EXTRADITION TO AND FROM UKRAINE

So, the Constitution guaranteed that no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in the procedure established by law (article 29).

Part 1 of article 9 of the Constitution established that the existing international treaties, the binding of which is given by the Verkhovna Rada of Ukraine are part of national legislation of Ukraine. Therefore, part 2 of article 19 of the Law of Ukraine from June 29, 2004 N 1906-IV "On international treaties of Ukraine" stipulates that if an international Treaty of Ukraine, which entered into force in accordance with the established procedure establishes other rules than those provided for in the relevant act of legislation of Ukraine, the rules of the international Treaty.

In addition to the norms of the Criminal procedural code of Ukraine (hereinafter - CPC) and article 10 of the Criminal code of Ukraine (hereinafter - CC) issues associated with the individual's right to freedom of movement and personal security (detention, detention), are also governed by applicable international treaties of Ukraine, in particular the European Convention on extradition of 1957 and its Additional protocols (1975 and 1978, ratified by Law of Ukraine of 16 January 1998 N 43/98-BP statements and reservations (hereinafter European Convention), the Convention on legal assistance and legal relations in civil, family and criminal matters of 1993, concluded in Minsk and ratified by Law of Ukraine dated November 10, 1994 N 240/94-BP, bilateral agreements of Ukraine with other States, multilateral special agreements on combating certain types of crime (for example, the Convention of the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances of 1988, ratified by the Verkhovna Rada of Ukraine from April 25, 1991 N 1000-XII.

On the question of whether considered in a judicial proceeding or that the issue of extradition of persons to other States must be based on relevant provisions of the Basic Law, other national legislation, including the European Convention or other international treaties of Ukraine, the agreement ratified by the Verkhovna Rada of Ukraine, or treaties of the former USSR, Ukraine which are applied in succession in accordance with the Law of Ukraine of 12 September 1991 N 1543-XII "On succession of Ukraine".

While courts should ascertain concluded between Ukraine and state, which filed a request with the appropriate contract and what is the procedure for dealing with extradition, it has.

The courts need to keep in mind that according to part 2 of article 10 of the criminal code, foreigners and stateless persons, permanently residing in Ukraine who have committed crimes outside Ukraine and within its territory may be extradited to a foreign state for criminal prosecution and transmission to the court or transferred to serve his sentence only if such issuance or transfer under the international treaties of Ukraine.

It should also be remembered that according to part 3, article 25 of the Constitution a citizen of Ukraine cannot be extradited to another state.

Given that the current legislation the courts are not empowered to independently resolve the issue of granting permission for the extradition of persons and in accordance with article 22 of the European Convention and similar provisions in other international treaties of Ukraine, the procedure for their issuance is exclusively governed by the law of the party to which requests that the court was entitled to resolve such issues.

They can not on their own initiative to solve a question on election of a measure of restraint in respect of persons subject to extradition or surrender, including detention, because such measures are applied only in cases, considered by the competent authorities of Ukraine.

Given the fact that in Ukraine a person may be detained more than three days only by a reasoned decision of the court, and bearing in mind that the meaning of part 2 of article 29 of the Constitution, such a decision can be made only by a competent court of Ukraine, courts should adopt to its production and to consider the merits of the submission of the prosecutors or agreed representations of bodies that handle requests from other States for extradition, authorising the detention of persons and the delivery of their detention before a competent authority of a foreign state.

In accordance with article 16 of the European Convention and similar provisions in other international treaties of Ukraine in some cases, the competent authorities of the state that sends the request, may request the provisional arrest of the person sought. The competent authorities of the state to which the request, decide the matter in accordance with its legislation.

In this regard, the local courts should adopt to its production and to consider the merits of the submission of the prosecutors or agreed representations of bodies performing requests from other States for extradition, provisional arrest of persons for the purpose of delivering them from detention to the competent authority of the state that sends a request, for a period established by the European Convention or other international agreement.

The courts, perceptions of detention or temporary arrest is made under the rules established by article 165-2 of the code of criminal procedure.

Courts may apply the rules of part 4 of article 165-2 of the code of criminal procedure with the aim of bringing to the court the person against whom addressed the issue of the arrest (provisional arrest) for the purpose of issue or transfer.

The court shall verify the existence of the request and the relevant documents specified in the agreement, on the basis of which addressed the issue of extradition, as well as the absence of circumstances preventing the issue or transfer (articles 2, 3, 6, 10, 11 of the European Convention and its Additional protocols (1975 and 1978, article 57 of the Convention on legal assistance and legal relations in civil, family and criminal matters of 1993, etc.).

In particular, the issue of detainees are not effected: for the political and military offenses; in connection with the expiration of the limitation period; when the territory of the party to whom requests, a judgement or a ruling on termination of the case on the same charges, in connection with the presentation of which requires issuance; when the question is raised about the extradition of nationals or stateless persons who permanently reside in Ukraine; persons who are in Ukraine refugee status; if the party who sends the request, it will provide Ukraine with adequate assurances that the sentence with the imposition of the death penalty will not be facing execution in the case when the offense for which you want issue, is punishable by death under the laws of the state which sends the request; the offence for which extradition, according to the legislation of the party who is requesting, or Ukraine will be prosecuted in a private prosecution; the offence the Commission of which requires issuance, shall be punished by imprisonment for a maximum period of one year or less or less severe form of punishment.

Account should be taken of other provisions of the European Convention or the international treaties on legal assistance, which provides that a party to whom requests, refuse to extradite a person.

According to article 28 of the European Convention, its provisions supersede the provisions of any bilateral treaties, conventions or agreements governing extradition of offenders between any two Contracting Parties.

Thus, if a state that submits a request for extradition, is a Party to the European Convention, the provisions of other bilateral or multilateral treaties on extradition can be applied only in the part in which they complement the provisions of the Convention.

According to part 3, article 29 of the Constitution, courts should adopt to its production and to consider the merits of persons detained on the basis of a request of another state, extradition, illegal detention, and complaints of their defenders and legal representatives.

The investigation of such complaints are made according to the rules specified in parts 7 and 8 of article 106 of the CPC. When deciding on the legality of the detention, the judge must take into account both the relevant provisions of the code of criminal procedure of the rules of detention and the procedure of its registration and the provisions of the respective international agreement, in connection with which the person was detained, and the availability of necessary documents, on the basis of which the extradition (in particular, the extradition request, the decision of the competent authorities of the party filing the request, the detention or arrest of a person, etc.)