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DOI: https://doi.org/10.34069/AI/2022.58.10.6
How to Cite:
Nahorniuk-Danyliuk, O., Trach, S., Rossokxa, S., Tsutskiridze, M., & Yermakov, Y. (2022). Use of specific forms of international
cooperation in special criminal proceedings. Amazonia Investiga, 11(58), 57-64. https://doi.org/10.34069/AI/2022.58.10.6
Use of specific forms of international cooperation in special criminal
proceedings
Історичні передумови формування підвалин сучасної гуманітарної політики
України
Received: October 3, 2022 Accepted: November 10, 2022
Written by:
Oleksandr Nahorniuk-Danyliuk22
https://orcid.org/0000-0003-1511-7140
Serhiy Trach23
https://orcid.org/0000-0002-7548-1027
Sergii Rossokxa24
https://orcid.org/0000-0001-9453-1440
Maksym Tsutskiridze25
https://orcid.org/0000-0002-5880-8542
Yurii Yermakov26
https://orcid.org/0000-0002-9400-0604
Abstract
The purpose of the article is to analyze the
peculiarities of the use of certain forms of
international cooperation in special criminal
proceedings. The subject of the article is
international cooperation. Methodology. Taking
into account the specifics of the topic, the
purpose and tasks of the research, the following
methods were used: dialectical, historical and
legal, dogmatic, comparative and legal, formal
and logical, systematic, consolidation. Research
results. On the basis of the analysis of the
criminal procedural legislation of Ukraine,
special literature and foreign information
sources, the main forms of international
cooperation in special criminal proceedings are
defined and revealed, domestic and foreign
experience in relation to the essence and features
of the mentioned issues is systematized. Practical
meaning. The necessary conditions have been
defined, the implementation of which will ensure
the effective functioning of the institute of
special criminal proceedings in terms of
cooperation with international organizations that
22
Candidate of Juridical Sciences, Lecturer of the Department of Civil Law Disciplines of the National Academy of Internal Affairs
(Kyiv, Ukraine).
23
Candidate of Juridical Sciences, Associate Professor, Associate Professor of the Department of Criminal Procedure of the National
Academy of Internal Affairs (Kyiv, Ukraine).
24
Candidate of Juridical Sciences, Research Officer at the Scientific Institute of Public Law (Kyiv, Ukraine).
25
Doctor of Legal Sciences, Associate Professor, Professor of the Department of Criminal Procedure of the National Academy of Internal
Affairs (Kyiv, Ukraine).
26
Doctor of Juridical Sciences, Associate Professor, Research Officer of the Department of Scientific and Legal Expertise and Law
Drafting of the Scientific Institute of Public Law, Ukraine.
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perform law enforcement functions and law
enforcement agencies of foreign countries.
Value/originality. It has been proven that the
regulatory and legal provision of the
international search for persons, which was
reflected mainly in the form of secondary
regulatory and legal acts of Ukraine, needs
significant improvement.
Keywords: cooperation, extradition, interaction,
international search, investigation, special
criminal proceedings.
Introduction
An important foreign policy task for our state is
the formation of a safe international
environment. In order to prevent the continuation
of criminal activities, to bring perpetrators to
justice and prevent criminal manifestations in the
future, close systematic cooperation of States,
including during the implementation of special
criminal proceedings, in particular, regarding the
search, detention and extradition of offenders, is
required. Such areas of work of law enforcement
agencies of Ukraine can be performed only in
cooperation with law enforcement agencies of
other States. At the same time, scientists pay little
attention to the issues of international
cooperation in specific criminal proceedings,
while they are extremely relevant, both for
practice and for the theory of criminal procedural
law of Ukraine and European legal doctrine.
Thus, the purpose of the article is to analyze the
peculiarities of the use of certain forms of
international cooperation in special criminal
proceedings.
Methodology
The methodological basis for the research is the
set of general scientific and special scientific
methods that were used in their relationship and
interdependence and provided an objective
analysis of the subject matter under
consideration. Taking into account the specifics
of the topic, the purpose and tasks of the research,
the following methods were used:
Dialectical method allowed to consider all the
issues of the topic in dynamics, to reveal their
interrelation and correlation and contributed to
the understanding of the research object in terms
of the combination of the needs of scientific
research and the law enforcement practice.
Historical and legal method provided an
opportunity to investigate the genesis of the
concept of "international cooperation", the
emergence and development of scientific opinion
regarding its order and mechanism.
Dogmatic method was used in the interpretation
of legal categories, to deepen and clarify the
conceptual and categorical apparatus (the
concepts of international cooperation,
extradition, etc.).
Comparative and legal method helped to
establish general and special features of the
doctrinal understanding of the phenomenon of
international cooperation, legislation and law
enforcement practice.
Formal and logical method was applied when
comparing the rules of the Code of Criminal
Procedure of Ukraine and other legal
instruments, substantiating conclusions and
proposals for their amendment or clarification.
Systematic method made it possible to establish
the peculiarities of performing certain procedural
actions in the course of international cooperation
(in particular, when conducting the stages of
international search).
Consolidation method was useful in summing up
the results of the research.
Literature Review
Speaking about the issue under consideration,
Vyazovchenko (2018, p. 57) believes that
international cooperation in criminal proceedings
is carried out on the basis of current rules of
international and domestic legislation or in
accordance with the principle of reciprocity and
providing legal assistance, criminal prosecution,
Nahorniuk-Danyliuk, O., Trach, S., Rossokxa, S., Tsutskiridze, M., & Yermakov, Y. / Volume 11 - Issue 58: 57-64 /
October, 2022
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extradition of persons for the purpose of
revealing and investigating crimes and achieving
the purpose of criminal justice.
Instead, Volevodz (2002, p. 56) claims that
international cooperation in the field of criminal
proceedings (criminal justice) is an activity
carried out by investigators, prosecutors and
courts in accordance with the requirements of the
legislation regulating criminal justice,
coordinated with competent bodies and officials
of foreign States, as well as international
organizations to obtain and provide assistance in
pre-trial proceedings and court proceedings, as
well as in taking other measures necessary for the
appropriate resolution of criminal proceedings.
We agree with the view of Asgarova (2022,
p. 192), who states that the prevention,
investigation, and cessation of transnational
crime, as well as the prosecution of the
perpetrators of a crime of an international nature
cannot be carried out unilaterally by a State
without the assistance of other States and
competent international organizations in this
field.
Humin et al., (2021, p. 245) add that international
cooperation plays an important role in
strengthening and developing relations between
States under modern conditions. The desire of
each State to combat crime creates the basis for
concluding relevant international agreements, in
which special attention is paid to the actual
international search and extradition of persons
suspected (accused) of committing criminal
offenses, hiding from the execution, as well as
the application of other measures of international
cooperation.
The subject of our research is covered in the
monographic work by Zuiev (2017). It is
substantiated that the specified group of
guarantees is the system that includes guarantees
of the rights and freedoms of the individual, as
well as guarantees related to the organization of
the process of international cooperation. The
conditions for appealing procedural decisions,
acts and omission by State authorities, as well as
individual officials connected with international
cooperation, with the provision of international
legal aid and extradition during criminal
proceedings, were studied.
Antoniuk (2016) in the study "Procedural
principles of international cooperation in the
investigation of criminal offenses" raised the
issue of improving the institution of extradition;
namely, she supplemented the list of documents
necessary for drafting a petition for the
extradition of the requested person with a copy of
the written notice of suspicion to the person and
the voluntary consent of the suspect (the accused)
to use the simplified extradition procedure.
It should also be noted that the concept of
"international cooperation" is related to the
category of "international legal assistance".
A number of scientists equate these terms. For
example, Vynohradova (2009) notes that the
provision of international legal assistance
(international cooperation) in the field of fighting
crime is the coordinated activity of various States
to protect the interests of individuals, society and
the State, regulated by the rules of international
and national law.
In opinion of Zavydnyak (2020, p. 104),
international legal assistance in criminal
proceedings is one of the types of international
cooperation, since the categories "international
cooperation" and "international legal assistance"
are not equal in scope and content of law
enforcement actions, but are related as a whole
and a part. Taking into account the above, we
believe that international cooperation during the
investigation of crimes of transnational nature is
the activity of States, their competent authorities
and international organizations established by the
norms of international and national legislation,
which lies in providing international legal
assistance during the investigation of such
offenses.
Results and Discussion
According to Art. 542 of the Criminal Procedure
Code of Ukraine (Law of Ukraine No. 4651-VI,
2012), international cooperation during criminal
proceedings lies in taking necessary measures to
provide international legal assistance by service
of documents, performance of certain procedural
actions, extradition of persons, who have
committed criminal offenses, temporary transfer
of persons, taking over criminal prosecution,
transfer of convicted persons and execution of
sentences.
The relevant areas of work regarding
international cooperation were implemented in
the organizational and procedural forms of
interaction of law enforcement agencies through
joint international legal instruments, adopted in
accordance with established procedure by the
participating countries in legal relations on a
given issue. In the absence of an international
agreement with Ukraine, international legal
assistance or other forms of cooperation can be
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provided based on the request of another State or
requested on the basis of reciprocity (Udalova et
al., 2015, p. 8).
The International Criminal Police Organization
(hereinafter referred to as the ICPO), which
unites 190 Member States, is one of the most
powerful intergovernmental mechanisms for
organizing and conducting international
investigations. Its main purpose is to coordinate
the efforts of law enforcement systems of
different countries in performing measures for
the criminal investigation of international
criminals (Khakhutsiak &Vereshchak 2022,
p. 302).
According to Art. 2 of the Charter of the
International Criminal Police Organization
(INTERPOL, 1956), the objectives of the ICPO
are to provide and support the broadest mutual
aid between all criminal police agencies within
the limits of the legislation of different States and
in the line with the Universal Declaration of
Human Rights, as well as to create and promote
all institutions that can efficiently enhance the
and termination of criminal offenses.
International tracing is the bulk of the work of
this international organization. At the same time,
international search for a suspect, accused is one
of the complex problems of special criminal
proceedings; it applies both to regulation and
implementation of legislative prescriptions.
The study of scientific literature gives us reason
to state the existence of different definitions of
international search, the basis of which are
different criteria depending on the area of law in
which such a concept was developed by
scientists. In our opinion, the definition of an
international search by Kompaniiets (2003,
p. 142) is quite reasonable; according to the
scholar, search is understood as both declared,
conducted and terminated in Interpol Member
States, representing the totality of searches and
actions in the territory of each country by its law
enforcement agencies in compliance with
national legal standards and departmental legal
instruments on behalf of the competent service of
the General Secretariat of the named
international organization and with its
coordination.
However, it is necessary to add that Interpol not
only coordinates the actions of the police of
several States, but also assists in providing
information from its files. Besides, Interpol
announces an international search and not only
signals its initiation by issuing a circular to the
police of all participating countries, but also
defines the limits of conducting search activities,
that is, decides whether it is necessary to involve
the police of all States in this international
organization, or be limited to countries of one or
two neighbouring regions.
The question for special criminal proceedings is
whether an order declaring an international
search is sufficient or whether confirmation of
the international wanted person is required.
Currently, a Draft Law, which provides the basis
for carrying out special pre-trial investigation -
issuing of an order declaring a suspect who
refuses to appear before an investigator, the
prosecutor as wanted, has already been
registered. That is, the requirement for the
investigator, the prosecutor to prove the fact of
the announcement (implementation) of an
international search is finally canceled. On the
one hand, this will solve the urgent problem of
law enforcement, and on the other one, it will
create new ones, because, in our opinion, the
declaration of an international wanted person and
its implementation are not the same thing, as
Interpol may refuse an international search for
various reasons for various reasons. In this case,
a situation arises when the international search
will not be performed. That is, in fact, special
pre-trial investigation is taking place, and the
suspect is not wanted. In this case, the very
purpose of special criminal proceedings is
nullified - ensuring the inevitability of criminal
responsibility for the perpetrator hiding from
investigation and court – is eliminating.
The structure of Interpol provides for the
functioning of the National Central Bureau of
Interpol in each Member State - the unit that
directly ensures international cooperation of law
enforcement agencies of its state within the
Interpol. As a matter of fact, these are «Interpol
Strongholds» on the ground (Chornous, 2013,
p. 197).
Resolution of the Cabinet of Ministers of Ukraine
No. 220 (1993) establishes that the interaction of
law enforcement agencies of Ukraine with the
competent authorities of foreign countries in
solving issues of combating crime that is
transnational in nature or goes beyond the
borders of the country is carried out only through
the National Security Service of Interpol,
represented by the National Police.
The first stage of conducting an international
search for persons who have committed a
criminal offense is to send a request to search for
perpetrators on the territory of Ukraine.
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Thus, the purpose of search – locating a wanted
person – should be specified in the request
(Leshukova, 2004, pp. 170–172). At the same
time, along with the general content of the
request to Interpol for an international search on
the official website of Interpol, in the case of
searching for suspects, accused persons,
defendants in criminal proceedings or convicted
persons who are evading criminal punishment
and hiding abroad, the request additionally
specifies measures, which, in the opinion of the
initiator of the search, should be used on the
territory of another State, in particular:
a) control over the movement of the wanted
person;
b) detention and arrest of the wanted person
with his (her) subsequent extradition
(Vaccani, 2011).
The next stage of the organization for search is
the review of the received documents, their
analysis, verification, decision-making on the
announcement of an international search,
printing and mailing by post (or through own
communication) the relevant formalized reports
(circulars) on the initiation of the search to NCBs
of participating countries.
Before the publication of an international
notification, the General Secretariat of Interpol
performs legal examination of the information in
the request for its publication. The subject matter
of legal examination is the existence of grounds
for the publication of an international notice, its
compliance with the Art. 3 of the Constitution of
the INTERPOL, rules of international law on the
issues of criminal justice, protection of personal
information, etc. The published international
notification is considered an official act of the
MOCP and is sent to all Interpol Member States.
According to the INTERPOL standards, the
search for persons is divided into five types (five
series – "A", "B", "C", "D", "F") (Kultenko,
2009). For each of them, Interpol introduced its
own form - circular: "red" - "A", "green" - "C",
"blue" - "B", "yellow" - "F" and "black" - " D",
each of which has its own meaning and purpose.
They received such names because there is a
rectangle measuring 3.5 x 4.0 cm of the
corresponding color in the upper right corner of
each of them (Starzhynskyi, Starzhynskyi, &
Khotenets, 2006, p. 46).
Today, the most difficult question for the police
units involved in the international search is the
issue of whether the Interpol red circular can be
considered as a legal document, referring to
which police officer of any country can arrest the
person specified in it. Thus, in some countries it
is regarded as an order for the unconditional and
lawful detention of a wanted person, and in
others - as the basis for the necessary fulfillment
of additional requirements for recognizing the
"red" notice as a proper document (sending a
copy of an arrest warrant or a special request
from the requesting State).
In 1997, at the 66th session of the Interpol
General Assembly, a proposal was made to the
ministries of justice of the Member countries to
recognize the "red" notice as the grounds for
arrest in their countries. Of the 92 countries that
attended the session, 65 gave a positive response.
Among the countries that disagreed with this
decision were the USA, the Russian Federation,
Ukraine and others, who confirmed that this
message is not considered as a proper criminal
procedural document. However, despite the
scattered views of the representatives of the
participating countries of the Interpol on this
issue, the special resolution was adopted. It states
that the "red circular" is a document intended for
both police authorities and justice authorities
(court, prosecutor’s office) and can be considered
as a justified request for preliminary arrest, as it
is issued on the basis of national arrest warrants
(or other documents of the same force).
The stage of direct international search consists
of actions carried out in the countries after the
NCB with the General Secretariat of Interpol
after being informed that the search has begun.
For each message received, the NCB decides
separately whether to set a target of searching for
the person named in the communication before
the territorial authorities of their country, or
simply enter the information about the person in
the relevant databank in each NCB. The list of
necessary search actions may differ depending
on the specific case. But it will always be only
those actions and operational search measures
provided for by national legislation and
departmental regulations of the executing State
(Leshukova, 2004, p. 165).
In accordance with Part 4, Art. 575 of the
Criminal Procedure Code of Ukraine (Law of
Ukraine No. 4651-VI, 2012), a request for
extradition shall be submitted to the relevant
central authority of Ukraine via public
prosecutor’s offices in the Autonomous Republic
of Crimea, oblasts, cities of Kyiv and Sevastopol,
or public prosecutor’s offices charged with
similar powers within a 10 day period from the
date of seizure of a person in the territory of a
foreign state. Within the specified time period,
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the manager of a relevant pre-trial investigation
agency within the structure of a central law
enforcement authority, a security authority, an
authority monitoring compliance with tax laws,
or an authority under the State Bureau of
Investigations of Ukraine shall submit a request
for extradition directly to the Prosecutor
General’s Office of Ukraine.
Where there are grounds specified by the
international treaty of Ukraine, a central
authority of Ukraine may submit a request to a
foreign competent authority for extradition of a
person to Ukraine. A request for extradition shall
be submitted by the manager of a central
authority of Ukraine or a duly authorized person
within five days from the date of receipt of a
petition (Law of Ukraine No. 4651-VI, 2012).
In case of notification by the competent body of
a foreign state about obtaining the consent of the
detained person for his extradition (extradition)
to Ukraine, the preparation of the petition is
carried out exclusively at the request of the
authorized (central) body of Ukraine. The
content of the petition and the list of documents
attached to the petition are determined by the
authorized (central) body of Ukraine in
accordance with the requirements of the Criminal
Procedure Code and international treaties of
Ukraine.
Thus, in the case of receiving data on the
whereabouts of a wanted person on the territory
of a foreign state, the Ukrainian Bureau of
Interpol communicates the information received
to the originator of the search (for example, the
Main Investigative Department of the National
Police of Ukraine or the Department of Criminal
Investigation of the National Police of Ukraine or
other law enforcement agencies or their
structural subdivisions), which prepares relevant
materials for the General Prosecutor’s Office on
detention, arrest or extradition.
The Prosecutor General’s Office, after studying
and verifying the materials, if they are properly
processed, sends a request for the extradition of
the wanted person to the relevant body of a
foreign state, and can send a certified copy of the
request to the Interpol National Security Agency
for prompt notification of the law enforcement
agencies of that country. In the case of receiving
from the authorities of a foreign State the consent
to the extradition and a notification of the
detention (arrest) of the perpetrator, the
Prosecutor General’s Office gives instructions to
the National Police of Ukraine and the Ministry
of Justice of Ukraine (State Criminal
Enforcement Service) to organize the reception
of this person.
According to Art. 541 of the Criminal Procedure
Code of Ukraine (Law of Ukraine No. 4651-VI,
2012), extradition is the surrender of a person to
a state the competent authorities of which search
for this person for prosecuting or serving a
sentence. Extradition includes: sending official
request for establishing whereabouts of the
person sought in the territory of the requested
state and for surrender of such person;
verification of circumstances which are likely to
hinder the surrender; taking decision on the
request; actual transfer of such person into
jurisdiction of the requesting State.
We support the view by Boyko (2019, p. 84),
who noted that when extraditing criminals and
transferring convicts, they are not simply moved
to another country (in geographical space), but
are transferred to another legal system (in social
space), that is, to another coordinate system that
has its own points of reference (types and size of
penalties, statutes of limitations, convictions,
etc.), which may be less favorable for a person
than those in which he was before the extradition
or transfer.
Currently, the problem of extradition both in
Ukraine and in other countries has emerged as a
problem of a legislative nature. For example,
Popko (2019) include the following problems
encountered during extradition: the difference in
the qualification of acts according to the laws of
the countries; incomplete requests received by
the Interpol National Security Agency, which
require additional information; the problem of
financing the extradition procedure, etc.
These requirements are also relevant in the case
of request for extradition, if special criminal
proceeding is being conducted. In such a case,
the legislation of the requested State needs to be
carefully studied, in particular in terms of the
admissibility of the in absentia procedure under
domestic law and/or the extradition of persons to
whom it was applied, in some cases it may be
appropriate to apply to the competent authorities
of this State with a notification of the intention of
the extradition request in the proceedings in
absentia and the expression of the request to
indicate the requirements and conditions that the
requesting party should comply with. This will
allow an objective conclusion to be drawn as to
the nature and scope of the procedural
possibilities and obligations regarding
cooperation in a specific case under the existing
circumstances (Shumeiko, 2020, pp. 169–170).
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The last stage in the implementation of the
international search for persons who have
committed criminal offenses on the territory of
Ukraine is the termination of the international
search. Thus, the international search for persons
evading criminal responsibility and punishment
is terminated in connection with the achievement
of the purpose of the search or the expiration of
its term.
The notice on the termination of the international
search for a person by the declaring authority is
issued by the declaring authority, and a copy of
the resolution is transferred to the National
Security Service of Interpol in Ukraine; the latter
sends a notice of its termination to the Member
countries of Interpol, on the territory of which the
search was conducted, or submits a cease and
desist message to the authority issuing the
circular and directs it to all Interpol NCBs of the
countries participating in the search for the
purpose of canceling the search.
In this regard, the General Secretariat of Interpol
has developed and implemented a unique system
of international notices ("red notice"; "blue
notice"; "yellow notice"; "black notice"; "green
notice"), which it sends to all Member States of
the organization through automated search
system (ASF). Each notification (circular) has an
individual purpose, that is, it is issued only to one
specific person based on the request of the
National Security Agency of Interpol.
Conclusion
The international search for suspects, accused,
convicted in the Interpol system is part of the
cooperation of the States in the fight against
crime. Therefore, it can be conducted only with
strict adherence to the general principles of
international law, primarily the principles of
cooperation, sovereign equality of the States,
non-interference in their internal affairs, and
respect for human rights. It is worth adding to
them the main principle of criminal justice,
which unites all countries of the world
community in the fight against crime, ensuring
the inevitability of responsibility for the
committed illegal act, which fully corresponds to
one of the tasks of special criminal proceedings.
Legal framework for the international search for
persons reflected primarily through by-laws and
regulations, needs significant improvement. The
systematic analysis of the Criminal Procedure
Code of Ukraine indicates that the lack of
documents on the international search through
Interpol channels, if there is only a formal
warrant for the search for the person, is the basis
for the conclusion that the person is not
internationally wanted. It should be stated that,
under inadequate criminal procedural legislation
and inconsistent judicial practice, without the
intervention of the legislative body, it will
impossible to solve the problem that has arisen
without legislative intervention, which, in turn,
significantly affects the practical implementation
of other forms of international cooperation,
including during special criminal proceedings, in
particular, extradition, since it involves not only
the fact of extradition itself, but also a set of
procedural actions and organizational measures
aimed at preventing the person’s attempts to
evade the investigation authorities, continue to
engage in criminal activities, his (her) search,
securing sources of evidence, verification of
circumstances that may prevent extradition,
compliance with the rights and freedoms of the
person subject to extradition, etc.
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