Problems of Criminal Law and Criminal Procedure in International

Maksim Yurievich Tarasov

Research Institute of the Federal Penitentiary Service of Russia, Moscow, Russia

Keywords: Criminal law; operational search activities; international search; grounds for international search; competence

to issue an international search warrant; standing of a wanted person; applying a measure of restraint to a

wanted person; statutory regulation of international search.

Abstract: During the operational search activities and criminal proceedings it is often necessary to issue an international

search warrant for a person in order to arrest and extradite him/her. In such cases, a number of questions

related to the regulation of criminal law and criminal procedure arise, the answers to which are not obvious,

and are not available in the scientific literature. Based on the analysis of Russian legislation and practice of

its application, the standards of international law, as well as scientific information sources and references, the

answers to a number of questions have been substantiated, including: the types of offences for which an

international search warrant can be issued against a person; whose competence it is to issue an international

search warrant against a person; documented justification for issuing an international search warrant against

a person; against which persons (with what standing) an international search warrant can be issued; who and

at what stage applies the measure of restrain in the form of taking into custody for an internationally wanted

person. The answers received provide grounds for improving the regulations governing the declaration of an

international search for a person in the Russian Federation with a view to arrest and extradition, as well as the

practice of their application. The purpose of the research is to identify the problems in criminal law and

criminal procedure in the field of international search and to substantiate options for solving them in the

legislation and law enforcement practice. In order to achieve this, the following objectives are being pursued:

the types of offences for which an international search warrant is issued against a person are identified; the

bodies and officials whose competence includes issuing an international search warrant against a person are

identified; the documented justification for issuing an international search warrant against a person are

identified; the analysis is made in order to identify against which persons (with what standing) an international

search warrant can be issued; the analysis is made in order to study who and at what stage chooses the measure

of restraint in the from of taking into custody for an internationally wanted person.

1 INTRODUCTION

The international search for persons who have

committed crimes and are absconding from

prosecuting authorities abroad is a civilized form of

ensuring the unavoidability of punishment and the

maintenance of public order and security. Both the

state searching for the person charged with a crime

and the foreign state detecting the absconded on its

territory are interested in the search effectiveness.

The trends towards the “transnationalization of

prisoner population” (Pakes, 2017), noted in Western

European countries, do not cancel out the issues of

international search and extradition, thus the

https://orcid.org/0000-0001-5259-7003

extradition issues remain relevant. Diverse aspects of

extradition have been analysed in various academic

sources published both in Russia (Chekotkov, 2016;

Voronin, 2018; Alieva, Temirsultanova, 2019) and

abroad (Hingoraney, 2002; Herrington, 2015;

Stefanovska, 2016; Davies, Arnell, 2020). Particular

attention is paid to respecting citizens’ rights,

balancing state interests and preserving the rule of

law (Bassiouni, 2014), and to the side effects of the

free migration of people, which is equally free for the

migration of criminals (Klimek, 2011). In this

situation, the issues of precise adherence to the

established procedure for issuing an international

search warrant against a person, with the options for

348

Tarasov, M.

Problems of Criminal Law and Criminal Procedure in International Search.

DOI: 10.5220/0010642100003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

348-356

ISBN: 978-989-758-532-6; ISSN: 2184-9854

its improving and simplifying, remain important

(Boister, 2018). In this context, some criminal law

and criminal procedure issues in international search

for the purpose of arrest and extradition, not fully

resolved or causing some difficulties in practice, are

of particular concern, including: the types of offences

for which an international search warrant can be

issued against a person; whose competence it is to

issue an international search warrant against a person;

documented justification for issuing an international

search warrant against a person; against which

persons (with what standing) an international search

warrant can be issued; who and at what stage chooses

the measure of restraint in the form of taking into

custody for an internationally wanted person. The

research undertaken provides answers in relation to

the international search for a person for the purpose

of arrest and extradition for prosecution or execution

of a sentence. In order to establish control over the

migration and location of a person suspected or

accused of committing a crime, or a person connected

to a police dossier where there is no procedural

decision to declare him/her a suspect or charged in a

criminal case, they have certain peculiarities for the

international search.

2 MATERIALS AND METHODS

The research is based on the study of case files and

police dossiers, procedural materials of the General

Prosecutor’s Office of the Russian Federation, the

Russian Interior Ministry and the Federal Penitentiary

Service of Russia, the Russian and foreign regulatory

acts, and works by other scholars. The research is

based on the participant observation method,

expressed in the collection of factual material during

direct participation in the work of the Main

Department of International Legal Cooperation, the

General Prosecutor’s Office of the Russian

Federation on the organization and handling of

international search and extradition. As a result of this

method the main results were obtained. Observation,

interviewing, experimentation, analysis, comparison

and other methods were also used.

3 RESULTS AND DISCUSSION

3.1 What Are the Offences, for Which

an International Search Warrant Is

Issued

An international search warrant shall be issued for

crimes, for which extradition of a person committing

a crime for prosecution or execution of sentence may

be sought in accordance with the established

procedure. The European Convention on Extradition,

drawn in Paris on 12/13/1957 (as amended on

9/20/2012), provides that extradition shall be granted

in respect of offences penal under the laws of the

requesting Party and of the requested Party by

deprivation of liberty or under an arrest warrant for a

maximum period of at least one year or by a more

severe penalty. (S. Bernholz, M. Bernholz, Herman,

1985). Where a conviction and prison sentence have

occurred or an arrest warrant has been issued in the

territory of the requesting Party, the punishment

awarded must have been for a period of at least four

months (Article 2). In accordance with Article 3 of

the Convention, extradition shall not be granted if the

offence in respect of which it is requested is regarded

by the requested Party as a political offence or as an

offence connected with a political offence. The same

rule shall apply if the requested Party has substantial

grounds for believing that a request for extradition for

an ordinary criminal offence has been made for the

purpose of prosecuting or punishing a person on

account of his/her race, religion, nationality or

political opinion, or that that person's position may be

prejudiced for any of these reasons.

The Russian practice is structured in accordance

with these international legal norms. In accordance

with paragraph 118 of Instruction for Information

Management for Interpol Cooperation, approved by

the Russian Ministry of Internal Affairs No. 786, the

Russian Ministry of Justice No. 310, the Russian

Federal Security Service No. 470, the Russian Federal

Protection Service No. 454, the Russian Federal Drug

Control Service No. 333, the Russian Federal

Customs Service No. 971 dated 10/6/2006 (as

amended on 9/22/2009) (hereinafter referred to as the

Interpol Instruction), international search warrant

shall be issued against the charged persons, having

escaped from the inquiry, investigative or judicial

authorities, provided that they are accused of

committing medium-gravity, grave and especially

grave crimes.

In accordance with Article 15 of the Criminal

Code of the Russian Federation, the crimes qualified

as medium-gravity crimes shall be premeditated acts

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349

for committing which the maximum punishment

stipulated by the Criminal Code does not exceed five

years of deprivation of freedom, and negligent crimes

for committing which the maximum punishment

stipulated by the Criminal Code does not exceed ten

years of deprivation of freedom. The crimes qualified

as grave shall be intentional acts, for committing

which the maximum punishment stipulated by the

Criminal Code does not exceed ten years deprivation

of liberty, and negligent crimes, for committing

which the maximum punishment stipulated by the

Criminal Code does not exceed fifteen years

deprivation of liberty. The premeditated acts, for

committing which the Criminal Code provides for a

punishment in the form of deprivation of liberty for a

term exceeding ten years, or a more severe

punishment, shall be recognized as especially grave

crimes.

The non-grave crimes, provided for by the

Criminal Code, being premeditated and negligent

acts, for committing which the maximum punishment

does not exceed three years of deprivation of liberty

(Part 2, Art. 15 of the Criminal Code), are not

included in the scope of the international search. The

explanation for this seems to be that the international

search is a very costly procedure, making it

“unprofitable” in today's realities to pursue persons

who committed non-grave crimes.

However, unjustified deviations from the

specified procedure are sometimes made in practice,

when Interpol’s National Central Bureau at the

Ministry of Internal Affairs of Russia appeals to the

General Prosecutor’s Office of the Russian

Federation with a request to organize an international

search with a view to the arrest and extradition of

persons accused of committing non-grave crimes.

The inadmissibility of such actions is pointed out, in

particular, in the Information sheet on the

organization of the international search for the

absconded charged and convicted sought by Russian

law enforcement agencies for 2017, prepared by the

Main Department for International Legal

Cooperation of the General Prosecutor’s Office of the

Russian Federation (March 2018), as well as in the

letter from the Head of the Main Department of

Supervision on Investigations, Inquiry and

Operational Search Activities of the Prosecutor

General’s Office of the Russian Federation addressed

to the Head of Interpol’s National Central Bureau at

the Ministry of Internal Affairs of Russia (April

2018).

It should also worth mentioning that the rule on

the court's right to change the category of a crime to

a less grave one (Part 6, Art, 15 of the Criminal Code)

is intended to apply when imposing punishment for

the crimes committed, and does not directly affect the

issue of an international search warrant.

3.2 What Are the Bodies and Officials

Whose Competence Includes

Issuing an International Search

Warrant against a Person

To answer this question, it is first necessary to

distinguish between the criminal procedure

competence to decide on issuing an international

search warrant against a person and the operational

search competence to issue a particular form of search

warrant, i.e. the international search.

If the location of a suspect or a charged is not

known, an international search warrant is issued

against such a suspect of a charged. The decision to

issue a search warrant is a power under the criminal

procedure, and applies to all offences for which

criminal proceedings are pending, irrespective of

their category. Such a decision falls within the

competence of a person or a body in charge of the

criminal case.

In accordance with Art. 210 of the Code of

Criminal Procedure of the Russian Federation the

power to search for a person is vested primarily in the

investigator in charge of the criminal case. The head

of the investigative body, who took over the case in

accordance with Part 2, Art. 39 of the Code of

Criminal Procedure, shall also have such power. In

accordance with Part 1, Art. 223 of the Code of

Criminal Procedure, such a power formally extends

to the inquiry officer.

The law also grants the power to make a search

decision to a court (a judge). During preparation for

the trial when the charged has absconded and his/her

location is unknown, the judge, in accordance with

Part 2, Art. 238 of the Code of Criminal Procedure,

shall be entitled to suspend criminal proceedings, and,

if the charged has escaped from custody, shall return

the criminal case to the public prosecutor and order

that the latter to provide for the search of the charged

or, if the charged who was not detained has escaped,

shall appoint a measure of restraint in the form of

taking into custody and order the public prosecutor to

provide for a search for the charged. In practice,

however, the judge usually does not suspend

proceedings, but returns the criminal case to the

prosecutor under Article 237 of the Code of Criminal

Procedure in order to re-draw the charging document

or the bill of indictment due to an incorrect indication

of data relating to the identity of the charged

regarding the place of residence or location. At the

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trial level, if the accused has absconded, the court, in

accordance with Part 3, Art. 253 off the Code of

Criminal Procedure the court shall pass a ruling or a

resolution on the search for the accused who has

absconded and order the search to be performed by

the body of inquiry, bypassing the prosecutor.

However, not every search warrant, issued in the

course of criminal proceedings, immediately takes the

form of an international one. In accordance with

paragraph 114 of the Interpol Instruction, the

international search for persons shall be declared only

if, as a result of the investigative and operational

search activities performed: information has been

obtained that the wanted person has left the Russian

Federation; relatives, friends and other links with the

person outside the Russian Federation have been

reliably established; and reliable information has

been obtained that the wanted person intends to leave

the Russian Federation for business or other purposes.

The issue of an international search warrant falls

within the competence of the operational search units

that provide operational support for criminal

proceedings. These are the relevant units of the

Russian Ministry of Internal Affairs, the Russian

Federal Penitentiary Service, etc. Thus, the cases of

escape of a charged, an accused, a convicted from a

detention facility, arrest, or custody (Art. 313 of the

Criminal Code), as well as evasion from serving a

sentence of imprisonment, fall within the scope of the

international search of the Russian Federal Penal

Service, based on its competence. At the same time,

paragraph 119 of the same Instruction provides that

the international search warrant shall be issued

against convicts who evade serving the sentence of

imprisonment or escape from the prison, provided

that they are condemned to a sentence of

imprisonment for period of not less than four months,

namely the period as specified in Art. 2 of the

European Convention on Extradition, 1957.

3.3 Documented Justification of Issue

of an International Search Warrant

The European Arrest Warrant has been in place

within the European Union since 1 January 2004. In

its evaluation report dated January 2006, the

European Commission hailed the Arrest Warrant as

an “overall success” as it provided an efficient and

speedy transfer procedure, while guaranteeing

judicial control and respect for fundamental rights.

National evaluation reports show that the arrest

warrant is widely used to secure the arrest and transfer

throughout the Union. The European Arrest Warrant

has largely replaced the traditional extradition

procedure (Van Sliedregt, 2007).

In the Russian Federation, these very traditional

procedures, which provide national documentary

grounds for issuing an international search warrant,

are still in place. In order to determine these grounds

correctly, it is necessary to identify the document that

reflects the original decision to proceed with the

international search and to ascertain its documentary

basis.

The document reflecting the initial decision to

perform international search is the resolution of the

official of the search unit in charge of the fugitive case

to issue an international search warrant against the

accused or a convicted. This procedure is set out in

paragraphs 122-123 of the Interpol Instruction: the

decision to issue an international search warrant

against a person shall be formalized by an appropriate

resolution issued by an officer of the search unit,

approved by the head or the deputy head of the unit,

coordinated with the head of the relevant body in

charge of operational search activities and certified by

seal.

This resolution, in turn, has a documented basis.

The decision to issue an international search warrant

against a person is usually based on an investigator's

decision to search for the charged in a criminal case,

or on an order to suspend a preliminary investigation,

which contains a search warrant as set out in Part 1,

Art. 210 of the Code of Criminal Procedure of the

Russian Federation. This documentary base is

expressly referred to in the Interpol Instruction

(clause 121.1).

In our view, the inquiry officer conducting the

inquiry in a criminal case is not among the officials

whose search resolution could constitute the

documented basis for issuing an international search

warrant against a suspect. The fact is that search

during the inquiry is carried out without a measure of

restraint in the form of taking into custody, since the

law does not provide for a taking into custody to be

resolved in the absence of the suspect. In accordance

with Part 1, Art. 225 of the Code of Criminal

Procedure, the suspect becomes the charged only

after the end of the inquiry and drawing up a charging

document. In the event of a need for such a measure

of restraint, and if the issue of an international search

warrant is a concern at the stage of inquiry, in

practice, the criminal case, according to the procedure

as per paragraphs 11, 12, Part 2, Art. 37 and Part 4,

Art. 150 of the Code of Criminal Procedure shall be

transferred through the prosecutor to the investigator

to resolve any concerns in the course of the

preliminary investigation. After the investigator has

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351

taken the absconded into custody as the charged and

the international search warrant has been issued by

the international search authority, a measure of

restraint in the form of taking into custody shall be

applied in absentia in accordance with Part 5, Art. 108

of the Code of Criminal Procedure.

Art. 253 of the Code of Criminal Procedure also

refers to a court ruling or a resolution on the search of

the absconded accused as a documentary basis for the

search if the proceedings in the case of the absconded

accused is suspended. (Part 3, Art. 253). These

documents provide a second documentary basis for

issuing an international search warrant. This would

also need to be reflected in the Interpol Instruction,

paragraph 121.

The Interpol Instruction supplements the list of

documentary grounds for a ruling by an operational

search authority to issue an international search

warrant against a person, with a prosecutor's

instruction given by a judge’s order in the case

provided for by Part 2, Art. 238 of the Code of

Criminal Procedure (paragraph 121.2). Strictly

speaking, Part 2, Art. 238 of the Code of Criminal

Procedure does not explicitly refer to an “instruction”

from the prosecutor. The law provides only that the

judge “orders the prosecutor to provide for the search

of the charged.” Logically, the prosecutor can provide

for the search of the absconded only one way: by

giving a relevant order to the inquiry body conducting

search operations. However, neither the Code of

Criminal Procedure, nor the Federal Law “On

Prosecutor’s Office of the Russian Federation” and

the Federal Law “On Operational Search Activities”

expressly provide for such a power for the prosecutor,

therefore, it seems expedient to supplement the text

of Part 2, Art. 238 of the Code of Criminal Procedure

of the Russian Federation as follows: “In this case the

prosecutor shall give the inquiry body an appropriate

instruction to search for the charged.” Then the rule

in paragraph 121.2 of the Interpol Instruction on “an

instruction from a prosecutor given by a judge’s

order” would have the necessary legitimacy.

Thus, the initial decision to perform an

international search is formalized by the resolution of

the official of the search unit in charge of the fugitive

case to issue an international search warrant against

the accused or the convicted, with the documentary

basis provided by:

the investigator’s resolution about the search of

the charged or a resolution on the suspension of the

preliminary investigation, containing instructions for

the search, provided for by Part 1, Art. 210 of the

Code of Criminal Procedure of the Russian

Federation;

the court's ruling or resolution on the search for

the absconded accused, made in accordance with Part

3, Art. 253 of the Code of Criminal Procedure of the

Russian Federation;

prosecutor’s instruction given by a judge’s order

in a case provided for by Part 2, Art. 238 of the Code

of Criminal Procedure (with respect to the proposed

amendments of the law).

The special rule on documentary grounds for

issuing an international search warrant against a

person, contained in paragraph 121 of the Interpol

Instruction, lists only two of these grounds, the

resolution of the investigator (paragraph 121.1) and

the instruction of the prosecutor (paragraph 121.2).

The above considerations emphasize the need to

include a third one as well, the court's ruling

(resolution).

In this connection it seems inaccurate to specify

the resolution on issuing an international search

warrant (Illarionov, Putova, 1999), a request of an

internal affairs agency to Interpol’s National Central

Bureau in Russia (Filippov, 2000), an order of the

Prosecutor General's Office of the Russian Federation

(Goryainov, Ovchinsky, Sinilov, Shumilov, 2004) as

documentary grounds for issuing an international

search warrant, since the mentioned documents are

“executive” in the procedure of issuing an

international search warrant in terms of ruling

(resolution, instruction) on issuing an arrest warrant.

3.4 Which Persons (with What

Standing) Can Be the Subjects of

an International Search Warrant

Issued

The scholarly studies, with reference to international

and Russian legal instruments, note that in order to

issue an international search warrant against persons

for the purpose of their arrest and extradition, an

offender is required to have a certain standing: a

charged or a convicted (Minyaev, 2019). In general,

this position is correct, however, it is not entirely in

line with the regulations themselves. Let's analyse

some of the details.

In accordance with Part 1, Art. 210 of the Code of

Criminal Procedure, the decision to issue an

international search warrant against a person is made

on the basis of a search ruling issued against the

suspect or the charged. This means that an

international search warrant can be formally issued

both against the charged and the suspect. However, a

person with the standing of the suspect cannot, in fact,

be a subject of an international search. This is

prevented by three factors: 1) the short-term nature,

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in most cases, of a person’s standing of the suspect,

which he/she acquires by virtue of the grounds set out

in paragraphs 1-4, Part 1, Art. 46, of the Code of

Criminal Procedure, when a criminal case is opened

in respect of such a person, or the person is detained,

or a measure of restraint was applied before the

charge, or the person is informed of the suspicion of

committing a crime in the manner prescribed by Art.

223.1 of the Code of Criminal Procedure; 2) the need

to issue an international search warrant against a

person based on sufficient evidence giving grounds to

charge the person with an offence, in respect of which

the person is indicted as a charged in accordance with

Art. 171 of the Code of Criminal Procedure and,

therefore, acquires the standing of a charged (Art. 47

of the Code of Criminal Procedure); 3) the possibility

of a court order for a measure of restraint in the form

of taking into custody only in the absence of the

charged and only if an international or interstate

search warrant has been issued in respect of the

charged.

Thus, a person, who has been detained on

suspicion of having committed a crime in accordance

with Art. 91 and 92 of the Code of Criminal

Procedure (paragraph 2, Part 1, Art. 46 of the Code of

Criminal Procedure) may remain as such in

accordance with Part 2, Art. 94 of the Code of

Criminal Procedure for 48 hours at, most and in case

of extension of the term of detention in the manner

prescribed in paragraph 3, Part 7, Art. 108 of the

Code of Criminal Procedure – for 72 hours at most,

i.e. for a total of 120 hours at most. If a measure of

restraint in the form of taking into custody was

applied in respect of the detained (paragraph 3, Part

1, Art. 46 of the Code of Criminal Procedure), charge

shall be brought against the person in accordance with

Part 1, Art. 100 of the Code of Criminal Procedure

not later than 10 days after the arrest. The said time

limits are clearly insufficient to complete the

procedure of issuing an international search warrant

against a person while retaining the standing of a

suspect of that person.

A person may be a suspect in relation to at least

one of the offences provided for by Articles 205,

205.1, 205.3, 205.4, 205.5, 206, 208, 209, 210, 210.1,

277, 278, 279, 281, 360 and 361 of the Criminal Code

for a much longer period. The charges in such cases,

in accordance with Part 2, Art. 100 of the Code of

Criminal Procedure, shall be brought against a

suspect, for which a measure of restraint has been

chosen, within 45 days after the imposition of the

measure of restraint, and if the suspect has been

detained and then taken into custody, within the same

term after the time when he/she was detained. A

person may be a suspect for an even longer period if

criminal proceedings are brought against him/her

(paragraph 1, Part 1, Art. 46 of the Code of Criminal

Procedure). In fact, they may amount to the entirety

of the preliminary investigation period, not limited in

accordance with Part 5, Art. 162 of the Code of

Criminal Procedure. Such time limits would be

sufficient for the procedure of issuing an international

search warrant against a person in the standing of a

suspect (which obviously provides the opportunities

for the abuse of right (Andreeva, Grigoryev, Zaitsev,

Trubnikova, 2018)). However, this is impossible due

to the second and third circumstances outlined above.

In order to issue an international search warrant

against a person for the purpose of arrest and

extradition for prosecution or execution of a sentence,

the evidence is needed not only of the crime itself, but

also of its commission by a particular person, the very

person to be sought abroad. The existence of

sufficient evidence to charge a person with an offence

constitutes grounds for indicting the person as a

charged. If there are such grounds, the investigator, in

accordance with Art. 171 of the Code of Criminal

Procedure, shall make a resolution on taking the given

person to the bar in the capacity of the charged.

Therefore, a person acquires the standing of the

accused (Art. 47 of the Code of Criminal Procedure).

In practice, this means that, as stipulated in paragraph

131 of the Interpol Instruction, the request for an

international search warrant to be sent to the Interpol

National Central Bureau shall be accompanied by a

copy of the decision to indict as the charged.

Finally, the third circumstance stems from the

obligatory condition that an international search

warrant for arrest and extradited shall be issued only

against the persons who have been taken into custody

as a measure of restraint. Such a condition logically

follows from the fact that if an absconded is searched

and detained in a foreign state, he/she will need to be

taken into custody (Grigoryev, 2017; Grigoryev,

Kovalchuk, 2018). This condition is enshrined in

paragraph 123 of the Interpol Instruction, according

to which if in respect of a person for whom an

international search warrant has been issued, this

measure of restraint has not previously been applied,

the investigator is given a copy of the decision to issue

an international search warrant against a person in

order to apply to the court under Part 5, Art. 108 of

the Code of Criminal Procedure to obtain a court

order for applying a measure of restraint in the form

of taking into custody in the absence of the charged.

However, a judicial decision to impose a measure of

restraint in the form of taking into custody in absentia

is permitted by law only if an international or

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353

interstate search warrant has been issued and only in

respect of the charged (Part 5, Art. 108 of the Code of

Criminal Procedure). In the case of an absconded

suspect, a procedure mentioned above is not provided

for by law and is, therefore, not feasible in practice.

If a measure of restraint in the form of taking

custody has not been applied to a person for some

reason, an international search warrant for arrest and

extradition for prosecution or enforcement of a

sentence cannot be issued in relation to such person.

If a judge decides to deny a petition on the application

of a measure of restraint in the form of taking into

custody in respect of a charged who is the subject of

an international search warrant, pursuant to paragraph

123 of the Interpol Instruction, the warrant is

cancelled, and after that only the registers of the

General Secretariat and the national registers of

foreign Interpol member states can be checked for

information within the framework of cooperation in

the fight against organized crime (Minyaev, 2019).

Thus, an international search warrant for the

purpose of arrest and extradition for prosecution

cannot be issued against a suspect; only a person in

the standing of a charged can be wanted for these

purposes.

This procedure does not exclude the fact that in

international search practice, the persons may also

appear as suspects, or may have no standing at all. For

example, the Interpol Instruction provide for the

General Secretariat to issue Blue Notices to monitor

the migration and location of a person suspected or

charged with a crime (paragraph 38.1) and Green

Notices for a person connected to a police dossier

where there is no procedural decision to declare

him/her to be a suspect or a charged in a criminal case

(paragraph 38.2). A distinction should be made here

between the persons appearing in searches for

investigative purposes and for the purpose of arrest

and extradition for prosecution or execution of a

sentence. The US law enforcement agencies, for

example, use the term “Person of Interest” for this

purpose when identifying a person involved in a

criminal investigation who has not been arrested or

formally charged with a crime (McMahon, 2021).

In accordance with Part 2, Art. 47 of the Code of

Criminal Procedure, the charged, on whose criminal

case are appointed the court proceedings, is referred

to as an accused; the charged, with respect to whom a

verdict of guilty is passed, is referred to as a

convicted. Therefore, if such persons have escaped

and absconded from prosecution, sentence

enforcement or a court, it is fair to speak of issuing an

international search warrant against an accused and a

convicted along with a charged.

This position is confirmed by the existing legal

acts. Thus, Part 3, Art. 253 of the Code of Criminal

Procedure provides for a court resolution or a ruling

on the search for the accused who has absconded. Art.

18.1 of the Penal Code of the Russian Federation

provides for the declaration of search for the

convicted. The Interpol Instruction stipulates that the

Interpol National Central Bureau shall search for the

charged, having escaped from the inquiry,

investigative or judicial authorities, and the convicts

who have evaded serving their prison sentence or

have escaped from detention facilities (paragraph

107). The search for the accused is mentioned only

once, in paragraph 150, but it is already clear that the

absconded charged is the accused.

If we follow strictly the letter of the law, we

should talk about an international search of the

charged, bearing in mind that an accused and a

convicted, based on Part 2, Art. 47 of the Code of

Criminal Procedure, are the same as a charged with a

clarified standing in relation to the stage of the

criminal proceedings. It would not be wrong to

indicate the wanted person, clarifying each time

his/her standing in relation to the stage of the criminal

proceedings in which that person has absconded: a

charged, an accused, a convicted. However, in that

case the general rules governing the international

search (which are the vast majority) need to specify

the charged in all three of these standings: a charged,

an accused and a convicted, and not only in the

standing of a charged and a convicted, as the Interpol

Instruction does.

In determining the standing of a wanted person,

the difference in its designation under Russian

criminal procedural law and under the legislation of

foreign states, as well as under international legal

instruments, needs to be taken into account. In the

domestic search, such a person is designated in

accordance with the standing the wanted person had

at the time of absconding, in particular, it is a suspect

and a charged in the Russian Federation (Art. 210,

238 of the Code of Criminal Procedure), an accused

(Art. 253 of the Code of Criminal Procedure), a

convicted (Art. 18.1 of the Penal Code). However,

there may be very significant differences in the

definition of the standing of a wanted person, given

the possible peculiarities of the national laws of

different states. Thus, in accordance with Art. 44 of

the INTERPOL’s Rules on the Processing of Data

(III/IRPD/GA/2011 (2019), a charged is a person

against whom criminal proceedings have been

initiated for allegedly committing an ordinary-law

crime (clause “b”), and a suspect is a person who, as

part of a criminal investigation, is considered to be a

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possible offender but against whom no charges have

been filed (clause “c”). Such definitions of the status

of wanted persons are quite different from the

corresponding definitions under Russian criminal

procedure law (Art. 46-47 of the Code of Criminal

Procedure).

In this connection, a different approach seems

more appropriate, whereby in the description of an

international search, in addition to the categories of

national law, it is also appropriate to define the

wanted person by means of more universal attributes,

which may include: 1) Search object is a person; 2)

the reason for the search – a person is absconding

from the prosecuting, penal or judicial authorities; 3)

purpose of search – arrest and extradition; 4) intention

of search – prosecution or execution of sentence.

This approach can be seen, in particular, in the

Interpol Instruction, which refer not to the search for

the accused but for persons charged with a crime

(paragraphs 117, 118), which are not the same things.

In such a situation, it is more expedient to speak of a

search not for the accused, but for a person being

accused (charged) of a crime, who is absconding from

the prosecuting, sentence executing or judicial

authorities, for the purpose of arrest and extradition

for prosecution or execution of a sentence.

Thus, the object of an international search can

equally be: either a charged alone; or an accused or

convicted in addition to the charged; or a person being

accused (charged) of a crime who is absconding from

the prosecuting, sentence executing or judicial

authorities.

4 CONCLUSIONS

On the basis of the analysis presented and the results

obtained, the following conclusions can be drawn

regarding the issues raised.

a) the types of offences for which an international

search warrant can be issued against a person:

medium-gravity, grave and especially grave crimes,

with the exception of political offences and ordinary

criminal offences for the purpose of prosecuting or

punishing a person because of their race, religion,

nationality or political opinion, and if the convicted

person evades serving a custodial sentence or escapes

from prison – if sentenced to imprisonment for at least

four months;

b) bodies and officials whose competence

includes issuing an international search warrant

against a person: the decision to search for a person is

within the competence of the person or body in charge

of the criminal case; the issue of an international

search warrant against a person is within the

competence of the operational search units providing

operational support in the relevant criminal cases;

c) documentary grounds for issuing an

international search warrant: the initial decision to

preform an international search is formalized by the

resolution of the official of the search unit in charge

of the fugitive case, to issue an international search

warrant against a charged, an accused or a convicted,

the documentary basis for which is provided by:

investigator's resolution about the search of the

charged or a resolution on the suspension of the

preliminary investigation, containing instructions for

the search; court's ruling or resolution on the search

for the accused who has absconded; a prosecutor's

instruction given by a judge’s order (with respect to

the proposed amendments of the law);

d) against which persons (with what standing) an

international search warrant can be issued for the

purpose of arrest and extradition: a charged, an

accused, a convicted;

e) who and at what stage applies the measure of

restraint in the form of taking into for an absconded:

at the preliminary investigation stage, by the court

based on the recommendation of the investigator; at

the stage of preparing the case for trial, by the court;

at the trial stage, by the court. While in the first case

a measure of restraint in the form of taking into

custody may be applied only to a charged against

whom a search unit issued an international search

warrant, for the latter two cases, which relate to the

judicial stages, it should be clarified that if the court

applies a measure of restraint in the form of taking

into custody in respect of a charged, an accused

having absconded at the pretrial and trial stage, the

form of the future search (local, federal, interstate or

international) has not yet been determined by the

court, this must be done by the officers of the relevant

search unit on the basis of the court decision on the

search, in view of the factual circumstances.

The answers received provide grounds for

improvement of the legal acts regulating the issue of

an international search warrant in the Russian

Federation for the purpose of arrest and extradition,

as well as the practice of its implementation, and can

be used as a structural material for creating

mathematical models (D. Ponomarev, S. Ponomarev,

Rumyantsev, Shamsunov, Tarasov, 2020) in the field

of international search for crimes of extremist and

terrorist nature and other dangerous crimes.

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