Vyacheslav Zoma
Head of Practice of Criminal Procedure and Business Protection of NOBILI Law Firm
Extradition in Ukraine, or who is not extradited!
Extradition is the extradition of a person to the State whose competent authorities are wanted to prosecute or enforce the sentence. Chapter 44 of the Criminal Procedure Code of Ukraine is devoted to this.
Extradition includes the following steps:
– an official request to establish the whereabouts of the person to be extradited in the territory of the requested State and the extradition of such person;
– verification of circumstances that may prevent extradition;
– decision making on request;
– the actual transfer of such a person under the jurisdiction of the requesting State.
In this article we will consider only the issue of cases when a person refuses to extradite a person to a foreign state.
These restrictions are set out in parts 1 and 2 of Article 589 of the CPC of Ukraine, which provides that the extradition of a person to a foreign state is refused if:
1) a person in respect of whom a request for extradition has been received, in accordance with 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 does not provide for imprisonment under the law of Ukraine;
3) the statute of limitations provided by the law of Ukraine for bringing a person to criminal responsibility or execution of a sentence for a crime for which extradition is requested has expired;
4) the competent authority of a foreign state has not provided, at the request of the central authority of Ukraine, additional materials or data, without which it is impossible to make a decision on the request for extradition (extradition);
5) extradition of a person (extradition) contradicts the obligations of Ukraine under international agreements of Ukraine;
) there are reasonable grounds to believe that the extradition of a person (extradition) is contrary to the interests of national security of Ukraine;
6) there are other grounds provided by the international agreement of Ukraine.
As for the citizens of Ukraine, this is an understandable position, because we do not betray our citizens. These 2-3 paragraphs exclude extradition due to the absence of a relevant crime in national law, or the expiration of its statute of limitations. Paragraph 4 is in fact about possible misunderstandings with the state that requested the extradition. And in most cases, they do not depend on the actions of the person himself, or the actions of protecting such a person.
And part 2 of Article 589 of the CPC of Ukraine deserves our attention, because it establishes that a person who has been granted refugee status, the status of a person in need of additional protection, or has been granted temporary protection in Ukraine, cannot be extradited to a refugee state. it is recognized, as well as to a foreign state where its health, life or liberty is in danger on the grounds of race, religion (religion), nationality, citizenship (citizenship), belonging to a certain social group or political beliefs, except as provided by international treaty Of Ukraine.
The same norm is supplemented by the provisions of Part 4 of Article 590 of the CPC of Ukraine – a decision on extradition cannot be made if such a person has applied for recognition as a refugee or a person in need of additional protection, or has exercised the right to appeal in accordance with law decision on these statuses, until the final consideration of the application, in the manner prescribed by the legislation of Ukraine. Information on a person’s submission of these applications or appeals against relevant decisions shall not be provided to the requesting foreign state.
That is, from the time of applying for refugee status, or recognition as a person in need of additional protection, or recognition as a person in need of temporary protection – the person is already under the protection of our state. And even during the consideration of this application and even during the appeal against the refusal to grant such status.
This was preceded by Ukraine’s accession to the 1951 UN Convention and the 1967 Protocol in 2002.
According to the Law of Ukraine “On Refugees and Persons in Need of Additional or Temporary Protection” of 08.07.2011 № 3671-VI (hereinafter – the Law) Ukraine provides protection to foreign citizens and stateless persons seeking it on its territory by:
- recognition as a refugee;
- recognition as a person in need of additional protection;
- recognition as persons in need of temporary protection.
According to the provisions of the Law, a refugee may be a person who is not a citizen of Ukraine and who, due to reasonable fears of persecution on the grounds of race, religion, nationality, citizenship, nationality, political affiliation or political beliefs, is outside the country of his civil belonging and cannot enjoy the protection of that country or does not wish to enjoy this protection due to such fears, or, not having citizenship (citizenship) and being outside the country of his previous permanent residence, cannot or does not wish to return to it due to these fears.
A person in need of subsidiary protection is a person who is not a refugee under the 1951 Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees of 1967 and the above-mentioned Act, but needs protection because such a person was forced to her life, security or liberty in the country of origin for fear of the death penalty or the execution of the death penalty or torture, inhuman or degrading treatment or punishment, or widespread violence in situations of international or internal armed conflict or systematic violations of human rights. person and cannot or does not want to return to such a country due to these fears.
Persons in need of temporary protection – foreigners and stateless persons who are forced to seek protection in Ukraine as a result of external aggression, foreign occupation, civil war, ethnic clashes, natural or man-made disasters or other events that disrupt public order in some part or throughout the country of origin.
In accordance with the provisions of the Law, a foreign citizen may apply for recognition as a refugee to the relevant body of the migration service.
In fact, the above norms of the legislation of Ukraine are the implementation of international norms:
According to the European Convention on the Extradition of Offenders (1957), extradition may be refused: 1) if the offense under the law of the requested State is considered to have been committed in whole or in part in its territory or in a place treated as its territory (Article 7); 2) if the competent authorities of the requested State prosecute the person in connection with the offense (s) for which extradition is sought (Article 8); 3) due to compliance with the rule non bis in idem (not twice for the same) – extradition is not carried out if the competent authorities of the requested party have pronounced a final decision on the person concerned in connection with the offense for which extradition is required. Extradition may be refused if the competent authorities of the requested Party have decided either not to infringe or to terminate the prosecution in connection with the same offense (Article 9); 4) due to the obligation not to extradite if the person whose extradition is requested cannot be extradited without harm to his health (Law of Ukraine “On Ratification of the European Convention on the Extradition of Offenders, 1957, Additional Protocol 1975 and the Second Additional Protocol of 1978 to the Convention “of 16 January 1998). Extradition may also be refused if there is a threat of the death penalty; there is a threat of torture and other cruel, inhuman or degrading treatment or punishment.
It is clear that this does not guarantee that the extradition procedure will not be applied to the perpetrator. Because every case and every application for refugee status is carefully studied and checked by the staff of the LCA of Ukraine and has significant features and legal details. But if the citizens of another country are really persecuted, for example through political or social activities – then this rule and the above algorithms of action can help them avoid such persecution.