The Concept and Legal Basis for the Transfer of Persons Sentenced to Deprivation of Liberty to Serve a Sentence in a Foreign State in the Field of International Cooperation of Post-Soviet Countries
DOI:
https://doi.org/10.6000/1929-4409.2020.09.380Keywords:
Execution of a sentence, international treaties, criminal procedure legislation, transfer of a criminal case, imprisonment.Abstract
The purpose of the study is to analyse the definition and legal basis of the concept of transfer of persons sentenced to imprisonment. The main research methods were theoretical: analysis and synthesis, classification. The article discusses topical issues related to the concept and legal grounds for the transfer of persons sentenced to imprisonment to serve their sentences in the framework of international cooperation. The article analyses the norms of international legal acts and national legislation of post-Soviet countries. It is noted that, among other types of transfer of persons, a special place is occupied by the transfer of a convicted person for the execution of a sentence, which testifies to the relevant practice of post-Soviet states. But the transfer of convicted persons to serve a sentence has a history of legal regulation for a little more than half a century, therefore, both in legal regulation and in the theory of criminal procedure there is no single approach to defining the concept of transfer of convicted persons. The author comes to the conclusion that the transfer of persons to a foreign state to serve their sentences is ensured by effective international cooperation in the field of criminal proceedings. The practical significance of the study lies in the fact that an idea is proposed for the development and improvement of national criminal legislation, as well as the effectiveness of actions aimed at resolving this issue.
References
Abdulloev, Parvyz. 2016. International Legal Assistance in the Collection and Verification of Evidence in Criminal Cases. Moscow: Yurlitinform.
Agreement between the Republic of Tajikistan and the Islamic Republic of Afghanistan on the transfer of persons sentenced to serve a sentence to imprisonment. 2006. Retrieved October 08, 2020 (http://www.prokuratura.tj/international-cooperation-tjk.html)
Agreement between the Russian Federation and Georgia on the transfer of persons sentenced to imprisonment for serving sentences. 1996. Retrieved October 17, 2020 (http://docs.cntd.ru/document/1901180)
Agreement between the Russian Federation and the Islamic Republic of Afghanistan on the transfer of persons sentenced to imprisonment to serve their sentences. 2005. Retrieved October 13, 2020 (http://base.garant.ru/2563332/)
Agreement between the Russian Federation and the Kingdom of Bahrain on the transfer of persons sentenced to deprivation of liberty. 2015. Retrieved October 02, 2020 (http://docs.cntd.ru/document/420333020)
Agreement between the Russian Federation and the Republic of Azerbaijan on the transfer of convicts to serve their sentences. 1994. Retrieved October 10, 2020 (http://base.garant.ru/10119460/)
Agreement between the Russian Federation and the Republic of Estonia on the transfer of persons sentenced to imprisonment. 2002. Retrieved October 22, 2020 (http://www.alppp.ru/law/pravosudie/46/dogovor-mezhdu-rossijskoj-federaciej-i-estonskoj-respublikoj-o-peredache-lic-osuzhdennyh-k.html)
Agreement between the Russian Federation and the Republic of Latvia on the transfer of convicts to serve their sentences. 1993. Retrieved October 09, 2020 (http://base.garant.ru/ 2541344/)
Agreement between the Russian Federation and the Republic of Tajikistan on the settlement of issues of dual citizenship. 1995. Retrieved October 3, 2020 (http://docs.cntd.ru/ document/8311276)
Agreement between the USSR and the Republic of Finland on the mutual transfer of persons sentenced to imprisonment for serving sentences. 1990. Retrieved October 17, 2020 (http://www.mid.ru/foreign_policy/international_contracts/2_contract/-/storage-viewer/bilateral/page-387/52940)
Buyanova, Karina. 2010. “Organisational and legal problems of applying the provisions of multilateral international treaties in the field of transferring convicts for further serving their sentences to the state of their citizenship”. Penitentiary System: Law, Economy, Management 5: 2-8.
Bykova, Elena. 2006. “Transfer of a person sentenced to imprisonment for serving a sentence in the state of which he is a citizen: significance and problems”. Prosecutor and Investigative Practice 4: 51-54.
Bykova, Elena. 2007. “The value of the transfer of convicts in international cooperation”. Criminal Executive System: Law, Economy, Management 3: 12-15.
Convention between the Russian Federation and the French Republic on the transfer of persons sentenced to deprivation of liberty. 2003. Retrieved October 12, 2020 (http://base.garant.ru/12147881/)
Convention between the Russian Federation and the Kingdom of Morocco on the transfer of persons sentenced to deprivation of liberty. 2006. Retrieved October 17, 2020 (http://base.garant.ru/2564262/)
Convention on the transfer of persons sentenced to imprisonment to serve sentences in the state of which they are citizens. 1978. Retrieved October 19, 2020 (https://zakon.rada.gov.ua/laws/ show/995_831#Text)
Convention on the Transfer of Sentenced Persons. 1983. Retrieved October 03, 2020 (http://docs.cntd.ru/document/901909687)
Convention on the Transfer of Sentenced to Deprivation of Liberty for Further Serving of Sentence. 1998. Retrieved October 24, 2020 (https://zakon.rada.gov.ua/laws/show/997_195#Text)
Criminal Procedure Code of the Kyrgyz Republic. 2017. Retrieved October 29, 2020 (http://cbd.minjust.gov.kg/act/view/ru-ru/111530)
Criminal Procedure Code of the Republic of Azerbaijan. 2020. Retrieved October 18, 2020 (https://online.zakon.kz/ document/?doc_id=30420280)
Criminal Procedure Code of the Republic of Kazakhstan. 2020. Retrieved October 16, 2020 (https://online.zakon.kz/ document/?doc_id=31575852)
Criminal Procedure Code of the Republic of Uzbekistan. 2019. Retrieved October 21, 2020 (https://online.zakon.kz/ document/?doc_id=30421101)
Criminal Procedure Code of Turkmenistan. 2009. Retrieved October 24, 2020 (https://online.zakon.kz/document/?doc_id= 31344376)
Criminal Procedure Code of Ukraine. 2020. Retrieved October 30, 2020 (https://zakon.rada.gov.ua/laws/show/4651-17#Text)
Davydov, Fedor and Iryna Zimina. 2002. “Transfer of foreigners to serve their sentences in the country of their citizenship”. Crime and Punishment 11: 26-28.
Decree of the Presidium of the USSR Armed Forces “On the Procedure for Fulfilling the Obligations Arising for the USSR from the Convention on the Transfer of Persons Sentenced to Deprivation of Liberty to Serve their Sentences in the State of which they are Citizens”. 1979. Retrieved October 28, 2020 (https://zakonbase.ru/content/base/50062/)
Efendiev, Terlan. 2009. “Transfer of a person to serve a sentence in the state of which he is a citizen”. Russian Investigator 3: 8-11.
European Convention on the International Validity of Criminal Judgments. 1974. Retrieved October 17, 2020 (http://docs.cntd.ru/document/1902297)
Evsicheva, Lyudmyla. 2013. “The legal nature of the institution of transferring a person sentenced to imprisonment to serve a sentence in the state of citizenship”. Penitentiary Science 1(21): 29-33.
Feoktistova, Elena. 2010. International Cooperation of Bodies of Preliminary Investigation in Criminal Cases: Procedural, Legal and Forensic Aspects. Moscow: All-Russian Research Institute of the Ministry of Internal Affairs of Russia.
Foynitsky, Ivan. 1996. Criminal Procedure Course. St. Petersburg: Alpha.
FPS: Every third convicted foreigner in Russia is imprisoned for drugs. 2020. Retrieved October 22, 2020 (https://ria.ru/ interview/20130304/925376615.html)
Galkin, Vasyl. 1981. “Convention on the Transfer of Convicted Persons to the States of Citizenship (Legislative Problems)”. Pp. 157-165 in Problems of Improving Soviet Legislation. Moscow: All-Union Scientific Research Institute of Soviet Legislation.
General Assembly Resolution “Adoption of the Milan Action Plan”. 1985. Retrieved October 30, 2020 (http://docs.cntd.ru/ document/901809390)
Hukuk, Kiran. 2010. Collection of Criminal Procedure Codes of Central Asian Countries (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan). Almaty: Polygrafservice.
Inter-American Convention on the Service of Criminal Sentence Abroad. 1993. Retrieved October 11, 2020 (https://online.zakon.kz/Document/?doc_id=34490103#pos=1;-279)
Kolibab, Konstantin. 1999. “The institution of transferring convicts to serve their sentences to other states”. Journal of Russian Law 5/6: 89-99.
Kotlyarevsky, Sergey, Eduard Dombrovsky, Bogdan Danilovich, Illlya Braude, Nikolai Dadyants, Pavel Lyublinsky, Eduard Kolotukhin, Pavel Sevruk, Moris Yashunsky and Igor Ilyinsky. 1926. “On the Execution of Decisions of Foreign Courts on the Payment of Legal Costs”. Pp. 49-50 in Revolutionary Legality. Moscow: Legal Protection.
Kruptsov, Andrey, Evgeniy Moiseev and Aleksandr Chuchaev. 2011. Extradition of Persons who have Committed a Crime. Moscow: Prospect.
Krymov, Aleksandr. 2014. “Transfer of convicted persons for further serving their sentences as an intersectoral comprehensive institution of law”. Lex Russica 9: 1114-1119.
Latvian Criminal Procedure Code. 2005. Retrieved October 18, 2020 (http://www.pravo.lv/likumi/29_upz.html)
Law of Georgia “On International Cooperation in the Field of Criminal Law”. 2010. Retrieved October 18, 2020 (https://matsne.gov. ge/ru/document/view/112594?publication=8)
Law of the Republic of Kazakhstan “On Ratification of the Inter-American Convention on the Service of Criminal Sentence Abroad”. 2015. Retrieved October 19, 2020 (https://online.zakon.kz/Document/?doc_id=32494121)
Leshukova, Iryna. 2013. “Some aspects of legal regulation of international cooperation under the new Criminal Procedure Code of Ukraine”. International Criminal Law and International Justice 1: 18-20.
Martens, Fedor. 2008. Modern International Law of Civilized Peoples. Moscow: Zertsalo.
Minsafina, Svetlana. 2009. “The institution of transferring convicted foreign citizens for further execution of punishment in the state of their citizenship”. Human: Crime and Punishment 4: 104-106.
Omigov, Viktor 2010. “International cooperation of Russia in the execution of criminal sentences”. Bulletin of the Perm University 3(9): 201-205.
Ostroukhov, Nikolay and Yuriy Romashev. 2013. “International legal issues of transfer of persons in the interests of justice”. Moscow Journal of International Law 3: 83-91.
Reshetneva, Tetiana. 2017. “Some aspects of international legal cooperation between states on the transfer of persons sentenced to imprisonment”. Judicial Branch and Criminal Procedure 2: 84-88.
Resolution of the Plenum of the Supreme Court of the Russian Federation “On the Practice of Consideration by Courts of Issues Related to the Extradition of Persons for Criminal Prosecution or the Execution of a Sentence, as well as the Transfer of Persons to Serve Sentences”. 2015. Retrieved October 06, 2020 (http://www.consultant.ru/document/ cons_doc_LAW_131317/)
Ryskulov, Daulet. 2017. Ways to improve the transfer mechanisms for convicted persons. Retrieved October 07, 2020 (https://www.zakon.kz/4866841-puti-sovershenstvovanija-mekhanizmov.html)
Samarin Vadym. 2006. Interaction of the Bodies of the Republic of Belarus Conducting Criminal Proceedings with the Institutions of Justice of Foreign States in Criminal Cases. Minsk: Belarusian State University.
Samarin, Vadym. 2011. “Transfer of a Convict to Serve his Sentence in the Country of his Citizenship”. Pp. 31-33 in Belarusian Legal Encyclopaedia. Minsk: GIUST BSU.
Santashova, Lyudmyla. 2017. Transfer of Persons Sentenced to Imprisonment to Serve their Sentences in the State of their Citizenship. Moscow: Vologda Institute of Law and Economics of the Federal Penitentiary Service of Russia.
Shatalov, Aleksandr and Lyudmyla Santashova. 2018. “The essence and legal nature of the transfer of convicts to serve their sentences to the states of which they are citizens”. Human: Crime and Punishment 2: 141-147.
Shatalov, Aleksandr. 2016. “The institution of transferring persons sentenced to imprisonment to serve their sentences to the state of their citizenship: A historical aspect”. Penitentiary Science 1(33): 14-17.
Shurukhnova, Diana. 2006. Extradition, Transfer and Expulsion of Persons in Relations between States (Rights, Legitimate Interests of the Individual and their Guarantees). Moscow: Moscow University of the Ministry of Internal Affairs of Russia.
Smirnov, Aleksandr. 2017. “The Procedural Procedure for the Transfer of Persons Sentenced to Imprisonment to Serve their Sentences in the State of their Citizenship”. Pp. 229-232 in 3rd International Penitentiary Forum “Crime, Punishment, Remedy”. Ryazan: Academy of Law and Management of the Federal Penitentiary Service.
The transfer of convicts to imprisonment to serve their sentences to states, their citizenship is carried out in accordance with international legal acts. 2020. Retrieved October 10, 2020 (http://fsin.su/structure/execution_department/OVPOG/index.php?sphrase_id=1122600)
Treaty between the Russian Federation and the Arab Republic of Egypt on the transfer of persons sentenced to deprivation of liberty for serving sentences. 2009. Retrieved October 11, 2020 (http://base.garant.ru/2568306/)
Treaty between the Russian Federation and the Democratic Socialist Republic of Sri Lanka on the transfer of persons sentenced to deprivation of liberty. 2015. Retrieved October 18, 2020 (http://docs.cntd.ru/document/420333013)
Treaty between the Russian Federation and the Kingdom of Spain on the transfer of persons sentenced to deprivation of liberty for serving sentences. 1998. Retrieved October 18, 2020 (http://base.garant.ru/2560422/)
Treaty between the Russian Federation and the People's Republic of China on the transfer of convicts. 2002. Retrieved October 05, 2020 (http://docs.cntd.ru/document/902030565)
Treaty between the Russian Federation and the Republic of Angola on the transfer of persons sentenced to imprisonment for serving sentences. 2006. Retrieved October 04, 2020 (http://base.garant.ru/12151143/)
Treaty between the Russian Federation and the Republic of India on the transfer of persons sentenced to deprivation of liberty. 2013a. Retrieved October 26, 2020 (http://docs.cntd.ru/ document/499064922)
Treaty between the Russian Federation and the Socialist Republic of Vietnam on the transfer of persons sentenced to imprisonment. 2013b. Retrieved October 18, 2020 (http://docs.cntd.ru/document/420399180)
Treaty between the Russian Federation and the Republic of Lithuania on the transfer of persons sentenced to imprisonment for serving sentences. 2001. Retrieved October 28, 2020 (http://docs.cntd.ru/document/901827463)
Treaty between the Russian Federation and the United Mexican States on the Transfer of Persons Sentenced to Imprisonment to Serve Sentences. 2004. Retrieved October 19, 2020 (http://base.garant.ru/12142501/)
Treaty between the Russian Federation and Turkmenistan on the transfer of persons sentenced to imprisonment to serve their sentences. 1995. Retrieved October 06, 2020 (http://docs.cntd.ru/document/1901107)
UN General Assembly Resolution “Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released”. 1990. Retrieved October 30, 2020 (http://docs.cntd.ru/document/901747234)
Volevodz, Aleksandr. 2015. “International cooperation in the field of criminal justice: Concept, signs, sources and basic forms”. Criminalist Library. Scientific Journal 4: 99-117.
Volzhenkina, Valentina. 2001. The Norms of International Law in the Russian Criminal Procedure. St. Petersburg: Legal Сentre Press.
Downloads
Published
How to Cite
Issue
Section
License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
Policy for Journals/Articles with Open Access
Authors who publish with this journal agree to the following terms:
- Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgement of the work's authorship and initial publication in this journal.
- Authors are permitted and encouraged to post links to their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work
Policy for Journals / Manuscript with Paid Access
Authors who publish with this journal agree to the following terms:
- Publisher retain copyright .
- Authors are permitted and encouraged to post links to their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work .
