Author: Nyman Gibson Miralis
Subject: Mutual Legal Assistance
Keywords: mutual legal assistance request, communication, United Nations Office on Drugs and Crime (UNODC), Organized Crime Convention
Mutual legal assistance requests can sometimes be problematic and ineffective. This can be due to a range of factors including a lack of understanding of the differences in legal systems across different countries, as well as the level of red tape and procedures involved.
Even where there are international obligations for cooperation in mutual assistance requests, the importance of communication between the states is key and will greatly influence the success or failure of the request.
In their Manual on Mutual Legal Assistance and Extradition, the United Nations Office on Drugs and Crime (UNODC) outlines key considerations in the requesting and issuing of mutual legal assistance requests, and details why these requests may be refused.
Alternatives to formal requests for mutual legal assistance
Before beginning the process of creating a formal request for mutual legal assistance, consideration should be given to whether goals can be achieved through an alternative method which, where applicable, will provide greater efficiency than a formal request.
Police-to-police communication can be a very useful way of acquiring information. Additionally, INTERPOL assists its members in their investigations.
In dealing with this type of communication, however, it is important to ensure that:
- investigators do not obtain evidence from a source which is not allowed to be introduced as evidence in a trial
- situations are avoided in which a mutual legal assistance request is perceived in the requested State as an attempt to conduct a foreign criminal investigation, which may be in violation of the laws of that State
Agency-to-agency communication (for example between central authorities and the liaisons that report to them) can also help facilitate mutual legal assistance without the need for a formal request.
Some countries rely on their consulates abroad to assist in obtaining mutual legal assistance, rather than preparing a formal mutual legal assistance request.
General principles of mutual legal assistance
It may be identified that there is a need for a formal mutual legal assistance request to be prepared. In order for this to be successful there must be:
- Sufficient evidence to make the request
- Dual criminality, whereby the conduct of the person the subject of a mutual legal assistance request would constitute a criminal offence in both the requesting and the requested State.
- Article 18, paragraph 9, of the Organized Crime Convention provides the option to waive the requirement of dual criminality and provide the assistance in any situation that a state sees fit, irrespective of whether the conduct in question would constitute an offence in the requested State.
- A commitment to only use information gathered through the request in the investigation, proceeding or prosecution that is the subject matter of the request unless permission is granted to use it in other matters
Grounds of refusal of a mutual legal assistance request
The UNODC Manual on Mutual Legal Assistance and Extradition outlines a number of grounds of refusal of a mutual legal assistance request
National or public interest
The principle of national or public interest usually applies in cases with national security elements.
Severity of punishment
There are treaties and laws of States that include provisions for the refusal of mutual legal assistance in cases in which the investigation may lead to charges that may result in the imposition of the death penalty or cruel, inhuman, degrading punishment or torture.
The principle of bank secrecy has, in the past, been a ground of refusal of mutual legal assistance for some States. Article 18, paragraph 8, of the Convention prohibits States parties from refusing mutual legal assistance pursuant to the Convention on this ground.
As with extradition, the political offences exception is a potential ground for refusal of mutual legal assistance.
Human rights considerations
Human rights considerations are an important component in preparing an outgoing mutual legal assistance request and taking action on an incoming one. The following aspects of human rights need to be considered in relation to mutual legal assistance matters:
- The right to liberty and security of the person
- The right not to be subject to torture or cruel, inhumane or degrading punishment
- The right to equality before the law
- The right to a fair and public hearing
- The right to counsel and interpreters
- The right to be presumed innocent
- The right not to be held guilty of offences retrospectively or to have retrospective penalties imposed
- The right to not be compelled to incriminate oneself
Double jeopardy is a principle that can sometimes prove problematic when dealing with issues of mutual legal assistance. Different States have different definitions of what constitutes double jeopardy in treaties to which they are party and in their domestic legislation.
The rights of suspects charged with criminal offences
Individuals who are the target of an investigation or who become a suspect in a crime are entitled to their rights in the country where they are being interviewed.
Refusal of a mutual legal assistance request: the provisions of the Organized Crime Convention
The Organized Crime Convention can be viewed as a blueprint for international cooperation in extradition and mutual legal assistance matters. With respect to mutual legal assistance, article 18 of the Convention is often referred to as a “mini-treaty”. Article 18 allows States parties to provide one another the widest mutual legal assistance possible in relation to the offences under the Convention.
Pursuant to article 18, paragraph 21, a mutual legal assistance request may be refused for the following reasons:
- If the request is not made in conformity with the provisions of article 18.
- If the requested State party considers that execution of the request is likely to prejudice its sovereignty, security, public order or other essential interests.
- If the authorities of the requested State party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction.
- If it would be contrary to the legal system of the requested State party relating to mutual legal assistance for the request to be granted.
Postponement of a mutual legal assistance request
The other option available to requested States is postponement, whereby the request will be granted but only at a later date. Reasons for postponing a request are based on the fact that the timing of the request interferes with:
- An ongoing investigation
- An ongoing judicial proceeding
- An ongoing prosecution.
Mutual assistance often raises complex questions concerning human rights which need to be balanced against requests for assistance. There are a number of grounds of refusal of mutual legal assistance requests which have been identified by this report as requiring further exploration.
Nyman Gibson Miralis specialise in all aspects of mutual legal assistance law, and have expertise in complex transnational investigations. If you require assistance, contact one of our expert criminal defence lawyers