Cover Story (#3 March 2020)

Useful Mechanism

The white-collar crime practice is gaining a more internationalized flavor along with the overall international nature of business and law. With the new wave of criminal proceedings in our country, criminal defense attorneys face the necessity to apply the procedures of international cooperation, extradition and wanted lists. Olga Prosyanyuk and Vitaliy Serdyuk, partners of Kyiv-based AVER LEX attorneys at law are confident that the quality of work is crucial for both sides, prosecution and defense, when it turns to usage of these special mechanisms. Referring to recent practice, both outlined that the State of Ukraine often abuses possibilities provided by Interpol because of the deep background of political prosecutions.

UJBL.: In which areas is international cooperation in criminal procedure present?

Olga Prosyanyuk: The first association with the term international cooperation is usually linked to the procedure of an international wanted list and extradition. However, application of international cooperation between the states is much broader.

Ukrainian law, in addition to what was specified, envisages a number of quite effective mechanisms for the carrying out of procedural actions by one state, which are required for effective pre-trial investigation, trial or enforcement of a verdict.

Notably, international cooperation should not be viewed solely in the context of criminal prosecution or conviction of an individual. In practice, we have come across situations when international legal assistance from another state ensured compliance with human rights.

The Criminal Procedure Code of Ukraine determines the scope of international cooperation during criminal proceedings, which includes delivery of documents, performance of certain procedural actions, extradition of persons, who committed a criminal offense, temporary transfer of persons, transfer of criminal prosecution, transfer of convicted persons and enforcement of verdicts.

In practice, in addition to the extradition procedure we believe that delivery of procedural documents and carrying out questioning are truly useful mechanisms.

UJBL.: How would you describe international cooperation development trends for achieving the tasks of criminal justice? What influences them?

Vitaliy Serdyuk: The use of international cooperation in criminal proceedings is no longer a little known practice. Taking into consideration the large number of cases, based on political persecution, and cases in which one of the elements is registered in a foreign jurisdiction, lawyers are increasingly faced with the need to defend or represent interests as part of procedural actions carried out within the procedure of international legal assistance.

This is primarily about the situation when Ukraine is the initiator of international cooperation.

In these cases as well, the law seems to have foreseen everything in detail, although the factual use of international legal assistance, duration of the procedure and its success often depend on political will, the position taken by the leaders of law-enforcement agencies and Ukraines relations with a specific country (which is involved in particular international cooperation).

These conclusions, however, can only be drawn on the basis of the results of practice of law. At the same time, Prosecutor-Generals Office, NABU, Ministry of Justice are the competent Ukrainian agencies authorized to carry out international cooperation. Their work should have provided an opportunity to outline the trends and follow statistics.

However, detailed statistics of the results of work in the area of international cooperation in criminal proceedings do not provide too much insight. It is, for the most part, either non-existent on the websites of the corresponding agency, or is provided in a very limited form the figures that make it impossible to draw any conclusions regarding the subject matter of international legal assistance, its duration, etc.

UJBL.: Which countries are most closely involved in this cooperation? What are the reasons behind it?

V.S.: International cooperation in criminal proceedings is carried out by Ukraine pursuant to multilateral and bilateral international treaties. In the event that there is no international agreement or treaty, international legal assistance can be provided on the basis of a request of another state or on the basis of reciprocity.

According to the data of Ukraines Ministry of Justice regarding the list of bilateral and multilateral international agreements in the sphere of legal assistance and legal cooperation, Ukraine has legal grounds for cooperation in civil and criminal cases with 195 countries. Furthermore, news on the signing of new agreements on mutual legal assistance is published on a regular basis.

Once again, the fragmented nature of information about the results of work of government agencies in the sphere of international cooperation makes it impossible to determine the list of states with which Ukraine has the most effective international cooperation. However, based on publicly available information, we can conclude that these are mainly countries on the Eurasian continent.

In cases from the practice of our legal team, in particular, the Russian Federation, Republic of Panama, Republic of Cyprus, Republic of Latvia, USA, Republic of Belarus were involved in international cooperation with Ukraine.

UJBL.: Do you believe that mistakes have been made in Ukraines activity regarding cooperation for the investigation of cases containing an international element?

O.P.: The procedure of international cooperation consists of many components, formalities and several levels of verification.

But in a situation when our law-enforcement agencies are chasing specific reports, indicators or a specific task to complete something as fast as possible, it does have an impact on the quality of work.

Also, it seems that Ukrainian law-enforcement agencies do not have a worked-out consistency of work within the framework of international cooperation. In particular, this is related to coming to agreement with another party on the terms of this work.

For example, regarding extradition, there have been cases when requests by Ukraine have been rejected due to the absence of the body of evidence, which also points to the level of quality of work.

The most frequent are rejections of extradition requests related to a person whose extradition is requested by Ukrainian agencies, being granted citizenship of the country, where such person was detained. Many such rejections are related to the discovery of elements of political persecution.

All of the above points to either a lack of substantiation of the position of Ukrainian law-enforcement agencies (Ministry of Justice), insufficient body of evidence, poor communication and the failure to monitor data on an ongoing situation.

UJBL.: How successful is the involvement of Interpol and issue of Red Notices, both in the context of Ukraine and the world? What does this success depend on? How substantial could the political factor be in this?

V.S.: First and foremost, Interpol deals with several categories of cases, such as search of a person with the objective of extradition, providing information about potential offenders, search for missing persons, etc. There are a total of eight types of notifications (enquiries) that Interpol deals with.

The search for a person with the objective of extradition is the most popular and most discussed type of notification.

Speaking in the context of the fight against crime on a global level, the involvement of Interpol in the search for a person is an effective mechanism for finding and detaining the wanted person and application of the extradition procedure. This mechanism is also frequently used by Ukraine.

However, in cases when states abuse the possibilities of Interpol and use the agency to persecute people usually no results can be expected.

Specifically, the Constitution of Interpol prohibits the agency to interfere in cases of a political, military, religious or racial nature. Interpol observes this rule strictly.

The conclusion can be drawn that in recent years Ukraine has started to abuse the possibilities provided by Interpol and received many rejections due to the discovery of elements of political persecution. For example, in 2015, Interpol removed the fourth President of Ukraine, Viktor Yanukovych, from its wanted list.

This work, however, is carried out way overly publicly, accompanied by PR stunts by the leaders of law-enforcement agencies, dismissals and sweeps of entire teams of government agencies. If the legal defense is effective, it is possible to discover mistakes and political motivation in the prosecution of specific officials in the work of law-enforcement agencies.

As a result, many rejections from Interpol were received in respect to requests for issuing Red Notices.

UJBL.: What are the opportunities available for using the in absentia procedure in a case in relation to the international wanted list, and how do Ukrainian law-enforcement bodies solve the situation when Interpol refuses to issue a Red Notice?

O.P.: For the in absentia procedure, it is once again mandatory for a person to be on the international wanted list. Previously, to simplify criminal prosecution of some former top government officials, a special temporary procedure was adopted in Ukrainian legislation for the in absentia pre-trial investigation and trial. This was, so to say, a simplified procedure in which the international search was not mandatory.

However, since the National Bureau of Investigations began its operation on 27 November 2018, the specified procedure was abolished that now placing a person on an international wanted list is a mandatory condition for a court to grant permission for the in absentia pre-trial investigation.

At the same time, Interpol is issuing more and more rejections to requests for issuing Red Notices (as it is prohibited for Interpol to interfere in cases of a political, military, religious or racial nature).

Although the Criminal Procedure Code of Ukraine does not provide a direct definition of the term international search (international wanted list), the Instruction on the Procedure of the Use of the Possibilities of the National Central Bureau of Interpol by law-enforcement agencies in the prevention, solving and investigation of crimes envisages that an international search is carried out with the use of the channels and means that Interpol has.

At the same time, Ukrainian law-enforcement agencies come up with ways of getting around international searches. Specifically, there is a new trend among law-enforcement agencies of issuing internationally wanted notices on the basis of a resolution issued by an investigator or public prosecutor.

We believe this position of law-enforcement agencies is very wrong and violates the rights of citizens. We would like to stress that a resolution issued by an investigator or public prosecutor alone does not constitute fact that a person has been placed on an international wanted list. Only Interpol has the right to issue a wanted notice and this position should be defended in court.

UJBL.: What are the key nuances in client representation in cases with an international element? What is important for the defense in such cases?

O.P.: International legal assistance involves time, numerous formalities and extremely high requirements for the confirmation of arguments with evidence. Also, political relations between countries impact international legal assistance. So, there are many nuances in total.

When there is an international element in a case, the defense must be ready for the pre-trial investigation to be suspended for observance of the terms of the investigation by investigation agencies.

V.S.: Sometimes execution of a request of law-enforcement agencies on international legal assistance takes a year or more. In such case, an attorney can remind the law-enforcement agencies to address the state that is considering the request by asking them to ensure a quicker response.

If a client resides in another country and procedural actions in his regard are carried out with the use of international legal assistance, the defense counsel must, naturally, control this process. The easiest way to do this is through letters of enquiry from the attorney on provision of information. Also, in case law-enforcement agencies refuse to ensure the clients rights within the procedure of international legal assistance, the defense can oblige the law-enforcement agency to do so by challenging the corresponding inaction or refusal with the investigating judge.

In international cooperation the states that place the request and provide legal assistance play the key role. However, the defense must take steps to monitor the procedure.

UJBL.: How effective is cooperation in the part on the delivery of documents and questioning of people who are currently abroad? Please provide some examples if possible.

O.P.: The Criminal Procedure Code of Ukraine and international laws envisage the possibility of delivering documents and carrying out questioning through the use of international legal assistance. This takes place by sending the corresponding request with substantiation of the manner of legal assistance together with confirming documents.

Questioning within the framework of international legal assistance can be used where there is an important witness in the case who resides in a different state and who, for reasons beyond his/her control, cannot come to give testimony. This often happens in cases where foreign companies, banks, state officials are involved. There is also one more thing about state officials. If they have diplomatic status, it is necessary to first prove that they give their agreement to be questioned.

We also had a case when there was a murder attempt against a person in Ukraine and this person had real fear for his life. The questioning was carried out in court via a video conference with the use of international legal assistance of the Russian Federation.

Furthermore, in circumstances when a person is subject to political persecution in Ukraine, has already been granted citizenship or temporary asylum in another state, but wants to prove that they are not absconding and that they are innocent, the mechanism of questioning within the procedure of international legal assistance should be used for implementing the goal in question.

V.S.: There may be the question that since international legal assistance requires some time, why not use ordinary video conference by, for example, using Skype? The law, however, established a procedure for procedural actions involving persons, residing on the territory of another state and that procedure is international legal assistance.

The Convention for the Protection of Human Rights and Fundamental Freedoms enshrines the right to be immediately informed and in detail about the nature and reasons of an accusation made against a person. The only legal way for ensuring this right via law-enforcement agencies with regard to a person who is not in Ukraine is by sending procedural documents within the international legal assistance procedure.

UJBL.: What has been the level of international cooperation with Russia since 2014, and where is it at today?

V.S.: Political relations between Ukraine and Russia do not impact international cooperation in the area of criminal justice. Back in 2016, our law firm represented the interests of the 4th President of Ukraine as a witness in criminal proceedings in the course of the questioning via a video conference with the use of international legal assistance of the Russian Federation.

O.P.: In accordance with the official statements of then top officials of the Prosecutor-Generals Office the extradition procedure with Russia is used. In particular, according to data published in September 2018, Ukraine and Russia are extraditing persons not at the level prior to 2014, but around 100 persons are extradited from country to country every year. At the same time, there is information in open sources, that in 2018-2019, the Prosecutor Generals Office of Ukraine extradited 13 persons (6 in 2018, 7 in 2019) to Russia based on approved requests on extradition.


KEY FACTS
AVER LEX

Year of establishment: 2012

Location: Kyiv, Ukraine

Number of partners/lawyers: 5/35

Core practice areas:

  • Criminal Law/White-Collar Crime
  • Litigation
  • Tax

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