Workshop on strengthening international legal co-operation amongst Member States of the Organisation for Security & Co- operation in Europe to combat transnational organised crime (Vienna, 7-9 April 2008) Mutual Legal Assistance (MLA) Provisions in Article 18, UNTOC and UNODC MLA tools

Mutual Legal Assistance – Quick Refresher What is it ?  Formal procedure by which the competent authorities of one State request assistance from the competent authorities of another state to gather evidence for use in criminal proceedings,  Wide definition of criminal proceedings,  Process of judicial co-operation. It is not :  Law enforcement co-operation although it can sometimes appear to be,  Not extradition (no surrender of a body)

Mutual legal assistance - UN Conventions Each of the UN Conventions referred to below has a mutual legal assistance (MLA) component, extensive content → “a treaty within a treaty”  Drug Trafficking Convention, 1988 – Article 7 (MLA) applicable to offences set out in Article 3 including inter alia offences involving production, manufacture and distribution of narcotic drugs or psychotropic substances (see Article 3 for the full list).  UN Transnational Organised Crime Convention (UNTOC) 2000 – Article 18 (MLA) applicable to a wide range of offences established in Articles 3, 5, 6, 8, 23, 10 (in case of liability of a legal person) and the offences established by each of the three protocols (see Convention for full details).  UN Convention Against Corruption (UNCAC) 2003 – Article 46 (MLA) applicable to the offences established by the Convention including bribery, embezzlement, illicit enrichment and other (see chapter 3 for full details).

Mutual Legal Assistance - UN Conventions Structure of presentation: examine MLA content of UN Conventions, primarily UNTOC, under the following headings:  Scope (offences);  Obligations (extent of assistance requested, Central Authorities, form of requests) ;  Application of the MLA Article vis a vis other MLA treaties or arrangements;  Assistance types (what is available);  Safeguards (e.g. confidentiality and other guarantees);  Grounds for refusal and application of dual criminality;  Restraint, confiscation and asset recovery.

Scope of Article 18 UNTOC - Offences Offences established by UNTOC in relation to which Article 18 (MLA) applies: Organised Criminal Group (Article 5), Money Laundering (Article 6) Corruption (Article 8) Obstruction of Justice (Article 23) Serious Crime (Article 2 (b)) Offences established by the three protocols Assistance must be provided i f transnational offence involving an organised criminal group If reasonable grounds to suspect that an offence is transnational in nature including that victims, witnesses, proceeds, instrumentalities or evidence of such offences are located in the requested State and that the offence involves and organised criminal group (Article 18 (1)). Based on reciprocity Criminal liability of legal persons for convention offences (Article 18 (2))

Scope of Article 18 UNTOC - Obligations State Parties must afford the “widest measure of mutual legal assistance” and “to the fullest extent possible” in investigations, prosecutions and judicial proceedings in relation to Convention offences (UNTOC Article 18 (1) & (2) UNCAC Article 46 (1) & (2). State Parties must designate a Central Authority to transmit and execute and to ensure proper and speedy execution of MLA requests (UNTOC Article 18 (13) UNCAC Article 46 (13). Development from provisions on Central Authorities in the 1988 Drugs Convention. Role and responsibilities of a CA will usually need to be defined in domestic legislation. Must make MLA requests in writing or equivalent form, must be in a language acceptable to the requested state and must contain minimum specified content (UNTOC Article 18 (14) – (15) UNCAC Article 46 (14) – (15)

Application of Article 18 UNTOC The MLA provisions of UNTOC Articles 18 (9) – (29) (and UNCAC Articles 46 (9) – (29)) apply to MLA requests made pursuant to Article 18 (or Article 46) if there is no other relevant treaty relationship between the requesting and requested State Parties but these provisions do not affect existing bi-lateral and multi-lateral treaty relationships on MLA unless state parties agree to apply these provisions in lieu.

UNTOC Article 18 – Assistance types  Assistance types listed under UNTOC Article 18 (3) and UNCAC Article 46 (3) include the following which may be requested:  Taking of evidence and statements from persons,  Service of documents,  Search and seizure,  Provision of government, bank, corporate, financial and business records,  Other forms of assistance not contrary to domestic law.  Refer to above UNTOC and UNCAC articles for full details, UNCAC list is slightly more extensive due to the link established by UNCAC between international co-operation and asset recovery.

UNTOC & UNCAC – Optional forms of assistance  Spontaneous transmission of information (UNTOC Article 18 (4) – (5) UNCAC Article 46 (4) – (5) is optional and provides a legal basis for one State Party to forward to another State Party information or evidence it believes is important for combating offences covered by UNTOC where that State Party is unaware and has not requested assistance. Domestic legislation might be needed to effectively implement this provision and State Parties are encouraged to establish a domestic legal basis where required.  Video Link (UNTOC Article 18 (18) UNCAC Article 46 (18) is optional whereby witness or expert evidence may be taken by video conference in the requested party if it is not possible or desirable for another reason for the person in question to appear at proceedings in the requested party.

UNTOC Article 18 - Safeguards Restriction of use/confidentiality/guarantees/consultation: – Evidence obtained as a result of an MLA request must be used for the purposes requested only, qualified in UNTOC and UNCAC in the sense that can be used for exculpatory purposes to an accused person subject to notice to the requested State Party or if not possible the requested State Party is to be informed of such disclosure without delay. UNTOC Article 18 (19) UNCAC Article 46 (19). – Confidentiality of MLA Requests received if required by the requesting state, requested state must inform if not possible. UNTOC Article 18 (20) UNCAC Article 46 (20). – Fair treatment for visiting witnesses particularly those in custody. UNTOC Article 18 (10) – (11) UNCAC Article 46 (10) – (11). – Consultation before refusal of an MLA request or before postponing execution of a request UNTOC Article 18 (25) – (26) UNCAC Article 46 (25) – (26).

UNTOC Article 18 - Grounds for refusal Grounds all optional – UNTOC Article 18 (21) UNCAC Article 46 (21)  Request not in conformity with Article 18/Article 46  Request prejudicial to national sovereignty, security, ordre public or other essential interests  Authorities of requested State party would be prohibited to carry out the action requested in a similar domestic case  Granting of request contrary to the legal system of the requested State party Refusal for fiscal offences excluded, UNTOC Article 18 (22) UNCAC Article 46 (22) Refusal on grounds of bank secrecy excluded, UNTOC Article 18 (8) UNCAC Article 46 (8). Consultation before refusal!

International cooperation for purposes of confiscation- UN Conventions  Development of provisions relating to restraint, confiscation and recovery of crime proceeds due to the importance attached to these issues in combating both organised crime and corruption,  State Parties that make co-operation, for purposes of confiscation, conditional on the existence of a treaty can use UNTOC as a legal basis for such cooperation. MLA requests executed by direct execution of a foreign order or obtaining of a domestic order (Article 13) and Article 18 applicable mutatis mutandis.  Disposal of the confiscated proceeds regulated by Article 14 “priority consideration to returning proceeds or property to the requesting State Party”  Obligation to return confiscated property/proceeds to a requesting State Party in case of embezzlement or laundering of public funds established by UNCAC, in other cases return is a priority consideration, UNCAC Article 57. Specific provision of spontaneous disclosure in order to facilitate the making of a request in accordance with UNCAC Chapter 5 on Asset Recovery.

UNTOC Article 18 – Added Value  Broad basis for the widest measure of assistance in an extensive range of offences transnational in nature involving organised criminal groups,  Provision for the establishment of strong and proactive Central authorities,  New possibilities for facilitating the start of investigations in convention offences by means of spontaneous transmission of information,  New provision for evidence to be given by video link,  Greater emphasis on liaison and consultation,  Provision of assistance subject to conditions,  Limitation on the application of dual criminality.

UNODC MLA Tools Tools available on UNODC website including : Model legislation on MLA, Model treaty on MLA, Expert working group (EWG) reports and best practice recommendations in relation to MLA casework, Purpose – legislative and legal assistance to Member States on request Background, use of the tools and overview of basic provisions and EWG recommendations.

UNODC Tools – Model MLA legislation Background: –Model law on MLA in criminal matters 2007, elaborated in accordance with General Assembly resolution 53/112 of 9 th December 1998, examined by two expert working groups in 2004 and 2005 and finalised and made available in early 2007, intended for both civil law and common law jurisdictions, –New developments and trends in MLA taken into account, Legislative Assistance Tool: –To date used as an aid in legislative assistance to common law jurisdictions.

UNODC Tools – Model MLA legislation Overview of basic provisions : –Scope of assistance includes criminal matters, restraint and confiscation, controlled deliveries and joint investigations not precluded, reference to the widest range of assistance, – Establishment of a Central Authority with specific and defined tasks such as the ability to take practical measures with a view to facilitating the rapid execution of a request, –Spontaneous transmission of information on own initiative as in UNTOC and UNCAC,

UNODC Tools – Model MLA legislation Overview continued: – Provision of assistance both in the absence and pursuant to a treaty arrangement, –Written form for MLA requests, standard for minimum of information, – Grounds for refusal – two options (1) to define grounds for refusal in domestic law per refusal grounds in UNTOC and (2) to make no reference to grounds for refusal in domestic legislation –Bank secrecy and fiscal offences excluded,

UNODC Tools - Model MLA legislation Overview continued: – Offence created for breach of confidentiality in relation to MLA request contents and other relevant facts surrounding the request, –Extensive provisions on the execution of specific forms of requested assistance including the assistance types in UNTOC and UNCAC and others including search and seizure, restraint, confiscation and specific assistance in relation to computer data, –Provisions for the issuing of MLA requests and limitation on use of evidence obtained or providing the Central Authority with the power to enforce conditions and limitations on request.

UNODC Tools – Model MLA Treaty Background: –Adopted on the recommendation of the 8 th UN Congress on the Prevention of Crime and Treatment of Offenders 1990 and UN General Assembly Resolution 53/112 of December 1998, Legislative Assistance Tool: –Used to provide guidance to states in negotiating MLATs, –and to promote international co-operation, –accompanied by a manual with commentary and guidance, –supplemented by the Model MLA law 2007.

UNODC Tools – Model MLA Treaty Overview of basic provisions: –Extend scope of application from only criminal matters to all forms of confiscation including the non conviction based forfeiture process, –Provide for a specific role for Central Authorities or, make provision for other channels of communication and direct exchange of information if domestic law allows, –Modify grounds for refusal, –Make the minimum content of MLA requests more specific, –Include specific requirements to ensure admissibility of evidence, –Negotiate exceptions to limitations on use of evidence, –Include specific section on crime proceeds and asset sharing

UNODC Tools – Best Casework Practice Background: –Informal Expert Working Group (EWG) on MLA met in 1993 and 2001, –Two reports produced available on UNODC Website, –Participating experts drawn from Africa, the Americas, Asia-Pacific, Europe and the Caribbean. Legal assistance tool: –to promote international co-operation and good casework practice.

UNODC Tools – Best Casework Practice Recommendations: –Adoption of broad based domestic legislation –Strengthen the effectiveness of Central Authorities, –Dissemination of guidance on national MLA requirements both to domestic practitioners and foreign authorities e.g. UK Home Office guidance –Make use of alternatives to MLA; use the MLA key when “the door is locked”, –Consult throughout.

UNODC Tools – Best Casework Practice Content of MLA requests –Be specific in presentation, –Link the investigation to the assistance required, –Specify exactly what you want, –Refer to your procedural requirements to facilitate admissibility, –Avoid use of specialised terminology, –Explain reasons for urgency, –Ask for confidentiality and explain why, –Send a draft for comment if request complicated, –Use model checklists in the EWG report.

UNODC Tools – Best Practice Casework Execution of MLA requests : –Strive to prove the “widest measure of assistance” –Use grounds for refusal sparingly, –Inform the requesting state if confidentiality cannot be maintained, –Try to comply with procedural requirements as far as possible, –Consult

Mutual legal assistance – UN Conventions Thank you for listening! Rajka Vlahovic Senior Legal Adviser Division of Treaty Affairs UNODC