RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of October 8, 2004 No. 16

About some questions of application of the legislation regulating procedure and terms of detention (arrest) of persons in case of permission of the questions connected with their extradition

By the constitution of Ukraine it is guaranteed that nobody can be arrested or be held in custody differently than on the motivated judgment both only on the bases and according to the procedure, established by the law (the Art. 29).

By part 1 of Art. 9 of the Constitution it is determined that the existing international agreements which consent to be bound is provided by the Verkhovna Rada of Ukraine are part of the national legal system of Ukraine. Therefore the p. 2 of Art. 19 of the Law of Ukraine of June 29, 2004 N1906-IV "About International Treaties of Ukraine" is determined that if the international treaty of Ukraine which became effective in accordance with the established procedure establishes other rules than provided in the relevant act of the legislation of Ukraine, rules of the international treaty are applied.

Except regulations of the Code of penal procedure of Ukraine (further - the Code of Criminal Procedure) and Art. 10 of the Criminal code of Ukraine (further - UK) the questions connected with restriction of the right of the personality for freedom of travel and security of person (detention, taking prisoner) are regulated by also existing international treaties of Ukraine, in particular the European convention on issue of offenders of 1957 and the Additional protocols to it of 1975 and 1978 ratified by the Law of Ukraine of January 16, 1998 N43/98-BP with statements and cautions (further - the European convention), the Convention on the legal assistance and legal relations in civil, family and criminal cases of 1993 concluded in Minsk and ratified by the Law of Ukraine of November 10, 1994 N240/94-BP, bilateral agreements of Ukraine with other states, multi-lateral special agreements about counteraction to separate types of crimes (for example, The convention of the United Nations on fight against the illegal address of drugs and psychotropic substances of 1988 ratified by the Resolution of the Verkhovna Rada of Ukraine of April 25, 1991 N1000-XII and so forth.

Studying of practice of permission by courts of Ukraine of the questions connected with issue of persons to other states showed that the relevant legislation is applied by them unequally. In particular, some courts accept in the production provision of competent authorities about election concerning person which is subject to extradition, measures of restraint in the form of detention or temporary arrest, others refuse acceptance of such representation in production.

For the purpose of ensuring identical application of the legislation regulating question of issue of persons to other states, and protection of the rights and fundamental freedoms of the person Plenum of the Supreme Court of Ukraine DECIDES:

1. Draw the attention of courts that, resolving issue concerning whether this or that question connected with issue of persons to other states is subject to consideration judicially they shall proceed from relevant provisions of the Fundamental Law of Ukraine, other national legal system, including the European convention or other international treaties of Ukraine which consent to be bound is provided by the Verkhovna Rada of Ukraine, or the agreements of the former USSR applied by Ukraine according to the procedure of successorship according to the Law of Ukraine of September 12, 1991 N1543-XII "About Successorship of Ukraine".

At the same time courts should find out whether it is concluded between Ukraine and the state which sent request, the relevant agreement and what procedure for permission of the questions connected with extradition in it it is provided.

Courts need to mean that according to the p. 2 of Art. 10 of UK the foreigners and persons without citizenship who are constantly not living in Ukraine who committed crimes outside Ukraine and stay in its territory, can be issued to foreign state for criminal prosecution and transfer to court or are transferred for serving sentence only if such issue or transfer are provided by international treaties of Ukraine.

It is also necessary to remember that according to the p. 3 of Art. 25 of the Constitution the citizen of Ukraine cannot be issued to other state.

2. Considering that the current legislation to courts does not confer powers of rather independent permission of question of provision of permission to issue of persons and that according to Art. 22 of the European convention and similar provisions of other international treaties of Ukraine the procedure concerning their issue is regulated only by the legislation of the party to which make inquiry, courts have no right to resolve such issues.

They cannot resolve on own initiative and issue of election of measures of restraint concerning persons which are subject to issue or transfer including detention as such measures are applied only on cases which are in production of competent authorities of Ukraine.

3. That in Ukraine person can be in custody over three days only on the motivated judgment, and meaning that on contents of the p. 2 of Art. 29 of the Constitution such decision can be made only by competent court of Ukraine, courts shall accept in the production and consider in essence representation of prosecutors or the representation of the bodies which are carrying out requests of other states about issue, provision of permission to detention of persons and their delivery under guards in competent authority of foreign state approved with them.

4. According to Art. 16 of the European convention and similar provisions of other international treaties of Ukraine in certain cases competent authorities of the state sending request can make inquiry about temporary arrest of the searched person. Competent authorities of the state to which make inquiry resolve this issue according to the legislation.

With respect thereto local courts shall accept in the production and consider in essence provision of prosecutors or the provision of the bodies which are carrying out requests of other states about issue, temporary arrest of persons for the purpose of their delivery under guards in competent authority of the state sending request approved with them, for the term established by the European convention or other international treaty.

5. Consideration of provision by courts about detention of person or its temporary arrest is performed by the rules established by Art. 165-2 of the Code of Criminal Procedure.

Courts have the right to apply rules of the p. 4 of Art. 165-2 of the Code of Criminal Procedure for the purpose of delivery in court of person concerning which the issue of his detention (temporary arrest) for the purpose of issue or transfer is resolved.

The court shall check availability of request and the relevant documents defined by the agreement based on which the issue of extradition, and also lack of the circumstances interfering issue or transfer is resolved (Articles 2, of 3, of 6, of 10, 11 European conventions and Additional protocols to it of 1975 and 1978, Art. 57 of the Convention on legal assistance and legal relations on civil, family and criminal cases of 1993 and so forth). In particular, issue of the detained persons is not performed: for political and military offenses; in connection with the termination of prescriptive limits; when in the territory of the party to which make inquiry the court verdict or the resolution on solution of the case on the same accusation in connection with which presentation issue is required is decided; when the question of issue of citizens of Ukraine or the stateless persons which are constantly living in Ukraine is brought up; persons having the status of the refugee in Ukraine; if the party sending request does not provide to Ukraine of sufficient guarantees that the sentence with punishment in the form of capital punishment will not be turned to execution in that case when the offense for which issue is required is punished by capital punishment by the legislation of the state sending request; the crime in connection with which issue is required according to the legislation of the party which requests, or Ukraine is pursued according to the procedure of private prosecution; the crime in connection with which making issue is required is punished by imprisonment for the maximum term less than one year or less stiff punishment and so forth.

Courts should consider also other provisions of the European convention or international treaties concerning provision of legal assistance which provide right of the Party, to which make inquiry, to refuse issue of person.

Draw the attention of courts to what according to Art. 28 of the European convention of its provision is replaced by provisions of any bilateral agreements, conventions or agreements regulating issue of offenders between any two Contractual Parties. Thus, if the state which makes inquiry about issue is the Party of the European convention, provisions of other bilateral or multi-lateral international treaties concerning issue can be applied only in that part in which they supplement provisions of this Convention.

6. According to the p. 3 of Art. 29 of the Constitution courts shall accept in the production and consider on the substance of the claim of persons detained based on request of other state about extradition to illegality of detention, and also the claim of their defenders and legal representatives.

Consideration of such claims is performed by the rules established by parts 7 and 8 of Art. 106 of the Code of Criminal Procedure. Resolving issue of legality of detention, the judge shall consider as relevant provisions Codes of Criminal Procedure concerning procedure for detention and its procedural registration, and provision of the corresponding international treaty in connection with which accomplishment person was detained, and availability of necessary documents based on which the extradition is performed (in particular, request about issue, the decision of competent authorities of the party that makes inquiry, about detention or arrest of person and so forth).

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