Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 10

INQUIRY

Article 106. Apprehension of the suspect by inquiry agency

Inquiry agency may apprehend a person suspected of having committed a crime for which confinement can be imposed only if one of the following grounds is present:
1) a person has been caught during the commission of crime or immediately after it has been committed;
2) eyewitnesses, including victims, expressly state that the given person is the perpetrator of crime;
3) obvious traces of crime have been found at the person concerned or his/her clothes, in his/her home.

With other particulars giving grounds for suspicion of the commission of crime present, the person concerned may be apprehended only if this person tried to escape or if he/she does not have a place of permanent residence, or if the personality of the suspect has not been established.

Inquiry agency is required to draw up a record of every apprehension, such record stating grounds, motives, date, hour, year, month, place of apprehension, explanations of the apprehended person, time when the record of explanation to the suspect, as prescribed in paragraph 2 of Article 21 of the present Code, of his/her right to have a visit of a defense counsel upon apprehension was drawn up.

The record is signed by the officer who drew it up and the apprehended person.

A copy of the record with the list of rights and duties is immediately handed over to the apprehended person and sent to the prosecutor. Records which gave ground for the apprehension are also sent to the prosecutor upon request of the latter.

The inquiry agency promptly notifies apprehension of the persons suspected of having committed a crime to one of his/her relatives while apprehension of an officer who is on active list of an intelligence agency of Ukraine in his/her line of duty is also immediately reported to the appropriate intelligence agency.

Inquiry agency within seventy two hours after apprehension:
1) releases the apprehended person – if suspicion of having committed a crime has not been confirmed, time-limit established by law expired or apprehension was conducted contrary to the first and second paragraphs of the present Article;
2) releases the apprehended person and impose on him/her a measure of restraint other than custody;
3) brings the apprehended person to judge and requests the latter to impose a measure of restraint in the form of custody.

In case of challenging apprehension before court, the apprehended person’s complaint is immediately sent to court by the head of the place of custody pending trial. The judge considers such complaint concurrently with inquiry agency’s request to impose a measure of restraint. If complaint was filed after the measure of restraint has been imposed, it is considered by judge within three days after its receipt. If the request was not received or when the complaint was received after expiration of seventy two hours after the apprehension, the judge considers the complaint within five days from its receipt.

The complaint is considered in compliance with requirements set forth in Article 165-2 of the present Code. Following consideration of the complaint, the judge takes decisions on the legality of apprehension or satisfies the complaint and finds apprehension illegal. A copy of such decision is sent to the prosecutor, inquiry agency, the apprehended person, and the head of the place of custody pending trial.

Prosecutor, the person in whose respect the decision was taken or his/her defense counsel or legal representative may challenge judge’s decision by way of appeal within seven days from the day on which such decision has been taken. Filing the appeal does not affect execution of court’s decision.

The suspect may not be detained for more than seventy two hours.

If judge’s decision to place the apprehended person in custody or to release him/her does not reach the place of custody pending trial within time-limit prescribed by law, the head of the place of custody pending trial releases the apprehended person and draws up an appropriate record thereof and notifies the official or agency which conducted apprehension thereof.

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 12

BRINGING CHARGES AND INTERROGATION OF THE ACCUSED

Article 136. Compulsory appearance under law

Compulsory appearance under law of the accused is ensured by Interior agencies and Military Justice Service of the Military Forces of Ukraine (with regard to servicemen and civil employees of the Military Forces of Ukraine) upon a motivated decision of the investigator. Save exceptional circumstances, compulsory appearance under law of the accused is ensured during daytime.
Compulsory appearance under law of the accused without pre-trial summons may be applied only if the accused avoids investigation or does not have a permanent place of residence. Decision on the compulsory appearance under law is read out to the accused before its enforcement.

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 12

BRINGING CHARGES AND INTERROGATION OF THE ACCUSED

Article 139. Retrieval of the accused

Investigator draws up a decision on the retrieval of the accused in which he/she states required information on the wanted person. Decision on the retrieval and imposition of a measure of restraint is directed to appropriate detective agencies.

After announcing retrieval, investigator continues taking all necessary measures to find out
the place of stay of the accused.

After having apprehended the wanted accused in whose respect keeping in custody as a measure of restraint was imposed, detective agency immediately informs thereon the prosecutor in the place of apprehension. The prosecutor is required to verify within 24 hours whether the apprehended person is really the one who is wanted and, after making himself/ herself sure that grounds for the arrest do exist, issues a sanction to convoy the arrested person to place where investigation is conducted.

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 13

MEASURES OF RESTRAINT

Article 155. Taking in custody

Taking in custody as a measure of restraint is imposed in cases related to crimes punishable with deprivation of liberty for more than three years. In exceptional cases, this measure of restraint may by ordered in cases related to crimes punishable with deprivation of liberty for less than three years.
(Paragraph 2 of Article 155 is omitted by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001 ).
Persons in whose respect taking in custody is imposed as a measure of restraint are kept in places of detention pending trial, i.e. pre-trial detention centers. In some cases, these persons may be kept in places for apprehended persons.
Places of detention pending trial for servicemen in whose respect taking in custody is imposed as a measure of restraint shall be military detention facilities of the Military Justice Service of the Armed Forces of Ukraine or pre-trial detention centers. Servicemen are kept
in such centers or military detention facilities of the Military Justice Service of the Armed Forces of Ukraine upon investigator’s decision. In some cases, servicemen may be kept in places for apprehended persons.
In places for apprehended persons, those taken in custody may be kept for not more than three days. If delivery of imprisoned persons in pre-trial detention center or military detention facility of the Military Justice Service of the Armed Forces of Ukraine is impossible within this time limit because of the long distance or lack of appropriate roads, they may be kept in places for apprehended persons up to 10 days.
If taking in custody as a measure of restraint is imposed on the person who has committed a crime during serving his/her sentence in a penitentiary institution, such person may be kept in the disciplinary isolation ward or sweat cell of the penitentiary institution.
Procedure for preliminary imprisonment is prescribed by Law of Ukraine “On preliminary imprisonment” (3352-12) and the present Code.
(Article 155 as amended by virtue of the Decrees of the Presidium of the Verkhovna Rada of 10.09.62, No 117-VIII ( 117-08 ) of 30.08.71, No 1898-VIII ( 1898-08 ) of 23.07.73, No 3130-VIII ( 3130-08 ) of 14.10.74, No 1851-IX ( 1851-09 ) of 23.03.77, No 6834-X ( 6834-10 ) of 16.04.84, by Laws No 2468-XII ( 2468-12 ) of 17.06.92, No 2935-XII ( 2935-12 ) of 26.01.93, No 282/95-ВР ( 282/95-ВР ) of 11.07.95, No 210/98-ВР ( 210/98-ВР ) of 24.03.98, No 1945-III ( 1945-14 ) of 14.09.2000, No 2533-III
2533-14 ) of 21.06.2001 – effective from 29.06.2001, No 488-IV ( 488-15 ) of 06.02.2003, No 743-IV (743-15 ) of 15.05.2003, No 2377-IV ( 2377-15 ) of 20.01.2005 ).


Article 156. Custody periods

Custody at the stage of pre-trial investigation may not last more than two months. Whenever it is impossible to complete investigation of a case within time-limit prescribed in paragraph 1 of the present Article and there are no grounds for revocation or substitution of this measure of restraint for a lighter one, custody may be extended:
1) up to four months – upon motion agreed with the prosecutor who supervises legality of proceedings conducted by inquiry and pre-trial investigation agencies, or by such prosecutor himself/ herself or by the judge of the court which made the decision to impose the measure of restraint;
2) up to nine months – upon motion agreed with the Deputy Prosecutor General of Ukraine, prosecutor of the Autonomous Republic of Crimea, oblast, cities of Kyiv and Sevastopol and prosecutors assimilated to them, or by such prosecutor himself/ herself in cases related to crimes of grave and especially grave severity, by the justice of the Court of Appeals;
3) up to eighteen months – upon motion agreed with the Prosecutor - General of Ukraine, his/her deputy or by such prosecutor himself/ herself in very complicated cases related to crimes of grave and especially grave severity, by a justice of High Civil and Criminal Court of Ukraine.
In every case, when it is impossible to complete full investigation of the case within time-limits referred to in the first and second paragraphs of the present Article and if there are no grounds for the substitution of the measure of restraint, the prosecutor who observes legality of proceedings in the case concerned may give his/her consent to refer the case to court in terms of charges proved. If so, as long as crimes and episodes of criminal activities which have not been investigated are concerned, the case is subject to disjoinder and is conducted according to regular procedure under the requirements stipulated in Article 26 of this Code.
A custody period is computed since taking in custody or, if apprehension of a suspect preceded taking in custody, since apprehension. The time a person stays in a psychiatric institution for in-hospital expert examination is credited to custody period. Whenever a person is re-taken in custody in the same case, as well as in connection with the case which has been disjoined from, or joined to, his/her case, or if new charges have been brought, the custody period includes previous custody period.
Custody periods at the stage of pre-trial investigation terminate the day on which the court has received the case. Whenever the prosecutor withdraws the case from court under Article 232 of the present Code, duration of these periods is renewed starting the day on which the prosecutor has received the case.
Records of a criminal case in which investigation has been completed should be produced to the accused that is committed to custody and his/her defense counsel at least one month before the expiration of the maximum custody period specified in the second paragraph of the present Article.
If records of the criminal case were produced to the accused and his/her defense counsel in disrespect of the one month time-limit before the expiration of the custody period as prescribed in the second paragraph of the present Article, after its expiration, the accused is subject to be promptly released. In such a case, the accused and his/her defense counsel
are entitled to review records of the case.
If records of the criminal case were produced to the accused and his/her defense counsel within one month time-limit, before the expiration of the custody period, but this time was insufficient for reviewing records of the case, the said custody period may be extended by a judge of the Court of Appeals upon investigator’s motion as agreed with the Prosecutor General of Ukraine or his/her deputy, or upon motion of this prosecutor or his/her deputy. If several accused who are kept in custody are involved in the case, and if the time-limit referred to in the sixth paragraph of the present Article is insufficient for at least one of them for reviewing records of the case, the said motion may be introduced in respect of the accused or several accused who have already reviewed records of the case unless such measure of restraint as custody is necessary in their respect and unless grounds for
imposing another measure of restraint exist.
If the court reminds the case to the prosecutor for supplementary investigation, custody period of the accused is computed since the case has been received by the prosecutor and it may not exceed two months. The said period is extended further with consideration of the time the accused was kept in custody before the case was referred to court, according to the procedure and within the limits prescribed in the second paragraph of the present Article.
Whenever a custody period as a measure of restraint referred to in the first and second paragraphs of the present Article has expired, and if this period has not been extended as prescribed in the present Code, the inquiry agency, investigator, prosecutor is required to immediately release the person from custody.
The chief of the place of detention pending trial is required to promptly release from custody the accused if the detention facility has not received, as of the day of expiration of custody periods referred to in the first, second, and sixth paragraphs of the present Article, the judge’s decision on the extension of custody periods. In such a case, he forwards an appropriate notice to the official or agency conducting proceedings in the case and to the appropriate prosecutor who supervises the investigation.

(Article 156 as amended by virtue of the Decrees of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84, No 8595-XI ( 8595-11 ) of 29.12.89, as revised by Law
No 1960-XII ( 1960-12 ) of 10.12.91, as amended by Laws No 2857-XII ( 2857-12 ) of 15.12.92, No 3351-XII ( 3351-12 ) of 30.06.93; as revised by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001; as amended by Law No 658-IV ( 658-15 ) of 03.04.2003, No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001, No 2453-VI
( 2453-17 ) of 07.07.2010 – changes to the procedure of execution of power by the Supreme court of Ukraine and High Civil and Criminal Court of Ukraine come into force after High Civil and Criminal Court of Ukraine starts its work – from 01.11.2010)


(Article 157 is omitted by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001)


Article 158. Enforcement of the decision to commit to custody as a measure of restraint

Decision to commit to custody as a measure of restraint is enforced by the agency which imposed this measure of restraint. If necessary, the agency which imposed this measure of restraint may assign execution of this decision to Interior agencies. One copy of the judge’s decision or court’s ruling is forwarded together with the arrested person to the place of detention pending trial for execution.

(Article 158 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84, by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001)


Article 159. Taking care of underage children of the arrested person

If a person taken into custody has underage children who are thus left without care, investigator is required to promptly make a submission to the Service in charge of juveniles so that the latter takes necessary measures to commit the said juvenile children to the care of relatives or to place them in a child care institution.
The investigator informs the prosecutor and the arrested person on measures taken and attaches a copy of such submission to records of the case.

(Article 159 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 117-VIII (
117-08 ) of 30.08.71, by Law No 2670-III ( 2670-14 ) of 12.07.2001, No 609-V ( 609-16 ) of 07.02.2007).


Article 160. Protection of prisoner’s property

When imprisoning a suspect or the accused, investigator is required to take measures to protect the property and home of prisoner if the property and home remain without care.


Article 161. Notice of custody

Investigator is required to promptly notify the spouse or any other relative and the place of employment of the suspect or the accused that he/she has been committed to custody and the place where he/she is kept.
Where the accused is an alien, the decision to arrest is sent to the Ministry of Foreign Affairs of Ukraine.

(Article 161 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84).


Article 162. Visits to the arrested person

Visits of relatives or other persons to the arrested person may be allowed by the official or agency conducting proceedings in the case. Visits may last from one to four hours. A visit may be allowed once per month.
The issues related to visits of relatives or other persons to a person in whose respect detention or extradition arrest is imposed as a measure of restraint is considered by an agency conducting extradition inspection.

(Article 162 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 117-VIII ( 117-08 ) of 30.08.71, by Law No 488-IV (488-15) of 06.02.2003, No 2286-VI
( 2286-17 ) of 21.05.2010).

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 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.

Article 87
Requests for cooperation: general provisions
1. (a) The Court shall have the authority to make requests to States Parties for
cooperation. The requests shall be transmitted through the diplomatic channel or any other
appropriate channel as may be designated by each State Party upon ratification, acceptance,
approval or accession.
Subsequent changes to the designation shall be made by each State Party in accordance
with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the provisions of subparagraph (a),
requests may also be transmitted through the International Criminal Police Organization or any
appropriate regional organization.
2. Requests for cooperation and any documents supporting the request shall either be in or be
accompanied by a translation into an official language of the requested State or one of the working
languages of the Court, in accordance with the choice made by that State upon ratification,
acceptance, approval or accession.
Subsequent changes to this choice shall be made in accordance with the Rules of
Procedure and Evidence.
3. The requested State shall keep confidential a request for cooperation and any documents
supporting the request, except to the extent that the disclosure is necessary for execution of the
request.
4. In relation to any request for assistance presented under this Part, the Court may take such
measures, including measures related to the protection of information, as may be necessary to
ensure the safety or physical or psychological well-being of any victims, potential witnesses and
their families. The Court may request that any information that is made available under this Part
shall be provided and handled in a manner that protects the safety and physical or psychological
well-being of any victims, potential witnesses and their families.
5. (a) The Court may invite any State not party to this Statute to provide assistance under
this Part on the basis of an ad hoc arrangement, an agreement with such State or any other
appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc
arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such
arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the
Security Council referred the matter to the Court, the Security Council.
6. The Court may ask any intergovernmental organization to provide information or
documents. The Court may also ask for other forms of cooperation and assistance which may be
agreed upon with such an organization and which are in accordance with its competence or
mandate.
7. Where a State Party fails to comply with a request to cooperate by the Court contrary to
the provisions of this Statute, thereby preventing the Court from exercising its functions and
powers under this Statute, the Court may make a finding to that effect and refer the matter to the
Assembly of States Parties or, where the Security Council referred the matter to the Court, to the
Security Council.

Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available under their national law for
all of the forms of cooperation which are specified under this Part.

Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the
material supporting the request outlined in article 91, to any State on the territory of which that
person may be found and shall request the cooperation of that State in the arrest and surrender of
such a person. States Parties shall, in accordance with the provisions of this Part and the procedure
under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the
basis of the principle of ne bis in idem as provided in article 20, the requested State shall
immediately consult with the Court to determine if there has been a relevant ruling on
admissibility. If the case is admissible, the requested State shall proceed with the execution of the
request. If an admissibility ruling is pending, the requested State may postpone the execution of
the request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law,
transportation through its territory of a person being surrendered to the Court by another State,
except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with
article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization;
and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of
transit;
(d) No authorization is required if the person is transported by air and no landing is
scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may
require a request for transit from the Court as provided for in subparagraph (b). The transit State
shall detain the person being transported until the request for transit is received and the transit is
effected, provided that detention for purposes of this subparagraph may not be extended beyond
96 hours from the unscheduled landing unless the request is received within that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested
State for a crime different from that for which surrender to the Court is sought, the requested State,
after making its decision to grant the request, shall consult with the Court.

Article 90
Competing requests
1. A State Party which receives a request from the Court for the surrender of a person under
article 89 shall, if it also receives a request from any other State for the extradition of the same
person for the same conduct which forms the basis of the crime for which the Court seeks the
person’s surrender, notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the
request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in
respect of which surrender is sought is admissible and that determination takes into account the
investigation or prosecution conducted by the requesting State in respect of its request for
extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the
requested State’s notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may,
at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal
with the request for extradition from the requesting State but shall not extradite the person until the
Court has determined that the case is inadmissible. The Court’s determination shall be made on an
expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the requesting State, shall give priority
to the request for surrender from the Court, if the Court has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Curt, the
requested State may, at its discretion, proceed to deal with the request for extradition from the
requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing
international obligation to extradite the person to the requesting State not Party to this Statute, the
requested State shall determine whether to surrender the person to the Court or extradite the
person to the requesting State. In making its decision, the requested State shall consider all the
relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime
was committed in its territory and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting
State.
7. Where a State Party which receives a request from the Court for the surrender of a person
also receives a request from any State for the extradition of the same person for conduct other than
that which constitutes the crime for which the Court seeks the person’s surrender:
(a) The requested State shall, if it is not under an existing international obligation to
extradite the person to the requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to
extradite the person to the requesting State, determine whether to surrender the person to the Court
or to extradite the person to the requesting State. In making its decision, the requested State shall
consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall
give special consideration to the relative nature and gravity of the conduct in question.
8. Where pursuant to a notification under this article, the Court has determined a case to be
inadmissible, and subsequently extradition to the requesting State is refused, the requested State
shall notify the Court of this decision.

Article 91
Contents of request for arrest and surrender
1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may
be made by any medium capable of delivering a written record, provided that the request shall be
confirmed through the channel provided for in article 87, paragraph 1 (a).
2. In the case of a request for the arrest and surrender of a person for whom a warrant of
arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be
supported by:
(a) Information describing the person sought, sufficient to identify the person, and
information as to that person’s probable location;
(b) A copy of the warrant of arrest; and
(c) Such documents, statements or information as may be necessary to meet the
requirements for the surrender process in the requested State, except that those requirements
should not be more burdensome than those applicable to requests for extradition pursuant to
treaties or arrangements between the requested State and other States and should, if possible, be
less burdensome, taking into account the distinct nature of the Court.
3. In the case of a request for the arrest and surrender of a person already convicted, the
request shall contain or be supported by:
(a) A copy of any warrant of arrest for that person;
(b) A copy of the judgement of conviction;
(c) Information to demonstrate that the person sought is the one referred to in the
judgement of conviction; and
(d) If the person sought has been sentenced, a copy of the sentence imposed and, in
the case of a sentence for imprisonment, a statement of any time already served and the time
remaining to be served.
4. Upon the request of the Court, a State Party shall consult with the Court, either generally
or with respect to a specific matter, regarding any requirements under its national law that may
apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the
specific requirements of its national law.

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.