Date of publication: 13 June 2024
Denys Shevchenko, Attorney at Law
Source: ZN.ua
The Ukrainian government recently introduced to the Verkhovna Rada draft law No. 11223, which aims to improve procedures for declaring persons as internationally wanted and bring Ukrainian legislation closer to FATF standards (The Financial Action Task Force). Several experts have called the document the one that simplifies the procedure for declaring a person internationally wanted. What amendments are provided?
The current mechanism for declaring persons internationally wanted
International searches aim to pursue and detain fugitives. After detention, they are transferred to the state (extradition process), which investigates or has already investigated the crime they committed. However, in addition to this task, in Ukraine, declaring a person internationally wanted is also necessary for the following:
- involving the International Criminal Police Organization (Interpol) in the search for fugitives;
- initiation of special (absentee) criminal proceedings against fugitives.
The last two tasks led to the fact that now the draft law No. 11223 contains international search provisions. It is proposed to amend Article 281 of the Criminal Procedure Code of Ukraine “Search for a suspect”, as for now this article does not reference such a search.
It is proposed to establish the following in the specified draft law:
- persons may be declared as internationally wanted whose whereabouts (1) are unknown; (2) in respect of which there are sufficient grounds to believe that they have left and/or are outside Ukraine; (3) they do not appear when summoned by an investigator, prosecutor or court without a valid excuse;
- a person is declared internationally wanted by the investigator or prosecutor’s relevant resolution;
- a person is considered internationally wanted from the moment the investigator or prosecutor issues the relevant resolution.
It should be noted that only a person who has the status of suspect, accused or convicted in a certain criminal proceeding can be declared internationally wanted.
Why is the simplification of the procedure for declaring persons internationally wanted so expected in Ukraine?
The Criminal Procedure Code of Ukraine previously contained the term “international search”, but did not name specific grounds, nor specify the procedure for declaring a person wanted. Judges had to resolve these issues based on their own understanding and interpretation of legal provisions.
The first problem is related to Interpol’s involvement in pursuing fugitives. Interpol, despite mass culture dissemination of contrary information, does not have investigators, detectives, operatives, or law enforcement officers on its staff. This organization exclusively collects and exchanges information about wanted persons between states.
And there is a paradox here that needs to be addressed. The problem was due to the fact that in order to enter information about an international search for a person into its database, Interpol requires an “arrest warrant” for the wanted person. According to Interpol, an arrest warrant is a court decision on detention or conviction as a measure of restraint against a wanted person. However, according to current Ukrainian legislation, to obtain an absentia judgement for applying a measure of restraint against a fugitive, the investigator or prosecutor must prove to the court that such a person has been declared internationally wanted.
The second problem is directly related to proving whether a person is really wanted. In this case, the investigator and the prosecutor must prove this fact to the court to obtain a decision on permission to initiate special (absentee) criminal proceedings against a fugitive. In such proceedings, the entire investigation and trial may take place without the accused.
How Ukrainians are declared internationally wanted without a court decision?
First, the court accepts that a person is internationally wanted only if he is served with documents confirming that information about the search has been sent to Interpol. However, to enter information about a complete search for a person into the Interpol database (red notice), this organization requires the already mentioned “arrest warrant”, and such a warrant can be obtained only after proving to the court that the person has been declared internationally wanted.
Law enforcement officers have developed a mechanism to avoid this vicious circle. They turned to Interpol to enter information about the need to establish the location of a wanted person into the database of this organization (blue notice). The blue notice was intended solely for the establishment of information about the location of the wanted person and did not require a “warrant for his arrest”, because the wanted person was not subject to detention, as with a red card. Thus, the investigator or prosecutor provided the court with documents confirming that the person was wanted by Interpol under a blue notice.
This mechanism worked, but not for a long time, because when proving to the court that a person was declared internationally wanted and received an “arrest warrant,” the investigator or prosecutor immediately contacted Interpol for a red notice, since it is nearly impossible for them to detain and extradite a person to Ukraine without it. Interpol itself considers such actions by law enforcement officers a violation of their own rules. A violation of the rules results in the removal from the organization’s database of all information about the search for a person under blue and red notices, thus nullifying all the work of the investigation and court.
The second approach is that the court accepts the fact that a person has been declared as internationally wanted if he is served with documents confirming the sending of an application to Interpol with a request to enter information about the search into the organization’s information base.
However, it also has disadvantages, because sending such a request does not ensure instant and guaranteed entry of information into the Interpol database. These applications are considered slowly, and they may be dismissed based on the results of their consideration. In addition, the legislation requires proving in court that a person has been declared internationally wanted (in fact, the placement of relevant information about the search in the Interpol database), and not the fact of initiating the declaration of a person as wanted.
The third approach, which is now used by most courts, is that the court accepts the fact of declaring a person internationally wanted as proven if the investigator or prosecutor issues a corresponding resolution to declare a person internationally wanted. This is a new approach that has not been used before, because the Criminal Procedure Code of Ukraine provides for the possibility of declaring a person wanted, but not internationally wanted.
A proposed draft law will therefore enshrine the third approach to determining if someone is internationally wanted in the legislation.
Will the amendments affect the procedure for declaring draft dodgers internationally wanted?
In fact, although theoretically, possibilities for a real, rather than formal, declaration of “draft dodgers” as internationally wanted exist even today. However, in practice, such possibilities are used only in very rare cases, and there is no chance at all that the practice will become widespread.
First of all, the process of declaring a person as internationally wanted is quite time-consuming, since it involves the collection of additional documents, their translation into foreign languages, and repeated approval by several officials.
In addition, all these procedures require enhanced monitoring in the future, because, during the search, international organizations and foreign states are involved, among which Ukraine should have a reputation as a reliable partner. Therefore, it is unlikely that it will declare thousands of “draft dodgers” as wanted. But it is also possible that such cases will happen. Especially if the procedure for declaring a person internationally wanted will be simplified.
