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 cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 69
Julio
Diciembre
2021
Recibido el 12/02/2021 Aceptado el 11/05/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
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 ocial
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 ocial and professional activities.
Special attention is paid to identifying the details of evidential activities in
criminal proceedings for oences 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 scientic methods of
legal cognition. In particular, the concept of pre-trial special investigation
is formulated, its functional purpose is dened, characteristics of the
carrying out of separate investigative actions (search) during the special
pre-trial investigation for corruption oences. 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 Aairs, 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 Aairs, 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 Aairs, 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 Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.
org/0000-0001-7954-1018. Email: pwwadd@gmail.com
183
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 182-197
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; ocial 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 ociales 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 ociales y profesionales. Se presta especial atención a
identicar 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 cientícos generales y especiales
de cognición jurídica. En particular, se formula el concepto de instrucción
especial previa al juicio, se dene 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
identicar 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 ociales y
profesionales; instrucción previa al juicio; instrucción
especial previa al juicio; asistencia legal internacional.
184
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 ocial 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 oenses in
the sphere of ocial 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
aect 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 eective cooperation between
law enforcement agencies in dierent 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 denitively 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 inuencing the mass protests
against the ex-government was large-scale corruption, which aected 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 ocials 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 eectively ght
it. Therefore, it is urgent to form a legal framework that will serve as an
appropriate basis for eective 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
185
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 182-197
enforcement agencies of dierent 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 fulllment of international obligations, the Government and the
Parliament of Ukraine have carried out a signicant 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 oenses, 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 scientic article is a set of general
scientic 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 ocial and professional activities.
The sociological method allowed to identify problematic issues that
need to be addressed to improve the eciency 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 specics 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 ocial 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 dierent 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 signicantly inuence 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 scientic achievements
contain almost no coverage of the use of international legal assistance in
the pre-trial investigation of corruption crimes in the eld of ocial 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 Eciency 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:
187
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 182-197
- 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 (specic data on the competent authorities)
often forces them to act through central authorities, moreover, the
simultaneous use of dierent 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 fullling 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 diculties
arise due to dierences between legal systems. In particular, as a key issue,
along with double criminal responsibility (ne bis in idem principle) and
dierent powers of the requesting authority, there are dierent 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 dierent systems. Last but not least is the delay in fullling
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 Oce 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 ocial 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 ocial 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 fulllment of requests for international legal
assistance during the pre-trial investigation in criminal proceedings on
corruption oenses in the sphere of ocial 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 insucient to dene 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 dened 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
189
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 182-197
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 identied 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 ratication of international
regulations, the entry into force of the relevant changes will take not just
years but decades. For example, the signing and ratication of the Additional
Protocol to the European Convention on Mutual Assistance in Criminal
Matters by 35 states took 23 years (List of signatures and ratications
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 notied (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 ocial and professional activities
These regulations generally reect the typical approaches to the
regulation in the criminal procedure legislation of foreign countries on
the timing of international orders, namely, by clearly dening 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 aected 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 oense that is the subject
of criminal proceedings and its legal qualication; 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 justication
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
191
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 182-197
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 fullling an international
order to ask the requested party to provide such assistance within a certain
timeframe. If such terms are dened in the criminal procedural legislation
of the requested party, then the request must be guided by them, and if
such terms are not specied, then - the practice of procedural actions by
investigators in our state.
In addition to this problem, the in-absentia regime can signicantly
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 Eciency 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 ocial 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 dierent vision of the peculiarities of implementation, the so-
called right of confrontation. As noted by M.I. Pashkovsky, Article 6 § 3 (d)
of the Convention for the Protection of Human Rights and Fundamental
Freedoms provides for the right of a person accused of a criminal oense to
question witnesses or to examine them, the same conditions as the witnesses
who testify against it. This right of the accused (suspect, defendant) in the
Western European legal tradition is dened as the right of confrontation.
Close in meaning and content is the institution of cross-examination in the
judiciary of common law countries. The right of confrontation is one of the
192
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 ocial and professional activities
expressions of the principle of equality of arms, which follows from the
principle of a fair trial (Pashkovsky, 2003).
Dierent understandings of the content and permissible forms of
exercising this right in dierent states may lead to the refusal to comply
with requests for international assistance through procedural actions. At
one time, the United States denied Italy the execution of its consul’s letter
in Denver to the United States for questioning witnesses residing in the
United States, Francesco and Elisabetta Macri, and Maria and Franco Macri
in the case of the murder of an Italian citizen - Francesco Archina. Francesco
Archina was charged with murder in Denver. A Denver court found that
Francesco Archina was in a state of insanity at the time of the murder, so
he was sent to Pueblo State Hospital for treatment. After some time, the
American authorities deported Francesco Archina to his homeland - Italy.
Based on the principle of nationality, Francesco Archina was prosecuted by
an Italian investigating judge for a murder committed in the United States
of America. An Italian investigation has called for the questioning of 25
witnesses in the United States. The reason for the refusal to provide legal
aid was the contradiction of the Italian authorities’ request for Amendment
VI of the United States Bill of Rights, because the accused, who was already
in Italy, was deprived of the right to confrontation, i.e. cross-examination of
witnesses against him (Mueller GOW and Wise, 1965; Pashkovsky, 2003).
Analysis of foreign literature shows that the implementation of criminal
proceedings in absentia has repeatedly inuenced the decision to refuse
the extradition of perpetrators (Ruggeri, 2017; Šepec, 2015). Although the
domestic investigative practice is not aware of cases of refusal to provide
international legal assistance in conducting procedural actions during a
special pre-trial investigation, it should be borne in mind that the potential
risks of obtaining such a refusal in states whose criminal procedure
legislation does not provide for criminal proceedings in absentia.
This is especially true of requests for the extradition of persons who have
committed a criminal oense. The probability of refusal is signicantly
increased in situations where such persons have been convicted using
special court procedures. Therefore, we propose to consider the regime of
special pre-trial investigation as an exclusive form of pre-trial investigation,
the decision on the application of which should be made as a result of
exhaustion of opportunities for interstate and/or international search of
the suspect and his extradition.
In the context of the researched issues, the issue of international
cooperation in order to identify and search for assets in the framework
of criminal proceedings on corruption crimes in the eld of ocial and
professional activities needs special attention. In particular, in accordance
with the Criminal Procedure Code of Ukraine (Article 568), based on a
request for international legal assistance, the relevant bodies of Ukraine
193
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 182-197
carry out procedural actions provided by this Code, as well as other actions
provided by special law to identify and seize property, money criminal
means, as well as property belonging to suspects, accused or convicted
persons (Criminal Procedure Code Of Ukraine, 2012).
A special law, in this case, is the Law of Ukraine “On the National Agency
of Ukraine for Detection, Search and Management of Assets Obtained
from Corruption and Other Crimes”. In accordance with the international
agreements of Ukraine, the National Agency, on the principle of reciprocity
or its initiative, carries out international cooperation with the relevant
authorities of foreign states in the exchange of information on issues related
to detection, search and asset management.
It carries out international cooperation at the request of the relevant
body of a foreign state. In order to perform its tasks, the national agency
has the right to receive process and exchange information about individuals
and legal entities in the manner prescribed by international treaties and
legislation of Ukraine. The National Agency also accepts for consideration
and executes the request received from the requesting party by electronic,
facsimile, or other means of communication, if it is provided by international
agreements of Ukraine or is carried out based on the principle of reciprocity.
Refusal or postponement of the request for international cooperation
in the eld of detection and tracing of assets is carried out only based on
international agreements to which Ukraine is a party (National Agency of
Ukraine For Detection, 2015).
International cooperation in criminal proceedings on corruption
oenses in the sphere of ocial and professional activities also takes
place using Interpol’s capabilities. In Ukraine, it is the main body for the
registration of transnational crimes and those who committed them, and
the main coordinator of the international search for persons who have
committed criminal oenses. Among other things, pre-trial investigation
bodies of Ukraine in the framework of international cooperation may use
a database of persons, facts, objects, and documents accumulated based
on information obtained in the process of international police cooperation.
When organizing an international search, Interpol channels should
be guided by generally accepted principles and norms of international
law, comprehensive and bilateral international treaties of Ukraine, the
Constitution of Ukraine, laws, the Interpol Charter, binding decisions of the
Interpol General Assembly, regulations of the Ministry of Internal Aairs
of Ukraine, etc.
194
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 ocial and professional activities
Conclusions
The problems investigated in the scientic article prompted them to
comprehend and develop measures to avoid and minimize them during
the pre-trial investigation of corruption crimes in the eld of ocial and
professional activities. Based on this, we made the following conclusions:
1. A problem that arises during international cooperation during
the pre-trial investigation is the uncertainty in international
regulations on the provision of mutual legal assistance in criminal
proceedings, the timing of the execution of international order.
This, according to investigative practice, negatively aects the
eectiveness of pre-trial investigation of crimes in the eld of
ocial and professional activities, signicantly reduces the pace of
investigative (investigative), covert investigative (investigative), and
other procedural actions. Because making changes and additions to
set deadlines for international assignments is a long process, we
recommend that such requests be sure to ask the requested party to
execute it within a certain period based on reciprocity, justifying the
importance of this.
2. When applying for international legal assistance during a special
pre-trial investigation of corruption oenses, it should be borne in
mind that in some countries the law does not provide for the conduct
of criminal proceedings in absentia. There are risks of refusing to
comply with a request for international legal assistance in criminal
proceedings. Therefore, it is recommended to seek the assistance of
law enforcement agencies of such states before making a procedural
decision to conduct a special pre-trial investigation.
3. In international cooperation in criminal proceedings on corruption
oenses in the eld of ocial and professional activities, it is
advisable to actively use the capabilities of Interpol, which in
Ukraine is the main body for transnational crimes and criminals
and the main coordinator of international investigations.
Bibliographic References
ABOUT THE NATIONAL AGENCY OF UKRAINE FOR DETECTION, SEARCH
AND MANAGEMENT OF ASSETS OBTAINED FROM CORRUPTION
AND OTHER CRIMES. 2015. On November 10. Available online.
In: http://zakon3.rada.gov.ua/laws/show/772-19. Consultation date:
09/09/2020.
195
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 182-197
BALOBANOVA, Dariia; GORBACHOVA, Iryna; OTSYATSYA, Anastasiia;
DMYTRUK, Mykhailo; KHYLCHENKO, Anastasiia. 2020. “Dynamics
of the implementation of the protective role in the conduct of crimes:
the practice of the Convention for the Protection of Human Rights and
Fundamental Freedoms” In: CUESTIONES POLITICAS. Vol. 38, No.
Especial (2da parte) p. 427.
CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF BELARUS.
1999. July 16. No 295-C. Available online. In: http://etalonline.
by/?type=text®num=HK9900295#load_text_none_1_.57.
Consultation date: 09/09/2020.
CONCLUSION NO. 1. 2007. OF THE ADVISORY COUNCIL OF EUROPEAN
PROSECUTORS “Ways to Improve International Cooperation in Criminal
Justice”. 2007. 07 December. Available online. In: https://www.viaduk.
net/clients/vsu/vsu.nsf/7864c99c46598282c2257b4c0037c014/
f8c093ad5cb7148bc2257d8d002488a0/$FILE/%D0%92%D0%B8%
D1%81%D0%BD%D0%BE%D0%B2%D0%BE%D0%BA%20%E2%
84% 96%201(2007).pdf. Consultation date: 09/09/2020.
CRIMINAL PROCEDURE CODE OF UKRAINE. 2012. On April 13. Available
online. In: https://zakon.rada.gov.ua/laws/show/4651-17. Consultation
date: 09/09/2020.
EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL
MATTERS. 1959. 20 April. Available online. In: http://zakon3.rada.gov.
ua/laws/show/995_036/print. Consultation date: 09/09/2020.
GAVRYSH, Tetiana. 2004. Problems of admissibility of the proofs received
during reception of the international legal aid in criminal cases:
dissertation of the candidate of legal sciences. Kharkiv, Ukraine.
GESETZ ÜBER DIE INTERNATIONALE RECHTSHILFE IN STRAFSACHEN
BGBL. 1982. On December 31. No 2071. Available online. In:
https://www.bgbl.de/xaver/bgbl/start.xav?start=//*%5B@attr_
id=%27bgbl182s2071.pdf%27%5D#__bgbl__%2F%2F*%5B%40attr_
id%3D%27bgbl182s2071.pdf%27%5D__1618155817018. Consultation
date: 09/09/2020.
INTER-AMERICAN CONVENTION AGAINST CORRUPTION. 1996. On
March 29. Available online. In: http://zakon3.rada.gov.ua/laws/
show/998_089. Consultation date: 09/09/2020.
KALUGIN, A; SHINKEVICH, Dmytro. 2006. International cooperation
in the eld of criminal proceedings: theory and practice: a textbook
Krasnoyarsk. Russia.
196
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 ocial and professional activities
KHOLODNYTSKY TOLD ABOUT THE CASES OF MARTYNENKO,
ONYSCHENKO AND AVAKOV. 2016. On October 17. In: Ukrainian
Pravda. Online article. Available online. In: https://www.pravda.com.
ua/news/2016/10/17/7123878. Consultation date: 09/09/2020.
LARKIN, Mikhail; BIRYUKOVA, Alina; MAKARENKO, Tamara; IVANOVA,
Natalia; FEDCHYNIAK. 2020. “Typical Mistakes during Investigation
of Crimes Committed by Youth Informal Groups Members”
In: CUESTIONES POLÍTICAS. Vol. 38. No Especial., p. 396.
LESHUKOVA, Iryna. 2004. Procedural features of the international cooperation
of bodies of internal aairs of Ukraine at investigation of crimes:
dissertation of the candidate of legal sciences. Kharkiv, Ukraine.
LEZHENINA, Olga 2004. Organizational and legal bases of participation of
bodies of internal aairs of Ukraine in the international law enforcement
activity: dissertation of the candidate of legal sciences. Kharkiv, Ukraine.
LIST OF SIGNATURES AND RATIFICATIONS OF THE ADDITIONAL
PROTOCOL TO THE EUROPEAN CONVENTION ON MUTUAL
ASSISTANCE IN CRIMINAL MATTERS. 1978. (ETS No. 99) (Strasbourg,
17 March 1978). Available online. In: https://zakon.rada.gov.ua/laws/
show/994_422. Consultation date: 09/09/2020.
MINKA, Pavlo; KHRIDOCHKIN, Andriy. 2013. “Characteristics of forms of
international cooperation in the ght against crime in the context of the
problem of adaptation of domestic legislation to the legislation of the
European Union” In: Law and society. No 3, p. 177.
MUELLER, G.O.W., WISE, E.M. 1965. Mueller International criminal law.
Rothman. NewYork, London.
PASHKOVSKY, Mykolay. 2003. Features of proof in criminal cases related
to the provision of international legal assistance: dissertation of the
candidate of legal sciences. Kiev, Ukraine.
RUGGERI, Stefano. 2017. Audi alteram partem in criminal proceedings:
towards a participatory understanding of criminal justice in Europe and
Latin America. Available online. In: https://www.springer.com/gp/
book/9783319545721. Consultation date: 09/09/2020.
ŠEPEC, Miha. 2015. International Criminal Cooperation Extradition
and Surrender Procedures – Modern Trends and Problems.
VARSTVOSLOVJE, Journal of Criminal Justice and Security. No. 2. P.
278. Available online. In: https://www.fvv.um.si/rv/arhiv/2013-2/09_
Sepec-E.html. Consultation date: 09/09/2020.
197
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 182-197
SHEVCHISHEN, Artem. 2017. “Use of international legal assistance to gather
evidence during a special pre-trial investigation” In: Visegrad Journal on
Human Rights. No 1, p. 205.
SHEVCHYSHEN, Artem. 2019. Problems of proof by the prosecution in the pre-
trial investigation of corruption crimes in the sphere of ocial activity
and professional activity related to the provision of public services:
dissertation of the candidate of legal sciences. Kiev, Ukraine.
SUKHACHOVA, Iryna. 2020. “The concept and content of evidence by the
prosecutor in the investigation of corruption crimes in the eld of ocial
activities and professional activities related to the provision of public
services” In: HERALD LUHANSK STATE UNIVERSITY OF INTERNAL
AFFAIRS AND THEM. E.O. DIDORENKO. Vol. 4 (92). pp. 188-189.
SYTNYK, Artem. 2016. No one will be able to bring conict into the relationship
between the National Anti-Corruption Bureau of Ukraine and the
Specialized Anti-Corruption Prosecutor’s Oce. In: Online article.
Available online. In: https://nabu.gov.ua/novyny/artem-sytnyk-
nikomu-ne-vdastsya-vnesty-konflikt-u-vzayemyny-nabu-i-sap.
Consultation date: 09/09/2020.
TOLOCHKO, Oleg. 2013. “Humanization of the extradition procedure for
persons who have committed criminal oenses” In: Bulletin of the
National Academy of the Prosecutor’s Oce of Ukraine. No 2, p. 53.
UNITED NATIONS CONVENTION AGAINST CORRUPTION. 2003.
31 October. Available online. In: https://zakon.rada.gov.ua/laws/
show/995_c16. Consultation date: 09/09/2020.
UZUNOVA, Оksana. 2008. International legal agreements of Ukraine as a
source of criminal procedure law: dissertation of the candidate of legal
sciences. Zaporozhye, Ukraine.
VALEEV, Ruslan. 1976. Extradition of criminals in modern international law
(some issues of theory and practice). Monograph. Kazan, Russia.
VINOGRADOVA, Oksana. 2000. International cooperation of Ukraine in
the ght against crime (criminal procedure aspect): dissertation of the
candidate of legal sciences. Kharkiv, Ukraine.
VYKHRYST, Sergiy 2003. Extradition of persons in the aspect of the ratio of
international and national law: dissertation of the candidate of legal
sciences. Kharkiv, Ukraine.
ZUEV, Volodymyr. 2015. Criminal procedural guarantees of the rights of the
person at the international cooperation during criminal proceedings:
dissertation of the candidate of legal sciences. Kharkiv, Ukraine.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en julio de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 69
