A Suspect Abroad: Why 'Formal Service' of a Summons Does Not Work

Imagine a situation: on business or for personal reasons, a politician, top manager, or business owner has travelled abroad, and meanwhile, back in Ukraine, they are served 'in absentia' with a notice of suspicion and put on the wanted list. This is not uncommon: Ukrainian criminal proceedings do not stop while a suspect is abroad. Even so, the participants in the proceedings retain their rights. Below we describe the principle of due legal procedure — an important safeguard and guarantee of a person's rights while abroad.

Under Article 2 of the Criminal Procedure Code of Ukraine, participants in criminal proceedings, including those located outside the state, retain the right to due legal procedure.

Understanding due legal procedure is inseparably linked to human rights. The Supreme Court emphasises that a response is warranted not to any breach of procedure, but only to one that has genuinely violated a person's rights. For example, in its ruling of 2 April 2026 in case No. 991/7892/21, the Criminal Court of Cassation notes:

The sequence in which the above-mentioned tasks are set out in the provision of the legal norm [Article 2 of the CPC — note] gives grounds to conclude that the application of due legal procedure is not an end in itself, but an important condition for achieving the outcomes of criminal justice that the legislature has defined as priorities: protecting the individual, society, and the state from criminal encroachments, safeguarding human rights and freedoms, and ensuring the prompt and effective detection of criminal offences and a fair trial.

Non-compliance with one or another requirement of the law nullifies the evidentiary value of information obtained as a result of the relevant procedural actions not in every case, but only where it has led to a violation of human rights and fundamental freedoms or casts doubt on the origin of the evidence and its reliability and credibility. For, in order to adopt a lawful and well-founded decision, the court must obtain the fullest possible information about the circumstances that form the subject of proof, affording the parties, in adversarial proceedings, sufficient opportunity to verify and challenge that information.

In practice, however, this right is systematically ignored — especially when the suspect or accused is abroad. Where a person is abroad, law enforcement authorities do not submit requests for international legal assistance, as provided for in Chapter 43 of the CPC. Instead, the detective/investigator formally 'serves' the summons or notice of suspicion at the person's former place of residence or work. This is supposedly sufficient for the person to acquire the status of suspect or to confirm non-appearance in response to a summons.

At the same time, a person's presence abroad does not deprive them of the right to due legal procedure, in particular the right to proper service of documents.

Ukraine, like the overwhelming majority of European countries, is a party to the 1959 European Convention on Mutual Assistance in Criminal Matters. Chapter III of this Convention sets out general provisions on the service of documents. Under it, the requested party effects service in the manner provided for by its own law, in compliance with the provisions of the Convention.

Thus, for example, the service of documents by the authorities of the United Kingdom is governed by the Crime (International Co-operation) Act 2003. Under Section 1(3), the Secretary of State has the power to send a document by post or to instruct the chief officer of police for the relevant area to effect personal service:

The Secretary of State may cause the process or document to be served by post or, if the request is for personal service, direct the chief officer of police for the area in which that person appears to be to cause it to be personally served on him.

The use of the phrase 'may cause' means that the Secretary of State has the power to decide whether to comply with the relevant request. And although this Act does not contain a list of grounds for refusal, certain grounds are contained in the European Convention on Mutual Assistance in Criminal Matters itself. Thus, Article 2 of the Convention provides that assistance may be refused:

• if the request concerns an offence which the requested Party considers a political offence, an offence connected with a political offence, or a fiscal offence;
• if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public, or other essential interests of its country.

Analogous or similar provisions exist in other European countries: the prosecutor's office, the court, or another body will examine Ukraine's request to serve notices for compliance with the law, including international treaties.

For persons suspected or accused in Ukraine, these provisions matter because they prescribe a clear procedure for serving notices. And it is precisely the existence of judicial or other control by the country of residence before a notice from Ukraine is served that constitutes a right of the person that is often ignored for various reasons.

The procedural rationale for such control is that, first, a person will not be regarded as having been duly served with a notice without the control of the authorities of the country of residence. Accordingly, they cannot become a suspect or accused, be put on the wanted list, or be regarded as evading the investigation or the court.

Second, if a request is refused, the authority of the country of residence will record the existence of a particular fact that is significant for the person's defence both in the Ukrainian courts and before the ECtHR. For example, if service of a notice is refused on grounds of political persecution, the fact of the refusal can and should be used by the defence to challenge the actions of the law enforcement authority or the decision of the court.

For business, this is a particularly sensitive issue. In NABU cases, a political dimension is almost always present — from the very circle of persons whose actions fall within the Bureau's investigative jurisdiction (top officials, executives, and owners of large businesses) to the political consequences of the law enforcement authorities' public communications about the investigation.

If the investigating judge or the court allows notices to be served outside the framework of international legal assistance, the suspect or accused is deprived of the right to due legal procedure, which results in a violation of that person's rights. Unfortunately, both from our own practice and from other cases, we frequently see detectives formally 'serving' a notice of suspicion or summons at a former place of residence in Ukraine, even when there is information that the person has travelled abroad.

In such a case, the defence must draw the court's attention to the fact that the breach of the procedure for serving notices is not a formality but leads to a real violation of human rights, and must explain specifically what the violation consists of, with reference to the legislation of the person's country of residence.

The situation is not hopeless for the defence: a breach of procedure can be used to challenge the actions of the law enforcement authority — including the cancellation of a notice of suspicion and a preventive measure — to apply to Interpol with a pre-emptive request to prevent an unjustified international search, and to have other actions of the investigation found to have been carried out in breach of the law.

The conclusion is simple: the slowness or imperfection of international legal assistance procedures (about which judges and investigators often complain) cannot be a justification for violating a person's right to due procedure. 'Formal service' of a summons at a former address in Ukraine does not replace the procedure established by law — and the defence must insist on this systematically.

Mykhailo Protsailo, Senior Associate at LCF Law Group, exclusively for Mind.ua.