transferred to the defense. Given the results of the analysis of the current criminal procedure legislation, it is concluded that the standard of proof «reasonable suspicion» is a normatively established rule that reflects the possibility of making a number of procedural decisions under criminal procedure law, only if the prosecutor proves the involvement persons before committing a criminal offense at the level necessary for the issuance of the relevant procedural decision. The paper establishes that the procedure for notifying a person of suspicion can be divided into stages: 1) making a decision on the need to notify the person of the suspicion. This stage involves checking the grounds for such notification in accordance with Part 1 of Art. 276 of the CPC, observance of procedural guarantees during the conduct of certain investigative or operational-search actions or application of precautionary measures that were taken before the moment of such notification; 2) objectification / expression of the formed internal will of the authorized official concerning the accepted decision in the external form by drawing up the text of the message on suspicion according to the requirements provided by Art. 277 of the CPC, and its signing; 3) bringing the information to the notice of the addressee in respect of whom the decision on notification of suspicion was made, by directly handing over its text to the person in accordance with Art. 278 of the CPC. At this stage, the suspect’s rights are also communicated, where if the suspect makes a request, he is obliged to explain in detail each of these rights (Part 3 of Article 276 of the CPC).