Blog

Detention of a person who is wanted internationally by Interpol. Temporary and extradition arrest.

Starting in 2016, the number of arrests of foreign citizens wanted by Interpol when they crossed the border of Ukraine has increased sharply.

This is due to the fact that in 2016 a secure communication channel was deployed between the Administration of the State Border Service, the Ministry of Internal Affairs and the General Secretariat of Interpol, system software was installed, and employees were authorized to use the relevant automated data banks. This enabled employees of the State Border Service to work with Interpol databases online and instantly check citizens crossing the border.

Among the cases in our company’s proceedings, in general, the largest number of detentions was carried out at the checkpoint “Lviv Airport” during the attempt of foreign citizens to enter the territory of Ukraine. Although, recently, the number of detentions at other border crossing points, which are located in the territory of Lviv region, has also been increasing, in particular: “Rava-Ruska”, “Krakivets”, “Sheghini”, “Mostyska”, “Hrushiv”, ” Uhryniv”, “Smilnytsia”.

Therefore, when a foreigner crosses the border, his passport documents are checked using the Hart-1 border control information and telecommunications system by using devices for automatic reading of the machine-readable zone of passport documents, including electronic chips containing information about the owner, in particular, information about his biometric data, and in the absence of such devices or data in the machine-readable zone – by entering data manually.

Algorithm of actions of border guards, in the case of detection of a relevant record of a person in Interpol bases, which provides for his detention (arrest) and subsequent extradition, regulated by the “Procedure of actions of officials of the State Border Service of Ukraine and bodies of the National Police of Ukraine in case of detection at checkpoints across the state border of Ukraine of persons, motor vehicles and passport documents that are in the data banks of the information system of the International Criminal Police Organization – Interpol”, which was approved by the order of the Ministry of Internal Affairs dated 06.14.2016 No. 505.

In particular, the inspector of the border service, who checks passport documents, among other things, is obliged to:

  • detain such a person in accordance with the procedure specified in clauses 2.3 – 2.8 of Chapter II of the Instructions on the procedure for the actions of officials of state border protection bodies (units) during the detention of persons suspected of committing a crime, without a decision of the investigating judge or court and the procedure for further interaction of the authorities (subdivisions) of state border protection with pre-trial investigation bodies, approved by the order of the Administration of the State Border Service of Ukraine No. 931 of 14.11.2012 and draw up a report on the detention of a person;
  • to organize the protection of the detained person until the arrival of territorial police bodies;
  • hand over the detained person together with the report on the detention of the person to the representatives of the territorial police bodies.
  • In addition, the head of the shift of the service management department is obliged to immediately notify the prosecutor, within the territorial jurisdiction of which the detention was carried out, about the detention of a person, as well as the next Main (regional) center for the provision of free secondary legal assistance.

    The prosecutor, upon receiving the notification, checks the legality of the detention of the person who is wanted by the competent authorities of foreign countries, and immediately informs the relevant regional prosecutor’s office.

    The relevant regional prosecutor’s office notifies the relevant central body of Ukraine about the detention of such persons within sixty hours after the detention, which informs the competent body of a foreign state within three days.

    The central bodies of Ukraine in relation to extradition are the General Prosecutor’s Office of Ukraine (regarding the extradition of suspects in criminal proceedings at the stage of pre-trial investigation) and the Ministry of Justice of Ukraine (regarding the extradition of defendants convicted in criminal proceedings at the stage of court proceedings or the execution of a sentence).

    Not later than 60 hours after the moment of detention, the person must be brought to court for consideration of one of the petitions: for temporary arrest (if no request for extradition (extradition) was received) or for extradition arrest (if the request for extradition (extradition) was received).

    In the absolute majority of cases, at this stage the request for issuance has not yet been received. Therefore, the prosecutor turns to the court with a request to apply to the person temporary arrest for up to 40 days.

    Such a petition must be considered by the investigating judge as soon as possible, but no later than seventy-two hours after the person’s arrest.

    According to the results of the review, the investigating judge can issue a decision on the application of temporary arrest or on the refusal to apply temporary arrest, if there are no grounds for his election.

    Although this is not entirely fair, but in Part 6 of Art. 583 of the Criminal Procedure Code of Ukraine does not provide for the possibility of applying an alternative, milder preventive measure (house arrest, bail, personal commitment). That is, the investigating judge can either impose a temporary arrest, or refuse the request and release the person from custody.

    The most common reasons for refusing to apply a temporary arrest are:

  • discrepancy between the person’s personal data in the passport and documents regarding the person’s commission of a crime on the territory of a foreign state, which does not give grounds for asserting that the wanted person and the detainee are the same person;
  • expiration of the term of bringing a person to criminal responsibility in accordance with the requirements of Art. 49 of the Criminal Code of Ukraine;
  • non-certification of documents (their translation) that contain data on the person committing a crime on the territory of a foreign state and his selection by the competent authority regarding the person of preventive measure;
  • absence of a written guarantee by the requesting party to consider Ukraine’s request in the future on the basis of reciprocity (in the absence of an international agreement between the states);
  • lack of a certified translation of the provisions of the Criminal Code of a foreign state;
  • absence or abolition in the Criminal Code of Ukraine of criminal punishment for the act for which a person is wanted for criminal prosecution in the requesting state.
  • Subsequently, after receiving the request for extradition of the person, the prosecutor may apply for extradition arrest.

    The most common grounds for refusal of extradition arrest are that the request for extradition and/or extradition verification materials are not properly certified, as well as if there is no certified translation.

    Extradition arrest can be used to resolve the issue of extradition of a person (extradition) and his actual transfer, but cannot last more than twelve months. Within this period, the investigating judge of the court within whose territorial jurisdiction the person is in custody, at the request of the prosecutor, at least once every two months, checks whether there are grounds for further detention of the person or his release.

    In addition, considering the request for extradition arrest, in accordance with Art. 585 of the Criminal Code of Ukraine, the investigating judge already has the right to apply a preventive measure not related to detention (house arrest, bail, personal commitment, etc.).

    According to Part 2 of Art. 585 of the Criminal Code of Ukraine, when deciding on the possibility of applying a preventive measure not related to detention, the investigating judge must take into account:

    1) information about the person’s evasion of justice in the requesting party and his compliance with the conditions under which he was released from custody during this or other criminal proceedings;

    2) the severity of the punishment that threatens the person in case of conviction, based on the circumstances established at the time of the alleged criminal offense, the provisions of the Law of Ukraine on criminal liability and established court practice;

    3) age and state of health of the person whose issue is requested;

    4) the strength of a person’s social ties, including the presence of a family and dependents.

    In addition, after the detention of a person by the central body of Ukraine or on his behalf or at the request of the relevant regional prosecutor’s office, an extradition check is carried out.

    Based on the results of the extradition check, the central body of Ukraine makes a decision on extradition or refusal to extradite a person to a foreign state.

    Article 589 of the Criminal Procedure Code of Ukraine provides grounds for making a decision to refuse extradition, in particular:

    1) the person in respect of whom the request for extradition was received, according to the laws of Ukraine, at the time of the decision on extradition (extradition) is a citizen of Ukraine;

    2) the crime for which extradition is requested is not punishable by imprisonment under the law of Ukraine;

    3) the statute of limitations provided for by the law of Ukraine for bringing a person to criminal responsibility or executing a sentence for the crime for which extradition is requested has expired;

    4) the competent body of a foreign state did not provide, at the request of the central body of Ukraine, additional materials or data, without which it is impossible to make a decision on the request for extradition (extradition);

    5) handing over a person (extradition) contradicts Ukraine’s obligations under Ukraine’s international treaties;

    5-1) there are reasonable grounds to believe that the surrender of a person (extradition) is contrary to the interests of the national security of Ukraine;

    6) there are other grounds stipulated by the international treaty of Ukraine.

    In addition, a person who has been granted the status of a refugee, the status of a person in need of additional protection, or has been granted temporary protection in Ukraine cannot be extradited to the state from which he is recognized as a refugee, as well as to a foreign state where his health life or freedom is threatened by danger based on race, creed (religion), nationality, citizenship (citizenship), membership in a certain social group or political beliefs, except for cases provided for by an international treaty of Ukraine.

    Attorney Taras Seniv