The Legal Status of Consular and Diplomatic Services in the Provision of International Legal Assistance and Extradition

By Kalmukhametova, Botagoz N.; Omarov, Yerbol A. et al. | Journal of Legal, Ethical and Regulatory Issues, January 1, 2017 | Go to article overview

The Legal Status of Consular and Diplomatic Services in the Provision of International Legal Assistance and Extradition


Kalmukhametova, Botagoz N., Omarov, Yerbol A., Bekisheva, Sabigul, Kainazarova, Dariga B., Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

Consuls' traditional function in the issues of international cooperation in criminal procedure is associated with sending and receiving materials of commission on rendering legal assistance in the case of absence of international agreement determining central competent authorities.

However, consul's participation in rendering legal assistance is limited not only with the specified actions. Provisions of Vienna Convention of Consular intercourse dated 24 April 1963 appears to be interesting, this convention is the main source of modern consular law. Thus, clause 'J' art. 5 states that the function pertaining to criminally-remedial one is laid onto the consular services transfer of judicial and non-judicial documents or execution of court requests or requests on taking of evidence for courts of the represented state in accordance with effective international agreements or in other manner failing to contradict laws of the host state (The Decree of the Supreme...).

This provision of the international convention which was joined by the Republic of Kazakhstan invests consular services with the functions not only on sending the commissions but also on the execution of international commissions.

The specified mechanism is one of the effective ways for execution of the procedure and other actions on the territory of an international state with significant time and money saving. Its basic advantage is the absence of a complicated procedure for sending an agreement of commission in competent authorities of the foreign state which takes a long time (Safarov, 2007).

Besides that, this mechanism acquires special topicality in the need of questioning of the person on the issues concerning state secrets or information of strictly intimate nature or in other circumstances which are undesirable for disclosure to foreign competent authorities.

One more advantage of this mechanism is cases of obtaining of refusal from person's extradition of the competent authority of the foreign state.

The same function can be played by the consular services in the procedure for the implementation of the European arrest warrant (hereinafter referred to as the EEA) introduced by the European Union Framework Decision in 2002 and effective January 1, The European arrest warrant was conceived to solve a two-pronged task (Vojnikov, 2006). Firstly, it was required by Member States in order to speed up the procedure for extradition of persons suspected of committing a crime from one country to another. Secondly, with its help, they wanted to strengthen the cooperation of the EU countries in the criminal law field on the basis of the "cornerstone" of cooperation mutual recognition of the decisions of national courts.

MATERIALS AND METHODS

The article is based on the study of the participation of consular and diplomatic services in the provision of international legal assistance in criminal matters. For a detailed study, the authors used various theoretical methods. With the help of analysis, both literature and normative documents, it was established that the consul is an official who resides in a foreign country and protects the interests of the represented state, the legal rights and interests of fellow citizens and legal entities. An embassy abroad usually establishes a consular department and specifically appoints a diplomat responsible for consular matter or who can perform consular duties concurrently. Logical methods that are used for all sciences allowed the use of dialectical laws, based on the unity of opposites; transition of quantity to quality; negation. As logical methods were used dialectical-materialistic axiological, as well as the method of idealism.

A look at the dialectical method as the only scientific method of cognition gave rise in the near past to a certain disdain for the particular techniques of specific sciences. Now it is becoming increasingly obvious that in the process of cognizing the state-legal phenomena a simple understanding of the basic provisions of dialectics is not enough. …

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