International Cooperation in Law enforcement: Mutual Legal Assistance

1. International Cooperation in Law enforcement:Mutual Legal Assistance TAIEX Training Workshop Ankara, 21-24 May, 2012 Jaganathan SARAVANASAMY Assistant Director-ACO INTERPOL j.saravanasamy@interpol.int

2. International Cooperation

3. 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

4. International Cooperation-Strategic • Diplomatic Efforts • Operational Coordination through Law Enforcement • Inter-Governmental Efforts • Multi l-lateral initiatives-International institutions like INTERPOL, WB, UN

5. 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

6. Personal data/non personal data Sensitive/non sensitive Coercion used or publicly-available information Information on modus operendi, routes, methods, trends What needs to be exchanged?

7. Accessing Information in Foreign Jurisdictions Three methods of accessing information: Informal - agency to agency Letters Rogatory (commissioned evidence) Administrative request

8. Pre-requisits for MLA • Enabling legislation • Facilitating treaty • Administrative mechanisms • Central authority • Executing agency

9. 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. Confidentiality Specificity

10. 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 recordsincludingbank, financial, corporate or business records

11. Requests for MLA shall include • Name and authority conductinginvestigation 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

12. 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.

13. Assistance may be refused if • The requested State it wouldprejudice its sovereignty, security, public order • The offence is regarded as of a political nature • Believed as on accountrace, sex, religion, nationality, ethnic origin or political opinions • The act is an offence under military law, not an offence under ordinary criminal law

14. 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

15. 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

16. 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

17. 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

18. Check list for preparing LR In 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

19. Check list for preparing LR In 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,

20. 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

21. Check list for preparing LR In 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

22. Check list for preparing LR In 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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.

31. 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

32. 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

33. Thank you! Jaganathan SARAVANASAMY j.saravanasamy@interpol.int