On March 28, 2021, the Inter-American Convention on Mutual Assistance in Criminal Matters, signed on May 23, 1992, as well as the Optional Protocol to the Inter-American Convention on Mutual Assistance in Criminal Matters, signed on June 11, 1993.
As a reminder, Ukraine had previously acceded to the Inter-American Convention on the Authentication and Information Regarding Foreign Legislation, which may also be used in criminal proceedings, pursuant to the Law of Ukraine dated March 2, 2021.
The purpose of the Convention is for the States Parties to commit to providing mutual legal assistance to one another in criminal matters in accordance with the provisions of this Convention.
In turn, the scope and application of the Convention are outlined in Article 2 of the Convention, the essence of which is as follows. States Parties shall provide mutual legal assistance to one another in investigations, prosecutions, and judicial proceedings relating to offenses over which the requesting State has jurisdiction at the time assistance is requested. The Convention does not authorize any State Party to conduct judicial proceedings or perform functions on the territory of another State Party that fall within the exclusive competence of the authorities
of the other Party under its domestic law. The Convention applies exclusively to the provision of mutual legal assistance between States Parties. Its provisions do not confer upon any private individual the right to obtain or exclude any evidence or to obstruct the execution of any request for assistance.
As is known, the 28 States that are parties to the Convention are: Antigua and Barbuda; the Argentine Republic; the Commonwealth of the Bahamas; the Plurinational State of Bolivia; the Federative Republic of Brazil; Canada; the Republic of Chile; the Republic of Colombia; Costa Rica; the Commonwealth of Dominica; the Republic of Ecuador; the Republic of El Salvador; Grenada; the Republic of Guatemala; the Cooperative Republic of Guyana; the Republic of Honduras; Jamaica; the United Mexican States; the Republic of Nicaragua; the Republic of Panama; the Republic of Paraguay; the Republic of Peru; the Republic of Suriname; the Republic of Trinidad and Tobago; the United States; the Eastern Republic of Uruguay; the Bolivarian Republic of Venezuela; the Republic of Kazakhstan.
The Optional Protocol has been ratified by 7 countries: the Federative Republic of Brazil; the Republic of Chile; the Republic of Colombia; the Republic of Ecuador; the United States; the Republic of Honduras; the Republic of Paraguay.
Incidentally, the Preamble to the Convention notes that the member states of the Organization of American States, in adopting this Convention, took into account the fact that the Charter of the Organization of American States, in paragraph “e” of Article 2 establishes that the primary objective of the American states is “to seek solutions to political, legal, and economic
problems that may arise among them”; and that the adoption of common rules in the field of mutual legal assistance in criminal matters will contribute to the achievement of this objective.
It is therefore evident that this Convention is intended to promote the development of treaty relations between Ukraine and the aforementioned countries regarding the provision of legal assistance in criminal matters, both at the level of multilateral treaties (for example, the United Nations Convention against Transnational Organized Crime, 2000; the International Convention for the Suppression of the Financing of Terrorism, 1999; the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988; the United Nations Convention against Corruption, 2003) as well as through bilateral agreements. For example, Ukraine and the Argentine Republic have concluded a treaty on mutual legal assistance in criminal matters, which was ratified by Law No. 579-IX of April 30, 2020 (hereinafter referred to as the “Treaty between Ukraine and the Argentine Republic”). Similar treaties have been concluded, in particular, between Ukraine and the Federative Republic of Brazil on legal assistance in criminal matters (ratified by Law of Ukraine No. 620-IV of March 6, 2003; date of entry into force for Ukraine: October 24, 2006); the Treaty between Ukraine and Canada on Mutual Assistance in Criminal Matters (ratified by Law of Ukraine No. 740/97-VR of December 17, 1997; date of entry into force for Ukraine: March 1, 1999) (here and below, information regarding the title, text, and ratification of the treaties, as well as their dates of entry into force, is taken from the official website of the Verkhovna Rada of Ukraine).
However, it should be noted that this Convention shall not be interpreted as affecting or limiting existing obligationsunder other international bilateral or multilateral conventions that contain or may contain provisions governing specific aspects of international legal assistance in criminal matters, in part or in full, or more favorable practices that these States may follow in this regard (Article 36).
At the same time, in cases where no relevant treaties on legal assistance in criminal matters have been concluded between Ukraine and certain parties to the Convention, the desire of these countries to conclude such treaties, as evidenced in the relevant international documents, should be taken into account. For example, Article 7 of the Treaty on Friendly Relations and Cooperation between Ukraine and the Republic of Ecuador (ratified by Law of Ukraine No. 155-IV of September 12, 2002; date of entry into force: May 13, 2004) states that the Contracting Parties shall exchange experience and cooperate in combating crime, in particular organized crime, international terrorism, the illicit trafficking of narcotic drugs and psychotropic substances, and smuggling of all kinds—including the illegal cross-border transport of cultural property—in accordance with applicable international agreements and the laws in force of the Contracting Parties. The Parties shall endeavor to conclude the necessary agreements on mutual legal assistance in civil and criminal matters.
Article X of the Treaty on Friendly Relations and
Cooperation between Ukraine and the Republic of Paraguay (the treaty was ratified by Law of Ukraine No. 691-VIII of September 16, 2015; date of entry into force for Ukraine: February 1, 2018), Article 8 of the Treaty on Friendly Relations and Cooperation between Ukraine and the Republic of Peru (ratified by Law of Ukraine No. 3577-IV of March 16, 2006) and Article 8 of the Agreement on Friendly Relations and Cooperation between Ukraine and the Bolivarian Republic of Venezuela (the Agreement was ratified by Law of Ukraine No. 156-IV dated September 12, 2002; date of entry into force: February 16, 2005). This indicates the need to develop relevant bilateral treaties in the field of criminal justice, taking into account the provisions of the relevant multilateral and bilateral treaties, as well as the Inter-American Convention.
Another group consists of countries with which Ukraine has concluded only inter-agency international agreements. For example, the Prosecutor General’s Office of Ukraine and the Prosecutor’s Office of the Republic of Guatemala signed a Memorandum of Cooperation in the Fight Against Transnational Crime (date of entry into force for Ukraine: March 24, 2010). In this Memorandum, the parties agreed, in particular, to exchange information and documents, and to take all possible measures within their respective authorities to facilitate the effective and timely execution of requests for extradition and legal assistance in criminal cases concerning the crimes specified in paragraph 1 of the Memorandum.
A separate group of countries consists of states parties to the Convention with which Ukraine has not concluded the aforementioned bilateral
treaties (for example, Antigua and Barbuda, the Argentine Republic, and the Commonwealth of the Bahamas).
It should be noted that a number of states have made reservations regarding the application of certain provisions of the Convention. For example, the Government of the Republic of Ecuador—with which, as noted above, Ukraine has concluded a relevant treaty—has expressed the following reservation regarding Article 8 of the Convention: “The provisions of this Convention shall not apply to offenses that fall under military or police jurisdiction, or to offenses committed by persons enjoying special immunity, except, in the latter case, if the requesting State has complied with the requirements and formalities established by the requested State.”
However, it should be noted that, pursuant to Article 35 of the Convention, each State may make reservations to this Convention upon signature, ratification, ratification, or accession, provided that each reservation relates to at least one specific provision and is not incompatible with the object and purpose of the Convention.
With regard to the Optional Protocol, the following should be noted. Article 1 provides that in any case where a request is received from a State Party to this Protocol, other States Parties shall not exercise the right provided for in paragraph “f” of Article 9 (Refusal to Provide Assistance) of the Convention to refuse a request for assistance solely on the grounds that the request concerns a tax offense. It should be recalled that Article 9(f) of the Convention provides that the requested State may
refuse to provide assistance if it considers that the request relates to a tax offense. However, assistance shall be provided if the offense was committed by means of a knowingly false statement, whether oral or written, or by means of the intentional failure to declare income derived from any other offense covered by this Convention, with the intent to conceal such income.
Thus, such assistance, as a general rule, must be provided by the States Parties, in particular, if the offense was committed: 1) by the exclusive and intentional failure to declare income; 2) such proceeds must have been derived from any other offense covered by this Convention; 3) the failure to declare the proceeds must be carried out specifically for the purpose of concealing such proceeds.
In addition, Article 2 of the Optional Protocol states that a State Party to this Protocol, when acting as a requested State under the Convention, shall not refuse to provide assistance that requires the measures specified in Article 5 (Dual Criminality) of the Convention, if the act specified in the request relates to a tax offense of the same nature under the laws of the requested State. Such measures include: (a) the seizure and attachment of property, and (b) searches and confiscations, including searches of premises.
With regard to the Optional Protocol, the interpretation provided by the United States of America (May 25, 2001) is of considerable practical interest. It states that, in general, the United States understands that the Convention and the Optional Protocol are not intended to replace, amend,
repeal, or otherwise affect any existing bilateral or multilateral treaties or conventions, including those relating to mutual legal assistance in criminal matters. The United States also understands that Article 25 of the Convention, which restricts the disclosure or use of information or evidence obtained pursuant to the Convention, no longer applies if such information or evidence has been made public in a manner consistent with Article 25 during proceedings in the requesting State. At the same time, the United States has emphasized that it exercises its rights to restrict the use of assistance it may provide under the Convention and/or the Optional Protocol, such that any assistance provided by the U.S. Government may not be transferred or otherwise used to assist the International Criminal Court established by the Statute adopted in Rome, Italy, on July 17, 1998, unless the Statute establishing that Court enters into force for the United States through the advice and consent of the Senate, as required by Section 2 of Article II of the U.S. Constitution.
Next, it will be useful to analyze the main provisions of the Convention and the Protocol in relation to the Criminal Procedure Code of Ukraine. First, let us turn to the general conditions for providing legal assistance. The Convention does not specify the principle of dual criminality as a mandatory condition for providing legal assistance: assistance is provided even if the act giving rise to the request is not punishable under the laws of the requested State. Where a request for assistance concerns the following measures: (a) seizure and attachment of property, and (b) searches and confiscations, including searches of premises,
the requested State may refuse to provide assistance if the act giving rise to the request is not punishable under its laws (Art. 5).
The Convention contains an important provision stating that the procedural measures specified in a request for assistance shall be carried out in the manner determined by the requesting State, to the extent that this does not conflict with the laws of the requested State. At the same time, Article 10 of the Convention specifies that requests for assistance shall be carried out in accordance with the domestic law of the requested State, which is consistent with Article 4 of the Code of Criminal Procedure of Ukraine, which provides that, at the request of a competent authority of a foreign state, the procedural laws of that foreign state may be applied when carrying out such procedural actions on the territory of Ukraine, if so provided by an international treaty ratified by the Verkhovna Rada of Ukraine, and in the absence of such an international treaty for Ukraine—provided that the request does not conflict with Ukrainian law. This raises the question of exactly what “method of conducting procedural actions” is being referred to, and to what extent the requesting state may specify this method.
The basis for providing legal assistance is a request. The brevity of the requirements for the request is noteworthy: a) the crime to which the procedural actions relate; a brief description of the material facts pertaining to the crime; the investigation or criminal proceedings in question; and a description of the facts to which the request relates; b) the proceedings that form the basis for the request for assistance, with a precise description of such proceedings; c) where appropriate, a description of any proceedings or other specific requirements
of the requesting State; d) a precise description of the assistance requested and any information necessary to fulfill this request. By comparison, under Article 552 of the Code of Criminal Procedure of Ukraine, a request must contain: 1) the name of the authority seeking assistance and the competent authority of the requested party; 2) a reference to the relevant international treaty or to the principle of reciprocity; 3) the name of the criminal proceeding for which international legal assistance is requested; 4) a brief description of the criminal offense that is the subject of the criminal proceeding and its legal classification; 5) information regarding the alleged offense or charges, including the full text of the relevant articles of the Criminal Code of Ukraine; 6) information about the relevant person, including their first and last name, procedural status, place of residence or stay, citizenship, and other information that may facilitate the execution of the request, as well as that person’s connection to the subject matter of the criminal proceedings; 7) a clear list of the requested procedural actions and a justification of their connection to the subject matter of the criminal proceedings; 8) information regarding persons whose presence is deemed necessary during the performance of the procedural actions, and a justification for this necessity; 9) other information that may facilitate the execution of the request or that is required by an international treaty or a request from a competent authority of the requested party.
The Convention sets forth in detail the grounds for refusing to provide assistance:
a) the request for assistance is used to prosecute a person on a charge for
for which that person has already been convicted or acquitted in a judicial proceeding in the requesting or requested State;
b) the investigation was initiated for the purpose of prosecuting, punishing, or discriminating in any way against a person or group of persons on the basis of sex, race, social status, nationality, or religious or ideological beliefs;
c) the request concerns a crime that is political in nature or related to a political crime, or a common crime that is prosecuted for political motives;
d) the assistance relates to a request made at the initiative of a special court or an ad hoc tribunal;
e) harm is caused to public order (ordre public), sovereignty, security, or fundamental public interests; and
f) the request concerns a tax offense. However, assistance shall be provided if the offense was committed by means of a knowingly false statement, whether oral or written, or by means of the intentional failure to declare income derived from any other offense covered by this Convention, with the intent to conceal such income. Nevertheless, the Protocol contains important clarifications regarding tax offenses: in any case where a request is received from a State Party to this Protocol, other States Parties shall not exercise the right provided for in Article 9(f) of the Convention to refuse a request for assistance solely on the grounds that the request relates to a tax offense; A State Party to the Protocol, when acting as the requested State under the Convention, shall not refuse to
assistance requiring the measures specified in Article 5 of the Convention if the act referred to in the request relates to a tax offense of the same nature under the laws of the requested State.
In contrast to these provisions, Article 557 of the Code of Criminal Procedure of Ukraine does not provide for grounds for refusal such as the political nature of the offense, the tax nature of the offense, or proceedings before an extraordinary court or an ad hoc court. Furthermore, the Convention provides for a broader ground for refusal, namely that “the investigation was initiated for the purpose of prosecuting, punishing, or discriminating in any way against a person or group of persons on the basis of sex, race, social status, nationality, religious or ideological beliefs,” is broader in scope than that provided for in the Code of Criminal Procedure of Ukraine, since, unlike the latter, it refers not only to the purpose of persecuting and punishing a person but also to the purpose of discrimination through the investigation.
Article 7 of the Convention provides for the following forms of assistance:
a) notification of rulings and court decisions;
b) taking statements or receiving declarations from individuals;
c) summoning witnesses and experts to testify;
d) arrest and seizure of property, freezing of assets, and assistance in procedures related to confiscation;
e) searches or seizures;
f) inspection of objects and premises;
g) serving judicial documents;
h) the transmission of documents, reports, information, and evidence;
i) the transfer of detained persons for the purposes provided for in this Convention; and
j) any other procedural action, provided that the requesting and requested States have so agreed.
As can be seen, this does not cover such forms of international cooperation as the extradition of persons who have committed criminal offenses, the assumption of criminal prosecution, the transfer of convicted persons, and the enforcement of sentences. The Convention provides virtually no details regarding these forms of assistance, except for the search, seizure, arrest, and transfer of property (Art. 13); the summoning of witnesses and experts to give testimony (Arts. 17–19); the transfer of persons subject to proceedings (although this form is not specifically mentioned in Article 7 of the Convention, the list of forms is not exhaustive); and the transfer of information and records (Section 4). The protection of assets is also not recognized as a separate form; however, the Central Authority of any Party may transmit to the Central Authority of any other Party information in its possession regarding the existence of property, proceeds, or instruments of crime on the territory of the other Party (Article 14).
With regard to the transfer of persons subject to criminal proceedings, the Convention sets forth more detailed requirements than the Criminal Procedure Code of Ukraine, as there is a clear list of grounds for refusing the temporary transfer of a person subject to criminal proceedings in the requested State whose presence in the requesting State is necessary for the purposes of providing assistance: a) if the person, who is in custody or serving a sentence, does not consent to the transfer;
b) if the person’s presence is necessary for an investigation or criminal proceedings being conducted within the jurisdiction where they are located; c) if there are other reasons of a legal or other nature determined by the competent authority of the requested or requesting State (Art. 20).
The Law of Ukraine “On Ukraine’s Accession to the Inter-American Convention on Mutual Assistance in Criminal Matters and the Optional Protocol to the Inter-American Convention on Mutual Assistance in Criminal Matters” designates the Ministry of Justice of Ukraine (with respect to requests from courts) and the Office of the Prosecutor General (with respect to requests from pre-trial investigation authorities). The National Anti-Corruption Bureau of Ukraine (NABU) is not recognized as a Central Authority, although under Part 1 of Article 545 of the Criminal Procedure Code of Ukraine, NABU performs the functions of Ukraine’s central authority in the pre-trial investigation of criminal offenses falling within NABU’s jurisdiction.
Author: Iryna Hlovyuk, Doctor of Law, Professor, Attorney; Oleksandr Drozdov, Doctor of Law, Associate Professor; Olena Drozdova, Candidate of Law
Source: Law and Business