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Plakhotnik Oleg V., Ph. D. (Legal Sciences), Associate Professor of the Department of Justice, Faculty of Law of Kyiv National University named after Taras Shevchenko E-mail: eintercom@hotmail.com
Criminal proceedings on the territory of diplomatic missions and consular institutions of Ukraine
Abstract: The suggested article deals with the questions of criminal proceedings, covering the proceedings outside the state border of Ukraine: on the territory of the diplomatic missions, consular offices of Ukraine, as well as the order of the proceedings by authorized officials in certain areas in the case of a criminal offense under the Criminal Procedure Code of Ukraine, and existing international instruments defining the legal status and jurisdiction of Ukraine in external international relations.
Keywords: human and civil rights, diplomatic missions, consular offices of Ukraine, a procedural order, international agreements, legal status, criminal proceedings.
Investigation of crimes committed on the territory of the diplomatic missions and consular offices of Ukraine has its own procedural order defined by the Code of Criminal Procedure. Problematic issues related to ensuring the human and civil rights are the most pressing issues during the execution of procedural rules in compliance with the basis of the law and implementation of the principle of law supremacy during the investigation on the territory of the diplomatic or consular mission of Ukraine abroad. Criminal proceedings, providing for procedural actions may be carried out outside the state border of Ukraine: on the territory of the diplomatic missions and consular institutions of Ukraine. The order of proceedings by authorized officials in certain areas in the case of a criminal offense is conducted in accordance with the Code of Criminal Procedure [1], as well as existing international instruments defining the legal status and jurisdiction of Ukraine in external international relations. These international instruments include the Vienna Convention on Diplomatic Relations of04.18.1961 [2], the Vienna Convention on Consular Relations of24.04.1963, etc. [3].
The peculiarities of the proceedings outside the state border of Ukraine are the following:
a) a special procedure for the start of pre-trial investigation;
b) a separate category of officials authorized to carry out proceedings outside the state border of Ukraine;
c) a list of the proceedings, which may be held by the relevant officials.
1. The start of the pre-trial investigation has a special procedure. On receipt of the application, the message, the self-revealing signs of a criminal offense or from other sources, if it became aware of a criminal offense in the territory of the diplomatic or consular mission of Ukraine abroad, officials defined by p. 1, Art. 519 of the Criminal Procedure Code must immediately carry out the necessary procedural steps and begin pre-trial investigation. According to p. 3 art. 214 of the CPC information about a criminal offense should be entered in the Unified Register of pre-trial investigations at the earliest opportunity.
CCP provides that information in the Unified Register of pre-trial investigations may be entered after the establishment of
connection with the authorized persons in Ukraine competent to entering information in Unified Register of pre-trial investigations, in accordance with p. p. 1, 2 art. 210 of the Code of Criminal Procedure. These authorized persons are the investigator, the prosecutor, or another official person authorized to accept applications and register the criminal offenses and report according to part 4 of Art. 214 of the Code of Criminal Procedure.
2. Proceedings outside the state border of Ukraine can only be carried out by a separate category of authorized officials. According to Part 1 of the Criminal Procedure Code of Ukraine st. 519 those officials authorized to perform procedural actions are the following: the head of a diplomatic mission or the consular post of Ukraine — in the case of a criminal offense in the territory of the diplomatic or a consular mission of Ukraine abroad.
According to Sect. 2.4 of «Regulations on the diplomatic mission of Ukraine abroad» from 22.10.1992 [4], the diplomatic mission of Ukraine is a permanent institution of Ukraine abroad, which is designed to maintain official interstate relations, as well as to carry out the mission of Ukraine to protect the interests of Ukraine, the rights and the interests of its citizens and legal entities. The head of the diplomatic mission of Ukraine is an ambassador, an envoy, or a charge d'affaires. In accordance with Articles 1, 2 of «The Consular Statute of Ukraine» dated April 2, 1994 [5], the consular offices of Ukraine abroad protect the rights and interests of Ukrainian legal entities and Ukrainian citizens. Consular offices contribute to the development of friendly relations between Ukraine and other countries, to the expansion of economic, trade, scientific-technical, humanitarian, cultural, sports ties and tourism. Consular offices assist people from Ukraine and their descendants to keep in contact with Ukraine. The consular offices of Ukraine abroad are — the general consulates, consulates, vice-consulates and consular agencies. The head of a consular post is a general consul, consul, vice-consul or consular agent.
According to a general rule, the head of the diplomatic mission or a consular post of Ukraine abroad, has to designate another official, authorized to commit the proceedings if he is injured as a result of a corresponding criminal offense in accordance with
Criminal proceedings on the territory of diplomatic missions and consular institutions of Ukraine
Part 2 of Art. 519 of the Code of Criminal Procedure of Ukraine. It may be substitutes, assistants or other officials. Such a decision should be issued with a decree on the appointment of persons to carry out procedures in accordance with the requirements of Art. 110 of the Code of Criminal Procedure. An important element in this process is the clarification of the circumstances of a criminal offense. Those authorized officials who were conducting the proceedings outside the state border of Ukraine, in accordance with Part 3 of Art. 519 of the Code of Criminal Procedure, are involved as witnesses in criminal proceedings after its extension to the territory of Ukraine. They agree to provide explanations to the investigator, the prosecutor about the conducted proceedings immediately after the transfer of the materials of criminal proceedings to the relevant body of pre-trial investigation on the territory of Ukraine. The need for their interrogation is caused by the need to clarify the questions of the circumstances of the proceedings outside Ukraine, as well as obtained results, to check the admissibility of evidence obtained by such persons in the commission proceedings outside the territory of Ukraine in accordance with the requirements of Art.86-88 of the Code of Criminal Procedure and other circumstances, which are to be proved.
3. Code of Civil Procedure defines an exhaustive list of legal proceedings that can be conducted by authorized officials, in the case of a criminal offense on the territory of the diplomatic or consular mission of Ukraine abroad. Officials referred to Part 1 of Art. 519 Code of Criminal Procedure, are authorized to:
1) ensure the application of measures of criminal proceedings in the form of a temporary seizure of the property, effect a lawful detention of a person in the manner prescribed by the Criminal Procedure Code;
2) conduct investigation (search) actions in the form of a search of the home or other possessions of the face and body searches without a court order, inspect the criminal offense in the manner prescribed by the Criminal Procedure Code.
Thus, the examination of the scene in urgent cases can be carried out by authorized officials before putting the information into the Unified Register of pre-trial investigations in compliance with the requirements ofArt. 237 of the Code of Criminal Procedure. The officials listed in para. 1, Art. 519 of Criminal Procedure Code, are entitled to the right of temporary seizure of the property in accordance with Articles 167 and 168 of the CPC, as well as the right to effect a lawful detention of a person in compliance with the requirements of Articles 207 and 208 of the CPC, and to conduct investigative actions — the search of homes or another person's property,
personal search without a court order in the manner specified in articles 223, 234 and 236 of the Criminal procedure Code.
Carrying out other procedural and investigative actions on the territory of the diplomatic or consular mission of Ukraine abroad is not provided. Accordingly, other proceedings, except those listed in Part. 2 art. 520 of the Code of Criminal Procedure will be illegal and the evidence gathered in the course of such actions will not be tolerated. Procedural actions are carried out in accordance with the requirements of Art. 520 of Code of Criminal Procedure and are described in details in the relevant procedural documents, as well as recorded by technical means of fixing criminal proceedings, except the cases when such a fixation is not possible for technical reasons, in accordance with Part. 2 art. 520 of the Code of Criminal Procedure. The reasons, because of which the fixing by technical means cannot be carried out, are the lack of funds available or a fault. Fixing of the conducted proceedings, including the usage of technical means, is carried by making the protocol and its annexes, in compliance with the requirements of Articles 103, 104, 105, 106, 107 of the Code of Criminal Procedure, in accordance with Articles 167, 168, 207, 208, 223, 234, 236, 237 Criminal procedure Code regulating the procedure for proceedings under Part. 2 art. 520 of the Code of Criminal Procedure.
The place of pretrial investigation depends on the location of the criminal offense. In fact, the pre-trial investigation is carried out by the investigator of the pre-trial investigation institution under whose jurisdiction is the place of a criminal offense, in accordance with the rules of jurisdiction, in accordance with Art. 216 of the Code of Criminal Procedure. If a criminal offense is committed on the territory of the diplomatic mission or the consular office of Ukraine abroad, the pre-trial investigation is carried out by the investigator of the pretrial investigation institution, the jurisdiction of which applies to the territory of the location of the central executive authority in the field of foreign affairs of Ukraine. For the present moment it is the Ministry of Foreign Affairs of Ukraine.
Considering the peculiarities of the criminal proceedings on the territory of the diplomatic or consular office of Ukraine abroad, it should be noted that the questions of the competence of carrying out certain procedural actions by heads of diplomatic missions and consular offices of Ukraine abroad still remain quite problematic. On their decisions will depend the property and the admissibility of recorded facts of a criminal offense and the legality of the conducted proceedings. Therefore, awareness of the procedural subtleties and procedures of their conducting are the necessary conditions for the fulfilling of criminal justice tasks.
References:
1. The Criminal Procedure Code of Ukraine//The Verkhovna Rada of Ukraine; Code of Ukraine, the Law, the Code of 13.04.2012 number 4651-VI (Revision dated by 01.13.2016).
2. Venice Convention on Diplomatic Relations/Adopted April 18, 1961.//[Electronic resource]. - UN Web site.
3. Venice Convention on Consular Relations of 24.04.1963.//[Electronic resource]. - Available from: http://wwwg.zakon.rada.gov. ua/go/995_047.
4. The Principle of the diplomatic mission of Ukraine abroad search.ligazakon.ua//[Electronic resource]. - Available from: l_doc2. nsf/.../R166_92.htm.
5. Consular Statute (Regulations) ofUkraine//[Electronic resource]. - Available from: http://www. zakon.rada.gov.ua/laws/show/127/94.
