Mutual Legal Assistance TAIEX T raining Workshop Ankara 2124 May 2012 Jaganathan SARAVANASAMY Assistant Director ACO INTERPOL jsaravanasamyinterpolint International Cooperation ID: 278673
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Slide1
International Cooperation in Law enforcement:Mutual Legal Assistance
TAIEX
T
raining Workshop
Ankara
, 21-24 May, 2012
Jaganathan
SARAVANASAMY
Assistant
Director
-ACO
INTERPOL
j.saravanasamy@interpol.intSlide2
International CooperationSlide3
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)Slide4
International Cooperation-Strategic
Diplomatic Efforts
Operational Coordination through Law Enforcement
Inter-Governmental Efforts
Multi l-lateral initiatives-International institutions like INTERPOL, WB, UNSlide5
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 trainingSlide6
What needs to be exchanged?Personal data/non personal data Sensitive/non sensitiveCoercion
used or publicly-available
information
Information
on
modus
operendi
,
routes, methods, trendsSlide7
Accessing Information in Foreign JurisdictionsThree methods of accessing information:Informal - agency to agency
Letters
R
ogatory
(commissioned evidence)
Administrative requestSlide8
Pre-requisits for MLAEnabling legislationFacilitating treatyAdministrative mechanisms
Central authority
Executing agencySlide9
Usual conditions that must be fulfilledDual 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.
Confidentiality
Specificity
Slide10
MLA includesTaking evidence or statements from personsExecuting searches and seizuresExamining objects and sitesProviding information and evidentiary
items
Providing originals or certified copies of relevant documents and
recordsincluding
bank, financial, corporate or business recordsSlide11
Requests for MLA shall includeName and authority conducting investigation or court
P
urpose
of the request and a brief description of the assistance
sought
D
escription
of the facts
constituting
the
offence
T
ext
of the relevant laws
,
The name and address of the person to be served
Slide12
Requests for MLA shall includeThe 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
.Slide13
Assistance may be refused ifThe requested State it would prejudice its sovereignty, security, public orderThe 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 lawSlide14
Assistance during investigationsSpontaneous sharing of information
without the need for request
Controlled delivery, covert investigations
Tracing and freezing of property
Taking testimony, evidence or statements from persons
Slide15
Restraint and confiscation The exchange of information from judicial recordsProviding 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 proceedingsSlide16
Check list for preparing LRIdentificationPrior contactAcknowledgement for the requestIndication of urgency and/or time limit
Indication of urgency and/or time
limit
Legal basis for the
request
Confidentiality
LanguageSlide17
Check list for preparing LRSummary of the relevant factsDescription of the offence and applicable penaltyDescription of the evidence/assistance requestedClear link between proceeding(s) and evidence/assistance soughtDescription of the proceduresPresence of officials from the Requesting State in execution of requestSlide18
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
G
rounds
to believe that the documentation or thing sought is located at
that place
G
rounds
to believe that the documentation or thing will afford
evidence;
Any known information about third parties who may have rights in the propertySlide19
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, Slide20
Check list for preparing LRIn case of documents:whether a certified copy of the documents will suffice and if not, the reasonwhy the original documents are required
If certification or authentication is required, specify the form of certification/authentication,
using an attached
pro-forma certificate Slide21
Check list for preparing LRIn case of a request for a statement:The identity and location of the person
T
he
manner in which
evidence to
be taken (e.g.
under oath/cautions
to be
administered: verbal/verbatim/videotaped
W
hether the
Requesting State’s authorities wish to participate
and why
T
opics
to be covered and
specific questions
to be
asked
P
oint
of
contact,
should consultation
by telephone
become necessary Slide22
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 Slide23
Check list for preparing LRAn 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-conditionsSlide24
Check list for preparing LRIn 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
StateSlide25
Check list for preparing LRIn 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 provedSlide26
Check list for preparing LRIf the Requested State can directly enforce an order of the Requesting State:copy of the ordera 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 finalSlide27
Considerations all methodsMust 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 withSlide28
Bringing the evidence to where its requiredThe 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 problemsSlide29
ExtraditionDelivery of a personby 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 punishmentSlide30
Basis for extraditionbilateral or multilateral treaty or conventionad 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.Slide31
Best practices in ExtraditionInternational convention listing categories of extraditable offencesProvision for consent surrenderRestrict offences qualifying as politicalOffencesRelax extradition of nationalsProhibitions
Simplify judicial review and
appeals processesSlide32
Best practices in ExtraditionMake greater use of INTERPOL to locate personsImprove the Transmission Speed of Extradition request
Consider enforcement of foreign
sentences
where extradition refusedSlide33
Thank you!Jaganathan SARAVANASAMYj.saravanasamy@interpol.int