Problems of States in International Legal Cooperation of the Transfering the Criminal Proceedings
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Abstract
When an offence assumes an international aspect, it is possible to encounter with a natural phenomenon – a conflict between jurisdictions of the countries. An international aspect of an offence may be seen in several cases. First of all, under the principle of territory (in this case different rules for definition of an offence may be used) a number of countries may enforce their jurisdiction for the one and the same offence. Secondly, when an offence is committed in the territory of some country by a foreign national or a person without the citizenship, but permanently living in that country. Thirdly, when an offence is carried out against another country, or its citizens or institutions. Fourthly, when an international crime or crime of an international character is perpetrated. Finally, when partners, acting in foreign countries were involved in the offence committed within the territory of a specific country.
In the presence of at least one of the above–mentioned situations, different countries may claim to enforce its criminal jurisdiction for the same offence. It is obvious, that in such a situation the question is, whether it is possible to solve the problem so that the perpetrator of the same offence would not be prosecuted for several times and the criminal proceeding itself would become more effective?
The modern forms of legal co–operation between the states are very favourable to solve the problems of the kind. One of these is the organisation of criminal proceedings on the international level, thanks to which it is possible to avoid disadvantages resulting from conflicts of competence.
The article examines the concept, legal basis and essential conditions of criminal proceedings using the methods of systematic analysis and logics.
While analysing the concept of criminal proceedings, the author observes that the countries transferring the criminal proceedings tend to mistakenly interpret the provisions of international treaties. Cases exist, when the notions „transfer of criminal proceedings“ and „start of criminal proceedings“, used in international treaties are understood identically. After the analysis of these notions, a conclusion is made that they are not identical. By the time a request is submitted for the transfer of criminal proceeding, pre–trial investigation is needed, and not investigation of criminal case, where certain procedural acts of further investigation have already been carried out.
While going deeper into the problem of the transfer of criminal proceedings on legal grounds, the author highlights the fact, that an international treaty may only be used in the case, when both countries have declared their agreement for its binding powers. In the absence of such an agreement, the transfer of criminal proceedings depends only on the goodwill of the requesting country, which may be discussed only in accordance with the national law.
The analysis of criminal proceeding conditions has proved that the most important of them is – principle of dual criminal liability. The legal literature admits that this condition is understood both in concreto and in abstracto. While analysing their content, the author draws the conclusion that in the process of co–operation between the states in the sphere of transferring criminal proceeding, the principle of dual criminal liability should be understood in abstracto.
In the presence of at least one of the above–mentioned situations, different countries may claim to enforce its criminal jurisdiction for the same offence. It is obvious, that in such a situation the question is, whether it is possible to solve the problem so that the perpetrator of the same offence would not be prosecuted for several times and the criminal proceeding itself would become more effective?
The modern forms of legal co–operation between the states are very favourable to solve the problems of the kind. One of these is the organisation of criminal proceedings on the international level, thanks to which it is possible to avoid disadvantages resulting from conflicts of competence.
The article examines the concept, legal basis and essential conditions of criminal proceedings using the methods of systematic analysis and logics.
While analysing the concept of criminal proceedings, the author observes that the countries transferring the criminal proceedings tend to mistakenly interpret the provisions of international treaties. Cases exist, when the notions „transfer of criminal proceedings“ and „start of criminal proceedings“, used in international treaties are understood identically. After the analysis of these notions, a conclusion is made that they are not identical. By the time a request is submitted for the transfer of criminal proceeding, pre–trial investigation is needed, and not investigation of criminal case, where certain procedural acts of further investigation have already been carried out.
While going deeper into the problem of the transfer of criminal proceedings on legal grounds, the author highlights the fact, that an international treaty may only be used in the case, when both countries have declared their agreement for its binding powers. In the absence of such an agreement, the transfer of criminal proceedings depends only on the goodwill of the requesting country, which may be discussed only in accordance with the national law.
The analysis of criminal proceeding conditions has proved that the most important of them is – principle of dual criminal liability. The legal literature admits that this condition is understood both in concreto and in abstracto. While analysing their content, the author draws the conclusion that in the process of co–operation between the states in the sphere of transferring criminal proceeding, the principle of dual criminal liability should be understood in abstracto.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
