The concept of the territory of the diplomatic mission and consular office of Ukraine abroad
Journal Title: Наукові записки Інституту законодавства Верховної Ради України - Year 2019, Vol 1, Issue 4
Abstract
The purpose of the article is the scientific definition and legal interpretation of the term «territory of the diplomatic mission and consular office of Ukraine abroad», which is provided in chapter 41 of the Criminal Procedural Code of Ukraine. The objectives of the article are legal analysis of the articles of the chapter 41 and the theoretical substantiation of the term in question through the categories of the following branches of law: international law (categories of «representative office», «consular premises»); the theory of state and law (category «the territory of the state»); criminal procedural law (category «action of procedural law in space»). The scientific novelty lies in the systematic study of the concept «territory of the diplomatic mission». Some domestic and foreign scholars discussed this issue in part, mainly investigating the issue of procedural actions on the territory of diplomatic missions. Most scholars questioned the possibility of using the term «territory of the diplomatic mission and consular post» in the criminal procedural law. According to the results of the research, the author is of the opinion that the Ukrainian legislator successfully and correctly applied the term «territory of diplomatic representation and consular establishment» in the criminal procedure law. The author substantiates his opinion with three arguments. The first argument is related to the fact that the Ukrainian legislator separates «the territory of Ukraine» from «the territory of the diplomatic mission and consular office of Ukraine abroad», emphasizing that this is not the same or the first does not cover the second one. The second argument concerns the legislative technique, which includes legislative terminology and legislative stylistics – the linguistic means specifically for the drafting of legislative acts, the decree of the legislator. In the formulation of the text of the law, commonly used, special legal and special non-legal terms are used. Ukrainian lawmakers in the Criminal Procedure Code of Ukraine used the special legal term, which is inherent in the special legal terminology of criminal procedural law. In relation to the third argument, the author analyzes the powers of the heads of diplomatic missions and consular offices of Ukraine abroad in the conduct of their criminal proceedings. It is they, using the provisions of the theory of extraterritoriality, decide on the admission or not admission to the territory of diplomatic missions of representatives of law enforcement authorities of the host country. However, in any case of committing a criminal offense on the territory of the diplomatic mission, they are required to conduct appropriate procedural actions. Conclusions. The territory of the diplomatic mission or consular office of Ukraine abroad in the sense of the possibility of conducting procedural actions is: 1) not the territory of Ukraine, that is, the accrediting state, and the territory of the host country; 2) a territory with a special legal status that provides for immunity and other diplomatic immunities and privileges; 3) a set of buildings, parts of buildings and premises, as well as diplomatic vehicles; 4) a plot of land marked on the ground and surrounded by a fence.
Authors and Affiliations
V. V. Proshchaiev
Keywords
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