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Poland’s unconstitutional Constitutional Tribunal upends EU law

On 18 March 2020, Yevgeny Dzyuba, a businessman wanted by the Ukrainian branch of Interpol, was detained at the Warsaw airport. He is currently under arrest in Poland. Our country is located in the heart of Central Europe, hence the special importance of the work performed by the INTERPOL National Central Bureau (NCB) in Poland. The NCB is a foundation for ensuring both national and regional security. It is a most important national platform that links the Polish police with international law enforcement agencies and makes it possible to secure the exchange of information on criminal records and to conduct international police investigations.

Yevgeny Dzyuba

It is no secret that over the past few years, our neighbors – who are members of the Interpol system, too – have been requesting the extradition of their citizens (suspected of committing crimes) more and more often. While doing that, however, they sometimes seem to forget that international laws – particularly, those that govern the joint work of the International Criminal Police Organization, commonly known as Interpol, and the law enforcement agencies that are its subsidiaries – are the same for everyone.

Interpol conducts searches for persons suspected of committing international crimes: this also includes operational-search activities carried out outside the territory of the state where the crime was committed. If an operation is successful, the criminal is detained and placed in custody; the negotiations on the criminal’s extradition to the state of their citizenship or to the state where the crime was committed are conducted via diplomatic and similar channels.      The court of the country in which a foreign citizen is detained on suspicion of commiting a crime would, first of all, carefully investigate the reason for them being put on the wanted list, request all the necessary documents, and make its verdict only after this procedure is over.

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Unfortunately, over the past few years, the international press has increasingly interfered with the extradition of citizens of other countries from Poland – the media would actively accuse Polish criminal justice agencies of alleged bias or unwillingness to extradite a criminal. Let us note that the fact of someone being wanted by Interpol does not mean they will be sentenced; a person who is under suspicion is not a criminal. European legislation is pre-traditional, objective and transparent – the court is at the head of the Law, the other parties (enjoying absolutely the same rights) being the prosecution and the defense. The parties to the process would submit their written evidence to the court in advance, so that the judge has the opportunity to study the opinion of the participants and ask only clarifying questions at the court session. This excludes any kind of formal or biased attitude of which foreign newspapers sometimes try to accuse the Polish judiciary system. This is confirmed by the fact that a number of international human rights organizations highly appreciate it that even in the case of an extradition decision, the Polish Ministry of Justice does not ignore the defendant. The Ministry always requests its foreign colleagues for the information about the extradited person’s state, willing to protect them from any illegal actions that they might endure when in custody and that may be associated with political and other kind of persecution.

The story of Mr. Dzyuba differs from many other cases of foreigners who were lawfully detained and handed over to criminal justice agencies in their countries. For example, it turned out that a citizen of Ukraine detained in June of this year in the city of Kostrzyn nad Odrą in Lubusz Voivodeship, had been hiding under nine different surnames (being on the wanted list of 190 countries as the Interpol “red card” holder – on suspicion of commiting murder and theft of property in Ukraine). Dzyuba did not hide or change his name at all; moreover, within the six months before his arrest, he freely visited various countries with the purpose of treating chronic diseases – and presented his own passport while traveling. Diagnosed with multiple burns (60-80% of the surface) of arms, legs and torso (followed by a number of medical complications), almost always accompanied by his two minor children and an elderly mother (who are dependent on him) whom he had to have relocated from the city of Donetsk, Mr. Dzyuba hardly looks like a professional criminal in hiding. As follows from the documents provided by his lawyers, by performing the aforesaid actions he exercised his constitutional right to freedom of movement. All changes to the place of his registration and residence were duly recorded in accordance with the established procedure. According to the law of Ukraine, staying abroad in itself cannot indicate the fact of evading the investigation and hiding from the pre-trial investigation agencies. The documents provided by the lawyers also confirmed that Dzyuba had not been properly notified about him falling under suspicion and being included in the wanted list (this fact was proved). At the same time, there is a well-documented fact that there was a long-lasting criminal proceeding that actually carried out the investigation beyond the procedural deadlines. The documents presented to the Polish court by Dzyuba’s representatives state that, in line with Paragraph 10 Part 1 Article 284 of the Criminal Procedure Code of Ukraine, an investigator, an inquirer and a prosecutor must officially end criminal proceedings once the period of pre-trial investigation defined by Article 219 of the Criminal Procedure Code of Ukraine has ended – and this period ended in November 2017. Nevertheless, five years later (which is far beyond the law-specified maximum time limits of the pre-trial investigation), a Report on Suspicion of Committing a Criminal Offense under Part 5 Article 191 of the Criminal Code of Ukraine was drawn up with regard to Yevgeny Dzyuba. Therefore, the specified Report on Suspicion of Committing Criminal Offenses by him was drawn up under a non-existent criminal proceeding. Moreover, the Criminal Proceeding with the number indicated in the Report has never existed and does not exist. Besides, the representatives of Ukraine are not in a hurry to provide documents on Yevgeny Dzyuba’s case – they explain the delay by the heavy workload and need to perform daily work.

Against the background of everything connected with international crime and its representatives who get to Poland, the above-listed facts look, to put it mildly, like a strange reason for extradition. A Polish writer Stefan Garczynski said: “Facts are the sand that grinds in the gears of theory.” Of course, from the formal procedure point of view, all the actions that are provided for by international law and Interpol in relation to the Ukrainian citizen Dzyuba in the territory of Poland have been carried out accordingly. However, no one should fall into the gears of an omni-grinding formal machine – and it does not matter what country they are in at that moment. Moreover, when the movement of this machine is thwarted by the “sand of indisputable facts”; besides, it should be added that, knowing about Yevgeny Dzyuba’s illness, his family and colleagues secured the required bail amount that would give him the opportunity to stay under house arrest in Warsaw, next to his family, and not in prison.

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The uniqueness of Interpol lies in the principle of non-interference in political, military, religious and racial affairs laid down in its charter. By strictly observing these obligations, the organization maintains the status of a purely professional international police community. This allows the law enforcement agencies of all member countries to interact even in the absence of diplomatic relations between them. At the same time, the main “weapon” of Interpol is its information resources. The telecommunications system used in Interpol allows law enforcement officers of the organization’s member countries to exchange operational information and receive the needed data from their foreign colleagues within the shortest possible time. All this contributes to the fact that each case can be considered objectively and not formally, and, if necessary, taken under control by the Interpol General Secretariate and its Secretary General Jürgen Stock.

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