Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
Enero
Junio
2022
Recibido el 05/09/2021 Aceptado el 06/12/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 72 (2022), 591-607
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Criminal Procedure and Forensic
Aspects of Mutual Legal Assistance
between States in Criminal Matters:
Experience of Ukraine and the
Republic of Azerbaijan
DOI: https://doi.org/10.46398/cuestpol.4072.35
Asgarova Matanat Pasha *
Abstract
This article, through the description of real experiences, reveals
some of the obstacles that arise when applying the international,
national, and domestic laws of the Republic of Azerbaijan and
Ukraine in the ght against crimes of an international character,
and oers alternatives to address them. International legal
assistance between States in criminal cases is provided in
accordance with international agreements. The instruments
of cooperation in the eld of mutual legal assistance between States in
criminal matters are well known to European judges and prosecutors.
However, experience shows that post-Soviet countries have been reluctant
to use mutual legal assistance in criminal matters because of the practical
problems that often arise. The solutions to these problems are not only
found in national or international legal texts and regulations, directives, or
conventions. It is concluded that legal assistance among States in criminal
cases is essential to extradite oenders facing criminal charges or to execute
court sentences, to extradite persons, to transfer convicted persons to serve
their sentences and to seize, search for and conscate the proceeds of crime.
Keywords: criminal law; criminal procedural law; international criminal
law; comparative law; constitutional law.
* Associate Professor, Ph.D.in Jurisprudence The Academy of Justice of the Ministry of Justice of the
Republic of Azerbaijan H. Zardabi 192, apartment 103, Baku, AZ1011, Republic of Azerbaijan Republic
of Azerbaijan, Baku, ORCID ID: https://orcid.org/0000-0003-1419-9519
592
Asgarova Matanat Pasha
Criminal Procedure and Forensic Aspects of Mutual Legal Assistance between States in Criminal
Matters: Experience of Ukraine and the Republic of Azerbaijan
Aspectos procesales y forenses de la asistencia jurídica
mutua entre Estados en materia penal: La experiencia de
Ucrania y la República de Azerbaiyán
Resumen
Este artículo, mediante la descripción de experiencias reales, revela
algunos de los obstáculos que surgen al aplicar las leyes internacionales,
nacionales e internas de la República de Azerbaiyán y Ucrania en la lucha
contra los delitos de carácter internacional, y ofrece además alternativas
para hacerles frente. La asistencia jurídica internacional entre Estados en
casos penales se presta de conformidad con los acuerdos internacionales.
Los instrumentos de cooperación en materia de asistencia jurídica mutua
entre Estados en materia penal son bien conocidos por los jueces y scales
europeos. Sin embargo, la experiencia demuestra que los países post
soviéticos se han mostrado reacios a utilizar la asistencia jurídica mutua
en materia penal debido a los problemas prácticos que suelen surgir. Las
soluciones a estos problemas no solo se encuentran en los textos legales
y reglamentos, directivas o convenios nacionales o internacionales. Se
concluye que, la asistencia jurídica entre los Estados en las causas penales
es esencial para extraditar a los delincuentes que se enfrenten a cargos
penales o, ejecutar sentencias judiciales, para extraditar a personas, para
trasladar a los condenados a cumplir sus condenas y para incautar, buscar
y conscar el producto del delito.
Palabras clave: derecho penal; derecho procesal penal; derecho
penal internacional; derecho comparado; derecho
constitucional.
Introduction
The relevance of the research is since in any democratic state the highest
priority task in ensuring the rights and freedoms of man and citizen,
stipulated by the constitution, is the eective ght against crime.
This task is complicated by the processes of globalization of the world
community, particularly economic integration of states (for example, the
creation of free trade zones in Europe), cooperation in solving environmental
problems (for example, global warming and inevitable climate change),
development of transport infrastructure (for example, ensuring fast and
quality transportation between states), and rapid development of high
technology and scientic advances (for example, the invention of vaccines
to counter pandemics). These processes generate a parallel increase in
crime on an international scale.
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We are talking, above all, about the creation of organized crime, arms
tracking, drug tracking, terrorism, and human tracking, which calls
for states to join forces and coordinate common goals in their practical
anti-crime eorts (Reza Vanaki et al., 2021). But at the same time with the
obvious advantages of international cooperation in the provision of mutual
legal assistance between states in criminal matters, with the high rate of
harmonization of criminal procedures in dierent states, the problem
of dierent understanding of both the essence and the specicity of the
procedural actions in dierent systems of law arises (Epikhin et al., 2020).
1. Literature Review
Universal Declaration of Human Rights of 1948, the International
Covenant on Civil and Political Rights of 1966, the International Covenant
on Economic, Social and Cultural Rights of 1966, the European Convention
for the Protection of Human Rights and Fundamental Freedoms of 1950
are important for Ukraine and Azerbaijan Republic in studying the criminal
procedural and forensic aspects of mutual legal assistance between states
in criminal matters, as well as in the constitutions of these states and their
national legislation.
2. Methods
The methodological basis of the study is general and special methods
of scientic knowledge (statistical, formal-logical, comparative-legal, and
structural-logical method), which allowed to reveal the main criminal
procedure and criminological aspects of mutual legal assistance between
states in criminal cases in Ukraine and in the Republic of Azerbaijan.
Methodological basis of the study is a system of general scientic and
special methods to obtain its objective and reliable results.
Specicity of the purpose and tasks of the research caused the need to
use the following methods: formal logic, dialectical, comparative-legal,
formal-logical, system-structural and others. Methods of formal logic
(analysis, synthesis, deduction, induction, analogy, abstraction) - for
detailed awareness of the content of the issues under study. The dialectical
method was used during the research of categories, in particular legal
assistance of international nature between states in criminal cases. The use
of the comparative legal method allowed to determine the essence, content,
and correlation of the national legislation of Azerbaijan the Republic and
of Ukraine and international legislation, which is applied by these states in
the established order, specialized laws and bylaws that regulate the issues
of legal assistance between states in criminal cases.
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Criminal Procedure and Forensic Aspects of Mutual Legal Assistance between States in Criminal
Matters: Experience of Ukraine and the Republic of Azerbaijan
System-structural method made it possible to systematize national and
international normative legal acts and bylaws, to study and analyze their
norms about our study, to analyze criminal procedure and criminalistics
aspects of legal assistance between states in criminal cases on the example
of the Azerbaijan Republic and of Ukraine.
3. Result and Discussion
Results of the research: statistical data on the ght against terrorism
in the Republic of Azerbaijan as an example of successful international
cooperation in the provision of legal assistance between states in criminal
cases, a comparative analysis of the national criminal and criminal
procedural legislation of the Republic of Azerbaijan and Ukraine, as well
as examples of international legal acts in the specied area are presented in
the Republic of Azerbaijan and Ukraine.
The practical signicance of the results of the analysis of national
and international legislation in Azerbaijan Republic and Ukraine is that
the examples given in the article will be useful rst of all in the process
of law enforcement bodies’ system reformation, which is taking place in
Ukraine, because both practical workers and scientists are involved in this
process, and international legal acts, practice of European Court of Human
Rights, and also international experience of law enforcement bodies
are implemented in national legislation. Ukraine would benet from the
experience of the Republic of Azerbaijan in eectively combating crime
through international cooperation in criminal matters. The analysis and
generalized conclusions of the article can also be used in the generalization
of the judicial practice, decisions of judicial and other state bodies, used
in the preparation of scientic comments to the criminal code, criminal
procedure and other codes and laws which regulate the issues of mutual
legal assistance between states in criminal matters.
The problem of money laundering remains particularly acute, as
evidenced by the initiative of the European Commission, announced in
July 2021, to create a new agency for the supervision of the turnover of
illegally gained money, which will enable, rst, to cut o the money ows of
terrorist nancing. States, in particular, must commit themselves to treat
money laundering as a criminal oence, assist in investigations and take
preliminary actions (freezing of bank accounts, seizure of property to avoid
concealment, conscation of funds and income obtained by illegal means or
property whose value exceeds the value of the income).
A very commission of crimes not limited to the territory of one state, or
having in its composition a foreign element, raises the problem of conict of
jurisdictions of dierent states and the eect of the extra-territorial nature
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of the criminal procedural law of a foreign state in the sphere of national
jurisdiction. In this connection: “it becomes important to assess the present
situation of the international legal system in the eld of legal cooperation
in criminal matters in order to create new provisions and improve the
application of existing ones” (Report of The Intergovernmental Expert
Group Meeting, 1998). From the practical point of view, the experience of
the Republic of Azerbaijan is useful for Ukraine in its anti-corruption policy.
In particular, the State program for ghting corruption for 2004-2006,
the adoption of the new National strategy for increasing transparency and
ghting corruption in 2007, and the action plan for 2007-2011 constitute
important progress in the criminalization of corruption in that country.
An important role in the successful ght against crime in the Republic of
Azerbaijan is played by the legal assistance in criminal cases that is provided
in accordance with the concluded treaties between this state and the Kyrgyz
Republic, the Republic of Uzbekistan, and the Russian Federation. Active
and passive bribery in the public sector, trading in inuence, intangible
benets and bribery through intermediaries have been criminalized in
accordance with the relevant international standards.
The Republic of Azerbaijan is also actively combating the global problem
of terrorism (Azerbaijan in the world community, 2021). In the framework
of wide social, economic, and legal reforms carried out to improve the
activity of the Ministry of Interior, in accordance with international norms
and standards, with participation of legal experts from Germany, England,
France, Spain and other European countries a number of normative acts
and conceptual documents dening legal basis of activity of the Republic
of Azerbaijan in the eld of ght against crime were developed. In 1992
the Republic of Azerbaijan joined the International Criminal Police
Organization, Interpol.
From that moment the foundations of direct cooperation with law-
enforcement agencies of foreign countries were laid. This process
intensied relations of the Republic of Azerbaijan with such authoritative
organizations as the UN, the Council of Europe, which specialize in the eld
of law enforcement agencies. At the same time, the country’s economic and
social situation was developing dynamically, which led to an increase in the
inow of foreign investors into Azerbaijan.
In this regard, there was a need to strengthen bilateral and multilateral
legal relations with relevant authorities of these countries, including those
related to the ght against crime. During the last 20 years 48 bilateral
and 27 multilateral interagency and intergovernmental agreements,
memorandums and protocols have been signed by the Ministry of Internal
Aairs of the Republic of Azerbaijan and respective organizations from
about 40 countries. The subject of the mentioned international legal
documents is the exchange of information and experience, cooperation in
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Criminal Procedure and Forensic Aspects of Mutual Legal Assistance between States in Criminal
Matters: Experience of Ukraine and the Republic of Azerbaijan
the eld of police education and training, joint investigative measures based
on cooperation in the ght against various types of transnational crime,
illicit tracking in drugs, psychotropic substances, weapons, terrorism,
human tracking, illegal migration, smuggling (Azerbaijan in the world
community, 2021).
Within the framework of such international and regional organizations
as OSCE (Organization for Security and Cooperation in Europe),
“Organization for Democracy and Economic Development - GUAM” NATO
(North Atlantic Treaty Organization), BSEC (Organization of the Black Sea
Economic Cooperation), ECO (Organization of Economic Cooperation) OIC
(Organization of Islamic Conference), CIS (Commonwealth of Independent
States) special attention is paid to activities of the Ministry of Interior of the
Azerbaijan Republic in this direction (Azerbaijan in the world community,
2021).
As for Ukraine, the basis for international cooperation in criminal
matters are acting bilateral and multilateral treaties, consent to the binding
of which was conrmed by the Supreme Council of Ukraine in the prescribed
manner. Bilateral agreements allow considering more fully the nature of
relations between the two states, their interests on each specic issue.
In this regard, the most widespread are bilateral agreements on such
issues as avoidance of double taxation, legal assistance in tax cases, legal
assistance in criminal proceedings, extradition of oenders, transfer of
convicted persons to serve the sentence in the country of which they are
citizens, etc.
Among the multilateral treaties we should mention the European
conventions on criminal proceedings, which are important both for the
Republic of Azerbaijan and Ukraine, namely: European Convention on
Extradition of Oenders and its two additional protocols (European
Convention on the Extradition of Oenders, 1957), the European Convention
on mutual legal assistance in criminal matters with an additional protocol
to it , European Convention on the Transfer of Proceedings in Criminal
Matters (European Convention on the Transfer of Proceedings in Criminal
Matters, 1972), Convention on the Transfer of Sentenced Persons and
its Protocol (Convention on the Transfer of Sentenced Persons, 1983),
European Convention on the Supervision of Probationers and Parolees
(European Convention on the Supervision of Conditionally Sentenced,
1964), Convention on Laundering, Search, Seizure and Conscation of
Proceeds from Crime (Convention on Laundering, 1990), in addition, it
is necessary to mention the European Convention on the international
recognition of judgments in criminal cases (European Convention on the
international recognition of judgments in criminal cases, 1970).
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In addition, it should be mentioned that within the framework of the
Commonwealth of Independent States, the Convention on Legal Assistance
and Legal Relations in Civil, Family and Criminal Cases (1993) and the
Protocol to the Convention (1997) are in force. In the framework of the
UN - the Convention against Transnational Organized Crime (2000)
(Convention against Transnational Organized Crime, 2000).
These international treaties establish a uniform pattern of law
enforcement and judicial cooperation in the ght against crime by all
European states.
It is also worth mentioning the International Criminal Court, which was
established at the Diplomatic Conference of Plenipotentiaries held in Rome
under the auspices of the United Nations on 15-17 July 1998.
As to the previously mentioned international treaties, the treaties on
legal assistance in criminal matters (which contain the whole range of
issues regarding cooperation of competent authorities in criminal matters)
should be attributed to such treaties. Such treaties were mostly concluded
during the existence of the Soviet Union, but, despite this, some of them are
still valid today. At the same time, it should be noted that the practice of
concluding international treaties follows through the conclusion of treaties
on cooperation between states regarding certain types of legal assistance:
on legal assistance in criminal cases, on extradition of criminals, on the
transfer of convicted persons. As of today, the total base of international
treaties in force in Ukraine consists of 18 multilateral and 37 bilateral
international treaties in this eld.
It should be noted that it is precisely the existence of an international
treaty that is a prerequisite for taking decisions on the extradition of
oenders, and on the transfer of convicted persons. Thus, in accordance with
article 10 of the Criminal Code of Ukraine, foreigners may be extradited for
prosecution and trial or transferred to serve a sentence, if such extradition
or transfer is provided for in international treaties of Ukraine (Criminal
Code of Ukraine, 2001).
The same provision is specied in Article 12 of the Criminal Code of the
Republic of Azerbaijan, according to which foreign citizens and stateless
persons who have committed a crime outside the Republic of Azerbaijan may
be held criminally liable under the present Code in cases where the crime is
directed against citizens of the Republic of Azerbaijan, the interests of the
Republic of Azerbaijan, as well as in cases stipulated by an international
agreement of the Republic of Azerbaijan, if they have not been convicted in
a foreign state (Criminal Code of the Republic of Azerbaijan, 1999).
In connection with the processes of world globalization, which also
aects the ght against crime, the question arises of how a person who has
committed a crime and is hiding in another state can be held criminally
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Matters: Experience of Ukraine and the Republic of Azerbaijan
responsible for the crime he has committed. There are several ways to
resolve this issue, the rst of which is the extradition (or extradition) of that
person.
In Ukraine, the question of extradition is resolved when the territorial
principle (the place where the crime was committed and where the oender
is located) is combined with the citizenship of the person concerned, that is,
the principle of citizenship is decisive for extradition. According to Article
25 of the Constitution of Ukraine, a citizen of Ukraine cannot be expelled
from Ukraine or extradited to another country (Constitution of Ukraine,
1996). The principle of nationality is also reected in the Criminal Code,
which provides those Ukrainian citizens and stateless person permanently
residing in Ukraine who have committed crimes outside the borders of
Ukraine may not be extradited to a foreign State to face criminal charges or
to stand trial (Article 10, clause 1 of the Criminal Code of Ukraine) (Criminal
Code of Ukraine, 2001).
It should be noted that non-extradition of one’s own citizens does not
mean that they remain unpunished. Each state, at the request of another
state, is obliged to initiate criminal proceedings or to take over, in accordance
with its national legislation, the criminal prosecution of its nationals who
are accused of committing a crime in the territory of another state. At the
same time, this is also another way of bringing a person to justice - the
transfer of criminal proceedings.
Regarding the above procedure with the European states, the legal basis
is the European Convention on the Transfer of Proceedings in Criminal
Matters, 1972, and regarding the CIS countries - the Convention on Legal
Assistance and Legal Relations in Civil, Family and Criminal Matters, in
1993 (the so-called Minsk Convention) (Convention on Legal Assistance
and Legal Relations in Civil, Family and Criminal Cases, 1993) and some
international treaties, which we mentioned earlier. As an example, the
Treaty between Ukraine and the Republic of Poland on Legal Assistance
and Legal Relations in Civil, Family and Criminal Cases (1993).
There is also a third way of bringing a person to criminal responsibility,
which should be mentioned in our study - the transfer of execution of a
sentence, by which the person was convicted on the territory of another state
for a committed crime but escaped punishment by eeing to the state of
his citizenship. This possibility is provided for by the European Convention
on the International Recognition of Criminal Judgements, 1970 and the
Additional Protocol to the Convention on the Transfer of Sentenced Persons,
1997. (Article 2 of the Protocol), as well as the transfer of the execution
of a sentence based on the European Convention on the Supervision of
Probation or Parole Oenders, 1964.It should be noted that the legislation
in Ukraine identies two central bodies for the implementation of the above-
mentioned European conventions in the eld of criminal proceedings (in
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particular, on the transfer of proceedings in criminal cases; on laundering,
detection, seizure and conscation of proceeds of crime) (Convention on
Laundering, 1990): The Ministry of Justice of Ukraine - at the stage of
criminal proceedings and the Prosecutor General’s Oce of Ukraine - at
the stage of pre-trial investigation.
In addition, the Ministry of Justice acts as a central body for the
implementation of the European Convention on the International
Recognition of Criminal Judgements, the European Convention on the
Supervision of Probation or Parole Oenders, and the Convention on the
Transfer of Sentenced Persons and its Protocol.
Apart from the bilateral level, Ukraine also cooperates at the regional
level, which can be explained by the coincidence of interests and the nature
of relations between the countries of a particular region. Thus, Ukraine is
a member of the Council of Europe and the Organization for Security and
Cooperation in Europe.
The third direction covers cooperation within the framework of universal
international organizations and, rst, it concerns the United Nations
and its specialized agencies, as well as the international criminal police
organization (Interpol). Universal and regional international organizations,
regardless of their scale and inuence, continue to play an important role in
combating new global threats, such as transnational crime.
Thus, international organizations, along with assistance in eliminating
and preventing threats, create ample opportunities to protect the interests
of Ukraine and the Republic of Azerbaijan in global politics. A scientic
analysis of the topic, relevant both theoretically and practically, was
conducted.
Based on the comparative analysis of the national normative and legal
as well as international acts, adopted and used by Ukraine and the Republic
of Azerbaijan as provided by law, we can conclude that we can consider the
provision of mutual legal assistance between states in criminal cases as a
form of interaction between state authorities and respective ocials with
the respective competent authorities and ocials of foreign states, as well
as international organizations.
This form of interaction is carried out in the established criminal
procedural legislation, both the States themselves interacting with each
other, and international legal acts, bilateral and multilateral treaties on
mutual legal assistance between States in criminal matters. In its content,
it is a joint procedural action of foreign states to collect evidence and its
verication, the implementation of criminal prosecution and other forms of
assistance for the proper solution of a particular criminal case.
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Matters: Experience of Ukraine and the Republic of Azerbaijan
An important aspect of international cooperation, which is the
cooperation of law enforcement agencies of dierent states, is the
concluded treaty on assistance in the investigation of criminal oences, but
cooperation between countries does not always consist in signed treaties
but can also be based on the principle of reciprocity, which is one of the
basic principles of international law.
The fundamental characteristic that distinguishes international legal
assistance in criminal proceedings from other forms of international legal
cooperation is the fact that in the implementation, the requesting State
(the requesting party) partially transfers its competence to resolve criminal
proceedings under its jurisdiction to another State (the requested party).
The transfer of competence includes the following recognition of evidence
obtained under the rules of foreign criminal procedure law as admissible
and compliant with the national legislation of the requesting State (the
requesting party).
In accordance with the Article 1 of the European Convention on
Extradition of Oenders and the relevant articles of bilateral treaties on
the extradition of oenders, States are obliged to extradite to one another
person’s present in their territory and wanted by the competent authorities
of the State in whose territory the oence was committed for the purpose of
prosecution or to enforce a sentence of conviction which has entered into
legal force (European Convention on the Extradition of Oenders, 1957).
Ukraine has ratied that Convention and, in addition, the CIS Convention
on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases,
as well as Ukraine’s bilateral treaties on extradition and legal assistance,
which contain provisions on extradition, provide grounds for extradition.
Extradition is carried out in connection with oences punishable by at least
one year’s imprisonment or a more severe penalty.
Extradition for the purpose of enforcing a sentence is generally carried
out if the person is sentenced to imprisonment of at least six months or a
heavier sentence. However, the lower limit of the sentence must be four
months. Thus, extradition is the process of surrendering an oender under
international law to another state for the imposition of a criminal penalty.
The conditions under which a State may refuse to extradite oenders are
also provided for in the relevant articles of the European Convention and
in bilateral international treaties (European Convention on the Extradition
of Oenders, 1957).
Ukraine has signed the above-mentioned agreements on extradition
of criminals with such countries as Azerbaijan, Poland, Latvia, Lithuania,
Estonia, Moldova, Georgia there are also agreements of our state concerning
the European Convention on mutual legal assistance in criminal matters
with the states that are members of the Council of Europe: Austria,
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Germany, Turkey, Switzerland, Italy, Spain. Currently there are no such
agreements between Ukraine and the USA and Ukraine and Canada.
Republic of Azerbaijan has extradited 12 persons suspected of inciting
religious hatred and committing terrorist acts, including 3 members of the
terrorist organization Al Qaeda, 3 activists of Misir Islam Jihadi, 5 members
of Al-Jamaa Al-Islamiya and 1 member of Caucasus Islam Army, based on
the petitions sent by the cooperating countries. Moreover, 11 terrorists were
detained in Azerbaijan and handed over to the special services of other
countries, and six terrorists were arrested in Great Britain, the Netherlands,
Germany, Pakistan and the United Arab Emirates based on the information
of the special services of Azerbaijan.
The national security agencies of Azerbaijan revealed 14 activists of
terrorist organization “Jeyshullah”, 6 members of “Hizbut-Tahrir” and
1 member of “Al-Jamaa Al-Islamiya”. Because of the links with terrorist
organizations the activity of branches of foreign organizations in Baku –
“International Humanitarian Appeal” from the United Arab Emirates, “Al-
Haramain” from Saudi Arabia, “Revival of Islamic Heritage” and “Fund for
the Sick” from Kuwait, “International Charitable Foundation” from USA and
“Qatar” organization from Qatar was suspended (International Convention
on the Elimination of all Forms of Racial Discrimination, 2008).
Three employees of these organizations were handed over to Egypt
and 23 employees were deported from the territory of the Republic of
Azerbaijan. During last year’s 33 foreigners directly connected with
international terrorism were extradited. Only after September 11, 2001,
events 5 citizens of Egypt and 1 citizen of Uzbekistan were extradited to
terrorist organizations “Al-Qaeda”, “Al-Jamaa Al-Islamiya” and “Egyptian
Islamic Jihad”.
Activity of the branches of 7 charitable organizations in Baku was
suspended due to links with terrorist organizations (Reports submitted
by States, 2007). On the examples of the Republic of Azerbaijan further
development of the institute the extradition of criminals will take place on
the basis of what he actually constitutes combining the sovereign rights of
the state with human rights and existing one’s diculties in applying the
principle of double criminal responsibility.
The development of bilateral interstate relations with other countries,
accession of Ukraine and the Republic of Azerbaijan to multilateral
international treaties contributes both to improvement of cooperation
between law enforcement agencies of dierent countries in investigation,
prosecution, and trial of criminal cases, and to increase the global status of
Ukraine and the Republic of Azerbaijan as European states.
It should also be noted in our study about the existing contractual legal
framework of bilateral relations between the Republic of Azerbaijan and
Ukraine.
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Matters: Experience of Ukraine and the Republic of Azerbaijan
As of June 2021, 141 international agreements were signed between
Ukraine and the Republic of Azerbaijan, of which: 64 interstate and
intergovernmental, 41 interdepartmental, 14 political and 20 other
documents.
Cooperation of states, including Ukraine and the Republic of Azerbaijan
in the eld of combating criminal oences develops at three levels: bilateral,
regional, and universal (general), at each of them international agreements
(international treaties) on cooperation are concluded.
The basic political documents between Ukraine and Azerbaijan are the
Treaty of Friendship and Cooperation of 09/12/1992 and the Agreement
of Friendship, Cooperation and Partnership of 16/03/2000, which dene
the main directions, forms, and methods of cooperation between states,
including in the eld of combating crime. Declaration on Friendship and
Strategic Partnership between Ukraine and the Republic of Azerbaijan
dated 22/05/2008 denes the level of cooperation between the states as
strategic.
The key legal acts of Azerbaijani Ukrainian relations are: Agreement on
economic cooperation, agreements on air trac, on cooperation in customs
aairs, military-technical, scientic and technical cooperation, cooperation
in the eld of tourism, communications, on mutual recognition and
equivalence of educational documents and academic titles, youth policy
and sports, visa-free travel of citizens, the principles of cooperation in the
oil industry, cooperation in the eld of culture and art, cooperation in the
eld of education, etc.
The Republic of Azerbaijan, as an Agreement between the Republic
of Azerbaijan and Ukraine on the transfer of persons sentenced to
imprisonment for further serving their sentence (1998), the Convention
between Government of the Republic of Azerbaijan and the Cabinet of
Ministers of Ukraine the on the avoidance of double taxation and prevention
of tax evasion on income and property (2000), Agreement between the
Government of the Republic of Azerbaijan and the Cabinet of Ministers of
Ukraine on cooperation in the eld of combating economic and nancial
violations (2000), Agreement between the Government Of the Republic
of Azerbaijan and the Cabinet of Ministers of Ukraine on cooperation in
combating smuggling and violation of customs regulations, as well as illegal
circulation of ammunition, explosives, drugs, psychotropic substances and
precursors (2004) (Legal framework between Ukraine and Azerbaijan,
2021).
In both the Republic of Azerbaijan and Ukraine the legal basis for
international cooperation in criminal matters is primarily the Constitutions
of these countries, as well as international treaties, consent to which is
legally binding, other laws and regulations of these states. It should be
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noted that in some cases international interdepartmental agreements on
cooperation in the ght against crime contain some disadvantages. One of
the reasons for this is that in contradiction with the current norms of law
enforcement agencies do not register the named contracts in the prescribed
manner.
The international cooperation in criminal matters between States
is, on the one hand, an eective method of combating crime, but, on the
other hand, implies several problematic aspects that need to be addressed
immediately within the legal framework. Thus, one of the main directions
of international cooperation in the ght against crime is international
cooperation in criminal proceedings.
Today, unfortunately, there is not a single international treaty of Ukraine,
the title of which includes the phrase “international cooperation in criminal
proceedings. This is primarily since among our domestic legal scholars
there is no unied approach to dening the content and basic principles of
international cooperation in criminal proceedings. At the same time, the full
implementation of tasks of criminal proceedings is sometimes impossible
without involvement of employees of operational units, acting based on the
instructions of an investigator, as subjects of international cooperation.
Exploring the theme of international cooperation in criminal
proceedings, Karaseva (1999) singles out the following main directions:
1) mutual observance of immunity rules established by international law;
2) development and observance of international standards, guarantees
of human rights and freedoms, to some extent involved in criminal
proceedings; 3) legal assistance (performance of operative-search and
procedural actions by mutual consent etc.); 4) extradition; 5) transfer for
serving the sentence or compulsory execution of a criminal proceeding; 6)
mutual assistance in criminal proceedings.
Unfortunately, the legal status of employees of operational units involved
in the implementation of international legal assignments in the current
Criminal Procedure Code of Ukraine is not regulated (Criminal Procedure
Code of Ukraine, 2012). These provisions are not enshrined in the Criminal
Procedure Code of the Republic of Azerbaijan (Criminal Procedure Code of
the Republic of Azerbaijan, 2000).
On the other hand, it is important to note positive aspects of cooperation
between states in the provision of legal assistance in criminal cases. Thus,
the Ministry of Justice of Ukraine has recently concluded several agreements
on cooperation in the eld of forensic examinations with the Ministries of
Justice of the Republics of Azerbaijan, Belarus, Uzbekistan, and Georgia.
This certainly contributes to the exchange of information, implementation
of measures regarding scientic developments and expert ndings, as well
as approbation of methods of forensic research and technical means. The
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mentioned contractual relations in the eld of international cooperation
of forensic institutions envisage exchange of information on the topics of
scientic research developments, exhibitions of modern forensic equipment,
direct exchange of scientic and reference materials and documentation
(including information and reference data in electronic versions prepared
in accordance with international standards).
One of the most important components of international cooperation in
the eld of forensic examination is carrying out forensic examinations on
behalf of another state and engaging foreign specialists to carry out forensic
examinations in Ukraine. According to Article 22 of the Law of Ukraine
“On Forensic Expertise”, in case of performing forensic examination
upon request of a respective body or person of another state with which
Ukraine has an agreement on mutual legal assistance and cooperation, the
legislation of Ukraine shall apply, unless otherwise provided by the said
agreement. Payment for the cost of forensic examination shall be made on
agreement between the client and the executor of the forensic examination.
Article 23 of the Law of Ukraine “On Forensic Expertise” provides
for attraction of specialists from other states for joint performance of
forensic expertise. When necessary, heads of specialized institutions
and departmental services carrying out forensic examinations shall have
the right with the consent of the body or person who assigned the expert
examination to include leading experts from other states in the composition
of expert commissions.
Such joint expert commissions shall conduct forensic examinations
in accordance with the norms of Ukrainian procedural legislation. The
payment to foreign specialists for their participation in forensic examination
and reimbursement of other expenses associated with its conduct shall
be made by agreement between the parties. International cooperation of
Ukraine with other states in the eld of forensic expertise is the positive
factor that accelerates its progressive development (Law of Ukraine “On
Forensic Expertise”, 1994). At the same time, it should be noted that the
Law of the Republic of Azerbaijan “On forensic activities” does not provide
for international cooperation in this eld.
Conclusions
Crime in its national and transnational scales destabilizes international
relations, inuencing politics, economics, mass media, public
administration, judicial authorities, skillfully using insuciently eective
international legal measures and imperfect mechanisms of counteraction
to criminal oenses available in some countries.
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From the rst years of its independence our state began to actively
enter the sphere of international cooperation, one of the elements of
which are common actions with foreign states to combat criminal oenses.
International cooperation in combating oenses does not exist by itself. It
is a component of international relations, and even those states that do not
have close political and economic contacts, as a rule, do not neglect contacts
in the eld of combating oenses.
As we have outlined earlier, cooperation between States in criminal
matters takes place in order to achieve the goals of justice, both during the
investigation and trial of a criminal case and after the entry into force of a
court decision (sentence) and involves many aspects of criminal procedure
and forensic nature. The forms in which this kind of cooperation between
States can be organized vary in form and content.
Of course, the main of them are the provision of legal assistance in criminal
cases, which consists primarily of procedural actions, which reects the
essence of the process of investigation and judicial consideration of criminal
cases, during which there is a need to collect evidence, including, outside of
one state, by interviewing the accused, victims, witnesses, receiving expert
opinions, conducting searches, judicial examination, seizure and transfer of
documents, personal delivery of documents and their forwarding.
It should also be noted that legal assistance between States in criminal
cases is essential for extraditing criminals to face criminal charges or
enforcing court judgements, for extraditing criminals, for transferring
convicted persons to serve their sentences and for seizing, searching for
and conscating the proceeds of crime.
At present, the process of development of Ukraine as an independent,
sovereign, democratic state governed by the rule of law continues. This
process is undoubtedly impossible without the creation of an integral
eective state system to protect the rights and freedoms of citizens and
general civil interests.
Of particular importance for such development is the intensication
of lawmaking activities to improve the criminal procedural legislation, as
well as its democratization by bringing it in line with the provisions of the
Constitution of Ukraine and international legal acts. Our study examined the
normative legal acts, both national and legally implemented, in the Republic
of Azerbaijan and in Ukraine, which provide a legal basis for international
cooperation in matters related to crime. The relevant provisions of
international law are part of the treaties on combating transnational crime,
as well as bilateral and multilateral agreements establishing a general
framework for international cooperation in criminal matters.
The scope and elements of international cooperation in criminal matters
are rst outlined, followed by a discussion of international cooperation in
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Matters: Experience of Ukraine and the Republic of Azerbaijan
criminal matters and human rights using the Republic of Azerbaijan and
Ukraine as examples. The principle of mutual recognition, new instruments
of international cooperation such as extradition and execution of criminal
sentences and measures are also examined, the transfer of convicts and
the execution of custodial sentences, as well as the execution of monetary
sanctions and asset recovery.
The results of the study, analysis, and comparison of regulatory and legal
as well as international acts adopted and used by the Republic of Azerbaijan
and in the Ukraine, manner prescribed by law will be useful, rst, for law
enforcement ocers. Analysis and generalized conclusions in the article
can also be used in the generalization of judicial practice, decisions of
judicial and other state authorities, used in the preparation of scientic
comments to the criminal and criminal procedure and other codes and laws
that regulate the issues of legal assistance between states in criminal cases
in the Republic of Azerbaijan and Ukraine.
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Esta revista fue editada en formato digital y publicada
en enero de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 72
