An international search for a person: law enforcement issues
In 2014, the Criminal Procedure Code of Ukraine was supplemented with Chapter 24-1, which regulates the procedure for special pre-trial investigation (in absentia). A special pre-trial investigation is carried out based on a decision of the investigating judge in respect of a suspect, other than a minor, who is hiding from the investigative authorities and the court to evade criminal responsibility and is put on an interstate and/or international wanted list. Moreover, the CPC sets out procedures for the application of preventive measures (detention) under criminal proceedings in absentia (Article 193 § 6 of the CPC). These procedures require confirmation of a suspect being put on an international wanted list. However, the current procedural law neither clarifies the very concept of “international criminal investigation” nor does it lay out the grounds for recognizing the fact that a person is on the international wanted list, this causes several problems for law enforcement and creates ambiguous judicial practice.
Status of a suspect and the wanted list procedure
A person is recognized as a suspect by way of notification of suspicion. The concept and procedure for notification of suspicion are regulated by Articles 276-279 of the CPC and includes two components: (1) preparation of a procedural document – written information of suspicion and (2) a separate procedural action – the procedure for serving a written notification of suspicion. Written notification of suspicion is served on the day it is drawn up by the investigator or prosecutor. If it is impossible to do so, it is served in the manner prescribed by the Criminal Procedure Code regarding the delivery of the notification. The reasons for the impossibility of serving the notification include the failure to establish the whereabouts of the person. In this case, the suspicion is handed over to an adult family member of the person or another person who lives with the suspect, the housing and maintenance organization at the place of residence of the person or the administration at the site of work. In these circumstances, the person is considered a suspect and can be put on the wanted list.
Thus, a person is recognized as a suspect and can be put on the wanted list only after completion of all measures provided for by the CPC regarding the delivery of a notification of suspicion. The recognition of such “measures” is quite broad: some courts consider even sending photos of a notification via mobile messengers as means of serving a notification of suspicion. It should be noted that such methods contradict the requirements of the CPC on the delivery of a notification of suspicion.
“Taking all the measures provided for in the CPC” should be understood as actions aimed at establishing the location of a person, and not sending a notification of suspicion in violation of a precise procedure.
There are three types of search: state, interstate, and international. There is no definition of any of them in the legislation of Ukraine. At the same time, there is a requirement that the investigator or prosecutor issues a decision on putting a person on the wanted list (Article 281 of the CPC). To declare a person wanted following Article 281 of the CPC, such person must acquire the status of a suspect.
If law enforcement authorities have information that the suspect is located outside of Ukraine, they have grounds for declaring an international search. Further actions of law enforcement officers are (at least they should be) as follows:
- Deciding to put a person on the international wanted list;
- Applying to the National Central Bureau of Interpol with a request to establish the location of a person (the so-called “blue card”);
- In case of compliance with the requirements, the NCB of Interpol redirects the request to the General Secretariat of Interpol (Lyon, France), where the demand is considered;
- If the request is granted, the Secretariat sends it for execution;
- If the location of the person behind the “blue card” has been established, the Secretariat sends information about the site of the person to the relevant investigative body in Ukraine;
- The investigating authority applies to the office of the Prosecutor General to apply to the competent law enforcement authority of the relevant country regarding the delivery of a notification of suspicion to the person.
But this is where legal conflicts begin.
The first problem is the uncertainty of the moment when a person acquires the status of a suspect since, in practice, the prosecution serves a notification of suspicion to the person twice. For the first time on the territory of Ukraine, a notification of suspicion is sent to relatives/family members, housing and maintenance organizations at the place of residence or the administration at the site of work to comply with the requirements for declaring a person on the international wanted list. If the location of a person outside of Ukraine is established, law enforcement agencies need to hand over notification of suspicion to the person through the request of the office of the Prosecutor General. If the request of the office of the Prosecutor General is granted, the person de jure will be served with suspicion for a second time. Since it is necessary to acquire the status of a suspect to put a person on the wanted list (including international ones), the moment when a person receives the status of a suspect is critical.
To solve this problem, it is appropriate to refer to the practice of the European Court of Human Rights regarding the right to a fair trial.
The European Court of Human Rights defines a “criminal charge” as the official communication to a person by the competent authority of an allegation that the person has committed a criminal act. In some cases this may take the form of other measures, the implementation of which carries such a claim and, in fact, also affects the position of the suspect (decision in the case “Eckle v. Germany” of July 15, 1982, p. 73).
Also, the European Court of Human Rights recognizes the following circumstances as an indictment, in particular: the arrest of a person (decision in the case “Wemhoff v. Germany” of June 27, 1968), official notification of the intention to pursue criminal prosecution against a person (decision in the case “Neumeister v. Austria” of June 27, 1968), the beginning of pre-trial investigation against a particular person or the seizure of bank accounts of a specific person (decision in the case “Rinheisen v. Austria” of July 16, 1971).
Moreover, the obligation to inform the accused of the nature and cause of the charge lies solely with the prosecution. It cannot be fulfilled by passively providing information without the attention of the defence (decisions in the cases “Mattoccia v. Italy”, p. 65, “Chichlian and Ekindjian v. France”, p. 71). The accused must get the information. The legal presumption of receipt is not sufficient (decision in the case “C. v. Italy (dec.)”). Unclear and unofficial information is not enough (decisions in cases “T. v. Italy”, p. 28, and “Shomodi v. Italy”, p. 75).
Thus, a person can be considered to have acquired the status of a suspect only after receiving a notification of suspicion through international cooperation.
The second problem – international search and absentee election of a measure of restraint in the form of detention are necessary conditions for each other.
Now in Ukraine, there is only one way to declare a person on the international wanted list – an appeal to Interpol. This is stated in the Instruction on the procedure for law enforcement agencies to use the capabilities of the NCB Interpol in Ukraine in the prevention, detection and investigation of crimes, approved by Order no. 3/1/2/5/2/2 of 09.01.97. Ministry of Internal Affairs, Prosecutor General’s Office of Ukraine, Security Service of Ukraine, State Committee for state border protection, State Migration Service of Ukraine, State Tax Service of Ukraine (Hereinafter-Instructions).
After establishing the location of a person by a law enforcement agency of another country, the body initiating the search prepares and no later than ten days from the date of receipt of such information sends to the relevant prosecutor’s office a reasoned request for its extradition, which is accompanied by:
- A copy of the decision to remand in custody or a copy of the judgment with proof that the sentence came into legal force, certified by the stamp of the authority which had issued the order (verdict);
- Certificate of evidence that confirms the guilt of the wanted person in the commission of a crime, or a copy of the decision on the involvement of this person as an accused;
- Certified text of the law (articles of the Criminal Code of Ukraine) that qualify the crime;
- Full details of the wanted person for whom an extradition request is being made following the requirements of the instructions;
- Certificate of previous convictions;
- Certificate of the amount of the unserved sentence (in cases when the request for extradition is made in respect of a person who has already served part of the sentence imposed by the court);
- Resolution of the investigator on the search for a person;
- Information about material losses caused as a result of the crime;
Similar requirements are contained in “INTERPOL’s Rules on the processing data” in Article 82 regarding the requirements for publishing a “red card” concerning a person.
After studying these materials, possible refinement, and determining their compliance with the requirements, the prosecutor sends them to the Prosecutor General’s Office, which forwards them to the appropriate law enforcement authorities of foreign countries and intending to inform, sends a copy of Interpol.
The problem is the requirement to have a resolution on the election of a preventive measure in the form of detention.
As already mentioned, the grounds for recognizing the fact that a person is on the international wanted list are not regulated in the CPC. However, there is a requirement that the prosecution must prove that a person has been put on a global wanted list. Regarding this, on 04.04.2013, a letter was issued by the Higher Specialized Court for Civil and Criminal Cases “On certain issues of the procedure for applying measures during pre-trial investigation and judicial proceedings following the Criminal Procedure Code of Ukraine”. In particular, it notes the following:
The obligation to prove that a suspect or accused person is on the international wanted list is assigned to the investigator or prosecutor who filed a request for the application of a preventive measure and is confirmed by relevant information (certificate, extract from the Interpol database, etc.).
There are no questions about the prosecution’s obligation to prove that a suspect is on the wanted list, but there are several points of view as to what confirms the fact that a person is on the international wanted list.
The first position is that only an extract from the Interpol database confirms the fact that a person has been put on the international wanted list. In this case, the statement must contain information only concerning the person with the “red card”. Other cards (including the “blue one”) may also refer to persons who do not have the status of a suspect and therefore cannot confirm the fact that a suspect has been declared on the international wanted list.
However, the problem is that to issue a “red card” against a person, it is necessary to select a preventive measure against the person. According to the CPC of Ukraine, to select a measure of restraint against a person in absentia, a person must be put on the international wanted list. Accordingly, there is an “endless circle” in which the global search and the selection of a preventive measure in absentia are necessary conditions for each other.
The second position is that the declaration of a person on the international wanted list comes from the moment the investigator makes the relevant decision, without requiring Interpol to accept the investigator’s application.
Law enforcement practice on this issue is ambiguous. The defence has always maintained that a person is not put on the international wanted list until a “red card” is published about him. Law enforcement officers disagree with them, providing only a resolution on declaring a person on the international wanted list as confirmation.
The courts in individual cases agreed with both the first and the second positions. However, until now, different judges are satisfied only with the investigator’s decision. Almost always this position of the court of the first instance is appealed in the appeal. This position of the court, set out in the rulings, seems to be the most justified:
… a suspect who is put on the international wanted list (in the sense of Article 193 p.6 of the CPC) should be considered only a person who is on the international wanted list, and this is confirmed by the relevant certificates and extracts from the Interpol database.
However, there is a slightly different position of appeal court judges. They link the announcement of the person with the issuance of a decision by the investigator on an international search. However, They note that it is mandatory to send a request to the national security service of Interpol.
... there is no data on the direction by law enforcement agencies of any PERSON_1 materials to the national security service of Interpol in Ukraine, after the latter was declared an international wanted list by the prosecutor. Based on the above, the chamber considers the decision of the Prosecutor of Department of the Main military Prosecutor of Prosecutor General of Ukraine S. S. Zvarych of February 11, 2019, declaring PERSON_1 in the international search, formal.
As you can see, a mandatory condition for declaring a person on the international wanted list is to apply to Interpol. It is worth noting that not all judges agree with the above position. So, in case No. 991/3010/19 Higher Anti-Corruption Court (hereinafter – HACC) acknowledged the decision of the investigator declaring a person on the international wanted list sufficient proof that a person is wanted internationally. The court noted that “the provisions of Article 193 p. 6 of the CPC of Ukraine do not oblige when deciding on the election of a preventive measure to prove the fact that a person is wanted, it is only a matter of declaring an international wanted list.”
The practice is still heterogeneous. According to media reports, to overcome this problem, HACC even turned to the legislator to get an answer to the question: “what is an international wanted list for a person who, according to the pre-trial investigation, is hiding from the investigation and the court?”. However, an unambiguous answer has not yet been received.
Violation of a person’s rights when serving a notification of suspicion
There is still a possibility for abuse and procedural violations on the part of the prosecution, which is the third problem. The most typical is the recognition of a person as a suspect without following the formal procedures for serving a notification of suspicion or violating such a process.
The European Court of Human Rights in Sejdovic v. Italy of March 1, 2006, formulated a question that should be the subject of study for national courts in such cases: whether, in the absence of official communication, the person was sufficiently aware of the criminal prosecution to be able to decide whether to waive his right to stand trial or to evade justice.
The trend shows that the courts quite often establish that a person does not have the status of a suspect. The problem remains that there is no mechanism for the defence to appeal and / or for the investigating judge to cancel the decision to put a person on the wanted list. An appropriate way to solve this problem would be to rule that the investigator’s orders to put on the wanted list would lose their force if the person were recognized as not having the status of a suspect, or that the investigators were obliged to cancel the relevant orders if suspicion was lifted.
Another problem is that investigators often argue that a person on the international wanted list has a “blue card” for him. As mentioned above, blue cards are used to determine the location of any person, not just the one that is wanted. These cards do not require valid arrest warrants (detention orders). Therefore, this position of investigators is wrong. Unfortunately, sometimes the courts agree with such arguments of the prosecution. The Chairman of the Commission for the Control of INTERPOL’s files even spoke about the inadmissibility of such an approach. He noted the inadmissibility of inappropriate use of the information system of an international organization as a method and prerequisites for proving the fact that a person (applicant) is on the global wanted list. In case of violation of the Interpol internal rules, applications will be rejected, and the cards published in violation will be removed from the Interpol database.
Also, investigators often forget that Article 3 of the Interpol Statute prohibits interference in cases involving acts of a political, military, religious or racial nature.
Thus, in criminal procedural legislation, there are several legal conflicts in the procedure of special (absentia) criminal proceedings (in absentia), which come down to three problems:
- uncertainty of the moment when a person acquires the procedural status of a suspect;
- international search and the absentee selection of a measure of restraint in the form of detention are necessary conditions for each other;
- there is no mechanism for the defence to appeal and / or for the investigating judge to cancel the decision to put a person on the wanted list.
The existence of these legal conflicts leads to different interpretations of the Criminal Procedure Code by the prosecution and the defence, as well as ambiguous judicial practice. And this, accordingly, leads to a violation of the rights of participants in criminal proceedings.
Ways to overcome the problems mentioned above are to introduce legislative changes to the criminal procedure legislation and to form a unified judicial practice of applying the relevant norms of the Criminal Procedure Code.