The USA Journals Volume 03 Issue 11-2021
96
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
96-103
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-14
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
This article analyzes the institution of transfer of prisoners to serve their sentences in the States of
their nationality, which is one of the directions of international cooperation in criminal matters. The
author extensively reveals the relationship between the directions of international cooperation in
criminal matters. In addition, put forward proposals for amendments and additions to the national
legislation. Moreover, it is considered the necessity of improving of mechanism of international
cooperation in criminal cases, bilateral agreements and cooperation of states in regional and universal
levels.
KEYWORDS
International Cooperation, Crime, Transfer, Prisoners, International Treaty.
INTRODUCTION
The main participant in the transferring of
prisoners is the prisoner himself, who has
applied for transfer to a state of which he is a
citizen to continue serving his sentence.
It should be borne in mind that the prisoner’s
request must be proven that he must continue
serving his sentence in the country of his
citizenship (use of his native language in order
to maintain or restore socially useful ties,
serving a sentence in a familiar socio-cultural
environment, having a place of residence in
their own country and so on).
Although the legal status of prisoners in the
transferring process is not specified in national
Legal Status Of The Prisoner
Saidov Olim
Researcher of TSUL, Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 11-2021
97
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
96-103
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-14
I
MPACT
F
ACTOR
2021:
5.
952
law, they are defined in bilateral or multilateral
international agreements and their rights and
obligations are reflected.
For example, under the Agreement between
the Republic of Uzbekistan and Turkmenistan
on the transferring of prisoners sentenced to
imprisonment for continuation of sentence,
signed on 25th February of 2009, a “imprisoned
person” – is a person imprisoned by a court of
one of the Contracting Parties (article 1,
paragraph 1, part v) and “the state of
execution” – is the contracting party to which
the person sentenced to imprisonment is
transferred to continue serving the sentence
(article 1, paragraph 1, part b).
These rules mean that they are regulated as an
institution of transfer in the field of
international
cooperation
in
criminal
proceedings between states.
In addition, it can be stated that the legal status
of prisoners is based on the principle of
ensuring the rights and freedoms and
legitimate interests of prisoners, as set out in
the UN Model Agreement “On the transferring
of foreign prisoners”.
According to the principle, during the
transferring process, prisoners are guaranteed
not to have cruel, inhuman or degrading
treatment or punishment, and are fully
informed of the possibility of transferring to
the state of their citizenship or permanent
residence and its legal consequences[1].
In order to determine the legal status of
prisoners, it is expedient to pay special
attention to their rights. We should pay
attention to the fact that the legal status of the
transferred prisoner should be considered as
an integral part of the legal status of the
prisoners.
Firstly, the researchers rightly argue that at the
time the sentence is announced, the court
must explain that the prisoner has the right to
apply to continue serving his sentence in his
home country[2]. We would like to add the
point that these rights and legal consequences
should
also
be
explained
by
the
representatives of the penitentiary institution
or div.
This rule is reflected generally in the “Minimal
standard rules for the treatment of prisoners”.
According to this document, after the prisoner
is admitted to a penitentiary institution, each
prisoner should be provided with the written
information about the disciplinary rules of the
institution, in addition to the permitted ways of
obtaining information and complaining, as well
as his rights and obligations and all other issues
that allow him to adapt to living conditions
(and illiterate prisoners should be informed
orally)[3].
Such rules are also enshrined in the legislation
of foreign countries, mainly CIS countries. If we
consider
the
experience
of
European
countries, we see that the convention “On the
transferring of prisoners” generated by
European Council in 1983 is a universal
document regulating the transfer of prisoners.
The convention also provides that a prisoner
must be consulted by the state in general that
he/she may continue to serve his/her sentence
in his/her home country. This implies that a
prisoner cannot be extradited to his or her
state without his or her consent[4].
It is also useful to study the practice of the
German Federation. Because during the trial,
The USA Journals Volume 03 Issue 11-2021
98
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
96-103
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-14
I
MPACT
F
ACTOR
2021:
5.
952
the local judge asks the prisoner a few
clarifying questions, stating that he has rights
for a number of actions. In particular, the
prisoner is informed that he may use the
defense procedure in any case and that he will
be allowed to express his opinion on the
innocent act or to say nothing about it.
Most importantly, the judge determines from
the prisoner whether he agrees or disagrees
with the transferring to his state in order to
continue serving the sentence, and for what
reasons he may be transferred. The prisoner is
informed of the legal consequences of his
consent to be extradited and that it is not
revoked. All this is recorded in the judge's
statement[5].
In the legislation of our country, along with the
rights of prisoners, the right to information is
defined in relevant articles. This information is
mainly about the procedure and conditions of
serving the sentence, about their rights and
obligations, and does not mean that at the time
of sentencing or during the sentence, the
prisoner has the right to apply to continue
serving the sentence in his home country[7].
Therefore, it is also suggested to include in
Article 9 of the Criminal Procedure Code, which
reflects the basic rights of prisoners that a
prisoner who is a foreign citizen (stateless
person permanently residing abroad) has the
right to continue his sentence in his home
country and a rule that this right should to be
explained.
It should be noted that this process is
regulated by national legislation, unless it is
agreed in bilateral agreements signed by
states.
As a logical continuation of this, in order to
harmonize other articles of the Code, it is
necessary to include in Article 54 the following
norm:
Foreign citizens sentenced to imprisonment in
penitentiary institutions of the Republic of
Uzbekistan may be sent to a country of
citizenship or permanent place of residence (if
there are stateless persons) to serve the
sentence by the General Prosecutor of the
Republic of Uzbekistan on the principle of
interaction with the competent authorities and
officials of a foreign state in accordance with
international agreements or the Code of
Criminal Procedure of the Republic of
Uzbekistan[7].
This norm should reflect the procedure of
extraditing prisoners to serve their sentence,
including the fact that persons sentenced to
deprivation of liberty may be sent not only by
the administration of the remand prison to
serve their sentences, but also by the fact that
prisoners may be sent to their countries to
continue their sentences. If we pay attention to
the proposed rule, it briefly outlines the
mechanism of transferring of prisoners, the
main focus of which is that the prisoner has the
right reflected in Article 9.
This mechanism is included in the legislation of
many foreign and CIS countries. In particular, in
Article 88 of the Criminal Procedure Code of
the Republic of Kazakhstan such procedure is
provided.
We believe that it is not enough that such rules
are reflected only in international agreements.
This is because states do not always have
mutually agreed agreements. In such cases,
they cooperate on the principle of reciprocity.
The USA Journals Volume 03 Issue 11-2021
99
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
96-103
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-14
I
MPACT
F
ACTOR
2021:
5.
952
We know that according to the principle of
reciprocity,
the
required
documents,
conditions and bases are implemented in
accordance
with
national
legislation.
Therefore, in national legislation, it is necessary
to
clarify
the
relationship
between
international agreements and national norms,
as well as the regulation of relations between
the Republic of Uzbekistan and a state that has
not signed an agreement on transferring of
prisoners.
This, at the same time, leads to follow and
adjust with the norms of the convention “On
the transferring of persons sentenced to
imprisonment” (Article 2) and in terms of the
supremacy of international law norms outlined
in the Constitution of the Republic of
Uzbekistan and Article 4 of the Criminal
Procedure Code.
Secondly, in the preparation process to the
court session, there is a need for a formal
translation of the procedural and other
documents into the language of the case,
which the prisoner understands. The inability
of the administration of a penitentiary
institution to provide a qualified interpreter
creates additional difficulties in the process of
extraditing a prisoner and deprives him of
appropriate procedural guarantees.
Typically, foreign prisoners face barriers in
language and religious. Language problem is
one of the most serious problems faced by
foreign prisoners. According to the survey,
only 3.3% of respondents believe that the
language barrier should be taken into account
as one of the main criteria in extraditing to
another state.
In accordance with the criminal procedure and
criminal law legislation of the states and the
rules of the model UN agreements, for foreign
prisoners who do not know the language of
criminal proceedings, stateless persons, as well
as those who wish to apply with proposals,
statements and complaints, it must be ensured
that penitentiary institution provides this
opportunity by a qualified interpreter[8].
In the legislation of our country it is mentioned
that the translation into the language of the
person sentenced to imprisonment should be
provided by the penitentiary institution or
div[9]. The legislations of the CIS countries
have similar rules (Article 8 of the Criminal
Code of Ukraine, Article 12 of the Criminal Code
of the Russian Federation, Article 10 of the
Criminal Code of Kazakhstan). But we can see
the opposite in the German state. Under the
German law, if an interpreter works for a non-
German-speaking
prisoner
in
court
proceedings and in a penitentiary institution,
the costs are compensated by the prisoner
(Article 464 of the German Code of Criminal
Procedure)[10].
It should be noted that German law uses
special terminology in the regulation of
transferring and transfer of criminals. These
include simplified transferring, temporary
transferring,
transferring,
delivery,
and
transit.[11] All of these terms imply the same
issue in terms of content, but because they
have different meanings, they require the use
of a qualified interpreter[12].
As a result of the above analysis, the following
conclusions can be drawn. The petition of the
prisoner (his legal representative or lawyer) of
transferring to the competent authorities of a
foreign state and other necessary documents
The USA Journals Volume 03 Issue 11-2021
100
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
96-103
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-14
I
MPACT
F
ACTOR
2021:
5.
952
must be translated into the language of the
state of his citizenship or permanent residence.
The response to the request of the competent
authorities of a foreign state to grant or deny
the possibility of transferring must also be
translated into a language known to the
prisoner.
All of these are, of course, the procedural
rights of prisoners at the stage of resolving
issues related to the execution of a judgment
of a foreign state court. In this regard, the
rights and obligations of the prisoner to be
transferred at different stages of the
institution under consideration should be
clearly stated in the legislation. The prisoner
should have the right to review the materials
submitted to the court at various stages (not
only at the court session), including translation
of them or using the services of an interpreter.
Therefore, in order to prevent the isolation of
foreign prisoners, in different countries, it is
established to provide the use of interpreter
services not only during the court session, but
also at any other time when serious questions
may arise. Moreover, the visit of other citizens
living nearby who can voluntarily help the
prisoner to overcome the feeling of loneliness
can also have great benefit[13].
Thirdly, in the Criminal Procedure Code of the
Republic of Uzbekistan, the issues such as
notifying their close relatives in the process of
transferring prisoners to another state to
continue serving their sentence, or inform the
foreign state when the prisoner who was
sentenced in accordance with an international
agreement finishes his statement or any action
taken against him are not reflected.
It is known that under national law, families of
prisoners must be notified of their departure
and arrival to serve their sentences. The
administration of the penitentiary institution
shall notify the court of the verdict within three
days from the date of imprisonment, as well as
the family of the prisoner, indicating the
address of the institution and the prisoner’s
right to correspondence, meetings, parcels,
telephone conversations. (CPC, Article 55).
However, this norm only involves the process
by which a imprisoned person acquires the
status of a prisoner after the court has passes
a sentence. The issue of notifying the families
of persons serving a sentence in a foreign state
at the time of transferring to the country of
citizenship was not mentioned.
Nevertheless, this rule is also enshrined in
international agreements and the practice of
states, and is defined as fundamental rights of
prisoners.
For example, in the bilateral Agreement “On
the transferring of prisoners” between
Uzbekistan and the United Arab Emirates, it is
mentioned that the State executing the
sentence must notify the State which issued
the sentence of its execution. According to the
agreement, countries should remind of the
expiration of the sentence, the escape of
prisoner before the expiration of the sentence,
at the request of the sentencing state,
execution of serving of the part of the verdict
(Article 14).
A similar rule is provided in the CIS convention
“On the transferring of persons sentenced to
imprisonment”[14] signed in 1998 and in the
“Minimum standard rules for the treatment of
prisoners”[15] and in the Articles 14 and 15 of
The USA Journals Volume 03 Issue 11-2021
101
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
96-103
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-14
I
MPACT
F
ACTOR
2021:
5.
952
European Convention “On the transferring of
prisoners”[16].
The results of the analysis showed that in the
process of transferring prisoners we can see
that the issue of informing the close relatives
of the prisoner, his legal representative and the
sending state about his condition is mainly
applied to prisoners with mental disorders.
It is known that in the Criminal procedure Code
and the Criminal executive code of the
Republic of Uzbekistan the issues of execution
of persons sentenced to imprisonment and
transferring of persons with mental illness for
compulsory medical treatment in the country
of citizenship are not regulated.
At the national level, this issue is retained only
by the decision of the Cabinet of Ministers on
regulations of the procedure for issue and
acceptance by the Republic of Uzbekistan for
compulsory treatment of persons with
mentally disorder[17] for the purpose of
ensuring implementation of obligations of the
Republic of Uzbekistan of the rules of the
convention “On compulsory treatment of
persons with mental disorders” (Moscow,
March 28, 1997) and other international
agreements in this area.
The rules of this regulation are in accordance
with the provisions of the convention “On
compulsory treatment of persons with mental
disorders” signed in 1997, the procedure of
granting and receiving persons with mental
disorders by the Republic of Uzbekistan for
compulsory treatment is enlightened in detail.
However, not all provisions of this convention
are fully reflected, creating gaps in national
legislation.
Particularly, in Article 10 of the Convention it is
mentioned that if, after a person has been
subjected to compulsory treatment, the
judgment of the Contracting Party has been
revoked and a new investigation or trial is
envisaged, a copy of the decision, criminal case
file and other necessary documents sent to the
Contracting Party which has accepted to settle
the matter of execution. In addition, if the
judgment is changed, the Contracting Party to
which it is admitted shall immediately notify
the Contracting Party which has accepted that
person for compulsory treatment.
In addition to this, according to the conclusion
of the medical commission, if there is a need to
cancel or change the compulsory medical
measures taking into account the change in the
mental state of the compulsorily treated
person, the court of Contracting Party or the
court in the place of compulsory treatment of
Contracting Party may make an appropriate
decision. There is a provision that the other
Contracting Party shall be notified of the
decision in a written form.
These rules are not defined in the legislation of
our country and are common in practice. But
the lack of a legal basis also raises a number of
problems (application of the principle of
reciprocity).
In the Criminal executive code of the Republic
of Uzbekistan also stipulates the basic rights of
prisoners to serve their sentences and to
transfer mentally ill and mentally ill persons to
apply compulsory medical treatment in the
country of their nationality, issues of informing
a foreign state about any action taken against
a person sentenced to imprisonment under an
international agreement reflection in national
legislation leads to compliance with the norms
The USA Journals Volume 03 Issue 11-2021
102
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
96-103
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-14
I
MPACT
F
ACTOR
2021:
5.
952
of international law and the observance of
such rules as the Constitution of the Republic
of Uzbekistan, the supremacy of international
law established by Article 4 of the CEC.
In this regard, in order to bring the following
rules in line with international law, it is
proposed to amend and supplement the
relevant articles of the Criminal executive code
of the Republic of Uzbekistan.
In particular, it is expedient to supplement the
rule to the articles 170, 173, 188 and 194 that “in
the event of the death of a transferred
prisoner”, “when the transferred prisoner
finishes his sentence”, “when a patient
escapes or dies”, “when compulsory medical
measures are applied to a transferred
prisoner”, the Ministry of Internal Affairs shall
notify the Prosecutor General’s Office of the
Republic of Uzbekistan in accordance with the
procedure
established
by
international
agreements and then notify the competent
authority of the foreign state in accordance
with the law. Articles 170, 173, 188, and 194,
As a result of the analysis of the legal status of
the prisoner, we must conclude that the main
emphasis should be on the rights and
obligations of the prisoner in the process of
serving his sentence in a foreign state and
extraditing him to the country of citizenship.
Because, in general, the national legislation of
the states takes into account the principles and
norms of international law concerning the
execution of sentences and the treatment of
prisoners. Accordingly, it forms the national
legislation without contradicting international
agreements.
In most countries, the legal status of prisoners
is determined by criminal executive law. But we
have focused on the legal status of prisoners
being transferred to a state of citizenship in
order to continue serving their sentences. In
this regard, at the stage of instituting
proceedings on the transferring of a prisoner,
it is necessary to refer to both criminal
procedure and criminal executive legislation,
as well as international standards.
REFERENCES
1.
Model agreement on the traser of foreign
prisoners. Basic principles. Paragraph 6. [e-
source]: www.un.org
2.
Krymov A.A. Criminal procedure activities
of bodies and institutions of the
penitentiary system of Russia. DSc
dissertation on jurid. sciences. – Moscow,
2015.
3.
Seliverstova Y.A. Legal illiteracy of
prisoners sentenced to imprisonment as
one of the problems in the exercise of their
right to appeal // Criminal executive policy,
legislation and law: current state and
development prospects: collection of
articles. Materials of the round table / ed.
by Seliverstov V.I, Utkin V.A. – Мoscow,
2014.
4.
Standard
Minimum
Rules
for
the
Treatment of Prisoners. 35 paragraphs. [e-
sourse]:
https://www.un.org/ru/documents/decl_c
onv/conventions/prison.shtml
5.
Internationale Rechtshilfe in Strafsachen //
URL:
https://
www.bundesjustizamt.de/DE/Themen/Geri
ch-
e_Behoerden/IRS/Rechtshilfe_node.html
(Dated: 07.09. 2021)
6.
Internationale Rechtshilfe in Strafsachen //
URL:
https://
www.bundesjustizamt.de/DE/Themen/Geri
The USA Journals Volume 03 Issue 11-2021
103
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
96-103
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-14
I
MPACT
F
ACTOR
2021:
5.
952
che_Behoerden/IRS/Rechtshilfe_node.htm
l (Date of access: 07.09. 2021)
7.
Umarkhanova D. The legal regulation
issues of transferring and acceptance of
persons with mental disorders for
compulsory treatment in the state of their
citizenship. Asian Journal of Research № 2
(7-12), 2018 IMPACT FACTOR SJIF 5,1 IFS 2,7
www.journalofresearch.asia . - P. 70-78.
8.
Blinov A.V. Realization of the inalienable
rights of the individual in places of
deprivation of liberty: textbook. – Vologda,
2008.; Umarkhanova D. Some issues of
international cooperation in criminal cases.
European Journal of Academic Essays 4(3),
2017 ISSN (online): 2183-1904 ISSN (print):
2183-3818 www.euroessays.org. – P. 72-74.
9.
Model agreement on the transfer of
foreign prisoners. Appendix II. Paragraph
4. [e-source]: www.un.org
10.
Code of Criminal Procedure of the Federal
Republic
of
Germany
-
Strafprozessordnung (StPO) – as amended
by Act of 14.09.2021.
11.
Golovnenkov P., Spitsa N. The Code of
Criminal Procedure of the Federal Republic
of Germany – Strafprozessordnung (StPO).
– Scientific and practical commentary and
translation of the text of the law.
Introduction to Criminal Procedure Law of
the Federal Republic of Germany. –
Мoscow: MGLA, 2012.
12.
Umakhanova D. Features of video
conferencing as forms of mutual legal
assistance in criminal matters. Society and
innovationsJournal
home
page:
https://inscience.uz/index.php/socinov/ind
ex Issue -1, №02 (2020) / ISSN 2181-1415. - P.
292-299
13.
Seventh United Nations Congress on the
Prevention of Crime and the Treatment of
Offenders, held in Milan from 26 August to
6 September 1985. Development and
application of UN standards and norms in
criminal justice. Note by the Secretariat.
14.
Convention on the Transfer of Sentenced
to Deprivation of Liberty for Further
Serving
of
Sentence
http://cis.minsk.by/reestr/ru/index.html#re
estr/view/text?doc=776. -p.16.
15.
Standard
Minimum
Rules
for
the
Treatment of Prisoners. Paragraph 44. [e-
source]:
https://www.un.org/ru/documents/decl_c
onv/conventions/prison.shtml
16.
European Treaties database [Electronic
resource]: http://www.coe.int/
17.
Resolution of the Cabinet of Ministers of
the Republic of Uzbekistan No. 346
(17.10.2016) on the organization of
transferring and reception by the Republic
of Uzbekistan for compulsory treatment of
persons with mental disorders. Collection
of legislation of the Republic of
Uzbekistan, 2016 y., № 42, article 485.
