THE CONCEPT AND IMPORTANCE OF PARTICIPANTS IN THE TRANSFER OF PRISONERS

THE CONCEPT AND IMPORTANCE OF PARTICIPANTS IN THE TRANSFER OF PRISONERS

Olim Saidov

Independent applicant of Tashkent State University of Law,

Uzbekistan, Tashkent

ABSTRACT

This article analyzes the institution of transfer of prisoners to serve their sentences in the States of their nationality, which is one of the directions of international cooperation in criminal matters. The author extensively reveals the relationship between the directions of international cooperation in criminal matters. Moreover, it is considered the necessity of improving of mechanism of international cooperation in criminal cases, bilateral agreements and cooperation of states in regional and universal levels.

Keywords: international cooperation, crime, transfer, prisoners, international treaty.

So as to implement the mechanism of prisoners transfer to continue serving a sentence, each participant has specific duties along with responsibilities which represent the field of their tasks. These participants are also considered as participants in criminal proceedings since the transfer of prisoners is one of the complex institutions which include international law, international criminal law, national criminal procedure and criminal law. Therefore, when studying the legal status of the participants of this institution, it is expedient to study the attendees of the criminal proceedings directly.

Participants in criminal proceedings are depicted in detail in most national and foreign literature[1].  The rights and obligations of each participant are reflected in the articles of the Crime-Procedural Code of the Republic of Uzbekistan (Part Two) and the Criminal Procedure Code (Chapter Two). However, as the procedural actions for international cooperation were not fully defined in the field of criminal procedure, the legal status of the parties involved in this process were also not emphasized.  In particular, the special status of the individuals and state bodies involved in the process of transferring of convicts to the state is not also reflected since there is no legal basis for regulating these relations, and this complex process is regulated simultaneously on the basis of national, foreign and international law.

Participants of criminal proceedings are bodies and individuals who have the rights and obligations to perform criminal procedural actions and enter into criminal procedural relations[2]. They are: court, prosecutor, inquiry authorities, defendant, suspect, victim, defense counsel, civil plaintiff and defendant, expert, interpreter, etc.  However, not all of these bodies and individuals are participants in the institution of transfer of prisoners. For example, the accused is called a convict only after the verdict has been handed down.  The legal status of the prisoners is reflected in the current Criminal Procedure Code. Suspects, victims, civil plaintiffs, and defendants do not automatically participate in the process.  The reason is that the scope of the investigation covers only the issue of transferring prisoners.

With respect to the legislation of European countries, mainly on the participants in the trial are defined as the participants in criminal proceedings. To be more specific, prosecutor and advocate or other individuals appear in the court as a "participant" or "party" in criminal proceedings[3]. In the United States, however, individuals, organizations, and governments are considered as "parties"[4].

Apart from this, in other countries participants in criminal proceedings consist of a court clerk, assistant judge, secured videoconferencing system officer, bailiff, juries, mass media (Australia[5], Norway[6], Canada[7], Japan[8]).In all of them, the bodies who transfer the prisoners are not separately indicated.

Nevertheless, in the legal literature[9], participants in the transfer process are: convict; his legal representative or lawyer; prosecutor; the court as the competent decision-making body for extradition; other competent authorities (different in each country); the state executing the sentence is stated. The legislation of some foreign countries specifies the persons involved in the extradition process, but does not specify their legal status.  For instance, Article 559 of the Criminal Procedure Code[10] of the Republic of Kazakhstan refers to the Central Authorities. According to it, the Prosecutor General's Office and the Supreme Court have been designated as the main bodies responsible for the transfer of prisoners.  Other persons involved in the transfer of prisoners are specified in the implementation of the mechanism established by the code.

A similar experience can be seen in the legislation of the Russian Federation.  The Criminal Procedure Code of the Russian Federation[11] lists the competent authorities for international cooperation in criminal proceedings. For instance, the Supreme Court, the Ministry of Justice, the Ministry of Internal Affairs, the Committee of Inquiry, the Federal Security Service, the Prosecutor General's Office (Article 453).  Another article of the CPC (Article 470) stipulates that a convict, his legal representative and the competent authorities of a foreign state shall participate in the process of finding prisoners. But their procedural status was not adequately stated.

The legislation of Ukraine provides more detailed information on the participants in the extradition process than the legislation of Kazakhstan and Russia. In particular, the main body is the Ministry of Justice, whose functions in this process are reflected in Article 602 of the CPC. In addition, the responsibilities of the prosecutor, the convict and his legal representative, as well as the court in the process of transferring convicts were also mentioned[12].

In Armenia, another CIS country, the status of individual participants has not been defined, although the process of extradition is described in detail in the legislation. But in the criminal procedural legislation the participants are depicted in 3 different forms: 1) the bodies organizing criminal proceedings (court, prosecutor, bodies of investigation and inquiry); 2) participants in court proceedings (prosecutor, investigator, inquiry body, victim, civil plaintiff, their legal representative and representatives, suspect, accused, their legal representative, defense counsel, civil defendant and his representative);  and 3) persons involved in criminal proceedings (participants in the proceedings, attesting witness, court clerk, interpreter, specialist, expert, witness)[13. A similar classification can be found in the legislation of the Estonian state (Articles 16, 17 of the CPC)[14].

In all the above-mentioned countries, the legal status of the prisoners is similar to the legislation of our country, which is reflected in the Criminal Procedure Code.  However, as noted above, the legal status of convicts in the process of transfer to the state of which they are citizens was not reflected.

Nonetheless, we can see a different practice in European countries. Although the criminal procedure legislation of the states does not list the persons and bodies involved in the criminal proceedings or in the extradition proceedings as separate parties and articles, informing the participants in criminal proceedings (Article 224 of the German Criminal Procedure Code)[15], initiating criminal proceedings (French CPC, Article 1))[16], that everyone has the right to go to the court (Hungarian CPC, section 3)[17], criminal jurisdiction (Bulgarian CPC, Article 37)[18], fundamental principles of criminal procedure (Slovak CPC, section 2)[19], names and activities of criminal justice bodies (Swiss CPC, Article 14)[20].

In short, the legislation of these countries and our country does not define such concepts as "participants in criminal proceedings" and "participants in the process of extradition." The issue has been depicted differently in the legal literature[21], and not all common concepts have been developed yet.

There is also no single approach to the question of what requirements participants must meet to hand over prisoners. Nevertheless, the analysis of the legislation is based, firstly, on the fact that the participants in the criminal proceedings are fully reflected in the law; secondly, it can be concluded that they are involved in certain procedural, investigative, and judicial actions.  At the same time, of course, the rights and obligations of the extradited convict must be significantly different from the rights and obligations of the other State Party in the proceedings.  To this end, it is necessary to improve the regulation of the legal status of its participants in order to increase the efficiency of the institution of transfer of prisoners.

Therefore, based on the international and national norms of the field, the legal experience and the views of the authors, it is proposed to define "participants in the process of extradition" as follows: bodies and individuals who have the rights and obligations to carry out procedural actions regulated by the norms of the law and to enter into criminal procedure and international relations”.

We will look in detail at the scope of authority of those involved in certain stages of the prisoners transfer process.  This will help us to clearly define the legal status of each participant in the implementation of this mechanism.

References:

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