Дата публикации: 09 июня 2016
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Gamlet Yegizaryan, (c)
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Автор: Gamlet Yegizaryan, Advisor, Military Cooperation and Security Department, CIS Executive Committee
The crime rate in the CIS member-states is still causing a serious concern. In virtually all CIS countries one can observe the interrelation between the aggravation of the criminal situation and the crises in economic, social, and other spheres of life. A particular unease is evoked by the growth of crime associated with the vigorous activity of sustained criminal groups having interregional and international ties. In this regard, further escalation of organized crime and other felonies is taking place.
Leaders and activists of criminal groups negatively affect vitally important branches of economy and banking. They build up significant shadow capitals and interfere in the government activity by lobbying their interests in legislative, executive, and administrative bodies and effecting decisions tailored to their needs. They propagate extremism and stir up political, national, and religious unrest. They obstruct law enforcement through physical and moral intimidation. They corrupt youth, including minors, by involving them in wrongful deeds.
Being aware of and objectively assessing the dangerous growth of crime as a general destabilizing factor, bodies of political governance and law enforcement of the CIS states cannot limit themselves to solving only particular legal, organizational, and methodological matters. Instead, instead of overriding particular solutions but making them more systemic and effective, they should encompass more generic issues.
Already in the Agreement on the Establishment of the Commonwealth of Independent States, signed on December 8, 1991, the parties to the agreement recognized that fighting organized crime was part of their joint activities, uniformly realized through common coordinating bodies (Article 7). Article 4 of the Commonwealth Charter reads the same.
In May 1996, an Interstate Program of Joint Efforts in Fighting Organized Crime and Other Felonies on the Territory of the CIS States Through 2000 was adopted. Its implementation provided the basis for successive international legal cooperation and helped carry out a number of effective joint activities.
On December 2-3, 1997, prospect routes of cooperation were outlined at the joint meeting of the Coordinating Council of Attorneys General, Council of Internal Affairs Ministers, Council of Security and Special Services Heads, Council of Border Guard Troops Commanders, Council of Customs Service and Tax Police Heads, and other related bodies of the CIS member-states, which took place in Moscow. The participants of the meeting also approved the draft of the Concept of CIS Law Enforcement Agencies Cooperation in Crime Fighting.
There is a need in common decisions in the field of criminal law, procedural criminal law, and executive criminal law. This will by no means question the sovereignty of the CIS member-states in the sphere of legislation. We are just talking about specific institutions of law, uniformity of which will cater to the improved interaction of law enforcement authorities.
Among the issues of cooperation in the field of organized crime eradication, we should emphasize the development and successive implementation of a common concept of the criminal law policy. Its nonexistence results in significant inconsistencies in the legislation of different CIS member-states.
For example, up till now there is no common ground on such key institutions and norms of the criminal law as organized criminal group, criminal association, recidivism, repeated and cumulative offence, etc. As a result, except for Uzbekistan, preliminary investigation authorities and courts in the CIS countries do not take into account prior convictions or offences committed on the territory of other states when classifying violations of law. Naturally, this does not contribute to efficient crime fighting but, on the contrary, leads to an unjustifiable remission of penalty and, sometimes, to the impunity of the offender.
Along with some institutions of common law, concepts and characteristics of transnational crimes should
also become subject to unification, though it is next to impossible to make a list of all kinds of activities, undertaken by transnational criminal community.
However, some of them deserve our special attention. First of all it is terrorism and offences associated with it: weapons and ammunition trade, drug trafficking, environmental crimes, economic crimes, including money-laundering, illegal enterprise and banking, etc. Terrorist acts of national and international dimensions are targeted at eliminating public institutions and undermining state authority at all levels.
One of the approaches, introduced in the past and partially approved of within the framework of terrorism fighting, is based on the provision that terrorist violence in all its forms and manifestations, no matter what its reasons, goals, or motives are, should be treated as a criminal act. And as such, it should be subject to prosecution and sentence. The given approach provides for exposure of specific terrorist acts, which are subject to standing agreements, and implementation of activities to fight them.
Drug trafficking, which is one of the major sources of profit for most transnational criminal organizations, is better understood as an industry with specific stages of production and distribution, which are independent of each other. The emergence of the drug trafficking industry, whose annual profits are estimated at billions of US dollars, has become a spur to the development of transnational criminal organizations and led to the advent of money-laundering schemes.
Unlike terrorist groups, criminal organizations pursue primarily economic and not political goals. Under economic crime we understand a large number of illegal activities, most widely spread among which are fraud, grand larceny, embezzlement, sharp practices with securities and raw materials, illegal activities involving investment and financial institutions, and tax evasion. Often money-laundering and corruption would also fall under this category.
In comparison with other forms, economic crime, as a rule, has been paid less attention at the national and international levels. There are two major reasons to explain this.
First, many forms of economic crime are relatively invisible as opposed to, let us say, crimes of violence. Even in comparison with other non-violent offences, for example drug law abuse, the consequences of economic crime are less obvious to the society. Fear and anxiety among population are growing due to the crimes that directly affect their personal security and well-being. Hence, it seems to be clear why public and government attention is, as a rule, focused on more apparent forms of criminal conduct.
Second, economic crime, in its today's form, constitutes a serious problem for law enforcement agencies. More and more often, state of the art technologies, including computers and telecommunications, are employed to commit economic crimes - illegal transactions, break-ins into databases and computer systems, series of schemes, etc. Modern information technologies provide new opportunities for criminal activities, bringing in high profits at a relatively low risk. Fighting such forms of economic crime requires extensive experience in the field, significant resources, and international cooperation.
An important role in the unification of legislation of the CIS member-states belongs to the Interparliamentary Assembly. Under the auspices of this institution, there have been developed and adopted model criminal, procedural criminal, and executive criminal codes, as well as the model legislative acts on drug trafficking and organized crime.
In this regard, it needs to be mentioned that in accordance with the Parliamentary Rules of the CIS Interparliamentary Assembly, under model law one understands the Assembly's recommendation of a draft law to the national parliaments, adopted with the purpose of coordinating legal policies and harmonizing laws. As a rule, such draft laws are developed by experts and are initially reviewed by related commissions.
The decision on the Assembly's adoption of the introduced law is made only by common consent and in case of no official objection from participating delegations. Adopted recommendation drafts are sent to the CIS member-states parliaments to be taken into consideration when drafting national legislation.
The model law "On Organized Crime Fighting," adopted by the CIS Interparliamentary Assembly on November 2, 1996, has a number of "interrelated" and "mutually conditioned" norms, regulating the most important issues of organized crime fighting. The law is devised to be used as a single comprehensive enactment or as a special framework, whose parts could be integrated into particular fields of law without detriment to the comprehensiveness of the existing national legislation. However, the state has to make the final decision in selecting a concrete model of legal regulation used to fight organized crime.
The notion of criminal offence as a complex of activities, such as the establishment and operation of sustainable criminal groups presenting extreme public threat and committing illegal acts, stipulated by the corresponding articles of the criminal law, has been used as the basis for the model law "On Organized Crime Fighting."
It is specifically emphasized that the sphere of its application is limited to preventing the establishment and operation of organized criminal groups, gangs, associations, and communities, as well as of companies, used by organized crime as a front necessary for the implementation of illegal activities or which perform some secondary functions.
While working on the draft of the above-mentioned law, its designers proceeded from the fact that, along with measures aimed to expose operating associations and to prevent the establishment of new groups, governmental actions should include a broad complex of activities, regulated by legislation, which are necessary to counteract terrorist attacks, drug trafficking, arms and radioactive-materials trade, and legalization of illegally obtained profits.
The model criminal code, adopted by the CIS member-states in 1996, is called upon to improve the above institutions of the criminal law. It is especially topical since the legislative bodies of Armenia, Belarus, Georgia, Kazakhstan, Moldavia, and Ukraine are currently considering drafts of new criminal codes.
The model executive criminal code can also be treated as a pre-requisite for the harmonization of the existing legislation. Draft codes based on it have already been developed in Belarus, Georgia, Kazakhstan, Moldavia, Kyrgyzstan, and Ukraine. They contain general provisions for administering punishment and regulate the legal status of convicts, the procedure and conditions of serving specific types of penalty. The adoption of new codes by other states will achieve uniformity in the system of sentence servicing.
The development of criminal codes in the CIS member-states has become of major importance for further development of procedural criminal and executive criminal codes.
According to information available today, drafts of the CIS countries' procedural criminal codes, including model codes, have no special clauses governing the investigation of transnational offences. However, it does not mean that one should stop searching for legal solutions adequate to the current criminal situation.
Fighting transnational crimes will require the establishment of international investigation groups. Given this, the corresponding clauses of the procedural criminal codes of the CIS member-states could make a provision for the establishment and operation of such groups, as well as the define the contents of and procedures for organizing and executing international investigation inquiries. The same clause should also stipulate which of the states is to process the case and charge an organized criminal group with committing an offence on the territory of several states, as well as the procedure for the transfer of case file to this state.
Опубликовано 09 июня 2016 года
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