Проблемы правового регулирования уголовного преследования по поручению иностранного учреждения юстиции (уголовно-процессуальный аспект)

Abstract

The article explores the issues related to bringing an action, initiating proceedings and referral in a criminal case on behalf of a law enforcement agency of a foreign state. In case the suspect or the accused is outside the jurisdiction of the state where the crime has been committed, he/she can be extradited on the basis of the appropriate agreement reached by the states. The extradition can often be refused so the ancient principle aut dedere aut judicare should be in force. In order for the court to consider the criminal case all case materials collected in the country must be referred to the country of the court. Most international agreements name the institution regulating the ensuing legal relationship as “criminal prosecution enforcement”. As a kind of international legal help criminal prosecution administration constitutes an agreed referral and assumption from one state to another of a sovereign right to establish the fact and circumstances of the crime, and the perpertrators and to enforce penalty or other measures provided for by the law. This administration includes initiation of criminal proceedings on behalf of a foreign state’s law enforcement agency taking over and referral of the criminal case proceedings. At present these issues are regulated in international practice at the level of international legal acts and the national law level. International legal acts in the sphere under consideration, binding for the Republic of Belarus, include treaties of legal aid in criminal cases as well as multilateral treaties regulating issues of combatting certain types of crimes, which mention the referral of the criminal proceedings but do not contain procedural norms. The legislation in force at the national level with the exception of the Articles of the Criminal Code of the Republic of Belarus does not regulate the issues of criminal prosecution on behalf of a foreign law enforcement agency. The law of the Republic of Belarus “On International Legal Assistance in Criminal Cases” adopted on May 18, 2004 provides for criminal prosecution of persons suspected of or accused of perpetrating crimes, which is regarded as a kind of mutual international legal assistance in absence of an international treaty. But this legal act will not come into force before the necessary changes are made in the Code of Criminal Procedure of the Republic of Belarus. Development of an institute of international legal assistance on criminal cases requires academic research of the relevant problems, but so far Belarusian legal science in the field of criminal procedure has not paid sufficient attention to this issue. The article proposes to introduce amendments into the Code of Criminal Procedure of the Republic of Belarus by supplementing it with the chapter “Initiating Criminal Proceedings, Taking Over and Referral of Criminal Cases”. In the author’s view this chapter would be applied not only to the legal relationship with a foreign state in absence of an appropriate mutual international treaty, but also to fill the gaps in the international treaties in force. The analysis of the Republic of Belarus’ international treaties and of the legislation of foreign states enabled the author to come to the conclusion of the necessity for the chapter to include 3 articles, each of them regulating a certain separate variant of criminal prosecution enforcement. The amendments and addenda to the Code of Criminal Procedure proposed in the article would allow a more complete regulation and at the same time simplification of the work of the Republic of Belarus law enforcement agencies responsible for criminal cases proceedings when they are called upon to render international legal assistance on the principle of reciprocity and when there are gaps (in cases which are not covered) in the international treaties of the Republic of Belarus. Adoption of the norms proposed would promote gradual harmonisation of Belarusian and European legislation.