Ukraine: Police summons, including issuance procedures, methods of delivery to the affected person, description of the document and the information it contains, including whether the police include the reasons why the person is summoned on the document and whether the police include the relevant legislative provisions of the Ukrainian Criminal Code; whether the person has a right to counsel for attendance; prevalence of fraudulent police summonses
1. Overview, Including Issuance Procedures
According to Section 133(1) of the Criminal Procedure Code of Ukraine, during a "pre-trial investigation," the investigator and the public prosecutor have the right to summon suspects, witnesses, victims or other participants for an interrogation "or participation in other procedural actions" [1] (Ukraine [2012], Sec. 133(1)). In correspondence with the Research Directorate, the Director of Kyiv-based YurViddil Law Firm similarly indicated that "pre-trial investigation authorities" are provided powers through statutory provisions that enable them to take "investigative (search) actions to ascertain certain circumstances" that will be proven during further criminal proceedings (Director 30 Apr. 2015). He stated that "[p]arties involved in criminal proceedings shall be advised of an investigative (search) action based on invocation or invitation by an investigator or a prosecutor" (ibid.).
Section 133(2) of the Criminal Procedure Code provides that the investigator and public prosecutor have the right to summon a person "if there are sufficient grounds for a belief that such person can give testimonies that are important for criminal proceedings, or his participation in a procedural action is mandatory" (Ukraine [2012], Sec. 133(2)). The Director of YurViddil Law Firm elaborated on the reasons provided under Section 133(2) upon which an individual may be called to take part in an investigative (search) action:
- where the investigator or prosecutor reasonably believes that such person may provide evidence essential for the criminal proceedings in question; or
- where the relevant investigative (search) action requires involvement of such person. (30 Apr. 2015)
According to Sections 3(5) and 3(6) of the Code, a pre-trial investigation is the stage of criminal proceedings between "the moment information on a criminal offence is entered ... [and the] closure of the criminal proceedings or ... submission to court of an indictment, ... [or] a motion on discharge of the person from criminal liability" (Ukraine [2012], Sec. 3(5)-(6)).
In correspondence with the Research Directorate, a representative of the Center for Political and Legal Reforms (CPLR), a non-profit NGO that elaborates and promotes reforms of the constitution and the judicial system in Ukraine (CPLR n.d.), stated in contrast that only investigators have the power to make a police summons (ibid. 7 May 2015a) and that investigators are not prosecutors (ibid. 7 May 2015b). He further explained that investigators are "special public officials" who work in an investigative division within the "police," the "tax police," the "SBU (secret service)" or the "NABU (anti-corruption body)" (ibid.). According to Section 3 of the Criminal Procedure Code of Ukraine, an investigator is "an official of a body of internal affairs, security agency or agency supervising compliance with the tax legislation, [or] a Ukrainian State Bureau of Investigations' unit authorized within his competence specified by the present Code, to conduct pre-trial investigation of criminal offences" (Ukraine [2012], Sec. 3(17)). The CPLR representative stated that "other police officers" do not have the power to make a police summons (7 May 2015a).
2. Delivery Procedures for a Police Summons
The Director of YurViddil Law Firm indicated that individuals involved in criminal proceedings "shall be invoked to take part [in] an investigative (search) action in the manner contemplated by Article 135 of the Ukrainian Code of Criminal Procedure" (30 Apr. 2015). For information on the delivery procedures for a police summons, see Section 135 of the 2012 Criminal Procedure Code of Ukraine, which is attached to this Response (see Attachment 1).
The Director of YurViddil Law Firm explained that Section 135(1) provides for the "following ways of invocation": 1) service of a summons; or 2) sending of a summons by post, by e-mail or by facsimile; or 3) advising of invocation over the phone or by telegram (30 Apr. 2015). The Director also explained that "a summons shall be handed over or delivered to an addressee by a postal worker, officer of law enforcement authorities, investigator or prosecutor (ibid.). Similarly, in a telephone interview with the Research Directorate, an attorney-at-law working at Ilyashev & Partners Law Firm in Kyiv noted that the summons can be delivered in person by a postal worker, an investigative authority or a police officer to the individual's home or work address, or over the phone or by mail (Attorney 4 May 2015).
The same source notes that Section 136(2) of the Code provides that the summoned individual must provide their email address or fax number before the investigator or prosecutor can email or fax the police summons (ibid.).
Sources indicated that when the police summons is delivered, the summoned individual must provide their signature as proof of receipt (ibid.; Attorney 4 May 2015) and will be asked to show their ID (ibid.). The Director of YurViddil Law Firm stated that Sections 136(1) and (2) of the Criminal Procedure Code provide designated ways to confirm an individual has received a summons, including a receipt of confirmation by email, a video recording of the delivery, other data confirming the delivery or review of the summons (Director 30 Apr. 2015). He added that
[a] summons shall be sent by investigators, prosecutors and delivered by postal workers in the way and manner contemplated by the Postal Service Regulations applicable to summons/subpoenas and approved by Decree No. 270 passed by the Ukrainian Cabinet of Ministers on March 05, 2009. A summons shall be delivered and handed over to the relevant addressee, or, if such addressee is unavailable, to his/her adult family member, or, where neither the addressee nor adult members of his/her family are available, a notice of such summons shall be left in the mailbox of the addressee (pursuant to Clause 99 of the Regulations referred to hereinabove). (ibid.)
Similarly, the attorney stated that parents, relatives and an attorney are able to receive the summons on the individual's behalf (Attorney 4 May 2015). The same source noted that if a summons has to be delivered to an attorney's office, the investigator must go in person; the attorney cannot receive it by mail or email (ibid.). The attorney further stated that when a person receives the summons on the individual's behalf or the summons is delivered over the phone, it is not possible to prove that the summoned individual received the document (ibid.).
The Director of YurViddil Law Firm stated that the Criminal Procedure Code provides for "numerous exceptions" to delivering a summons upon receipt of the individual's signature, which take into account the individual's age, legal mental capacity and current location (Director 30 Apr. 2015). If an individual is not present at their permanent address, the summons will be
handed over, against signature, to any adult family member or other person living in the same premises, or to a representative of the utilities authority/entity at the place of such person's residence, or to a management representative at the place of such person's employment. A convicted person shall be invoked by sending of a summons to the administration of the place of conviction/jail. A summons is served on a person living in a foreign country in the way and manner stipulated in the applicable international legal facilitation treaty approved to be binding by the Ukrainian Parliament, or, where no such treaty is available, through the relevant diplomatic or consular mission. (ibid.)
3. Format and Content of the Police Summons
Sample copies of police summonses sent to the Research Directorate by the attorney and YurViddil Law Firm are attached to this Response (Attachments 2 and 3). YurViddil Law Firm also provided an English translation of Attachment 3 (see Attachment 4).
According to sources, the format of police summons is standard across Ukraine (Lawyer 5 May 2015; Attorney 4 May 2015). The attorney explained that according to Ukrainian law, all national, provincial and local Ukrainian investigating authorities must provide the same information on a police summons (ibid.). Aside from the name of the citizen being summoned (ibid.), he stated that the summons contains the individual's status (witness, suspect, etc.), the criminal case number and the date the summons was issued (ibid. 30 Apr. 2015). He also indicated that the signature of the investigating authority and the stamp of the local, provincial, or national authority issuing the summons are placed on the summons to ensure the security and authenticity of the document (ibid.). He added that the address of the individual being summoned is not included in the summons (ibid.). In contrast, the translated sample of a summons provided by YurViddil Law Firm contains a section labelled "Resident at:" (Ukraine 15 Jan. 2015). The sample also contains references to Sections "133, 135, 138 and 139" of the "Ukrainian Code of Criminal Procedure" (ibid.). Section 138 of the Code provides the "[v]alid reasons for non-compliance with court summons" and Section 139 of the Code provides the "[c]onsequences of non-appearance on summons" (Ukraine [2012], Sec. 138, 139).
4. Failure to Appear
According to sources, it is mandatory for an individual to comply with a police summons (Director 30 Apr. 2015; Attorney 4 May 2015). The attorney explained that if the summoned individual does not appear, the police must go to court and present evidence that the appropriate procedures were followed and that the summoned individual failed to attend; the court will then make a decision on what actions the police may take, depending on the circumstances of the case (ibid.). The attorney also noted that the court can oblige a suspect to appear, issue a search warrant and/or an arrest warrant, as well as change the summoned individual's "measurement of custody" to bail, house arrest or police custody (ibid.). The Director of YurViddil law firm stated that Section 140 of the Criminal Procedure Code provides the manner of forced escort that shall be applied to a suspect, defendant or witness (30 Apr. 2015).
5. Right to Legal Counsel
For information on the rights of suspects, accused, acquitted, convicted, victims and witnesses to legal counsel and to be informed of why they are being summoned, see Sections 20(1), 20(2), 42(3), 56(1) and 66(1) of the Criminal Procedure Code of Ukraine, which is attached to this Response (see Attachment 1).
According to the Director of YurViddil Law Firm, any evidence provided by witnesses, victims or suspects can only be taken through interrogation, including video conference questioning, as provided by Sections 95(1) and 232 of the Criminal Procedure Code (30 Apr. 2015).
The attorney stated that the police summons does not include the relevant legislative provision, the subject, or any information in regards to the case or the crime that was committed, nor are the police obliged to inform the person of the reason why they are being summoned (Attorney 4 May 2015). He stated that during the interrogation, the police would provide the summoned individual with "brief" information regarding the crime and their status in the case (witness, suspect, etc.) (ibid.).
Information on whether, in practice, an individual is told why they are summoned could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The attorney stated that summoned individuals have the right to legal counsel and, in practice, the attorney "always" attends the questioning (ibid.). According to information on the website of the US Embassy in Kyiv, asserted that anyone, including foreigners, has the right to have an attorney be present at every interrogation that is conducted by an investigator; however, in practice, this is "often overlooked" with regard to interrogations involving detained individuals (US n.d.).
6. Forgery of Police Summons
Information regarding falsified police summons was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.
According to the attorney, one way to check the authenticity of the information on the police summons is to call the investigating authority and provide them with the number of the criminal proceeding, which is on the police summons (Attorney 4 May 2015). The investigating authority will have a record regarding the case, and if any of the information on the summons is different, then the summons may be false (ibid.).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Note
[1] This unofficial translation of the Criminal Procedure Code of Ukraine was found on the website of the Center for Political and Legal Reforms (CPLR). According to the CPLR representative, this version of the Criminal Procedure Code of Ukraine was last amended in 2012 (CPLR 7 May 2015c). He stated that Parliament made some amendments in 2014 and 2015; however, the amendments were not "radical" (ibid.). Sections 133 and 135 have not been amended since 2012 (ibid. 7 May 2015a), nor have Sections 20, 66 (ibid. 8 May 2015) as well as Section 56 (ibid. 12 May 2015a). He added that Section 42(1) was amended in 2014 in regards to "in absentia" proceedings (ibid. 12 May 2015b).
References
Attorney-at-law, Ilyashev & Partners Law Firm. 4 May 2015. Telephone interview with the Research Directorate.
_____. 30 April 2015. Correspondence with the Research Directorate.
Center for Political and Legal Reforms (CPLR). 12 May 2015a. Correspondence from a representative to the Research Directorate.
_____. 12 May 2015b. Correspondence from a representative to the Research Directorate.
_____. 8 May 2015. Correspondence from a representative to the Research Directorate.
_____. 7 May 2015a. Correspondence from a representative to the Research Directorate.
_____. 7 May 2015b. Correspondence from a representative to the Research Directorate.
_____. N.d. "About CPLR." <http://www.en.pravo.org.ua/index.php/aboutcentre-tmn- ua> [Accessed 12 May 2015]
Director, YurViddil Law Firm. 30 April 2015. Correspondence with the Research Directorate.
Lawyer, YurViddil Law Firm. 5 May 2015. Correspondence with the Research Directorate.
Ukraine. 30 March 2015. Holoseievski District Police Department, Kyiv. "Police Summons." Sent to the Research Directorate by an attorney at the Ilyashev & Partners Law Firm, 30 April 2015.
_____. 15 January 2015. Obolon District Police Department, Kyiv. "Police Summons." Translated by YurViddil Law Firm. Sent to the Research Directorate by a lawyer at YurViddil Law Firm, 5 May 2015.
_____. [2012]. Criminal Procedure Code of Ukraine. Unofficial English translation. <http://www.en.pravo.org.ua/files/Criminal%20justice/CPC.pdf> [Accessed 30 Apr. 2015]
United States (US). N.d. "Information for U.S. Citizens Arrested in Ukraine." <http://ukraine.usembassy.gov/arrested-info.html> [Accessed 11 May 2015]
Additional Sources Consulted
Oral sources: The following were unable to provide information within the time constraints of this Response: Interpol – Ottawa; T&O Buyanovskaya Law Firm.
Attempts to contact the following were unsuccessful within the time constraints of this Response: American Bar Association; Interpol – Ukraine; Legal Consulting Center; Salkom law firm; Tarasov & Partners; Ukraine – Ministry of Internal Affairs; Ukrainian Bar Association for Foreign Affairs.
Internet sites, including: Amnesty International; Association of Corporate Counsel; Council of Europe; ecoi.net; Factiva; Global Security; HeinOnline; Human Rights Watch; International Law Office; Interpol – Ottawa; Kharkiv Human Rights Protection Group; Kyiv Post; Legal Aid Reformers Network; Legislation Online; MacEwan University; Novostimira; Organization for Security and Cooperation in Europe; Rule of Law; Ukraine – Ministry of Internal Affairs, Prime Minister's website Verkhovna Rada; Ukraine Pravda; Ukrainian Week; United Kingdom - British Embassy in Kiev; United States – Library of Congress; United Nations – Refworld, ReliefWeb, UNHCR, World Intellectual Property Organization
Attachments
1. Ukraine. [2012]. Criminal Procedure Code of Ukraine. Unofficial English translation. <http://www.en.pravo.org.ua/files/Criminal%20justice/CPC.pdf> [Accessed 30 Apr. 2015]
2. Ukraine. 30 March 2015. Holoseievski District Police Department, Kyiv. "Police Summons." Sent to the Research Directorate by an attorney at the Ilyashev & Partners Law Firm, 30 April 2015.
3. Ukraine. 15 January 2015. Obolon District Police Department, Kyiv. "Police Summons." Sent to the Research Directorate by a lawyer at YurViddil Law Firm, 5 May 2015.
4. Ukraine. 15 January 2015. Obolon District Police Department, Kyiv. "Police Summons." Translated by YurViddil law firm. Sent to the Research Directorate by a lawyer at YurViddil Law Firm, 5 May 2015.