EFFECTIVE INTERNATIONAL
COOPERATION IN PRACTICE
• Department of Asset Recovery and
International Legal Cooperation – DRCI
Ministry of Justice
Brazil
Enquanto vivemos num mundo onde uma filosofia de soberania do
século XVII é reforçada por um modelo judiciário do século XVIII,
defendido por um conceito de combate ao crime do século XIX, que
ainda está tentando chegar a um acordo com a tecnologia do século
XX, o século XXI pertencerá aos criminosos transnacionais”
Jeffrey Robinson, A Globalização do Crime
As long as we live in a world where a sovereignty
philosophy from the XVII century is reinforced by a legal
system conceived in the XVIII century, based upon a
conception of the fight against crime from the XIX
century, which is still trying to come to terms with XX
century technology, century XI will belong to international
criminals. Jeffrey Robinson, The globalization of crime.
It sometimes seems that national borders are losing their
significance. In some parts of the world, the once familiar
border rituals of exchanging money and having one’s passport
examined (perhaps even stamped) are but a memory. The
executives of multinational corporations may identify markets
by continents rather than countries. The reach of television
programmes and text messages depends on satellite footprint,
not state frontiers. The effect of financial fraud, terrorist
violence, and drug addiction are felt around the world.
Against that, there is a reality about the nation state which
cannot be ignored. It may reflect differences in language,
religion, or culture, or merely that sense of identity that brings
tears to the eyes of an Olympic gold medalist as the flag rises
and the anthem is played. And it is reflected in the continuing
territoriality of law and jurisdiction.
McClean, David. International Co-operation in Civil and Criminal Matters.
Oxford: Oxford University Press, 2002.
Context
•Awareness that money coming from crimes is a
risk to the safety and integrity of the entire
international financial system (the IMF estimates
that it is about 5% of the gross international
product).
•Need to change focus: get the money to stop the
criminals.
•International cooperation is an essential tool:
international crime knows no borders, and usually
profits from competence and jurisdictional
distinctions that bind the countries.
Crime: the new frontier
Organized crime is more transnational every day.
– Money laundering is its contemporary face:
– Directly connected to globalization, because it uses
the same instruments used in legal commercial and
financial transactions.
– Technology is a widespread tool helping to legitimate
illegal assets.
– An offense connected to all sorts of crimes, like
smuggling, drug trafficking and terrorism.
International legal cooperation
• It is a principle in international law that no State can have
jurisdiction over another State’s territory.
• So we need specific rules that can ensure the
effectiveness in a short period of time of requests for
legal assistance, including provisional measures.
There are international and internal rules disciplining
legal assistance.
• The obligation of the States to render assistance sought
by another derives from reciprocity and from a duty of
mutual assistance to ensure that justice is done, within a
framework of due process and the rule of law.
International Legal Cooperation
• Definition:
• International interchange for the extraterritorial
execution of provisional measures or judicial
determinations from another State´s Judicial authorities.
• Aim
– To foster cooperation between states therefore
softening the principle of territoriality.
• Legal basis
– Recognition of the extraterritorial jurisdiction of legal
actions of another State, when there are elements
that go beyond actual borders.
Types of international cooperation
• Rogatory Letters
– Usually for serving summons and notifications; getting
documents or depositions (for evidence) and also for direct
execution, like restraining orders. Brazilian courts have a
restrictive view on execution orders.
• Enforcement of foreign judgements.
• Extraditions
• Direct assistance
– Internal proceedings, that begins with a request from a foreign
authority, but is presented before the local courts by a national
legal enforcement authority or prosecutor so that they can decide
whether they accept or not the request as if it was an internal
proceeding.
Treaties
• Help international legal cooperation,
especially in criminal matters.
• Multilateral treaties, like Palermo, Mérida
and Viena, are very useful, because all
signatories can use them.
• Bilateral treaties have the advantage of
considering local legal systems, and of
having more specific provisions.
Central Authorities
• More expertise in dealing with different legal
systems
• Can explain their legal system and make sure
that evidence is not tainted and that requests are
as effective as possible.
• Ensure that the principles and conditions of
cooperation are enforced, because they are
supposed to make sure the State answer its
international obligations.
• Central point of contact.
Specialty clauses in international legal
cooperation
• Information obtained through international
legal assistance can only be used for the
ends and proceedings mentioned in the
request, and therefore analysed by the
requested country.
Example: Restrictions are placed for the
use of information in military courts, or for
the investigation of capital flight and tax
evasion.
Dual criminality in international legal
cooperation...
• The facts upon which international
cooperation was requested must
constitute a crime both in the asking
and the receiving State.
In some cases the requirement of
dual criminality is not so strict: for
example, in the Brazilian and
American MLAT dual criminality is
mandatory for confiscation purposes,
not for the lifting of bank secrecy.
Strategic aims of our Department
include
• Stimulate international cooperation
• Develop a culture of fighting money laundering
through asset recovery, as well as the use of
international cooperation to that end.
• Reinforce legal instruments to prevent and fight
Money Laundering.
• Show the effectiveness of this new approach
through growing numbers of investigations and
convictions.
•
Obstacles in international cooperation are
frequently a consequence of a lack of
understanding of the differences among the
legal systems of the countries involved, and
also of a lack of information about
international requests for legal cooperation,
especially in criminal matters.
• International Legal Cooperation means:
• Keeping an open-mind, and understanding
without judging the differences between
cultures and legal systems
• Working together to find solutions and, as
a result, getting more effective results.
Importance of getting assets restrained and
ultimately forfeited
a) Recover assets originating from criminal
activities or which may have been used in
criminal activities
b) Prevent criminals and their associates from
benefiting from laundering money and profitting
from their illicit activities
c) Use recovered assets for the benefit of the
community.
Example: Differences between civil and
common law systems
• A international legal cooperation request made by Brazil
both to the USA and Switzerland, about a corruption case
(bid-rigging, bribery of public agents etc – contracts about
insulin for the public health system). The request aimed
specifically at obtaining provisional measures, regarding
the lifting of bank secrecy and the restraint of assets.
• The request was made to the USA by end of September,
beginning of October 2004 – partial response sent to
judge in December 2004.
• Bank documents sent. No restraining order.
• Brazil has a mutual legal assistance treaty with the USA.
• Civil forfeiture and its evidentiary demands.
Continuation
• A international legal cooperation request made by Brazil
both to the USA and Switzerland, about a corruption
case (bid-rigging, bribery of public agents etc – contracts
about insulin for the public health system). The request
aimed specifically at obtaining provisional measures,
regarding the lifting of bank secrecy and the restraint of
assets.
• The request was made to Switzerland also at the
beginning of October 2004 or November 2004.
• Bank documents not sent yet. But assets restrained by
Swiss authorities on their on investigation before or at
the time of our request.
• Brazil does not have a bilateral treaty with Switzerland.
Thank You.
drci@mj.gov.br
raquel.palmeira@mj.gov.br
55 61 3429 8900