Request for provisional arrest

Ukraine

Code of Criminal Procedure of Ukraine 2012 (2015)

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 13

MEASURES OF RESTRAINT

Article 165-2. The way in which a measure of restraint is ordered

If the inquiry agency, investigator finds that probable cause exists to believe that grounds for ordering a measure of restraint in the form of custody exist, he/she submits an appropriate motion to court. Prosecutor may enter such motion either. When deciding this matter, the prosecutor shall have the duty to review all records of the case which give grounds for committing to custody, verify how legally proofs were obtained, as well as how sufficient such proofs are for the accusation.

The motion should be considered within seventy two hours after the suspect or accused has been apprehended.

If the motion aims at taking into custody a person who is at large, judge may authorize, in his/her decision, apprehending the suspect, accused and his/her bringing to court under guard. In this case, the apprehension may not exceed 72 hours; and, if a person is outside the settlement in which the court operates – the period of detention may not exceed 48 hours since delivering the person concerned into this settlement.

Having received the motion, the judge, reviews records of criminal case as submitted by the inquiry, investigator, prosecutor, questions the suspect or the accused, if necessary takes explanations from the person who conducts proceedings in the case, hears opinion of the prosecutor, defense counsel if he/she has appeared, and thereafter takes a decision:
1) to deny imposing the measure of restraint if there no grounds for ordering such measure of restraint;
2) to order the measure of restraint in the form of custody against the suspect, accused. The court may take a decision on imposing custody as a measure of restraint in the absence of the concerned person only it the person is put on the international wanted list. In such cases, the court decides on ordering the measure of restraint in the form of custody or denies to impose such measure after a concerned person has been apprehended and within 48 hours from the moment of brining the person into court and in presence of the concerned person, and issues a corresponding ruling.

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 13

MEASURES OF RESTRAINT

Article 165-3. The way in which periods of custody are extended

With sufficient grounds absent for alteration of the measure of restraint or if it is impossible to complete the investigation of the case in terms of charges proved, the investigator, upon agreement with the appropriate prosecutor, or the prosecutor himself/ herself applies to court for the extension of custody. The motion states reasons for the extension of custody, circumstances and facts to be established, proofs confirming that the crime has been committed by the person kept in custody and substantiates the necessity of maintaining this measure of restraint.

Motion to extend custody shall be filed with court:
1) not later than five days before expiration of custody period if the custody is to be extended for up to four months;
2) not later than fifteen days before expiration of custody period if the custody is to be extended for up to nine months;
3) not later than twenty days before expiration of custody period if the custody is to be extended for up to eighteen months;
4) not later than five days before expiration of the maximum custody period if the custody is to be extended for the accused and his/her defense counsel to review records of the criminal case.

Having received the motion, the judge reviews records of the criminal case, if necessary interviews the accused, the person who conducts proceedings in the case, hears opinion of the prosecutor, defense counsel if he/she has appeared, and thereafter takes a decision, with sufficient grounds present therefor, on the extension of custody, except as referred to in Article 156, seventh paragraph, of the present Code, or dismisses the motion.

The prosecutor, suspect, accused, his/her defense counsel, or legal representative may appeal against judge’s decision within 3 day after it has been rendered. The appeal does not affect execution of the judge’s decision. Decisions of a judge of Court of Appeals or a justice of the Supreme Court of Ukraine may not be challenged, and the prosecutor may not challenge such decisions.

Section IX

SURRENDER OF THE PERSON (EXTRADITION)

Chapter 37

SURRENDER OF THE PERSON (EXTRADITION)

Article 462. Temporary arrest

The temporary arrest for 40 days or another established by the corresponding international treaty of Ukraine term is applied against the detained person who has committed a crime outside of Ukraine till the receipt of request on surrender of such person.

If the maximum term of temporary arrest provided by paragraph 1 of this article, expires, and the request on surrender of such person is not received, the person shall be immediately released from arrest.

The body of inquiry, which has detained the person, files upon the consent of the public prosecutor to court (located in a region of detention) a petition on application of temporary arrest. The public prosecutor has the right to file such petition.

The petition is attached with:
1) the report of detention of the person;
2) documents containing the data on commitment by the person of a crime in the territory of foreign state and establishing a preventive measure against such person by the competent body of foreign state;
3) documents confirming identity of the detained person.

Petition shall be considered within seventy two hours from the moment of detention of the person.

Considering a petition the judge establishes the identity of the detained person, proposes him to make the statement, checks out existence of the documents provided by subparagraph 2 of paragraph 3 of this article, hears the opinion of the public prosecutor, other participants and passes resolution on:
1) application of temporary arrest;
2) refusal in application of temporary arrest if for its choosing there are no bases. The resolution of the judge can be appealed by the public prosecutor, the person against whom temporary arrest is applied, his defender or the lawful representative before the court of appeal within three days from the date of passing of the resolution. Appeal against the resolution of the judge does not cease entry into force of such resolution and its execution. The ruling of the court of appeal is not subject to appeal; it can not be appealed by cassation petition of the public prosecutor.

Discharge of the person from temporary arrest in connection with untimely receipt by the central body of request on surrender does not interfere with application to such person of extradition arrest in case of reception subsequently of such request.

In case of receipt of the request on surrender of the person (extradition) before the
termination of term of temporary arrest established by the court, the resolution of the judge on application of temporary arrest becomes invalid from the moment of passing by the court of ruling on application extradition arrest against this person.

Section IX

SURRENDER OF THE PERSON (EXTRADITION)

Chapter 37

SURRENDER OF THE PERSON (EXTRADITION)

Article 463. Extradition arrest

After receipt of request of the competent body of foreign state on surrender of the person by order (application) of the central body, the public prosecutor files petition on extradition arrest of such person to court in which jurisdiction the person is holding in custody.

Besides the petition the following documents are submitted to court:
1) a copy of request of the competent body of foreign state on surrender of the person (extradition), certified by the central body;
2) documents on citizenship of the person;
3) available materials of extradition check.

Materials, submitted to the court, shall be translated into state language or other language provided by the international treaty of Ukraine.

After reception of petition the judge establishes identity of the person, proposes him to make the statement, checks out request on surrender and available materials of extradition check, hears the opinion of the public prosecutor, other participants and passes resolution on:
1) application extradition arrest;
2) refusal in application of extradition arrest if for its choosing there are no bases. Considering the petition the judge does not examine question on culpability and does not check legality of the procedural decisions passed by the competent bodies of foreign state in the case against the person the request on surrender is received for.

The resolution of the judge can be appealed by the public prosecutor, the person against whom temporary arrest is applied, his defender or the lawful representative before the court of appeal within three days from the date of passing of the resolution. Appeal against the resolution of the judge does not cease entry into force of such resolution and its execution. The ruling of the court of appeal is not subject to appeal; it can not be appealed by cassation petition of the public prosecutor.

Extradition arrest is applied to the decision of a question on surrender of the person (extradition) and his actual transfer, but cannot be more than eighteen months. Within this term the judge of jurisdiction the person is holding in custody checks out existence of the bases for further holding of the person in custody or for discharging of such person upon the petition of the public prosecutor at least once in two months.

Upon the complaint of the person against whom temporary arrest is applied, his defender or the lawful representative the judge of jurisdiction the person is holding in custody checks out existence of the bases for discharging of such person not more than once in a month.

If the maximum term of extradition arrest provided by paragraph 7 of this article expires, and a question concerning surrender of the person (extradition) and its actual surrender is not solved by the central body, the person shall be immediately discharged.

Discharging of the person from extradition arrest by the court does not interfere with its reapplication for the purpose of actual surrender of the person to foreign state for execution of the decision on surrender except as otherwise provided by the international treaty of Ukraine.

In case of discharging of the person by the court, the public prosecutor in oblast or his deputy by agreement with the corresponding central body passes ruling on application of other necessary measures aimed at prevention of flight of the person and providing of his surrender.

Such measures shall be sufficient to guarantee the possibility of execution of decision on surrender of the person (extradition), and can provide, in particular, bail, establishment of restrictions for movement of the person and the control over the place of stay of such person. Application of bail and establishment of restrictions for movement of the person are carried out according to the procedure provided by articles 981, 151 and 154-1 of this Code, taking into account features of this title.

The public prosecutor in oblast or his deputy notifies the person against whom resolution is passed, his defender or the lawful representative on passing the resolution.

The public prosecutor in oblast or his deputy can be charged by body of inquiry with execution of resolution.

Rome Statute

Article 92 Provisional arrest

1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.

2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:

(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;

(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and

(d) A statement that a request for surrender of the person sought will follow.

3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.

4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.