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DOI: https://doi.org/10.34069/AI/2023.70.10.8
How to Cite:
Dulskyi, O., Leliuk, T., Luhovyi, V., Melnyk, M., & Morgun, I. (2023). International cooperation when collecting evidence in the
investigation of transnational organized crime: challenges and opportunities. Amazonia Investiga, 12(70), 88-101.
https://doi.org/10.34069/AI/2023.70.10.8
International cooperation when collecting evidence in the investigation
of transnational organized crime: challenges and opportunities
Організація міжнародного співробітництва під час збирання доказів при
розслідуванні транснаціональної організованої злочинності: виклики та можливості
Received: September 12, 2023 Accepted: October 28, 2023
Written by:
Dulskyi Oleksandr1
https://orcid.org/0000-0003-4711-1106
Leliuk Tetiana2
https://orcid.org/0000-0002-6085-1638
Luhovyi Viktor3
https://orcid.org/0009-0007-7276-2994
Melnyk Vadym4
https://orcid.org/0009-0004-9911-1524
Morgun Igor5
https://orcid.org/0000-0003-3582-1741
Abstract
The purpose of the article is to highlight the
organizational aspects of international
cooperation during the collection of evidence in
criminal proceedings related to the investigation
of transnational organized crime. The results of
the study indicated that international cooperation
to collect evidence in criminal proceedings
related to transnational organized crime involves
a variety of actors, including international
organizations, intergovernmental institutions,
state and local authorities, judicial and law
enforcement agencies, public associations and
organizations and individual citizens, the main
purpose of which is to detect, investigate, and
prevent the commission of criminal offenses by
transnational organized criminal groups and
criminal organizations, and searching ways to
combat such criminal manifestations. One of the
types of international cooperation in the area
under consideration is the provision of
international legal assistance during the
1
PhD in Law, Doctoral Student of the Department of Criminology and Forensic Science of the National Academy of Internal Affairs
(Kyiv, Ukraine).
2
PhD in Law, Doctoral Student of the Department of Criminology and Forensic Science of the National Academy of Internal Affairs
(Kyiv, Ukraine).
3
Candidate of Legal Sciences, Associate Professor of the Department of Criminal Procedure of the National Academy of Internal
Affairs (Kyiv, Ukraine).
4
Doctor of Legal Sciences, Leading Researcher of the Scientific Institute of Public Law (Kyiv, Ukraine).
5
Candidate of Legal Sciences, Associate Professor. Head of the Department of Postgraduate and Doctoral Studies of the National
Academy of the State Security Service of Ukraine (Kyiv, Ukraine).
Dulskyi, O., Leliuk, T., Luhovyi, V., Melnyk, M., Morgun, I. / Volume 12 - Issue 70: 88-101 / October, 2023
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collection of evidence. Practical implementation.
It is established that expansion of international
cooperation with foreign countries, improvement
of existing international conventions and treaties,
national legislation, constant exchange of
experience between law enforcement agencies of
foreign countries, development of a single
mechanism for providing international legal
assistance in criminal proceedings in various
directions of its implementation are important
factors of international cooperation.
Value/originality. The study highlights the
peculiarities of the organization of international
cooperation in the investigation of transnational
organized crime; directions for increasing its
efficiency are suggested.
Keywords: investigation organization,
organized crime, criminal proceedings,
international cooperation, transnational crime,
evidence.
Introduction
As a result of globalization, States are now
increasingly confronted with crime crossing
national borders. As a result, enhanced
international cooperation is an important
component of pre-trial investigation and judicial
proceedings. Since criminal activity transcends
national borders, it is clear that the international
community has recognized the need for enhanced
cooperation (Yepes-Enriques & Tabassai, 2002),
in particular regarding the collection of evidence
that is beyond national State borders. At the same
time, its most dangerous form is transnational
organized crime.
Transnational organized crime, in particular of a
general criminal orientation, covers both the
Eastern and Western hemispheres and includes
persons with ethnic or cultural ties from Europe,
Africa, Asia and the Middle East. Besides, its
presence in a certain field represents a significant
growing threat to national security in the form of
serious consequences for public safety, health
care, democratic institutions, economic stability,
etc. At the same time, members of organized
crime groups constantly seek to corrupt officials
both domestically and abroad, penetrate global
energy and strategic material markets that are
vital to national security interests, and provide
logistical and other support to terrorists and
foreign intelligence services.
This negative phenomenon constitutes a
multifactorial criminal system with a devastating
effect on the economic, political, spiritual, social
life, psychological state and gene pool of the
nation. Members of organized transnational
crime operate in different regions of the world,
have their own specific specialization, tactics,
and use various methods. Although they have
different quantitative and ethnic composition,
they are united by a single common goal – to
obtain extremely high profits from criminal
practices, including those combined with
formally legal activities. Transnational organized
crime poses a significant and growing threat to
national and international security, undermines
democratic institutions and economic stability
around the world. This trend is related to the
growing connection of transnational organized
communities with government bodies,
intelligence services, and high-ranking
businessmen.
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The increase in the level of transnational
organized crime is influenced by the events
taking place in Ukraine now. With the beginning
of the large-scale invasion of the Russian
Federation on the territory of our State, the
occupation of port cities, causing the closure or
restriction of shipping, the activities of
transnational organized groups deepened their
activities both on the territory of Ukraine and
around the world. In particular, this is an increase
in the level of drug and weapon smuggling,
illegal import and export of goods, human
trafficking, etc. (The Economist, 2023).
The specified scale and global consequences of
the activities of transnational criminal groups
require the establishment of relations between
the States and international organizations to
combat such negative manifestations. Over a
long period of interaction among subjects of
international law in the fight against crime, a
rather large array of international legal norms,
principles and mechanisms of prevention,
counteraction, termination and investigation of
transnational organized crime has accumulated
both in theory and practice.
The scientific achievements used in our article
are of interest and are theoretical basis for
conducting further scientific research on the
issues related to the organizational aspects of
international cooperation during the collection of
evidence in criminal proceedings related to the
investigation of transnational organized crime.
However, considering the constant changes
taking place in the world and in Ukraine, the
institution of international cooperation in
criminal proceedings during the investigation of
transnational organized crime needs constant
updating and expansion, taking into account the
needs of modern times, in particular in terms of
the organization of its implementation.
Therefore, the purpose of the article is to
highlight the organizational aspects of
international cooperation during the collection of
evidence in criminal proceedings related to the
investigation of transnational organized crime.
The scientific novelty lies in the formation of
practical recommendations for increasing the
efficiency of the organization of international
cooperation during the collection of evidence in
criminal proceedings on transnational organized
crime.
Literature Review
The issues related to international cooperation in
criminal proceedings traditionally attract the
interest of the scientific community due to
objective reasons related to the need to fight
crime, but primarily attention is paid to the
activities of the prosecution, the investigation of
international crimes, crimes of international
nature or other crimes with "international
connections".
Scientific achievements by A.B. Antoniuk
(2016) are devoted to the study of procedural
aspects of international cooperation in the
investigation of criminal offenses, the experience
of certain foreign countries in the field of
international cooperation in the investigation of
criminal offenses.
Bilenchuk et al., (2011), considering the issue of
investigating transnational crimes, notes that
"investigation of this type of crime have a rather
specific nature both in terms of typical
investigative situations and in terms of their
disclosure methods, and draws attention to the
fact that international criminal investigation
techniques are beginning to emerge in modern
conditions. The sources of this methodology
should be international agreements along with
traditional methods of crime investigation."
The research by Zavydnyak (2021a) is dedicated
to the study of legal regulation, levels and types
of international cooperation in the criminal
process.
A complex scientific work with fundamental
theoretical and practical issues of forensic
support for pre-trial investigation in cases of
crimes of an international nature, belongs to
Chornous (2012). The author highlighted the
most general provisions relating to the content of
international cooperation in the fight against
crimes of an international nature, the specifics of
conducting separate procedural actions within
international legal assistance, technical and
tactical forensic support of pre-trial investigation
in cases of crimes of an international nature.
Zharovska (2019) revealed scientific approaches
to the definition of transnational organized crime,
disclosed the structure and dynamics of crimes,
allocated the models of criminal groups.
The urgent tasks of improving international
cooperation in the investigation of financial fraud
are the use of new methods and means of
investigation (procedural actions within
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international legal assistance, creation of joint
investigative teams, etc.); effective interaction
with competent bodies of foreign countries and
international organizations (Ortynskyi et al.,
2018).
At the same time, the establishment of effective
cooperation between the authorized bodies of the
states involved in such activities, is among the
important conditions for success in the
investigation of transnational organized crime.
In the context of our research, it should be noted
that the organization of international cooperation
is an integral component in the activity of
investigating transnational organized crime,
taking into account its complex nature. At the
same time, one can find content-like concepts in
normative legal acts and legal literature:
"international cooperation", "international legal
assistance", "mutual legal assistance", etc.
In accordance with Clause 1, Part 1, Art. 541 of
the Criminal Procedure Code of Ukraine,
"international legal assistance" is the conduct of
proceedings by the competent authorities of one
State, the performance of which is necessary for
pre-trial investigation, trial or for the sentence
imposed by a court of another State or an
international judicial institution.
Instead, international cooperation means
purposeful and permanent, joint and coordinated,
broad in scope and diverse in forms and
directions, organizational and legal,
investigative, informational in nature, aimed at
achieving the tasks set before law enforcement
agencies (Zharovska, 2014).
In view of the above, we believe that the concept
of international cooperation covers a much wider
range of interactions between authorized bodies
of different States in their joint efforts to combat
crime through international organizations
collaboration, intergovernmental institutions,
state authorities and local self-government,
judicial and law enforcement agencies, public
associations and organizations, individual
citizens, the main purpose of which is to detect,
investigate, and prevent the commission of
criminal offenses, finding ways to combat
criminal manifestations.
In view of the above, in order to reveal the
subject matter of the research, in particular in the
context of the investigation of transnational
organized crime, we will consider the concept of
"international cooperation in criminal
proceedings" in the context of the joint activity
of the authorized bodies of the central executive
power with judicial and law enforcement
agencies, which lies in providing international
mutual legal assistance in criminal proceedings
during the collection of evidence, conducting
procedural actions, handing over documents, etc.
We agree with the view of Zavydnyak (2021b),
that it is impossible to ensure collection of
evidence abroad; prosecution; protection of
human and citizen rights and freedoms in
criminal proceedings; compensation for
damages, as well as possible confiscation of
property without proper organization of
international cooperation in proceedings
regarding crimes of a transnational nature.
The issue of international cooperation of pre-trial
investigation bodies with similar bodies of
foreign States has recently become very relevant,
since the full implementation of criminal
proceedings, in this case, most often depends on
their cooperation. Thus, it is possible to
distinguish two directions of international
cooperation of law enforcement agencies in the
fight against transnational organized crime.
Firstly, international cooperation providing
operational police assistance pending official
request without reference to treaties on legal
assistance. Such direct contacts between
investigators are discouraged or even not
allowed, but they allow direct communication
with colleagues involved in specific criminal
proceedings. These contacts provide an
opportunity to quickly receive information on
requests in real time and help the investigator to
establish the presence of certain facts before
seeking official access to evidence through
«application letters». It should be noted that
direct communication without reference to
international instruments violates the assistance
procedure. At the same time, such deviation is
permitted in exceptional cases where there are
serious risks: threats to the life and health of the
injured person or his family; irreversible loss of
very important information, as well as real
grounds for the suspect to abscond or his
subsequent identification will be impossible. In
such cases, information is provided to the
employee of the Interpol National Central
Bureau indicating the specific grounds for
conducting investigative actions without
reference to international treaties; all necessary
«application letters» are processed in the usual
way. Secondly, international cooperation based
on formal «letters of application» filed after the
opening of criminal proceedings or formal
investigations; in this case, the issues of issuing
an arrest warrant, ensuring the right of the
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suspect/accused to defense, application for
questioning of participants in criminal
proceedings are being resolved. It should be
noted that increasing the level of operational
exchange of information between law
enforcement agencies of the States and
establishment of its use as evidence at the
legislative level of States in criminal proceedings
will contribute to the effective fight, disclosure
and prosecution of those involved in the
commission of this category of crimes (Filianina,
2020, pp. 351-352).
Methodology
The methodology of the scientific article is
chosen considering the purpose and tasks, object
and subject matter of the research. To reveal the
main issues, the authors used general scientific
and special methods applied in modern legal
science.
Bibliographic method was applied to choose
scientific literature corresponding the subject
matter of our research.
Dialectical method made it possible to determine
the main directions and forms of international
cooperation in criminal proceedings in the
investigation of transnational organized crime
and to identify their subject structure.
Formal and logical methods (induction and
deduction, analysis and synthesis, evidence and
rebuttal, generalization, etc.), helped to
systematize scientific views on the definition of
transnational organized crime.
With the help of formal legal method, the
analysis of international conventions and treaties,
acts of international organizations, as well as
domestic legal instruments in the field of
international cooperation in criminal proceedings
was carried out.
Comparative and legal method made it possible
to compare international and national legislation
in the field of international cooperation in
criminal proceedings on the investigation of
transnational organized crime, to determine the
main areas of improvement of domestic legal acts
in the specified area.
Historical and legal method helped to reveal the
meaning of such basic concepts as "international
cooperation", "international legal assistance",
"mutual legal assistance", "international
cooperation in criminal proceedings" and
"international cooperation in the field of fighting
crime", to highlight the development of scientific
views on certain problems.
The method of complex analysis was applied to
determine the actual content, main directions and
current state of international cooperation in
criminal proceedings on the investigation of
transnational organized crime.
Using the method of analysis and synthesis, the
classification of levels and actors of international
cooperation in criminal proceedings on
transnational organized crime was carried out.
The specified classification helped to distinguish
its directions and forms of implementation.
Axiomatic method contributed to the
identification of typical features of international
cooperation during the collection of evidence in
criminal proceedings on transnational organized
crime, depending on the form of its conduct.
System and structural method was used to
systematize the obtained results and formulate
the main conclusions of the scientific research.
Results and discussion
The fight against crime is one of the priority areas
of international cooperation. Its growth and
internationalization turned this struggle into one
of the main social problems and necessitated the
interaction of States in its solution.
Transnational crime is a crime that occurs in the
jurisdictions of several countries, but its
consequences significantly affect other
countries. It is crime against the national laws of
several countries. The term "transnational crime"
was developed by the United Nations (UN)
Division of Crime and Criminal Justice in 1974
to guide discussion at a UN conference on crime
according to the United Nations Convention
against Transnational Organized Crime of 2000.
At the same time, crime is considered
transnational if, firstly, it is committed in more
than one State; secondly, it is committed in one
State, but a significant part of its preparation,
planning, management, or control is carried out
in another one; thirdly, it is committed in one
State but involves an organized criminal group
engaged in criminal activity in more than one
State; finally, it is committed in one state but has
significant consequences in another state.
Such crimes should be distinguished from
international ones, which are recognized by
international law and therefore can be prosecuted
under international law, and domestic crimes,
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which fall under a single national jurisdiction. To
be considered a transnational crime, the crime
must involve crossing borders or jurisdictions
(Gurule et al., 1996).
Given the fact that Ukraine has become the
object of growing interest of international
criminal groups, solving important socio-
economic, political and other tasks is practically
impossible without its participation in
international cooperation in the fight against
crime, in the activities of international law
enforcement organizations. As a result, involving
our State in international cooperation in the field
of combating crime, based on the rules and
principles of international law, is quite important.
It is quite clear that such cooperation of Ukraine
with the countries of the world and international
organizations is a significant condition for the
successful solution of many problems not only of
a foreign political and economic nature, but also
of an internal one (Voitsihovsky, 2010).
Since the criminal activity of transnational
organized criminal groups covers the territories
of different States, the investigation of the
specified category of criminal offenses requires
proper and effective organization of international
cooperation.
In general, international cooperation in the fight
against crime as a direction of the State’s
criminal policy has various aspects, among
which are informational and analytical,
organizational and legal, methodical and
resource-based (Zozulia, 2014).
In the context of examination of activities for the
investigation of criminal offenses, in particular
transnational organized crime, an important issue
is the coverage of the organizational aspect of
international cooperation, which includes a set of
legal, procedural, tactical and psychological
methods and means by which it is carried out. In
addition, it is worth noting that the organization
of international cooperation in the field under
consideration depends on the levels, directions,
forms and actors of its implementation.
Three levels of international cooperation in
combating international crime are traditionally
distinguished:
1. The level of bilateral cooperation between
States, which lies in interaction between
States and their competent bodies,
diplomatic missions, consular institutions
and other authorized persons.
2. Cooperation at the regional level, which is
carried out between States provided that they
are united on a territorial basis (European
Union, Council of Europe) or within the
activities of regional international
organizations. It is about the implementation
of international cooperation within the
Organization for Security and Cooperation
in Europe, the Organization of American
States and other regional international
organizations, the tasks of which include the
promotion of the fight against international
crime.
3. Cooperation at the global level, which
involves almost all countries of the world in
the fight against international crime with the
assistance of world-class international
organizations. These are the UN and its
specialized agencies, the International
Criminal Police Organization – Interpol and
others (Cherniavskyi et al., 2019).
Thus, the cooperation of States in criminal
proceedings on the investigation of transnational
organized crime, including during the collection
of evidence, can be carried out at 3 levels:
universal, regional and bilateral.
Besides, we believe that the organization of
international cooperation during the
investigation of transnational organized crime
should be carried out considering:
1) legal aspect – based on a set of international
and national legal instruments, treaties, etc.,
on the basis of which foreign States and their
institutions interact with each other in the
process of detecting, investigating and
preventing crime, in particular transnational
organized crime;
2) procedural aspect, which lies in the need to
comply with the requirements for
international cooperation strictly defined by
international legal documents and national
legislation;
3) tactical and forensic recommendations – a
set of basic tactical techniques used during
the implementation of international
cooperation both at the stage of pre-trial
investigation and court proceedings;
4) psychological principles – application of
psychological techniques when establishing
and building contact between all actors of
international interaction.
To reveal the main issues related to the
organization of international cooperation during
the collection of evidence in criminal
proceedings regarding the investigation of
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transnational organized crime, it is important to
study the legal basis of its implementation.
Interpretation of international treaties of Ukraine
and the practice of the ECtHR made it possible to
identify the following directions of influence of
these sources on the development of science of
forensics, elaboration and practical
implementation of forensic tools, methods and
techniques: ensuring the protection of human
rights and freedoms; investigation of criminal
offenses taking into account the best
international and European experience;
increasing the efficiency of implementation of
international cooperation measures during
criminal proceedings; ensuring effective
investigation and trial of international crimes.
The importance of international cooperation
during the investigation of transnational
organized crime is emphasized in the UN
Convention against Transnational Organized
Crime (UN General Assembly, 2000). In
particular, the Convention defines the term
"mutual legal assistance", which includes the
provision of the widest possible assistance by
States Parties upon request in the investigation,
prosecution and trial of crimes defined by the
Convention, which is carried out on a mutual
basis, provided there are reasonable grounds to
suspect that such crime is transnational in nature
and, including, the victims, witnesses, proceeds,
means of committing crimes or evidence related
to the commission of such crimes are located in
the requested State Party, and that an organized
criminal group is involved in the commission of
this crime.
In addition, the specified Convention defines the
main goals of international cooperation in the
field under consideration. In particular, after
analyzing the provisions of clause 3 of Art. 18 of
the Convention, providing mutual legal
assistance in criminal proceedings regarding
transnational organized crime can be grouped
according to the following main areas:
1) collecting evidence or requesting
information that contains information about
the circumstances of a criminal offense
(obtaining testimony of witnesses or
statements from individuals; providing
information, material evidence, and expert
assessments; providing originals or certified
copies of relevant documents and materials,
including government, bank, financial,
corporate or commercial documents);
2) conducting investigative (search) actions
(searching and seizure or arrest; inspection
of objects and sights);
3) execution of court orders (delivery of court
documents);
4) other procedural actions (facilitating the
voluntary appearance of persons in the
authorities of the requesting State-
participant, etc.).
Thus, international cooperation during the
collection of evidence in criminal proceedings on
the investigation of transnational organized
crime can include a wide range of procedural
actions, during which it is possible to obtain
information that can later be used as evidence in
court proceedings. Conducting investigative
(search) actions; obtaining statements and
testimony of witnesses, victims, suspects,
accused persons, experts; obtaining information
related to criminal proceedings, physical
evidence and other documents and information,
etc. are among the main sources of obtaining
evidence in the process of international
cooperation.
The procedure for the implementation of
international cooperation during the collection of
evidence in criminal proceedings on
transnational organized crime is regulated by the
norms of the Criminal Procedure Code of
Ukraine (Law of Ukraine No. 4651-VI, 2012). It
defines the following areas of international
cooperation during the investigation of such
criminal offenses: service of documents,
execution of separate procedural actions,
extradition of persons who have committed a
criminal offense, temporary transfer of persons,
temporary transfer of persons, takeover of
criminal proceedings, transfer of convicted
persons and execution of sentences.
As for the procedure of collecting evidence as
part of international cooperation, the Criminal
Procedure Code of Ukraine contains direct
provision indicating that evidence can be
obtained on the territory of a foreign state as a
result of international cooperation in the course
of criminal proceedings (Part 4, Art. 93). It
should be noted that it is in line with Art. 1 of the
European Convention on Mutual Assistance in
Criminal Matters (Council of Europe, 1959),
which states that the parties undertake to provide
each other with the widest possible mutual
assistance in the prosecution of offenses, whose
punishment at the time of a request for assistance
falls within the jurisdiction of the requesting
party.
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The organization of international cooperation
when collecting evidence during the
investigation of transnational organized crime is
a complex process that requires the coordinated
activity of authorized bodies. Subject matter
composition should be investigated to highlight
the main aspects of its implementation, which in
turn will vary according to the level at which
such interaction takes place, as well as the legal
status of actors involved in procedural actions
carried out in the course of international
cooperation.
Thus, we identify the following actors depending
on the levels of international cooperation at the
global level: the UN International Court of
Justice, the International Criminal Court
(hereinafter – the ICC), the International
Criminal Police Organization Interpol, etc. At the
regional level, interaction is carried out between
regional groupings of actors: the Council of
Europe, the Organization for Security and
Cooperation in Europe (OSCE), the Organization
of American States (hereinafter referred to as the
OAS), the European Union Agency for Criminal
Justice Cooperation (hereinafter – Eurojust), the
European Police Directorate (hereinafter –
Europol). The bilateral level involves the
cooperation of the authorized bodies of the
competent States that have concluded bilateral
agreements on the provision of international
legal assistance in criminal proceedings. In
Ukraine, international cooperation in criminal
proceedings is performed through the Office of
the General Prosecutor and the Ministry of
Justice of Ukraine.
Besides, it should be noted that the circle of
actors of international cooperation is not limited
only to competent bodies that are endowed with
the relevant powers. Among such actors, parties
and other participants in criminal proceedings
should also be allocated; in particular, at the
regional level of international cooperation in
criminal proceedings on transnational organized
crime in terms of collecting evidence, the Core
International Crimes Evidence Database
(hereinafter – CICED) introduced by Eurojust for
the preservation, accumulation and analysis of
evidence of major international crimes in a
protected mode deserves attention.
CICED is a unique ad hoc judicial database
created by Eurojust in 2023 to preserve, store and
analyze evidence of major international crimes.
It consists of three components: secure digital
data transmission, secure storage and advanced
analysis tools. In addition to the evidence itself,
CICED will also contain a register with
information on the source of evidence, as well as
the event and type of crime to which it relates
(Eurojust, 2023).
In accordance with the Proposal for a Regulation
of the European parliament and of the council
amending Regulation (EU) 2018/1727 of the
European Parliament and the Council, as regards
the collection, preservation and analysis of
evidence relating to genocide, crimes against
humanity and war crimes at Eurojust (European
Commission, 2022) evidence related to offences
cannot be safely stored in the territory where
hostilities are taking place, so it is appropriate to
establish a central repository in a reliable place.
Since the need to preserve such evidence is
urgent, they must be stored in an automated data
storage facility. Preservation, analysis and
storage of such evidence, as well as the access to
it when required by national authorities and
international judicial authorities, must comply
with the highest standards of cyber security and
data protection.
Operation of such database will contribute to the
deepening of international cooperation in the
fight against crime, provide a fast and reliable
way of transferring and storing evidence, to
which only authorized bodies will have access.
At the same time, it is important to further
develop a single mechanism of cooperation in the
process of using the CICED database, to settle
the main issues by enshrining the relevant
procedure in international acts and domestic
legislation.
However, the most widespread is the
implementation of international cooperation in
terms of collecting evidence during the
investigation of transnational organized crime at
the bilateral level, which is regulated by
international treaties concluded between the
States and national legislation.
Thus, depending on the legal status of the actors
of international cooperation during the collection
of evidence in criminal proceedings regarding
the investigation of transnational organized
crime, we distinguish:
− bodies that directly conduct criminal
proceedings and request or ensure the
provision of international cooperation –
court, prosecutor, investigator of the pre-
trial investigation body;
− bodies mandated to consider requests and
take action to implement them – Office of
the Prosecutor General (in pre-trial
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investigation), Ministry of Justice of
Ukraine (in court proceedings);
− actors with respect of which issues related to
the implementation of international
cooperation are being resolved – suspects,
accused, persons in respect of whom
extradition is sought, persons on
international wanted list, etc.;
− other entities that the requesting or requested
party involves in the process of international
cooperation (parties and other participants in
criminal proceedings).
We agree with the statement that direct
interaction between the competent bodies of the
States contributes to increasing the efficiency of
cooperation, simplifies the solution of a number
of organizational issues. Based on the above,
measures to increase the effectiveness of
international cooperation in the field of
combating crime should include improved direct
interaction mechanisms between the competent
bodies of the states (Cherniavskyi et al., 2019).
The organization of international cooperation in
collecting evidence in criminal proceedings
related to the investigation of transnational
organized crime, depending on the purpose of the
request and the requirements for processing the
information received during the provision of
international assistance, can be carried out in two
forms: official (procedural) and unofficial (non-
procedural, consultative). A combination of both
these forms is necessary at different stages of the
investigation, and understanding their purpose,
requirements and limitations is essential for
successful international cooperation. Let us
consider separately the organizational aspects of
international cooperation in the specified forms.
Organizational and tactical features of
international cooperation in collecting evidence
during the investigation of transnational
organized crime differ depending on the form of
its implementation. Thus, official form of
providing international legal assistance involves
strict adherence to the procedural form
determined by international conventions or
treaties and national legislative acts and is carried
out in several stages.
Implementation of official international
cooperation during the collection of evidence in
criminal proceedings based on the fact of the
commission of criminal offenses by organized
criminal groups or criminal organizations with
transnational features is made by requesting
international legal assistance.
Criminal procedural legislation provides a clear
manner for its implementation. Thus, in
accordance with Part 1, Art. 551 of the Criminal
Procedure Code of Ukraine, court, public
prosecutor or investigator, with approval of the
public prosecutor, shall send to the designated
(central) authority of Ukraine a request for
international legal assistance in criminal
proceedings they conduct. At the same time, the
central bodies of Ukraine, authorized to review a
request for reasonableness and conformity with
the laws and international treaties of Ukraine are:
the Office of the Prosecutor General (in criminal
proceedings during pre-trial investigation), and
the Ministry of Justice of Ukraine (in criminal
proceedings during a court trial) (Prokopenko,
2014).
Thus, in the course of a pre-trial investigation of
criminal offenses committed by organized
criminal groups or criminal organizations with
transnational links, investigator or prosecutor,
where evidence needs to be collected outside our
country and if they cannot be obtained during the
conduct of legal proceedings in the territory of
Ukraine, applies to the relevant authorities with a
request for international legal assistance.
A request for international legal assistance must
meet the requirements regarding its procedural
content, as well as have a proper justification. It
is important to have a link between the criminal
proceedings for which international legal
assistance is requested and specific procedural
actions that must be conducted on the territory of
a foreign state.
An investigator conducting pre-trial
investigation in criminal proceedings on
transnational organized crime submits a request
for international legal assistance in connection
with the need to collect evidence on the territory
of a foreign State in agreement with the
prosecutor. To avoid problems with the request
return, investigator or prosecutor must pay
special attention to compliance with its content
and form, which are determined by the Code of
Criminal Procedure of Ukraine.
Failure to comply with the requirements for the
form and content of a request for legal assistance
established by an international treaty or domestic
law has significant legal consequences: firstly, it
may entail a refusal to provide legal assistance;
secondly, it greatly complicates obtaining the
requested assistance; thirdly, a request made
without taking into account the specifics of the
procedural legislation of the requested Party may
initiate the receipt of assistance formalized in
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such documents which cannot be used as
admissible evidence in criminal proceedings.
That is, the quality of a request for the provision
of legal assistance often determines the quality of
the requested proceedings (Zavydnyak, 2021b).
Practical data also indicates that it is the lack of
proper substantiation of the connection between
the requested procedural actions and the actor of
criminal proceedings that causes the
corresponding request for international legal
assistance to be returned.
Thus, if the request concerns the interrogation of
a person as a witness, victim, expert, suspect or
accused, then a duly certified extract of the
relevant articles of the Criminal Code of Ukraine
is attached to it to explain to the person his
procedural rights and obligations and a list of
issues to be put to him, or information to be
obtained. If the request concerns the conduct of a
search, inspection of the scene, seizure, seizure
or confiscation of property or other procedural
actions, the permission for which is granted by
the court in accordance with the Criminal
Procedure Code of Ukraine, then information
about the evidence that substantiates the need for
the relevant measures is attached to it (Chornous,
2012).
Besides, in practice there is a problem of
recognition of evidence obtained during
international cooperation. In particular, some
authors point out that in order to recognize
"foreign" evidence in a criminal proceedings,
two mandatory conditions must be observed:
1) the procedure for obtaining and securing
evidence in a foreign State, because based on the
norms of international law, the Parties are
governed by the procedural legislation of the
requested State in the process of executing a
request for legal assistance; 2) the order of
interaction of national law enforcement agencies
with foreign authorized actors (Zavydnyak,
2021c).
In accordance with Art. 3 of the European
Convention on Mutual Assistance in Criminal
Matters (Council of Europe, 1959), the requested
Party executes any judicial instructions related to
criminal case and sent to it by the judicial
authorities of the requesting Party in the manner
provided by its legislation.
At the same time, the Criminal Procedure Code
of Ukraine determines that, at the request of a
competent body of a foreign State, during the
execution of certain procedural actions on the
territory of Ukraine, the procedural legislation of
a foreign State may be applied, if it is provided
for by the international treaty, to which the
Verkhovna Rada has consented, and in the
absence of such document – provided that the
request is not contrary to the law of Ukraine
(Clause 2, Part 1, Art. 558).
Thus, in the process of applying for international
legal assistance in criminal proceedings on the
investigation of transnational organized crime,
competent authorities may request the
application of Ukrainian procedural rules. At the
same time, the first and foremost important
condition for such an appeal is the presence of
express reference to the applicability of the law
of the foreign State in the international treaty.
Besides, to avoid issues related to the
inadmissibility of evidence obtained in the
course of conducting the requested procedural
actions on the territory of a foreign State, in the
corresponding request it is necessary to clearly
describe the procedure for conducting specific
procedural actions, provided for by national
legislation, by clarifying terms, as well as
references on articles of the Criminal Procedure
Code of Ukraine, which must be duly certified
and attached to the request materials.
Consequently, to avoid cases of inadmissibility
of evidence obtained directly in the process of
international legal assistance in criminal
proceedings on the investigation of transnational
organized crime, authorized subjects should pay
attention to the following important conditions:
1) the request is submitted with strict
compliance with all requirements regarding
its form and content;
2) the body or the official authorized to make a
request or to perform procedural actions is
specified in the request for international
legal assistance;
3) actual data are obtained in compliance with
the criminal procedural legislation of the
requested Party, and in cases provided for by
an international treaty or law of the
requesting Party;
4) during the collection of evidence in the
process of international cooperation, the
rights of the persons who participated in the
procedural actions are respected;
5) evidence obtained from reliable sources,
using appropriate methods of recording
evidentiary information, and ensuring its
retention towards the requesting party.
Equally important is the preliminary study of the
procedural law of the requested State, their
technical and forensic support, etc. by the
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investigator, prosecutor. It will help to avoid
situations related to differences in procedures in
different States, tactical techniques used in the
course of certain procedural actions, the
competence of authorized bodies of foreign
States to carry out certain procedural actions,
training of officials of these bodies, the presence
of technical and other opportunities.
In addition, the absence of agreements concluded
between States is not an obstacle for the
organization of international cooperation in the
field under consideration. In this case, the
submission or receipt of the request is carried out
according to the same rules but involving the
Ministry of Foreign Affairs of Ukraine on the
basis of reciprocity.
Interesting is the analyze of certain provisions of
foreign legislation regulating the interaction of
law enforcement agencies, conducted by
Pavlenko (2022). In particular, the author notes
that some States have established provisions
providing for extraterritorial jurisdiction
allowing State authorities of different countries
to investigate their nationals who commit crimes
related to human trafficking abroad.
Despite the fact that the provision of official
assistance is a rather lengthy process involving
certain procedure, any information collected in
the course of receiving official international legal
assistance is recognized as evidence that can be
used in the pre-trial investigation and in the
litigation.
On the other hand, the consultative form of
international cooperation in collecting evidence
during the investigation of similar categories of
criminal offenses is extremely important, as it
does not require compliance with formalities and
is carried out in a fairly short period of time. It is
the process whereby pre-trial investigation
bodies or prosecutor informally communicate
with colleagues or partner agencies of foreign
countries to quickly obtain information that may
assist in the investigation. Informal assistance
may include (but is not limited to) obtaining
information from registers, checking information
in police databases, etc.
Besides, its importance lies in the fact that the
implementation of informal consultations
contributes to identifying direction of the
investigation, as well as the needs and scope of
further official assistance. However, it should be
noted that all information obtained in the process
of informal cooperation is not evidence and
cannot be further used in pre-trial investigation
or court proceedings.
Informal legal aid is based on trust and trusted
networks and requires time and effort from all
parties involved. Recognizing this, international
organizations encourage peer-to-peer
networking through international events and
promote networking.
An important form of international cooperation
in collecting evidence in criminal proceedings in
the investigation of transnational organized
crime is the creation and operation of joint
investigative teams. Their activities are regulated
by the Second Additional Protocol to the
European Convention on Mutual Assistance in
Criminal Matters (Council of Europe, 2001) and
by the Criminal Procedure Code of Ukraine,
under which joint investigative groups may be set
up to conduct pre-trial investigation of
circumstances of criminal offences committed in
the territories of several States, or where the
interests of such States were affected (Art. 571).
At the same time, the norms of the Criminal Code
of Ukraine are not in line with the provisions
defined in the Second Additional Protocol, which
states that by mutual agreement, the competent
authorities of two or more Parties may set up a
joint investigation team for a specific purpose
and a limited period, which may be extended by
mutual consent, to carry out criminal
investigations in one or more of the Parties
setting up the team.
For this purpose, the Draft Law of Ukraine
No. 7330 (2022) amending Article 571 of the
Criminal Code of Ukraine and clarifying that
joint investigative teams can be created to ensure
pre-trial investigation and court proceedings, was
developed; these amendments are important for
criminal proceedings carried out on the territory
of one or more States.
Thus, we believe that the introduction of the
specified changes is appropriate, especially
under Russian Federation's military aggression
against Ukraine, as they will facilitate the
investigation of criminal offenses.
It is necessary to make changes to Article 571 of
the Criminal Code of Ukraine as well, in
particular, to enshrine in Part 1 of the Article that
joint investigative teams can be created to
conduct pre-trial investigation of criminal
offenses committed on the territories of one or
more States, or if the interests of these States are
violated.
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The use of psychological techniques to overcome
barriers between the actors of interaction in the
process of organizing international cooperation
during the collection of evidence in criminal
proceedings on the investigation of transnational
organized crime is no less important. Thus,
Ukraine’s expansion of international cooperation
with foreign countries on different continents in
the fight against crime, differences in legal
systems, language barriers, etc. necessitate the
solution of not only legal, but also organizational,
tactical and psychological issues.
Establishing psychological contact in the process
of the actors’ interaction at the interstate level
can be carried out with the help of the following
means: proper selection and management of
staff; identification of employees with special
training for investigating specific types of
criminal offenses; study of interpersonal
relations in the group and in the international
space; education of the necessary qualities
(ethical, moral, strong-willed, etc.); perfect
command of foreign languages (at least one of
them) for communication between authorized
persons of competent bodies of different States,
etc. In this case, the informal relationships in the
team are of particular importance: common
interests, friendly and other relations that may
affect the effectiveness of the investigation
(Sharay, 2022).
Conclusions
Thus, after conducting an analysis of the main
international documents and national legislative
acts, as well as scientific works of domestic and
foreign scientists in the field of international
cooperation during the collection of evidence in
criminal proceedings on the investigation of
transnational organized crime, it should be stated
that its content lies in the joint activities of
international organizations, interstate
institutions, State and local authorities, judicial
and law enforcement bodies, public associations
and organizations, individual citizens, the main
purpose of which is to detect, investigate, and
prevent the commission of criminal offenses by
organized transnational criminal groups and
criminal organizations, seeking ways to combat
criminal activities.
One of the types of international cooperation in
the field under consideration is the provision of
international legal assistance, which may also
differ depending on the directions of its
implementation, of which collecting evidence in
criminal proceedings related to the investigation
of transnational organized crime is of great
importance.
The analysis of scientific literature helped to
highlight the following main levels and, as
appropriate, actors of the international
cooperation in the course of investigating
transnational organized crime:
universal – the UN International Court of Justice,
the International Criminal Court, Interpol, etc.;
regional – Council of Europe, OSCE, Eurojust,
Europol;
bilateral – cooperation of the authorized bodies
of the competent States based on the concluded
bilateral agreements on the provision of
international legal assistance in criminal
proceedings.
Depending on the legal status, the actors of
international cooperation during collecting
evidence in criminal proceedings regarding the
investigation of transnational organized crime
can be classified into:
agencies, which directly conduct criminal
proceedings and request or ensure the provision
of international cooperation – court, prosecutor,
investigator of a pre-trial investigation body;
bodies authorized to consider requests and take
measures to fulfill them – Office of the
Prosecutor General (in pre-trial investigation),
Ministry of Justice of Ukraine (in court
proceedings);
entities with respect to whom the issues related
to the implementation of international
cooperation are addressed – suspect, accused,
persons in respect of whom extradition is to be
decided, persons on international wanted list,
etc.; other entities that the requesting or
requested Party involves in the process of
international cooperation (parties and other
participants in criminal proceedings).
The organization of international cooperation
during collection of evidence in criminal
proceedings in the investigation of transnational
organized crime is carried out considering:
1) legal aspect – based on a set of international
and national legal acts, treaties, etc., on the
basis of which foreign States and their
institutions interact with each other in the
process of detecting, investigating and
preventing crime, in particular transnational
organized crime;
2) procedural aspect – lies in the need to
comply with the requirements for
international cooperation strictly defined by
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international legal instruments and national
legislation;
3) tactical and forensic recommendations – a
set of basic tactical techniques used during
the implementation of international
cooperation both at the stage of pre-trial
investigation and court proceedings;
4) psychological principles – application of
psychological tools when establishing and
building contact between all actors of
international interaction.
To make international cooperation in the
investigation of transnational organized crime
more effective, it is expedient to implement
effective coordination of all pre-trial
investigation bodies, because currently various
law enforcement agencies are involved in the
pre-trial investigation process and due to
improper communication there are unjustified
delays in the investigation, loss of materials or
parts of case materials. Besides, an important
aspect of effective interaction is the rapid
exchange of information both between the pre-
trial investigation bodies themselves and
between the pre-trial investigation bodies and
other state authorities possessing important
information for the investigation. Therefore, the
issue of digitization of all pre-trial investigation
materials and simplification of bureaucratic
procedures is urgent.
Besides, it is appropriate to approve the
algorithm for the investigation of international
crimes with a detailed description of the
implementation of urgent investigative actions.
Finally, investigation of international crimes
today requires substantial investigative
knowledge of IHL and a lot of work with
materials from open sources of information,
electronic evidence, so it is necessary to
introduce training and advanced training for
investigators in these areas.
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