Research Article: 2019 Vol: 22 Issue: 5
Cherniavskyi Sergii, National Academy of Internal Affairs
Ortynskyy Volodymyr, Institute of Law and Psychology of Lviv Polytechnic National University
Rohatiuk Ihor, National Prosecution Academy of Ukraine
Udalova Larysa, National Academy of Internal Affairs
Sirant Myroslava, Institute of Law and Psychology of Lviv Polytechnic National University
Description: The purpose of the article is to study theoretical foundations and to formulate practical recommendations for the investigation of crimes of an international character. The subject is the investigation of crimes of an international character. The methodological basis of the study is a set of general and special methods of scientific knowledge, such as comparative, statistical, systems analysis, historical and legal, systemically and structural methods. The materials studied are international treaties, the legislation of the States, science papers, statistical materials on the state of crime and the results of the work of law enforcement agencies, materials of criminal proceedings. The results of the study allowed to formulate the summary list of major crimes of an international character; to provide for their legal and forensic characteristics; to identify the peculiarities of the initial stage of the investigation of crimes of an international character and to formulate a list of circumstances that need to be clarified; to identify the subjects of international cooperation activities during the investigation of crimes of an international character and to outline the features of their competence. According to the results of the study, proposals were made to increase the effectiveness of the investigation of crimes of an international character and the practice of implementing international cooperation between the entities authorized by the States. On the basis of the proposed approach to study the peculiarities of the investigation of crimes of an international character, the theoretical provisions and practical recommendations were formulated in order to increase the effectiveness of counteracting crimes of an international character.
Crime of an International Character, Investigation, International Cooperation, International Treaty, Competent Authority.
The problems of investigating of crimes of an international character are in the spotlight of scientists and practitioners. This is due to several factors: firstly, it is due to quantitative increase of international crimes, which violate the interests of several States, the improvement of means and methods used by criminals; secondly, it is because of the obligations enshrined in the international and national laws of the States in fighting them; thirdly, it is due to the impossibility of collecting evidence and indicative information during the investigation of this type of crimes through one State, without an application of measures of international cooperation; fourthly, the differences in legislation of different States and their practice of realization of international cooperation, investigation of crimes, require the formation of a common, coherent approach to the solution of practical problems. It should be emphasized that the investigation of crimes of an international character is impossible without effective application of measures of international cooperation in criminal proceedings. Today there is a need to study crimes of an international character, to formulate theoretical positions and practical recommendations for their investigation. The aforementioned theoretical and practical recommendations should be comprehensive, take into account the diversity of international crimes, comply with the law and practice of foreign States, and have a universal character. The outlined and other circumstances have determined the relevance of the study.
The materials studied are international treaties, the laws of the States, the works of scientists on the problems of combating international crime, systematic statistical materials on the state of crime and the results of work of investigative bodies of Ukraine and Interpol, materials of criminal proceedings, during the investigation of which the measures of international cooperation were applied.
In the course of the study general and specific scientific methods were used, namely: comparative method was used when analyzing international and national legislation, scientific categories, definitions and approaches; historical and legal provided an opportunity to reveal the content of the concepts of “crime of international character”, “international cooperation”, to highlight the evolution of scientific views on specific issues; the method of systematic analysis made it possible to identify significant features of crimes of an international nature; the systemic-structural method helped to define the tasks of the competent authorities of the States during the implementation of the measures of international cooperation in the process of investigation of crimes of an international nature; statistical method was used when summarizing the results of the study of empirical sources.
The Concept of the Crimes of an International Character
The term “crime of an international character” is used as summarizing, unifying the most dangerous crimes, which encroach on the interests of the States or the entire world community, the fundamental rights and freedoms of a person. The legal literature substantiates the view that international criminal activity consists of two main elements: international crimes and crimes of an international character.
In accordance with the Statute of the International Criminal Court the highest degree of international unlawfulness and public danger is inherent in the most serious crimes of international concern. The Statute of the International Criminal Court (Article 5) provides international criminal liability for:
1. For crimes of genocide;
2. Crimes against humanity;
3. War crimes;
4. Crimes of aggression.
The Statute determines the legal basis for bringing to justice those responsible for international crimes and their prevention (Rome Statute, 2017).
A proportion of international criminal activity are the crimes of an international character, as it is defined by the relevant international treaties (conventions, agreements) and national laws of the States.
The processing of international and national legislation, science papers allowed formulating a summary list of basic crimes of an international character. However, a work to determine crimes of an international character cannot be considered complete, since the border between crimes of an international character and other crimes with a foreign element is inconsistent. Idea is that virtually every crime can be of an international character if it will have a high degree of social danger for the world community, the object, the subject matter of a crime, the method of committing a crime. Besides, it should be taken into account that it is difficult to distinguish crimes of an international character from other crimes, and sometimes it is practically impossible. For example, premeditated murder, financial fraud, and corruption crimes are often the components of a system of criminal activity that is international by its nature. Therefore, the current list takes into account only the main types of crimes of an international character.
Consequently, crimes of an international character are: terrorism; hostage-taking; human trafficking; torture; violation of equal rights of citizens depending on their race, nationality or attitude to religion; crimes against individuals and institutions, which enjoy international protection; legalization (laundering) of proceeds; counterfeiting; smuggling; illicit transporting of drugs, psychotropic substances and precursors; illegal migration; corruption crimes; encroachment on cultural values; distribution of pornography; illicit handling of nuclear materials; violation of copyright and related rights; cybercrime; creation of organized criminal organizations; corruption crimes; piracy; crimes against maritime safety and civil aviation; mercenaries and others (Chornous, 2013).
The names of these types of crimes are generalized, taking into account the provisions of international treaties. Respectively, the qualification of the above-mentioned crimes of an international character is subject to clarification in each specific law of the country in which the criminal proceedings are conducted.
Features of the Crimes of an International Character
The main feature of the group of crimes under consideration is that the responsibility for their commission is provided for by international treaties of universal or regional significance. Such international agreements are the legal basis for the implementation of measures of international cooperation between the competent authorities of the States. For example, it is The Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, 1949, The Convention for the Suppression of Unlawful Seizure of Aircraft, 1970, The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971, The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, The Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, (Council of Europe, 1990), The United Nations Convention against Transnational Organized Crime, (2000), The Convention on Cybercrime, (Council of Europe, 2001), The United Nations Convention against Corruption and many others. In total, more than 200 international agreements were studied within the framework of the study, but the work should not be considered complete.
Rather wide range of States are the Parties to the listed international treaties, since most of them were concluded as part of the work of the United Nations (193 countries of the world are members of this international organization), as well as of the Council of Europe (numbering 47 Member States), other States that have acceded to the Conventions.
As it was noted, crimes of an international character are quite different, but they also have common forensic features, which can be used in the construction of forensic characterization of crimes, be indicative of the subject of a crime, the method of committing a crime, the situation and the trace of a crime, an offender and a victim.
The subject matters of a criminal encroachment in cases of crimes of an international character are various things of material world and information specified in the international treaties and in the national legislation of the States. Today, the most common subject matters of a criminal offense are: narcotic substances, psychotropic substances, precursors; a person, his (her) bodily integrity; national or foreign currency in cash; informational security; cultural values; national or foreign currency by cashless settlement, in the bank accounts; counterfeit national and foreign currency; property rights to real estate; poisonous, potent explosives, explosives, radioactive materials, etc.
The Methods of Committing the Crimes of an International Character
Preparatory actions, commission and concealment of a crime constitute a single way of its commission. A complex system of preparatory actions and implementation of criminal intent, concealment of its consequences is observed in the overwhelming majority of crimes of an international character.
The methods of committing crimes of an international character may be expressed in various actions, according to the objective aspect of the crime, as it is defined by international and national legislation. Thus, methods of committing crimes of an international character may be related to: the use of especially dangerous means and tools for committing a crime (explosive devices, firearms, arson); the violation of basic human rights and freedoms, the use of physical or psychological violence; the illegal activities in the economic sphere; the violation of confidentiality, integrity and availability of computer data and systems; the illegal activities of officials; the illegal border crossing; the violation of the rules of civil aviation and maritime navigation, etc.
The efforts to conceal the consequences of crimes of an international character deserve special attention as criminal actions may be aimed at: concealment of certain elements of a crime or separate episodes of criminal activity committed in the territory of other States; obstructing the establishment of constituent elements of a crime, in particular those that impose criminal liability; falsification of mitigating circumstances (false statements of confession, imitation of assistance in the investigation of a crime); impeding an investigation, provision of information known to be false; delaying the investigation period; falsification of the circumstances of the commission and the trace of the crime; effect on the eyewitnesses, witnesses, victims, experts in order to force them to give false testimony, to refuse to testify or to provide deliberately false expert opinion, etc.
The method of committing crimes of an international character is realized within the relevant situation, that is, the conditions for the commission of crime, which have been formed objectively, were created by criminals. The indicated activity affects the material environment, which leads to the emergence of a trace picture of the crime.
The situation of committing crimes of an international character is formed under the influence of various factors. So, firstly, it is the development of international relations, the expansion of economic and social ties, the enhancement of border transparency, the simplification of the international travel arrangements, the development of trade relations, the emergence of new markets. The listed positive trends in the development of social relations open new opportunities for criminals, who use them for unlawful purposes.
Secondly, the development of international financial relations enables rapid transfer of funds to the necessary addressees, which greatly complicates the process of regulation and control of cash flows by the State, facilitates the concealment of money received by criminal means for the purpose of their subsequent legalization.
Today, the world is experiencing an increase in the intensity of migration of the population; various ethnic Diasporas are formed in the areas of settlement. Their interests are used by organized criminal groups for illegal purposes.
Significant differences in criminal law and in criminal proceedings between different States are used by criminals for unlawful purposes: thus, money laundering occurs in the countries where there is no liability for such acts; tax avoidance takes place in offshore areas; illicit goods and services are supplied to the regions with weak legal regulation or control of such activities, etc.
These and a number of other circumstances create a favorable environment for the commission of crimes of an international character, and the realization of criminal intent causes the formation of material traces of a crime. They can be quite different: traces, documents (both real and fake), blade weapons, firearms or explosive devices, narcotic drugs, psychotropic substances, video and audio records, traces of physical violence, torture, information traces in cybercrime, etc.
The Subject of a Crime of an International Character (the Offender and Organized Criminal Groups)
Crimes of an international character are committed predominantly in complicity. The specified forms the features of the trace of the crime, which is characterized by: the diversity of traces belonging to different persons; relatively large volume or weight of the stolen, which testifies to the impossibility of the commission of a crime by one person; establishing the fact of simultaneous use of several technical means, devices that were guided or used independently; a relatively short timeframe for the realization of criminal intent.
When committing a crime of an international character by an organized criminal group, it should be taken into account that some of its members may not be directly involved in its commission, but perform complementary functions. Therefore, when investigating the crime scene, it is important to establish not only specific material traces, but also the link between them.
According to the results of the research provided by Nurbekov (2010), the portrait of the subject of a crime of an international character, if it is not collective, is as follows. Most often it is a man who has a high level of criminal professionalism and experience and/or high level knowledge and skills in the field of information technology, economics, and finance, and international trade, higher or secondary education in these areas. Most often he travels abroad and has necessary financial opportunities for this; he has a broad social network and a high degree of communication skills, uses modern information technology and knows one or several foreign languages. Such a subject is not limited to single crimes. His activity is characterized by persistence and multiplicity, a particularly high level of aspirations to achieve criminal goals.
When describing the offender, it should be noted that criminal acts are mainly implemented in various forms of complicity, involving the preparation, committing of a crime of an international character or concealing its consequences. The matter of concern is the activity of organized criminal groups with international relations, characterized by a number of forensic features, determined by the specifics of crime, the scale of activity, and the characteristics of persons who are part of them.
It should be noted the threatening spread of organized criminal groups committing crimes of an international character. Organized criminal group is characterized by stability of the personnel, the rules of conduct and value-based orientation and the existence of a leader. There is a clear role differentiation, rigorous discipline and conspiracy of actions. Complex methods of committing crimes are available to these groups, they are aware of the methods and techniques of law enforcement agencies.
The commission of crimes of an international character by organized criminal groups is characterized by a number of conditions:
1. Preparation of a crime, committing a crime, concealing its consequences on the territory of several States, which excludes the possibility to act alone;
2. The commission of a crime of an international character is preceded by a complex system of preparatory actions (planning of a crime, distribution of roles, networking, falsification of documents);
3. Technical complexity (due to the need for using complex technical means, the utilization of which is impossible or difficult);
4. The necessary assistance in concealing the traces of the crime, laundering of proceeds.
An organized criminal group committing crimes of an international character is characterized by the following features.
Firstly, probable offenders are persons; complicated with “foreign element”, as the executors, accomplices of a crime may be citizens of different States. There is a complex structure of relations between criminals inside an organized criminal group: traditional structure (with a definite structure and distribution of responsibilities between the parties), and without the clear signs of the latter. It can be expressed in the minimum awareness of members of an organized criminal group about each other (they can be citizens of different States, not personally familiar, because often the search for members of the group is carried out by means of the Internet). Along with the main participants for the implementation of individual tasks there can be “technical assistants”, who often even unaware of the criminal nature of their assistance.
Organized criminal groups traditionally establish contacts with criminal groups of other States, which is a kind of “exchange of experience” by methods, means, techniques of criminal activity, and, if necessary, an appropriate support. The peculiarity of the interrelation of criminals at the international level is that one of the decisive factors in contacting is a national, linguistic or territorial commonality.
There is an active increase in the share of international crime for profit. However, an ulterior motive is not the only one, because a significant part of crimes of the category under consideration is committed with the motives for instability of international relations, racial or national intolerance, and so on.
There is an interconnection of criminal activities with the development of economic and market relations, which is expressed in growing interest of criminal groups to control the most profitable spheres of the economy; in order to obtain an excess profit, complex systems of measures for the legalization of proceeds are used.
There is also a qualitative increase within international crime. An intellectual level of members of organized criminal groups is growing, a help of consultants, who are highly skilled specialists is used; specialized equipment and software are implemented. This is also applied to the material base of organized criminal groups, as the level of their technical equipment is growing; their revenue is increasing, and so on.
The variety of crimes of an international character and methods of their commission pose a broad range of victims. It is important to establish the connection between the victim and the perpetrator, because although they are often representatives of different States, they have common interests, similar spheres of activity, which are important for establishing the circumstances of the crime. It is noteworthy that the choice of the victim may also be due to the State of his (her) residence, to those conditions that have developed for the realization of criminal intent.
The characteristic of the victim depends on the type of a crime of an international character. For example, in cases of human trafficking for the purpose of sexual exploitation, predominantly young attractive women, having financial difficulties, unsuccessful family relationships, and are unemployed. Men of working age are used for the purpose of exploiting labor-the modern form of slavery-in construction, agriculture, logging, etc. Children, weak people are used for begging. A victim of human trafficking for the purpose of organ transplantation can be any person, who is mainly middle-aged, and children without serious illnesses.
All of the above, as well as other information, providing legal and forensic characteristic of crimes of an international character are used as the basis for planning and organizing their investigation (Chornous, 2013).
Initial Stage of the Investigation of Crimes of an International Character
The initial stage of the investigation of crimes of an international character is aimed at establishing the circumstances characterizing the crime and the circumstances of its commission.
The study indicates that the following circumstances should be clarified at the initial stage of the investigation of crimes of an international character:
Circumstances Relating to the Crime of the International Character
The object and the subject matter of a crime; time, place and other conditions for committing a crime; a way of preparing, committing and concealing a crime; material tracks; persons involved in the commission of a crime, provided that a crime is organized by a criminal group, the role of each accomplice in the crime, their international relations; information about the States, their natural and legal persons, the interests of which were violated, the damage occurred.
Circumstances, which are Relevant for the Consideration of the Act as the Crime of an International Character
Provisions of the international treaties defining the wrongfulness of an act and the competent authorities, which carry out an investigation of a crime.
Circumstances, Characterizing the Offender
Biographical data of the person with the obligatory clarification of his (her) citizenship and his (her) place of residence; information on employment and material condition of the person (including bank accounts, which may be seized), health status; information on the person’s criminal record (it may affect the qualification of the crime); circle of connections of a person, including social networks connections; information on his (her) presence on the territory of other States (tourism, study, work, family ties) and the corresponding legal grounds (open visas, diplomatic passport), etc. Particular attention is paid to relations of the person with citizens of other States.
With respect to an organized criminal group with international relations, we are talking about clarifying the circumstances, which indicate: the group nature of the crime; organization and sustainability of the criminal group; presence of international connections of an organized criminal group; the purpose of creating an organized criminal group, its leader and the division of responsibilities between the group members; presence of links with other criminal groups; availability of means for preparing, committing and concealing crimes (cold and firearms, explosive devices, computer equipment, means for forging documents, communication facilities, vehicles), etc.
Circumstances Describing the Victim
Biographical data of the person, his (her) citizenship, place of residence, information on his (her) family members (relatives), their place of residence; person’s characteristics, including data on his (her) workplace, material condition, education, health status; circle of contacts of a person, including with citizens of foreign States; information on the presence of a person on the territory of other States (tourism, study, work and family ties) and the grounds for it (open visas, diplomatic passport); information on the moral, physical and material damage caused.
A victim of the crime of an international character may also be a legal entity that is consistent with world practice. With regard to the victim, which is a legal entity, there should be established: name and location of the legal entity; date of its registration, legal address, contact details; data on directors, deputies, financially responsible and other officials; main directions of activity granted by the license; information on the property, bank accounts, agreements with legal entities and individuals and the consequences of their implementation; information on damage caused to property, its impact on economic activity, business reputation, etc.
Circumstances Determining the Necessity of Applying Security Measures in Criminal Proceedings
First of all, it is an issue of clarifying the need for such protection in relation to witnesses and victims, as well as their relatives who are afraid of revenge or intimidation from persons involved in the commission of crimes.
Ensuring the safety of participants in the criminal justice process is regulated by a number of international treaties. For example, article 28 of the Council of Europe Convention on Action against Trafficking in Human Beings of May 16, (Council of Europe, 2005) stipulates that Each Party shall adopt such legislative or other measures as may be necessary to provide effective and appropriate protection from potential retaliation or intimidation in particular during and after investigation and prosecution of perpetrators, for:
2. As appropriate, those who report the criminal offences established in accordance with Article 18 of this Convention or otherwise co-operate with the investigating or prosecuting authorities;
3. Witnesses who give testimony concerning criminal offences established in accordance with Article 18 of this Convention;
4. When necessary, members of the family of persons referred to in subparagraphs a and c. Such measures may include physical protection, displacement, and change of identity and employment assistance. For the child victim, special protection measures are provided, taking into account his (her) interests (Council of Europe, 2005).
Subjects of Implementation International Cooperation Measures in the Investigation of Crimes of an International Character
The subjects of implementation of international cooperation measures in the investigation of crimes of an international character are the authorized (central) and competent authorities of the States. When considering these subjects, it should be noted that the abovementioned concept is specified in legal sources, and it is about state, law enforcement, judicial bodies, bodies of pre-trial investigation, institutions of criminal justice, etc. Obviously, these subjects should be defined by the State, they must correspond to certain characteristics, in particular, to possess the powers, functions, determined by the State and specified in the national legislation. These functions are delegated to such bodies by the State on whose behalf they are acting, since the States enter into legal relations in awarding of contracts and act as the guarantors for the implementation of their provisions.
Thus, the actors of interaction when implementing the tasks of international cooperation during the investigation of crimes of an international character are authorized (central) and competent bodies. However, what specific bodies are defined as authorized and competent in different countries, what is the procedural order and organizational peculiarities of the realization of the targets? Differences in legal systems of States, the structure of the bodies involved in the fight against crime require the clarification of these terms in accordance with international treaties, statements and reservations expressed by States at the time of signing and ratification and the laws of particular States.
Let’s turn to interpretation of this issue within the content of international treaties concluded between Member States of the Council of Europe.
European Convention on Extradition, European Convention on Mutual Legal Assistance in Criminal Matters, European Convention on the Transfer of Proceedings in Criminal Matters, ensure the performance of the relevant tasks by the Ministries of Justice of the requesting Party. This practice is followed by the majority of Member States.
However, the clarification of this provision is provided both in the content of the Conventions and Protocols thereto, and is mainly made by States in the form of statements and reservations when signing international treaties.
According to Article 15 of the European Convention on Mutual Legal Assistance in Criminal Matters of 1959, judicial orders and requests are sent by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party and are returned by the same channels. In urgent cases, court orders may be sent directly by the judicial authorities of the requesting Party to the judicial authorities of the requested Party. They return with the relevant documents by the channels mentioned above (Council of Europe, 1959).
As it was noted, the notions of “bodies of justice” and “judicial bodies” were clarified by the States parties to the Convention.
For example, during the ratification the statement was made by the Italian Government that according to Article 24 of the Convention the Constitutional Court and the Parliamentary Investigative Commission should additionally be considered as “judicial authorities”. The Republic of Poland has made a statement that, for the purposes of the Convention, prosecutors will also be qualified as “judicial authorities” (Hnativ et al., 2009).
Ukraine determined that the authorities, which are empowered in accordance with Article 15, Paragraph 1 of the Convention, are the Ministry of Justice of Ukraine (regarding court requests) and the General Prosecutor’s Office of Ukraine (regarding the requests of pre-trial investigation bodies). In addition, for the purposes of the Convention, “judicial authorities” of Ukraine are: courts of general jurisdiction, prosecutors of all levels, and bodies of pre-trial investigation (Hnativ et al., 2009).
The analysis of the declarations and reservations of the other participating countries to the above-mentioned Conventions (which is more than 40 States) and their national legislation, testifies to the additional consolidation at the national level of the competent authorities which can act as central (authorized) and coordinate activities for rendering or receiving legal assistance, other forms of international cooperation in criminal proceedings. Thus, the authorized (central), competent authorities of the States during implementation of the relevant tasks, should clarify the information on this issue, namely, refer to the international treaty, which is the legal basis for cooperation; statements and reservations made by States when ratifying the international treaty; the national legislation of the State and the designated competent authorities with which the interaction is planned.
In relation to the signing and ratification of the Second Additional Protocol, 2001 to the European Convention on Mutual Legal Assistance in Criminal Matters, (Council of Europe, 1959), the indicated Convention was amended and supplemented. Thus, the mentioned Article 15 “Channels of communication” was presented in the new version, and Article 4, Paragraph 4 of the Protocol 2001 secured the possibility of a direct connection between the competent authorities of the requesting Party and the competent authorities of the requested Party; Second Additional Protocol to the European Convention on Mutual Legal Assistance in Criminal Matters (Council of Europe, 2001).
We consider the positive tendency that, along with the central bodies, which directly coordinate the implementation of international cooperation, the direct communication or direct order of communication between the competent authorities is allowed, which under these conditions acquire the status of authorized authorities. Such direct interaction contributes to the efficiency of cooperation, effective solution of the tasks.
A number of international treaties on fighting international crime also regulate the peculiarities of the direct order of relations between the competent authorities of the States in order to solve the tasks of investigating crimes; Article 24 of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Council of Europe, 1990), Article 35 of the Convention on Cybercrime, (Council of Europe, 2001) and others.
In our opinion, direct interaction between the competent authorities of the States promotes the efficiency of cooperation, simplifies the solution of a number of organizational issues. Proceeding from the aforesaid, one of the priority area of increasing the efficiency of international cooperation in the field of fighting crime should include the improvement of mechanisms for the direct cooperation between the competent authorities of the States.
The study of scientific and educational literature indicates the lack of attention paid to the theoretical principles of interaction between the competent authorities at the international level, which is the key to the successful resolution of the problems of international cooperation in criminal proceedings. Let us consider this issue in more detail.
Consequently, there is a close link between the concepts of “international cooperation” and “interaction”.
In general, interaction is an independent system, the elements of which are interacting entities; relations arising in the process of their joint activity; objects; goals of activity.
In order to investigate crimes of an international character, interaction can be expressed in: the exchange of information; joint discussion of opinions, suggestions, conclusions; planning, participation in conducting procedural actions; selection of effective organizational and tactical measures; search activities, etc.
Considering the peculiarities of interaction in the investigation of crimes of an international character, one can identify the corresponding levels of its implementation. At the first, the highest level-the level of organization of interaction-it is about the joint activities of State bodies; the bodies, which are given the status of central and competent; authorized officials. Such activity is aimed at forming the basis of interaction.
The organization of interaction in the investigation of crimes of an international character is provided by: the heads of States and governments, senior officials of the States; diplomatic representatives of the States; law enforcement and other competent agencies, which are given the status of central; international law enforcement organizations; separate law enforcement and competent authorities (Nurbekov, 2012).
At the second level, the interaction is associated with the implementation of specific practical problems in the investigation of crimes. These are the coordinated activities of the competent authorities of the States, their separate units and employees: investigators, operatives, experts, detectives, prosecutors.
Investigation of Crimes of an International Character by Joint Investigation Teams
Mention should be made of such a progressive measure of an international cooperation and the form of organization of investigative work as an investigation of international crimes by joint investigation teams.
According to article 19 of the United Nations Convention against Transnational Organized Crime; adopted by United Nations General Assembly resolution No. 55/25 of 15 November (United Nations Convention against Transnational Organized Crime, 2000) in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States, the competent authorities concerned may establish joint investigative bodies (subject to the conclusion of appropriate agreements or arrangements). The States Parties involved shall ensure that the sovereignty of the State Party in whose territory such investigation is to take place is fully respected.
According to article 20 of Second Additional Protocol-November 08, (Council of Europe, 2001) to the European Convention on Mutual Legal Assistance in Criminal Matters-April 20, (Council of Europe, 1959), by mutual agreement, the competent authorities of two or more Parties may set up a joint investigation team for a specific purpose and a limited period, which may be extended by mutual consent, to carry out criminal investigations in one or more of the Parties setting up the team. The composition of the team shall be set out in the agreement.
A joint investigation team may, in particular, be set up where:
1. A party’s investigations into criminal offences require difficult and demanding investigations having links with other Parties;
2. A number of Parties are conducting investigations into criminal offences in which the circumstances of the case necessitate co-ordinated, concerted action in the Parties involved.
A request for the setting up of a joint investigation team may be made by any of the Parties concerned. The team shall be set up in one of the Parties in which the investigations are expected to be carried out.
A joint investigation team shall operate in the territory of the Parties setting up the team under the following general conditions:
1. The leader of the team shall be a representative of the competent authority participating in criminal investigations from the Party in which the team operates. The leader of the team shall act within the limits of his or her competence under national law;
2. The team shall carry out its operations in accordance with the law of the Party in which it operates. The members and seconded members of the team shall carry out their tasks under the leadership of the person referred to in sub-paragraph a, taking into account the conditions set by their own authorities in the agreement on setting up the team;
3. The Party in which the team operates shall make the necessary organizational arrangements for it to do so.
Where the joint investigation team needs assistance from a Party other than those which have set up the team, or from a third State, the request for assistance may be made by the competent authorities of the State of operation to the competent authorities of the other State concerned in accordance with the relevant instruments or arrangements.
On the basis of the data provided by the study, a summary list of major crimes of an international character was formed. In particular, it is terrorism; hostage-taking; trafficking in persons; torture; violation of equal rights of citizens depending on their race, nationality or attitude to religion; crimes against individuals and institutions enjoying international protection; legalization (laundering) of proceeds; counterfeiting; smuggling; illicit trafficking in narcotic substances, psychotropic substances and precursors; illegal migration; corruption offences; assault on cultural values; distribution of pornography; illicit handling of nuclear materials; violation of copyright and related rights; cybercrime; creation of organized criminal organizations; piracy; crimes against maritime safety and civil aviation; mercenaries and others.
The unlawfulness of crimes of an international character and the main directions of counteraction are enshrined in the international treaties concluded between Member States of the United Nations and the Council of Europe. Such international agreements are the legal basis for the implementation of measures of international cooperation between the competent authorities of the States.
Crimes of an international character are quite different, but they have common forensic features that can be used in preparing forensic characteristics of crimes in accordance with the subject matter of the crime, the method of committing the crime, the circumstances of the commission and the trace of the crime, the offender and the victim.
The feature is a causal link between the offender and the victim. It is noteworthy, that the choice of the victim may be conditioned by the State of his (her) residence, the conditions for the realization of a criminal intention, its characteristics. In investigating a crime of an international character, special attention should be devoted to the determination of these circumstances.
The initial stage of the investigation of crimes of an international character is primarily aimed at determination the circumstances characterizing the criminal act and the circumstances of the commission of the crime.
The study shows that during the investigation of crimes of an international character the circumstances that have to be clarified include: the circumstances relating to the crime of an international character; the circumstances, which are relevant for considering the act as a crime of an international character; the circumstances, which characterize the offender and the victim; the circumstances, which define the need for security measures in criminal proceedings
The initial stage of the investigation of crimes of an international character has its peculiarity: if a crime is detected on the territory of a particular State, criminal proceedings begins in accordance with the legislation of the latter, the competent authorities perform appropriate procedural actions. It is at this stage that it is important to clarify the circumstances that indicate the international character of the crime, which require the use of measures of international cooperation. Their clarification involves the need to appeal to the competent authorities of foreign States with the request for the application of international cooperation measures. Such forms of international cooperation as an involvement of the representatives of the competent authorities of the requesting State on the territory of the requested State, as well as the creation and operation of international joint investigation teams, also contribute to the effective resolution of the tasks of investigation of international crimes.
The subjects of international cooperation measures in the investigation of international crimes are the authorized (central) and competent authorities of the States. The list of authorities is also determined by each State in accordance with the national legal system, the powers and functions of the subjects.
It is important that the authorized (central) and competent authorities of the States, when implementing international cooperation in the process investigation of crimes collaborate for achieve common goals. Such interaction is characterized by the following features: regulation by international law and observance of the principles of reciprocity, sovereignty of States; the possibility of refusal to execute a request if damage may be caused to the sovereignty, security of the State or other important interests thereof or if the requested information relates to information constituting State secrets and because of other reasons specified in international treaties or by national legislation; special subjects of realization of the targets and the used channels of communication; long periods for fulfilling the tasks; the independence of the subjects of interaction from each other; geographic remoteness of the subjects of interaction, language and cultural differences, specificities of procedural legislation of the foreign State; the dependence of the results of the interaction on the completeness and reliability of the orientation information, pre-training, etc.
In view of the nature of modern criminality attention should be devoted to improving the implementation of international cooperation. These are important and complex measures that require considerable effort, but are also oriented towards achieving high results.
Specific forms of international cooperation in investigating crimes of an international character might be subject to investigative actions, implemented in procedural and organizational forms. In this case, it should be clear division of labor of the subjects; mutual agreement of their actions; the responsible attitude of the subjects of cooperation to their tasks, the focus on achieving a common result, which is fast, complete and impartial investigation of a crime of an international character.
Hnativ, A.Y., Kravchuk, S.F., Prykhodko, O.V., & Tomieiev, O.A. (2009). Statements and reservations of states parties to the European convention on mutual assistance in criminal matters of 1959. Collection of international treaties of Ukraine on legal assistance in criminal cases. Multilateral agreements. Kyiv: Feniks.
United Nations Convention against Transnational Organized Crime. (2000). The protocols thereto of 15 November. Retrieved from https://www.unodc.org/documents/middleeastandnorthafrica/organised-crime/united_nations_convention_against_transnational_organized_crime_and_the_protocols_thereto.pdf