Section IX

SURRENDER OF THE PERSON (EXTRADITION)

Chapter 37

SURRENDER OF THE PERSON (EXTRADITION)

Article 450. Definition of terms

Surrender of the person (extradition) - surrender of the person to the state by which competent bodies this person is searched with the aim of bringing to criminal liability or serving of a sentence.

The extradition includes official request on surrender of the person, identification of this person in the territory of one state, check of circumstances which can interfere with surrender, and also decision-making on the request and actual surrender of such person to other state, which competent bodies have made the request on surrender. Extradition check - activity of the bodies, defined by the law, concerning establishment and study circumstances, defined by the international treaty of Ukraine, other acts of the legislation of Ukraine, which can interfere with surrender of the person (extradition) who has committed a crime.

Extradition arrest - taking of the person into custody for providing of surrender of such person (extradition).

Temporary arrest - taking of the person, arrested on suspicion of committing a crime outside of Ukraine, into custody for the term defined by this Code or the international treaty of Ukraine, before reception of request on surrender (extradition).

Temporary surrender - surrender for certain period of the person serving a sentence in the
territory of one state to other state for carrying out of legal proceedings with participation
of such person and bringing to criminal liability for the purpose of prevention of the termination of time limitation or loss of proofs in criminal case.


Article 451. The general provisions for surrender of the person (extradition)

The request on surrender of the person (extradition) is sent provided that under the law of Ukraine at least for one of crimes, in connection with which surrender is requested, it is provided punishment in the form of imprisonment for the maximum term of not less than one year or the person is condemned to punishment in the form of imprisonment and unserved term makes not less than four months.

The request of competent body of the foreign state on surrender can be considered only in case of observance of the requirements provided by paragraph 1 of this article.

Requests on temporary surrender and transit transportation (convoying) are sent and considered according to the same procedure as requests on surrender of the person (extradition).


Article 452. The central bodies on surrender of the person (extradition)

The central bodies on surrender of the person (extradition), except as otherwise provided by the international treaty of Ukraine, are the Prosecutor General's Office of Ukraine and the Ministry of Justice of Ukraine accordingly.

The Prosecutor General's Office of Ukraine is the central body on surrender (extradition) of accused (suspected) in cases at a stage of prejudicial inquiry.

The Ministry of Justice of Ukraine is the central body on surrender (extradition) of culprits (condemned) in cases at a stage of cognizance (legal proceedings) or serving of a sentence.

According to this Code the central bodies on surrender of the person (extradition):
1) address to the competent bodies of foreign states with requests on surrender of the person (extradition), temporary surrender or transit transportation (convoying);
2) consider requests of the competent bodies of foreign states on surrender (extradition), temporary surrender or transit transportation (convoying) and make the decision on them;
3) organize carrying out of extradition checks;
4) organize reception-transfer of persons on the basis of passed decisions on surrender (extradition), temporary surrender or transit transportation (convoying) of such person;
5) execute other powers defined by this title or the international treaty on surrender of the person (extradition).


Article 453. Procedure for document preparation and submission of requests

Documents on surrender of the person to Ukraine are prepared by the body of prejudicial inquiry or court which considers a criminal case or which passes sentence with observance of requirements provided by this Code and the corresponding international treaty of Ukraine.

Documents are drawn in written and shall contain data on the person who is requested to be surrendered, circumstances and qualification of the crime, committed by such person. Documents are attached with:
1) a copy of judge's ruling on taking of the person into custody or on issue of the permission to apprehend such person and to convoy to the court or a copy of a sentence with acknowledgement of entry into force of such sentence;
2) a copy of ruling on brining of the person as accused if the sentence is not passed in the case;
3) a copy of ruling on retrieval of the person;
4) the text of article of the Criminal code of Ukraine (2341-14) according to which a committed crime is qualified;
5) documents on citizenship of the searched person;
6) the inquiry on a part of unserved sentence if surrender of the person, who has already served a part of the established punishment, is requested;
7) other data provided by the international treaty of Ukraine, which also is applied in the foreign state in which territory the searched person is established.

Documents are signed by the investigator or the judge, are sealed with the seal of the corresponding body and translated into the language provided by the international treaty of Ukraine.

Documents on surrender of the person (extradition) are transferred to the corresponding central body through public prosecutor's office in Autonomous republic Crimea, in oblast, in cities of Kiev and Sevastopol, military public prosecutor's office in the region of Ukraine and the Navies of Ukraine (hereinafter in this title Ð public prosecutor's office in oblast) within ten days term from the date of detention of the person in the territory of foreign state. Within the specified term documents on surrender of the person (extradition) of investigatory subsections of the Ministry of Internal Affairs of Ukraine, Security Service of Ukraine, the State tax administration of Ukraine are transferred directly to the Prosecutor General's Office of Ukraine.

In case of existence of the bases provided by the international treaty of Ukraine, the central body submits to the competent body of foreign state the request on surrender of the person to Ukraine.

The request on surrender is submitted by the head of the central body or his deputy within five days from the date of reception of documents from the body of prejudicial inquiry or court.


Article 454. Limits of the criminal liability of the surrendered person

The person extradited to Ukraine, can be brought to the criminal liability or can sentence of the court can be served against him only for those crimes, for which surrender (extradition) is executed.

The restrictions, stated by the competent body of foreign state at decision-making on surrender of the person to Ukraine, have binding character at passing of corresponding procedural decisions by the body of prejudicial inquiry, the public prosecutor or court.

If warnings of the competent body of foreign state concerning restrictions on surrender of the person relate to serving of a sentence, the court, which has passed a sentence, shall pass decision on its carry into effect only for those actions for which surrender was executed.

In case of commitment by a person before his surrender (extradition) of other crime not being specified by request on surrender, such person can be brought to the criminal liability or a court sentence for this crime can be executed only after reception of the consent of the competent body of foreign state extraditing the person.

The request on such consent is prepared and sent according to the procedure provided by article 453 of this Code for request on surrender of the person (extradition).

In case of brining of the person to the criminal liability for a crime, committed by such person after extradition, reception of such consent is not required.


Article 455. Inclusion of the term of detention into custody of the extradited person

Term of detention into custody of the person in territory of foreign state, and also his term of transportation under guard are included to the general term of servicing of the punishment established by a sentence of court.


Article 456. Notification on results of proceedings regarding the person that was extradited.

The central body informs competent body of the foreign state, which has made the decision
on surrender (extradition), on results of proceedings regarding the person that was extradited.


Article 457. Temporary surrender

In case of need of prevention of the termination of time limitation of bringing to criminal liability or loss of proofs in criminal case the investigator or the court considering a criminal case (where a criminal case is pending), prepares documents on temporary surrender. The specified documents as well as the request on temporary surrender prepared on their basis are sent to the competent body of foreign state according to the procedure provided by article 453 of this Code.

In case of execution by the competent body of foreign state of the request on temporary surrender such person shall be returned to the corresponding foreign state within the agreed period.

In case of need the body of prejudicial inquiry or court considering a criminal case (where a criminal case is pending), prepares documents on extension of term of temporary surrender which are sent to the corresponding central body not later than twenty days before the termination of term of temporary surrender.


Article 458. Features of detention into custody

The decision of the competent body of foreign state on taking of the person into custody or establishing of punishment for such person in the form of imprisonment is the basis for detention into custody in the territory of Ukraine of the person who:
1) are transported by territory of Ukraine;
2) temporarily extradited to Ukraine.


Article 459. Features of participation of the defender in the course of surrender of the person (extradition)

Searched by the foreign state person has the right to the defender at any stage of his surrender (extradition), but not later than from the moment of detention.

From the moment of admission of the defender to participation in a case, he has the rights provided by subparagraphs 1, 2, 3, 6, 10, 11, 12 of paragraph 2 of article 48 of this Code. Execution of the rights of defender provided by subparagraphs 7, 8, 13 of paragraph 2 of article 48 of this Code as well as the duties of the defender provided by this Code, is carried out within the limits connected with consideration and making of decision on request on surrender of the person (extradition).

The body of inquiry, which has detained such person, can appoint the defender in cases and according to the procedure, provided by this Code, through bar association. The requirement on appointment of the defender is binding for the head of bar association.


Article 460. Features of participation of the translator in the course of surrender of the person (extradition)

At any stage of surrender of the person (extradition) body of inquiry which has detained such person, the court or body which carries out extradition check, can engage the translator if such person does not know language by which proceedings are carried out, or there is a necessity for providing of translation of documents.


Article 461. Features of detention of the person who has committed a crime outside of Ukraine

Detention in territory of Ukraine of the person searched by the foreign state in connection with commitment of a crime is carried out by body of inquiry.

The public prosecutor, inspecting the observance of laws by body of inquiry which has carried out detention, is notified therewith on detention. The notice to the public prosecutor
being attached with the copy of the report on detention shall contain the detailed information concerning the bases and motives of detention.

The public prosecutor, having received the notice, examines legality of detention of the person being searched by the competent bodies of foreign states and immediately notifies the public prosecutor's office in oblast.

Within seventy two hours after detention the public prosecutor's office in oblast notifies on detention of such persons the corresponding central body which notifies the competent body of foreign state within three days.

The public prosecutor's office in oblast also notifies the Ministry of Foreign Affairs of Ukraine on each case of detention of the national of foreign state who has committed a crime outside of Ukraine.

The detained person shall be released immediately in case if:
1) within seventy two hours from the moment of detention the reasoned judgment of court on application of temporary or extradition arrest is not served to such person;
2) circumstances are found out under which surrender (extradition) is not executed. The
procedure of detention of such persons and consideration of complaints on their detention is carried out according to article 106 of this Code taking into account the features established by this title.

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.


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.


Article 464. Temporary or extradition arrest

Temporary or extradition arrest are withheld if:
1) within the terms provided by the international treaty of Ukraine the central body does not receive request on surrender of the person (extradition);
2) in course of extradition check circumstances are found out under which surrender of the person (extradition) is not carried out;
3) the competent body of foreign state refuses to request surrender of the person;
4) the central body passes decision on refusal in surrender of the person (extradition). Discharging of the person from custody is carried out by the public prosecutor in oblast or its deputy by order (application) of the central body, and in a case, provided by subparagraph 2 of paragraph 1 of this article, by agreement with the corresponding central body. The copy of resolution on discharge from custody is sent to the chief of a place of temporary detention and court which passed the ruling on application of temporary or extradition arrest.


Article 465. Carrying out of extradition check

Extradition check of circumstances which can interfere with surrender of the person is carried by the central body or by its order (application) it is carried by public prosecutor's office in oblast.

Extradition check is carried out within thirty days. This term can be extended by the corresponding central body.

Materials of extradition checks together with an opinion concerning such check are sent to the corresponding central body.


Article 466. Refusal in surrender of the person (extradition)

The surrender of the person to foreign state can be denied if:
1) the person for whom the request on surrender is received, according to laws of Ukraine for the period of decision-making on surrender (extradition) is the citizen of Ukraine or the person without citizenship being a permanent resident of Ukraine;
2) the crime for which surrender is requested, does not provide punishment in the form of imprisonment according to the law of Ukraine;
3) time limitations provided by the law of Ukraine for brining of the person to the criminal liability for a crime for which surrender is requested expire;
4) upon request of the central body the competent body of foreign state does not provide additional materials or data, without which decision-making on request on surrender (extradition) is impossible;
5) surrender of the person (extradition) contradicts obligations of Ukraine under the international treaties of Ukraine;
6) other bases provided by the international treaty of Ukraine are available.

The person having the status of the refugee, cannot be surrendered to foreign state where health, life or freedom of such person is in danger because of features of race, denomination (religion), nationality, citizenship (nationality), belonging to certain social group or political convictions, except the cases provided by the international treaty of Ukraine.