Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.39 N° 69
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Diciembre
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Recibido el 12/02/2021 Aceptado el 11/05/2021
ISSN 0798- 1406 ~ De si to le gal pp 198502ZU132
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Vol. 39, Nº 69 (Julio - Diciembre) 2021, 182-197
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Use of international legal assistance
during the pre-trial investigation of
corruption crimes in the sphere of ocial
and professional activities
DOI: https://doi.org/10.46398/cuestpol.3969.10
Shevchyshen Artem *
Myrovska Anna **
Antoshchuk Andrey ***
Sakovskyi Andrii ****
Piaskovskyi Vadym *****
Abstract
Based on the provisions of criminal procedure theory and
criminology, the problems of international legal assistance
are revealed during the pre-trial investigation for crimes of
corruption in the eld of ocial and professional activities.
Special attention is paid to identifying the details of evidential activities in
criminal proceedings for oences related to the provision of public services
during a special pre-trial investigation (in absentia). The methodological
basis of the article is a set of general and special scientic methods of
legal cognition. In particular, the concept of pre-trial special investigation
is formulated, its functional purpose is dened, characteristics of the
carrying out of separate investigative actions (search) during the special
pre-trial investigation for corruption oences. Attention is paid to issues of
international cooperation to identify and search for assets in these criminal
proceedings. Other problems are revealed in the use of international legal
assistance to obtain evidence during the investigation of these crimes. It
* Doctor of legal sciences, docent, Head of the Service Crimes Investigation Department of the Corruption
Crimes Investigation Department of the Main Investigation Department of the National Police of
Ukraine, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-1342-6639. Email: Shevchishen@
police.gov.ua
** Candidate of legal sciences, Associate Professor, Professor at the Department of Criminalistics and
forensic medicine, National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.
org/0000-0001-5714-1873. Email: a.mirovskaya@ukr.net
*** Candidate of legal sciences, Associate Professor at the Department of Criminalistics and forensic
medicine, National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-
0002-5088-4372. Email: antoshchuk2015@mail.com
**** Candidate of legal sciences, Associate Professor, Director of the educational and research institute No.
2, National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0003-
0762-859X. Email: svb_knuvs@ukr.net
***** Candidate of legal sciences, Associate Professor, Professor of Department of Criminalistics and
Forensic Medicine of National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.
org/0000-0001-7954-1018. Email: pwwadd@gmail.com
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is concluded that a problem that arises during international cooperation
during the preliminary investigation is the uncertainty in international
rules on the provision of mutual legal assistance.
Keywords: corruption crimes; ocial and professional activities;
pre-trial investigation; special pre-trial investigation;
international legal assistance.
Utilización de la asistencia jurídica internacional
durante la instrucción de los delitos de corrupción en el
ámbito de las actividades ociales y profesionales
Resumen
Con base en lo establecido en la teoría procesal penal y criminología
se revelan los problemas de la asistencia jurídica internacional durante
la investigación previa al juicio por delitos de corrupción en el ámbito
de las actividades ociales y profesionales. Se presta especial atención a
identicar los detalles de las actividades probatorias en los procesos penales
por delitos relacionados con la prestación de servicios públicos durante una
instrucción especial previa al juicio (in absentia). La base metodológica
del artículo es un conjunto de métodos cientícos generales y especiales
de cognición jurídica. En particular, se formula el concepto de instrucción
especial previa al juicio, se dene su propósito funcional, características
de la realización de acciones de investigación (allanamiento) separadas
durante la instrucción especial previa al juicio por delitos de corrupción.
Se presta atención a los temas de cooperación internacional con el n de
identicar y buscar activos en estos procesos penales. Se revelan otros
problemas de la utilización de la asistencia jurídica internacional para
obtener pruebas durante la investigación de estos delitos. Se concluye que
un problema que surge durante la cooperación internacional durante la
investigación preliminar es la incertidumbre en las normas internacionales
sobre la prestación de asistencia judicial recíproca.
Palabras clave: delitos de corrupción; actividades ociales y
profesionales; instrucción previa al juicio; instrucción
especial previa al juicio; asistencia legal internacional.
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Vadym
Use of international legal assistance during the pre-trial investigation of corruption crimes in the
sphere of ocial and professional activities
Introduction
The development of civil society is impossible without the state
performing its functions in the ght against crime (Larkin, 2020). In this
case, the implementation of the tasks of criminal proceedings depends
primarily on proving the facts and circumstances that are the subject of
proof in a particular criminal proceeding, including corruption oenses in
the sphere of ocial activity and professional activity (Sukhachova, 2020).
At the same time, the results of the material analysis of the practice of
crimes investigation show that one of the main drawbacks that negatively
aect the investigation of facts and circumstances of corruption, as well
as the resolution of criminal cases of this category, is the inadequate
organization of international legal assistance. Theoretical and practical
nature. These circumstances indicate the relevance of this issue and the
timeliness of recourse to its study.
It should be noted that in recent decades at the global, continental,
and regional levels, the issue of establishing eective cooperation between
law enforcement agencies in dierent countries in detecting, investigating
and preventing the most socially dangerous crimes is given much
attention (Shevchishen, 2017). The UN Convention against Corruption of
31.10.2001 (United Nations Convention against Corruption, 2003) is an
international legal act that denitively establishes the status of corruption
crimes that globally threaten the normal development of state and social
institutions in all countries of the world.
A clear example of the reality of such a threat is the events of 2013-
2014 in Ukraine when one of the key factors inuencing the mass protests
against the ex-government was large-scale corruption, which aected the
highest levels of government, which undermined the defense capabilities
of our state. Damage to national security and law enforcement agencies,
which ultimately contributed to external aggression against Ukraine and
the temporary occupation of a part of its territory. The adoption of this
Convention is the result of the gradual realization and recognition that
corruption among senior ocials in the state is often a tool used by organized
crime to achieve its goals, which in some cases becomes international
and therefore requires coordinated action by all states to eectively ght
it. Therefore, it is urgent to form a legal framework that will serve as an
appropriate basis for eective counteraction to the expansion of scope and
forms of organized crime through corruption, its impact on democratic
institutions in each country, distortions in the economy, mistakes in public
administration and harming the moral climate of society (Inter-American
Convention against Corruption, 1996).
Ukraine is an active participant in the development of the system of
international legal acts, which cover all areas of cooperation between law
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enforcement agencies of dierent countries in the eld of criminal justice,
including the stage of pre-trial investigation. At the same time, society
and the state must guarantee the protection of human and civil rights
and compliance with the standards established by the Convention for the
Protection of Human Rights and Fundamental Freedoms (Balobanova,
2020).
In fulllment of international obligations, the Government and the
Parliament of Ukraine have carried out a signicant amount of work on
the formation of the regulatory framework for international cooperation in
criminal proceedings. In this context, special attention should be paid to the
radical expansion of the normative provisions of Section IX of the Criminal
Procedure Code of Ukraine in 2012 of the legal regulation of the procedure
to be followed for international cooperation in criminal proceedings,
extradition of persons who have committed criminal oenses, transfer of
criminal proceedings (cases), recognition and execution of sentences of
courts of foreign states and transfer of convicted persons. As rightly noted
on this issue P.P. Minka and A.V. Khridochkin, in the Criminal Procedure
Code of Ukraine of 1960 the provisions of Article 31 cannot be considered as
providing proper and unambiguous regulation of international cooperation
in criminal proceedings, so the novelties of Chapter IX of the Criminal
Procedure Code of Ukraine in 2012 deserve only positive assessment
(Minka and Khridochkin, 2013).
1. Methodology of the study
The methodological basis of the scientic article is a set of general
scientic and special methods of cognition.
The dialectical method provided for the consideration of criminal
procedural activities of pre-trial investigation bodies and other subjects
during international legal assistance in the investigation of crimes in the
sphere of ocial and professional activities.
The sociological method allowed to identify problematic issues that
need to be addressed to improve the eciency of the investigation of this
category of crimes, and the statistical method provided a generalization of
the results of the study of materials of criminal proceedings.
The system-structural method was used to determine the content
of international cooperation, request for international legal assistance
in criminal proceedings on corruption crimes, to clarify the specics of
obtaining evidence and their use in criminal proceedings on crimes of this
category, and to clarify the procedure for obtaining evidence of corruption
crimes during a special pre-trial investigation (in absentia).
186
Shevchyshen Artem, Myrovska Anna, Antoshchuk Andrey, Sakovskyi Andrii y Piaskovskyi
Vadym
Use of international legal assistance during the pre-trial investigation of corruption crimes in the
sphere of ocial and professional activities
Methods of analysis, synthesis, abstraction, forecasting, and formal-
logical provided the formulation of intermediate conclusions in the article,
practical recommendations for improving international legal assistance in
these crimes, proposals to improve the productivity of criminal proceedings
for evidence of corruption.
2. Analysis of recent research
Issues of international cooperation in criminal proceedings were
the subject of active research by R.M. Valeeva (Valeev, 1976), O.G.
Vinogradova (Vinogradova, 2000), S.M. Vykhryst (Vykhryst, 2003),
T.S. Gavrysh (Gavrysh, 2004), V.V. Zueva (Zuev, 2015), A.G. Kalugina
and V.D. Shinkevich (Kalugin and Shinkevich, 2006), O.I. Lezhenina
(Lezhenina, 2004), I.V. Leshukova (Leshukova, 2004), М.І. Pashkovsky
(Pashkovsky, 2003), O.I. Sukhachova (Sukhachova, 2020), O.M. Tolochka
(Tolochko, 2003), and many other scientists. In particular, the issues of the
concept, principles, forms and main directions of international cooperation
in criminal proceedings, grounds and procedural order of international
legal assistance, the order of resolving issues of dierent legal regulation
of certain procedural actions in criminal procedural legislation of some
states and its impact on recognition evidence obtained during international
legal assistance is admissible in criminal proceedings, etc. It should be
recognized that the work on these issues will signicantly inuence the
formation of modern criminal procedure legislation of Ukraine and the
practice of providing international legal assistance in criminal proceedings.
3. Results and discussion
First of all, it should be noted that the current scientic achievements
contain almost no coverage of the use of international legal assistance in
the pre-trial investigation of corruption crimes in the eld of ocial and
professional activities. Also, the relevance of these issues arises from the
analysis of the state of international cooperation in criminal proceedings,
set out in Conclusion (2007) 1 of the Advisory Council of European
Prosecutors “Ways to improve international cooperation in criminal justice”,
adopted by the European Commission on Justice Eciency 07 Council
of Europe.12. (Opinion (2007) 1 of the Advisory Council of European
Prosecutors), and the content of multilateral and bilateral agreements on
international cooperation in criminal proceedings. In particular, paragraphs
15, 16, 18 of this Opinion emphasize the numerous obstacles that hinder the
necessary development of mutual legal assistance in criminal proceedings
and cause the excessive length of current procedures of international
cooperation, in particular, it is stated that:
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- European mechanisms of legal cooperation do not always meet
modern challenges and requirements.
- the process of requesting assistance may be detrimental to the
cooperation process (for example, they may be too concise or
overloaded with unnecessary details, unsigned, unsubstantiated,
incorrectly translated, inaccurate, inappropriate, etc.). This
shortcoming is mainly due to lack of training, the complexity of
procedures, and lack of allocated resources.
- requests are too often transmitted only through diplomatic channels,
although the European Convention on Mutual Assistance in Criminal
Matters (ETS № 30) (European Convention on Mutual Assistance in
Criminal Matters, 1959) allows direct links between the competent
judicial authorities for the submission and execution of requests,
the lack of information (specic data on the competent authorities)
often forces them to act through central authorities, moreover, the
simultaneous use of dierent channels of communication hinders
the smooth implementation of the cooperation procedure.
- the increase in the number of requests for mutual assistance is a
factor that also paralyzes the current procedures because sometimes
the requested authorities are overwhelmed by the execution of
requests concerning minor cases.
- when fullling requests, the lack of a common European culture
of cooperation in court cases and some resistance lead to the fact
that the procedures of international cooperation are systematically
replaced by internal procedures (Shevchishen, 2017).
It is also noted that, in addition to the above, much greater diculties
arise due to dierences between legal systems. In particular, as a key issue,
along with double criminal responsibility (ne bis in idem principle) and
dierent powers of the requesting authority, there are dierent means of
obtaining evidence and the existing system of judicial decisions in some
states in absentia. They are key examples of concepts and procedures that
depend on international coherence, which would facilitate cooperation
between dierent systems. Last but not least is the delay in fullling
the request for legal aid without any objective reasons due to improper
performance of professional duties by the executors of the request without
any expected legal consequences (Conclusion 2007 (2007) 1 of the Advisory
Council of European Prosecutors, 2007).
In this regard, we note that despite the strong international support for
the activities of the Specialized Anti-Corruption Prosecutor’s Oce and the
National Anti-Corruption Bureau of Ukraine with delays in responding to
requests for legal assistance in criminal proceedings for corruption in the
eld of ocial and professional activities, they also experienced problems.
188
Shevchyshen Artem, Myrovska Anna, Antoshchuk Andrey, Sakovskyi Andrii y Piaskovskyi
Vadym
Use of international legal assistance during the pre-trial investigation of corruption crimes in the
sphere of ocial and professional activities
N. Kholodnytsky notes that, for example, the pre-trial investigation into
the report of suspicion to the People’s Deputy of Ukraine M.V. Martynenko
lasted more than a year since more than ten international orders were
executed in eight countries in criminal proceedings. Some assignments sent
in March 2016 were executed and received responses in January 2017. The
last order was received on April 18, 2017. After that, the prosecutor agreed
to report the suspicion of M.V. Martynenko (Kholodnytsky Told About The
Procedure Of Martynenko’s Case, 2016).
Similar long-term fulllment of requests for international legal
assistance during the pre-trial investigation in criminal proceedings on
corruption oenses in the sphere of ocial and professional activity was
established in 96% of investigated cases of such requests in criminal
proceedings investigated by the pre-trial investigation bodies of the
National Police of Ukraine (Shevchishen, 2019). And, unfortunately,
the current international legal acts do not have clear instructions on the
terms of execution of international requests for legal assistance in criminal
proceedings. N. Kholodnytsky rightly emphasized this (Kholodnytsky Told
About The Procedure Of Martynenko’s Case, 2016).
Many years of experience in the execution of international orders show
that it is insucient to dene in an international agreement that a request
for international legal assistance is subject to immediate execution because
such urgency is treated as the immediate beginning of international order
and not as the fastest execution.
In this case, it should be noted that the indication of the urgency of the
request is not a standard component of the normatively dened procedure
for the execution of international orders in the relevant treaties concluded
by Ukraine. Given the provisions of paragraph 3 part 1 of Article 280 of
the Criminal Procedure Code of Ukraine, which provides the possibility of
suspending the pre-trial investigation after notifying a person of suspicion
if there is a need to perform procedural actions within international
cooperation, the legislator may consider international warrants (Criminal
Procedure Code Of Ukraine, 2012). In the context of maintaining the pre-
trial investigation deadlines set out in Article 219 of the Criminal Procedure
Code of Ukraine, this has indeed been done.
However, this has not happened in the aspect of evidence in criminal
proceedings in which international legal assistance is sought. The
implementation of procedural actions abroad is aimed at obtaining
evidence, without which the further movement of the pre-trial investigation
is problematic, and in some cases impossible. Due to this, the pre-trial
investigation is suspended by paragraph 3 part 1 of Article 280 of the
Criminal Procedure Code of Ukraine (Criminal Procedure Code Of Ukraine,
2012). The longer the period during which domestic investigators do not
take legal action, the greater the risks of losing sources of evidence that
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we do not know about but may learn from materials provided by foreign
competent authorities. Therefore, the problem of delays in the execution of
requests for international legal assistance is real and has a negative impact
on the results of evidence in criminal proceedings, and in the case of a
person identied as a suspect, as well as in cases where the suspicion was
not announced.
At rst glance, it seems optimal in this situation to amend the existing
conventions and bilateral agreements in the context of setting deadlines
for requests for international legal assistance in criminal proceedings.
However, given the complex and lengthy procedure of initiating, preparing
and approving, organizing the signing and ratication of international
regulations, the entry into force of the relevant changes will take not just
years but decades. For example, the signing and ratication of the Additional
Protocol to the European Convention on Mutual Assistance in Criminal
Matters by 35 states took 23 years (List of signatures and ratications
of the Additional Protocol to the European Convention on Mutual Legal
Assistance in Criminal Matters, 1978).
The problem with the terms of execution of international legal orders in
criminal proceedings is complicated by the fact that there are no uniform
approaches to the standardization of this issue in the criminal procedure
legislation of foreign states. For example, paragraph 1 of §91g of the Law of the
Federal Republic of Germany on International Legal Assistance in Criminal
Matters (Gesetz über die internationale Rechtshilfe in Strafsachen, 1982)
of 23 December 1982 (BGBL. 1982 IS.2071) stipulates that international
legal assistance must be provided. Within 30 days of receipt of a request
from the competent authority, and in paragraph 2 §91g, that such period
shall not exceed 90 days. In this case, in accordance with the regulations
of paragraph 3 §91g, the terms of international legal assistance provided
for in paragraphs 1, 2 §91g of this Law of the Federal Republic of Germany
may be reduced at the request of the competent authority of a foreign
state, and in accordance with paragraph 4§91g, if this cannot be done, the
competent authority of the requesting State must be notied (Gesetz über
die internationale Rechtshilfe in Strafsachen BGBL, 1982).
A similar approach to determining the terms of execution of a request
for international legal assistance is present in Part 2 of Article 558 of the
Criminal Procedure Code of Ukraine (Criminal Procedure Code Of Ukraine,
2012). According to Part 2 of Article 495 of the Criminal Procedure
Code of the Republic of Belarus, the term of execution of appeals within
the framework of providing international legal assistance to the bodies
conducting the proceedings is determined by the Prosecutor General of the
Republic of Belarus or his deputies (Code Of Criminal Procedure Of The
Republic Of Belarus, 1999).
190
Shevchyshen Artem, Myrovska Anna, Antoshchuk Andrey, Sakovskyi Andrii y Piaskovskyi
Vadym
Use of international legal assistance during the pre-trial investigation of corruption crimes in the
sphere of ocial and professional activities
These regulations generally reect the typical approaches to the
regulation in the criminal procedure legislation of foreign countries on
the timing of international orders, namely, by clearly dening the timing
of requests for international legal assistance in criminal matters with the
possibility of adjusting them on request the competent authority of another
state; - establishing the competence of the Prosecutor General or his deputy
to determine in his decision the deadline for applying for international
order (Shevchyshen, 2017).
The terms of execution of international orders may also be aected by
the provisions of the criminal procedure legislation of certain countries,
according to which the execution of certain procedural actions carried out
at the request of the competent authority of another state may be challenged
in court. seizure of property, bank accounts, etc. Domestic bodies of pre-
trial investigation are aware of many delayed cases due to this the execution
of international orders (Sytnyk, 2016).
Part 2 of Article 552 of the Criminal Procedure Code of Ukraine contains
requirements for a request for international legal assistance, the elements
of which are: 1) the name of the requesting authority and the competent
authority of the requested party; 2) reference to the relevant international
agreement or to the observance of the principle of reciprocity; 3) the name
of the criminal proceedings in respect of which international legal assistance
is requested; 4) a brief description of the criminal oense that is the subject
of criminal proceedings and its legal qualication; 5) information on the
reported suspicion, accusation with the full text of the relevant articles of
the Criminal Code of Ukraine; 6) information about the person concerned,
in particular his / her name, procedural status, place of residence or stay,
citizenship, other information that may facilitate the execution of the
request, as well as the connection of this person with the subject of criminal
proceedings; 7) a clear list of requested procedural actions and justication
of their connection with the subject of criminal proceedings; 8) information
on persons whose presence is considered necessary during the performance
of procedural actions, and substantiation of this necessity; 9) other
information that may facilitate the execution of the request or provided by
an international agreement or requirement of the competent authority of
the requested party (Criminal Procedure Code Of Ukraine, 2012).
The Criminal Procedure Code of Ukraine does not provide for the
possibility of requesting the execution of an international order within
a certain period. However, does this mean its inadmissibility and
inadmissibility? We believe not. First, the wording of the legislator in part 2
of Article 552 of the Criminal Procedure Code of Ukraine prescribing that the
information contained therein must be in the request for international legal
assistance does not mean that their list is exclusive, i.e. cannot be expanded
and similar restrictive prescriptions are absent in international legal acts on
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the issue under consideration (Criminal Procedure Code Of Ukraine, 2012).
Secondly, the expansion of the content of the request for international legal
assistance is permissible given the principles of reciprocity and courtesy,
which are inherent in international relations (Uzunova, 2008). Therefore,
we believe that it is not just permissible, but appropriate in requests for
international legal assistance to prevent delays in fullling an international
order to ask the requested party to provide such assistance within a certain
timeframe. If such terms are dened in the criminal procedural legislation
of the requested party, then the request must be guided by them, and if
such terms are not specied, then - the practice of procedural actions by
investigators in our state.
In addition to this problem, the in-absentia regime can signicantly
complicate the collection of evidence using international legal assistance
measures during a special pre-trial investigation. This issue is not
unreasonably addressed in the above-mentioned Opinion (2007) 1 of the
Advisory Council of European Prosecutors “Ways to Improve International
Cooperation in Criminal Justice”, adopted by the European Commission
for the Eciency of Justice of the Council of Europe on 07.12.2007 (Council
Of European Prosecutors, 2007).
It should be noted that a special pre-trial investigation is designed to
ensure a speedy, complete and impartial investigation and further trial by
gathering evidence in criminal proceedings in the face of opposition to the
investigation by the suspect in the form of evasion of criminal liability by the
investigator a suspect for protection through the exercise of his procedural
rights during such a pre-trial investigation by a defense counsel. Only in
cases of impossibility to search for and extradite a suspect, in particular,
due to the refusal to apply the procedure of search and extradition by the
country where the suspect is, according to the pre-trial investigation, it is
advisable to use a special pre-trial investigation (Shevchishen, 2019).
The problem of gathering evidence with the use of international legal
assistance during the pre-trial investigation of corruption crimes in the eld
of ocial and professional activities is that not all states provide for the
possibility of criminal proceedings in absentia. In the Romano-Germanic
(continental) and Anglo-American (common law), systems historically
formed a dierent vision of the peculiarities of implementation, the so-
called right of confro