Transnational criminal law is criminal law that transcends national boundaries incorporating offences that directly or indirectly affect more than one country. At the UN Convention against Transnational Organised Crime 2000, Article 3(2) defined an offence as transnational if:
- It is committed in more than one state; or
- It is committed in one state but a substantial part of its preparation, planning, direction or control takes place in another state; or
- It is committed in one State but involves an organised criminal group that engages in criminal activities in more than one state; or
- It is committed in one State but has substantial effects in another state.
Why is transnational criminal law becoming increasingly prevalent?
The rise of transnational criminal law is intrinsically linked to the rise of globalisation. As the world economy has globalised so has the rise of transnational crime. Criminal groups have appropriated new technologies, implemented untraceable network structures, and diversified their activities.
As the global impact of transnational crime has risen to unprecedented levels, the law has failed to keep pace with criminals who commit crimes across multiple national boundaries.
As transnational criminals transcend national boundaries, the inherent problem that comes with committing crimes extra-territorially is determining which jurisdiction will apply once the offender has been caught.
Additionally, the question remains as to whether such entrenched human rights principles (such as the right to a fair trial and the right to due process) effectively translate to transnational criminal justice, or whether such fundamental rights are simply lost in a legal vacuum of competing national jurisdictions.
In an insightful analysis entitled ‘Law Should Govern: Aspiring General Principles for Transnational Criminal Justice’ (2013) Utrecht Law Review 9(4) Sabine Gless and John A.E. Vervaele, argue that:
“whilst the ratification of human rights treaties and the supervision of their associated monitoring bodies and courts ensure certain procedural safeguards are maintained in national jurisdictions, it cannot be said that international humanitarian rights law and national laws are designed to cope with the transnational aspects of criminal justice… The reason for this is that we currently lack the principles for cross-border investigations, prosecutions and subsequent trials. Consequently, we neither have an effective law enforcement body nor a body to ensure fundamental human rights are guaranteed.”
The above comments may have immediate applicability to Australia.
Some of the common procedural and substantive hurdles that those in Australia and elsewhere being investigated and or prosecuted for transnational criminal offences include:
Where can a transnational criminal case be tried?
Currently, there is an absence of a coherent and comprehensive set of transnational rules on transnational criminal justice that coordinates competing jurisdictional claims. Whilst steps have been taken, through the establishment of Europol and the United Nations Office on Drugs and Crime that have established mechanisms for sharing information (and have even granted authority to perform acts of investigation on their territory to agents of other states) the jurisdictional problem remains.
The absence of even written policies concerning how Australian citizens will be affected by transnational investigations has the potential to create enormous prejudice to the human rights and procedural fairness of those that find themselves the subject of investigations and prosecutions.
Whilst the FBI, the NSW Police, the Australian Federal Police and the Australian Crime Commission may issue statements endorsing each other for their transnational co operation, the framework within which such assistance takes place and its impact on individuals privacy, liberty and human rights is rarely the subject of serious judicial consideration.
Nyman Gibson Miralis is at the forefront of transnational criminal law in Australia and has established a unique reputation for strategically representing those who find themselves in this complex legal terrain.
What does it mean to have a fair trial for a “transnational crime”?
Australia lacks transnational criminal law standards which ensure that the accused receives a ‘fair trial’ irrespective of the jurisdiction/s where the criminal process is determined.
In a transnational criminal case, the approach currently undertaken in Australia is that each states is responsible for criminal proceedings. However in a practical reality this may be is far from the case in a transnational criminal case as Australian law enforcement actively assist foreign law enforcement including allowing decisions to be made about which jurisdictions the charges should be brought (giving rise to jurisdictional shopping and potentially an abuse of process) as well as possibly receiving directions on how the matter should be conducted in Australia.
The manner and way in which this presently occurs is not subject to any comprehensive Australian guidelines, with the result that persons may be exposed to trials in foreign jurisdictions where the concept of a “fair trial” is different to that in Australia or falls short of international standards.
Nyman Gibson Miralis advocates that the right to a fair trial needs to become a general principle of transnational criminal justice so that defendants can present their case under conditions which do not place them at a substantial disadvantage.
Nyman Gibson Miralis has advised and appeared for individuals who are at risk of having their right to a right to a fair trial undermined or prejudiced because of the lack of accepted transnational criminal law protocols in Australia concerning such matters as evidence gathering, witnesses, access to interpreters, local bias and prejudice, inconsistency concerning the standard of proof that will apply, the use of testimony in Australia in a foreign jurisdiction and the exclusion of prejudicial evidence obtained through compulsory examinations.
Nyman Gibson Miralis has worked strategically and collaboratively with legal experts in the USA, Britain, Hong Kong, China, Singapore, South Korea and Russia in transnational criminal cases with a view to providing comprehensive legal representation.
Can you be punished twice for a transnational criminal offence?
At present, the right to punish an accused of an offence lies with the particular nation state where the offence occurred. However, an individual that faces parallel prosecutions in numerous jurisdictions will encounter different substantive and procedural laws in each country. The fundamental problem for the individual is whether taking a globalised approach to transnational criminal law will increase the risk of double prosecution and double punishment of the accused. Presently as long as the offence does not breach the double jeopardy provisions it is possible to be extradited to a foreign jurisdiction at the conclusion of your trial in Australia.
Nyman Gibson Miralis provides expert advice and representation in complex cross-border cases involving multiple jurisdictions and investigative agencies.
Contact us if you require assistance.