RECOGNITION AND ENFORCEMENT OF FOREIGN COURTS IN UKRAINE UNDER THE TRANSFER OF SENTENCED PERSONS TO SERVE THEIR SENTENCES IN UKRAINE

Many citizens of Ukraine sentenced to deprivation of liberty abroad, wish to serve their sentence at home.

The existing mechanism for the transfer of prisoners in Ukraine to continue the execution of the sentence is imperfect, nevertheless the courts, despite a regulatory vacuum, make decisions on the recognition of sentences of foreign courts. Naturally, errors in such conditions can not be avoided. But to minimize them, the Supreme court of Ukraine tried, gathering together the entire national experience of making decisions on the recognition and enforcement of judgements of foreign courts for the period from 2002 to 2007, has prepared a newsletter designed to unify the judicial practice in this sphere.

First, the APU drew attention to the base of consideration by courts of cases on the recognition and enforcement of judgements rendered by foreign courts on the territory of Ukraine.

Mat pointed to the fact that the courts when deciding on the recognition of the sentence can refer to international treaties only if ratified by Ukraine and act as on the territory of our country and in the country, condemned criminal.

In any other case, the court is entitled to accept the verdict of a foreign country only if:

- a written application made by the prisoner about the execution of the sentence on the territory of Ukraine;

- agreement on the transfer of the convicted person (in the form of one document or of an exchange of letters with the competent authority of a foreign state), signed The public Prosecutor on the basis of the Resolution of the Verkhovna Rada from 17.11.1993, No. 3611-XII

For the transfer of the sentenced home, you must have either a valid international agreement or individual agreement signed by the attorney General

Since the agreement signed by the attorney General, is mandatory (if there is no applicable international Treaty), the Mat recommends that the courts consider such cases only upon the submission of the Prosecutor (according to an appropriate order of the attorney General).

Thus, citizens wishing to serve his sentence in the territory of Ukraine, according to "Instructions on how to perform...." you should submit a petition to the Ministry of justice (on the participation of the Ministry of justice to provide legal assistance can be found in the materials and send it if necessary to the attorney General for the conclusion of the transfer agreement.

Citizens wishing to serve his sentence in the territory of Ukraine, it is necessary to submit the petition to the justice Ministry, which will check the existence of an international Treaty with the country of sentencing and, if necessary, appeal to the attorney General for the conclusion of individual agreements.

The APU also noted the trend of easing domestic courts sentences given to Ukrainian citizens abroad, pointing out that such is permissible only in the case, "yakscho maximum penalty for a (of the country of enforcement, in this case Ukraine. the legislation is mensou for pacarana".

Sushestvuet two separate procedures:

- continued execution of the sentence of a foreign court;

- the substitution of a sentence of a foreign court;

The first procedure requires the observation of the court of the nature and duration of punishment imposed by a foreign court. However, the slight change of form of punishment, to bring it into conformity with our legislation.

The second is not obliged to adhere to the nature and duration of punishment, but when you change the verdict the court should consider "wisnoski schodo facts, that made the court of the state of vinasana Miroku (volume CISL schodo samorost pacarana)". Consequently, the broad powers of the court in mitigation of sentence the law does not provide.

However, domestic courts quite often and unnecessarily, according to Mat, standard practice for mitigation of the sentence. Because as strong recommendations they proposed "zastosowanie procedure samne Miroku nemnogo the court... with matrimony, naslite TSE perhaps, naturaland . trivalent pacarana, wyznaczonego court nozemna powers". That is actually leveled the difference between the two procedures described above.

In addition to commutation of the sentence by changing the penalties, the courts, the monitoring of the APU, using a partial recognition of the sentences of foreign courts.

For example, if a citizen is convicted of acts, some of which are not recognized in our country crimes, the national court does not recognize them in this part and, accordingly, "trims" the term of imprisonment. Such actions of judges contrary to the provisions of the Convention.

The sentence of a foreign court should be recognized in full

According to the Convention, to serve the sentence in Ukraine is possible only if the acts for which convicted citizen, fully recognized as crimes under the criminal code of Ukraine. Otherwise, the transfer of the convicted is prohibited.

However, there are times when the inability of the characterization of an act as an offence is detected after the return of the citizen to his homeland to serve his sentence. In this case, according to the recommendations of the European Committee on crime, the convict should be returned to the country of sentencing. Nevertheless, this question remains open, as in his letter to the APU did not evaluate this recommendation.

The APU has pointed out several irregularities in the procedure in cases concerning the recognition and enforcement of foreign judgments. In particular, there is a different practice of formation of the composition of the court. Mat put an end to this question, indicating that this category are considered by the judges alone.

Also noted that the record of the trial should be carried out necessarily, but the need for prior review of such cases is not.

And finally, the APU is strongly recommended to invite to the hearing of the convicted person and his counsel, and in failing to carefully check the reasons for their appearance in court.

Mat drew the attention of the judges on some aspects of the treatment of citizens on serving the sentence at home and on the grounds of consideration by courts of cases on recognition and enforcement of judgements of foreign courts.

The court emphasized that the transfer shall be subject only to persons convicted by foreign courts for acts that are crimes on the territory of Ukraine. Therefore, to recognize the verdict can only be fully, not partially.

In General, along with more attentive attitude of the APU to the rights and interests of convicted citizens observed a hardening of positions regarding the mitigation of the sentence