international cooperation in law enforcement: mutual legal assistance taiex training workshop...
TRANSCRIPT
International Cooperation in Law enforcement:
Mutual Legal Assistance
TAIEX Training WorkshopAnkara, 21-24 May, 2012
Jaganathan SARAVANASAMYAssistant Director-ACO
International Cooperation
International Cooperation
• At what stage and for what purpose?
• To gather general information
• To verify a suspicion ( Intelligence investigation)
• To establish a prima facie case ( Int. investigation)
• To disrupt Criminal Activity( Intelligence investigation)
• To prove an indictment ( Criminal investigation)
International Cooperation-Strategic
• Diplomatic Efforts
• Operational Coordination through Law Enforcement
• Inter-Governmental Efforts
• Multi l-lateral initiatives-International institutions like INTERPOL, WB, UN
International Cooperation-Tactical
• Proactive intelligence sharing• Law enforcement and Investigation• Administrative blocking of funds• Designations and sanctions• Simplifying procedure for MLA• Cooperation in border control• Professional development training
What needs to be exchanged?
• Personal data/non personal data • Sensitive/non sensitive• Coercion used or publicly-available
information• Information on modus operendi, routes,
methods, trends
Accessing Information in Foreign Jurisdictions
Three methods of accessing information:– Informal - agency to agency
–Letters Rogatory (commissioned evidence)
–Administrative request
Pre-requisits for MLA
• Enabling legislation
• Facilitating treaty
• Administrative mechanisms
• Central authority
• Executing agency
Usual conditions that must be fulfilled
Dual criminality - The act must be punishable as a criminal
offence in the requested state.
Reciprocity - The requesting state must guarantee a
favorable response to requested state should a future need arise.
ConfidentialitySpecificity
MLA includes• Taking evidence or statements from
persons• Executing searches and seizures• Examining objects and sites• Providing information and evidentiary items• Providing originals or certified copies of
relevant documents and recordsincluding bank, financial, corporate or business records
Requests for MLA shall include
• Name and authority conducting investigation or court
• Purpose of the request and a brief description of the assistance sought
• Description of the facts constituting the offence
• Text of the relevant laws,• The name and address of the person to be
served
Requests for MLA shall include
• The reasons for and details of any particular procedure or requirement
• Specification of any time-limit
• Such other information as is necessary for
the proper execution of the request.
Assistance may be refused if• The requested State it would prejudice its
sovereignty, security, public order• The offence is regarded as of a political
nature• Believed as on account race, sex, religion,
nationality, ethnic origin or political opinions
• The act is an offence under military law, not an offence under ordinary criminal law
Assistance during investigations
Spontaneous sharing of information without the need for request
Controlled delivery, covert investigations
Tracing and freezing of property
Taking testimony, evidence or statements from persons
Restraint and confiscation The exchange of information from
judicial records Providing information and evidentiary
items i.e. documents, records Locating or identifying persons
Serving documents Transferring persons in custody to give
testimony by consent Providing originals or certified copies of
relevant documents
Assistance during proceedings
Check list for preparing LR
• Identification• Prior contact• Acknowledgement for the request• Indication of urgency and/or time limit• Indication of urgency and/or time limit• Legal basis for the request• Confidentiality• Language
Check list for preparing LR• Summary of the relevant facts• Description of the offence and
applicable penalty• Description of the evidence/assistance
requested• Clear link between proceeding(s) and
evidence/assistance sought• Description of the procedures• Presence of officials from the
Requesting State in execution of request
Check list for preparing LRIn case of a request for search and seizure:• Description of possible location of the
documents or items to be seized including, the relevant time periods
• Grounds to believe that the documentation or thing sought is located at that place
• Grounds to believe that the documentation or thing will afford evidence;
• Any known information about third parties who may have rights in the property
Check list for preparing LRIn case of a request for the production of documents:• Since a court order would be required, as
specific a description as possible of the documents
• An identification of the location and/or custodian of the required documents
• In cases of computer records, means of preservation may be required, e.g. special preservation order,
Check list for preparing LR
In case of documents:• whether a certified copy of the documents
will suffice and if not, the reason• why the original documents are required• If certification or authentication is
required, specify the form of certification/authentication, using an attached pro-forma certificate
Check list for preparing LRIn case of a request for a statement:• The identity and location of the person• The manner in which evidence to be taken
(e.g. under oath/cautions to be administered: verbal/verbatim/videotaped
• Whether the Requesting State’s authorities wish to participate and why
• Topics to be covered and specific questions to be asked
• Point of contact, should consultation by telephone become necessary
Check list for preparing LRIn case of a request for temporary transfer of prisoners to give testimony:• An explanation as to how the prisoner is
able to assist in the investigation • An indication as to whether the prisoner
has consented to travel • An assurance that the prisoner will be
returned when his/her assistance is no longer required
Check list for preparing LR
• An assurance that the prisoner will not be detained, prosecuted or punished in the for any offence committed prior to his/her attendance in the Requesting State
• An assurance that the prisoner will be returned without the need for extradition
• An assurance to follow any other relevant pre-conditions
Check list for preparing LR
In the case of a request for pre-judgment seizure/freezing, or for post-judgment confiscation:• Determine the specific procedural and
substantive requirements of the Requested State’s law
• Check whether the Requested State can directly enforce orders of the Requesting State
Check list for preparing LR
In the case of property:• Whether a criminal conviction is required • Whether the Requested State to obtain its
own freezing/seizure order • Whether a connection between the
property and the offence, or between the property and the person is to be proved
Check list for preparing LR
If the Requested State can directly enforce an order of the Requesting State:• copy of the order• a description of the proceedings in the
Requesting State that resulted in the issue of the order, the parties involved, and an assurance that the order is final
Considerations all methods
Must address issue of meeting standard of evidence for entry into court system
Start with informal contact before making
formal request.
Consider human rights record of state that you are dealing with
Bringing the evidence to where its required- The last and costly solution is to bring the
evidence and witnesses from where it or they are located to the place where the trial will occur.
- Special visas may be needed. - Consider technology and new laws to
facilitate taking of evidence by video link.
Overcoming the problems
Extradition
Delivery of a person
by authorities of the State where he/she is found
to the judicial authorities of another State where he/she is wanted
for purpose of prosecution or enforcement of a punishment
Basis for extradition
• bilateral or multilateral treaty or convention
• ad hoc agreement, reciprocity or comity –
usually supported by domestic legislation
• Historically and in reality, extradition has been based on pacts, courtesy or goodwill between heads of sovereign States.
Best practices in Extradition
• International convention listing categories of extraditable offences
• Provision for consent surrender• Restrict offences qualifying as political• Offences• Relax extradition of nationals• Prohibitions• Simplify judicial review and appeals
processes
Best practices in Extradition
• Make greater use of INTERPOL to locate
persons
• Improve the Transmission Speed of Extradition request
• Consider enforcement of foreign
sentences where extradition refused
