Due to factors such as increased globalisation and advancements in information and communications technology, crimes are increasingly being committed across borders.
In investigating and prosecuting transnational crimes, a key consideration will be the availability of conventions and treaties between the countries in question, which allow for the cooperation between governments and law enforcement agencies.
We look at the agreements currently in place between Belgium and Australia in the context of mutual legal assistance (MLA).
Is there an MLA treaty between Australia and Belgium?
Whilst Australia has MLA treaties with many countries, there is no formal MLA treaty between Australia and Belgium.
Therefore, in international criminal law cases involving Australia and Belgium, other avenues will need to be explored to ensure effective international cooperation.
United Nations Conventions
In the absence of a formal MLA treaty, mutual legal assistance between Australia and Belgium is governed by a number of United Nations Conventions.
United Nations Convention Against Transnational Organised Crime
This convention applies to the prevention, investigation and prosecution of:
- The offences established in accordance with articles 5, 6, 8 and 23 of this Convention; and
- Serious crime as defined in article 2 of this Convention;
where the offence is transnational in nature and involves an organised criminal group.
Article 18 of this Convention deals with mutual legal assistance and provides some further insight into specific aspects of cooperation between Australia and Belgium. For example:
- Powers to compel a suspect to participate in an interview in Australia/Belgium are limited under Article 18(3)(a)
- Requests for search and seizure in Australia are expressly provided for under Article 18(3)(h)
- Requests for freezing orders in Australia are expressly provided for under Article 18(3)(c).
While money laundering is a crime in both jurisdictions, Belgian domestic law only provides for the confiscation/freezing of assets post-conviction.
United Nations Convention Against Corruption
This Convention provides that States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention.
The above considerations relating to powers to compel interview participation, to execute search warrants and request freezing orders are mirrored in the relevant Articles of this Convention.
Australia has a bilateral extradition treaty with Belgium, obliging the countries to cooperate with one another under international law and providing greater clarity regarding the obligations and expectations in the extradition process.
Extradition may be granted pursuant to the provisions of this Treaty whether or not the offence in relation to which extradition is sought was committed before or after the entry into force of this Treaty, provided that:
(a) in the case of a request emanating from Belgium:
(i) it was an offence under the law of Belgium at the time of the acts or omissions constituting the offence; and
(ii) the acts or omissions alleged would, if they had taken place in Australia at the time of the making of the request for extradition, have constituted an offence against the law in force in Australia.
Extraditable offences are offences which are punishable under the laws of both Contracting Parties by imprisonment for a maximum period of at least one year or by a more severe penalty.