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
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
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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.
Confidentiality
Specificity
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
Assistance during proceedings
 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
Check list for preparing LR
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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 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
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,
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 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
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
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
Overcoming the problems
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Bringing the evidence to where its
required
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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.
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
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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
Thank you!
Jaganathan SARAVANASAMY
j.saravanasamy@interpol.int