Conference on New Strategic Directions in Controlling Corruption: The Recovery of Stolen Assets Dusit Thani Hotel Bangkok, Thailand March 2008

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1 Conference on New Strategic Directions in Controlling Corruption: The Recovery of Stolen Assets Dusit Thani Hotel Bangkok, Thailand March

2 Seeking Help from Neighbouring Jurisdictions: Effective Mutual Legal Assistance Requests by Mathew Joseph 10 March

3 Mutual Legal Assistance in Singapore 4 distinct phases 1st Phase pre nd Phase Mar rd Phase 1 Apr Mar th Phase 1 Apr 2006 onwards 3

4 1st Phase pre-1992 No specific provisions on MLA except s.43 Of Extradition Act Minister can authorise the taking of evidence before a Magistrate. Provision to all offences. 4

5 MUTUAL LEGAL ASSISTANCE The Attorney-General s Chambers is Singapore s Central Authority for Mutual Legal Assistance in Criminal Matters. The Criminal Justice Division of the Attorney-General s Chambers handles and processes all formal requests for assistance in accordance with the provisions of the Mutual Assistance in Criminal Matters Act (Chapter 190A) and any applicable Mutual Legal Assistance Treaty. 5

6 Singapore may provide mutual legal assistance in respect of criminal matters including the following: Taking of evidence; Obtaining a production order; Request for the attendance of a person; Request for custody of persons in transit; 6

7 Types of Assistance Enforcement of a foreign confiscation order Search and seizure; Identifying or locating persons; and Service of process. 7

8 Countries with which Singapore has existing Mutual Legal Assistance Treaties are gazetted as prescribed foreign countries under the Act. Such countries may be rendered assistance in accordance with the terms of the relevant Treaty and the Act.. 8

9 Non-PFCs Countries which are not gazetted as prescribed foreign countries under the Act may also be rendered assistance upon providing an appropriate undertaking of reciprocity in accordance with section 16(2) of the Act - 9

10 Reciprocity Undertaking stating that that country will comply with a future request by Singapore to that country for similar assistance in a criminal matter involving an offence that corresponds to the foreign offence for which assistance is sought 10

11 Assistance Request Countries that do not have an existing Mutual Legal Assistance Treaty with Singapore may send a request for assistance containing the appropriate undertaking of reciprocity to the Attorney-General s Chambers. The sample forms for such formal requests may be used eg - 11

12 Request Forms Request for the taking of evidence; Request for a production order; Request for the attendance of a person; Request for custody of persons in transit; Request for enforcement of a foreign confiscation order; Request for search and seizure; Request for identifying or locating persons; Request for service of process. 12

13 TO: The Central Authority of the Republic of Singapore. FROM: The Central Authority of the [Requesting Party] REQUEST FOR MUTUAL LEGAL ASSISTANCE IN A CRIMINAL MATTER 13

14 Request Form CERTIFICATE ON BEHALF OF THE [REQUESTING PARTY] I, [name, appointment/ position of person certifying], on behalf of [name of Central Authority], who is responsible for [state area of responsibility e.g. criminal prosecutions, investigations] in the [Requesting Party] and who is also authorised to make requests for mutual legal assistance in criminal matters, certify that the Government of the [Requesting Party] respectfully requests the assistance of the Government of the Republic of Singapore in relation to criminal proceedings[1] involving [describe nature of criminal proceedings, e.g. whether a trial or proceedings to determine whether a person should be tried]. [1] Criminal proceedings is defined in section 2 of Singapore s Mutual Assistance in Criminal Matters Act (Cap 190A) to include the trial of a person for a foreign offence and also any proceeding to determine whether a person should be tried for the offence. An electronic version of this Act is available at 14

15 REQUEST This request is made by the Government of the [Requesting Party] for assistance to be extended under the Mutual Assistance in Criminal Matters Act (Chapter 190A, Statutes of the Republic of Singapore). 15

16 Request Form NATURE OF REQUEST This request relates to [describe subject of criminal matter]. The authority having the conduct of the criminal matter is [describe authority concerned with the criminal matter]. 16

17 Request Form CRIMINAL OFFENCES / APPLICABLE LEGISLATION / PENALTIES [Set out the offences alleged to have been contravened in relation to the criminal proceedings as well as the maximum penalties for these offences and attach copies of applicable legislative provisions. State identity of suspect / accused person, if known] 17

18 Request Form CRIMINAL OFFENCES / APPLICABLE LEGISLATION / PENALTIES [Set out the offences alleged to have been contravened in relation to the criminal proceedings as well as the maximum penalties for these offences and attach copies of applicable legislative provisions. State identity of suspect / accused person, if known] 18

19 Request Form PURPOSE OF THE REQUEST By this request it is intended to [state purpose which is intended to be achieved by the assistance sought, e.g. to secure admissible evidence to be used in the trial of ]. 19

20 Request Form ASSISTANCE REQUESTED The Government of the Republic of Singapore is requested to take such steps as are necessary to record the evidence from various witnesses and transmit the evidence so recorded to the Central Authority of [the Requesting Party]. The names of the said witnesses, their contact particulars[1] and the questions to be asked of them are as follows: [List the relevant information, including the questions to be put to each witness. In the alternative, these questions can be attached as annexes to the Request. [1] Where available. 20

21 Request Form MANDATORY ASSURANCES & UNDERTAKINGS It is confirmed that this request: (a) does not relate to the prosecution or punishment of a person for a criminal offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character; 21

22 Request Form (b) is not made for the purposes of prosecuting, punishing or otherwise causing prejudice to a person on account of that person s race, religion, sex, ethnic origin, nationality or political opinions; (c) does not relate to the investigation, prosecution or punishment of a person for an offence in a case where the person has been convicted, acquitted or pardoned by a competent court or other authority of the [Requesting Party] or has undergone the punishment provided by the 22

23 Section 21 Taking of evidence for criminal proceedings 21. (1) Where a request is made by the appropriate authority of a foreign country that evidence be taken in Singapore for the purposes of any criminal proceedings pending in a court in the foreign country, the Attorney- General may by notice in writing, subject to such conditions as the Attorney-General may specify in the notice, authorise a Magistrate to take the evidence and transmit the evidence to the appropriate authority. 23

24 Section 22 Production orders for criminal matters 22. (1) Where a request is made by the appropriate authority of a prescribed foreign country that any particular thing or description of thing in Singapore be produced for the purposes of any criminal matter in that country, the Attorney- General or a person duly appointed by him may apply to the court for an order under subsection (3). 24

25 Section 26 Requests for attendance of person in foreign country 26. (1) The appropriate authority of a prescribed foreign country may request the Attorney-General to assist in arranging the attendance, in that country, of a person in Singapore for the purposes of giving or providing evidence or assistance in relation to a criminal matter in that country. (2) Where, on receipt of a request referred to in subsection (1), the Attorney-General is satisfied that (a) the request relates to a criminal matter in the foreign country involving a foreign offence; (b) there are reasonable grounds to believe that the person concerned is capable of giving or providing evidence or assistance relevant to the criminal matter; 25

26 Section 29 Requests for enforcement of foreign confiscation order 29. (1) The appropriate authority of a prescribed foreign country may request the Attorney-General to assist in (a) the enforcement and satisfaction of a foreign confiscation order, made in any judicial proceedings instituted in that country, against property that is reasonably believed to be located in Singapore; or (b) where a foreign confiscation order may be made in judicial proceedings which have been or are to be instituted in that country, the restraining of dealing in any property that is reasonably believed to be located in Singapore and against which the order may be enforced or which may be available to satisfy the order. 26

27 ASEAN REGIONAL MLAT th ASEAN Senior Law Officials Meeting (ASLOM) / 5th ASEAN Law Ministers Meeting (ALAWMM) 2002 in Bangkok Malaysia proposed Model Treaty on Mutual Legal Assistance in Criminal Matters under auspices of ASEAN Objectives treaty to operate with existing mutual legal assistance mechanisms and to enhance working relationships between security and enforcement agencies in this region 27

28 The Treaty on Mutual Legal Assistance in Criminal Matters (among Like-minded ASEAN Countries)

29 LEGAL COOPERATION IN ASEAN 29

30 RECENT INITIATIVES AT LEGAL COOPERATION Recognized that regional effort is needed to tackle TOC 2002 ASEAN Plan of Action to Combat Transnational Crime National and bilateral efforts to be elevated to regional level 30

31 SPECIFIC ACTIONS Police liaison officers Joint tactical exercises Development of training facilities Information exchange Establishing national repository of laws pertaining to TOC Recent launch by ASEAN Police Chiefs of information database to combat cross- border crime 31

32 LEGAL COOPERATION National policies to be harmonised Multilateral and bilateral legal arrangements agreements to be developed to facilitate apprehension, investigation, prosecution and extradition of criminals exchange of witnesses, sharing of evidence seizure and forfeiture of the proceeds of crimes Need for national legislation. 32

33 OBSTACLES TO LEGAL COOPERATION IN ASEAN Differences in colonial experiences Different legal systems Initially little interactions and lack of understanding of laws and legal processes Concerted attempts made to develop greater mutual understanding Successful work of AMMTC ASEAN Law Ministers and Senior Law Officials Meetings. 33

34 REGIONAL MLAT Initiated by Malaysia in 2003 All ASEAN States are signatories Parties to assist each other in : taking of evidence / service of documents / tracing and forfeiture of proceeds of crime / identification of witnesses and suspects Central Authorities to be established Premised on reciprocity Obligations subject to domestic laws Affirmation of common will to combat TOC. 34

35 STATUS 5 Parties Singapore, Malaysia, Vietnam, Brunei and Laos. Enhance cooperation and MLA in ASEAN if all others also ratify expeditiously. 35

36 IV. CHALLENGES IN MUTUAL LEGAL ASSISTANCE THE 5 Cs 1. Counsel 2. Central authorities 3. Confiscation 4. Cyber crime 5. Costs 36

37 OUTLINE A. The 5 Cs. B. Counsel C. Central Authorities D. Confiscation E.Cybercrime F. Costs and asset sharing 37

38 What is money laundering? Money laundering in simple English is making dirty money clean! 38

39 39

40 Proceeds of crime are run through the financial system to disguise their illegal origins 40

41 A. Counsel Prosecutors make many requests Different systems and procedures Better communications and understanding 41

42 B. Central Authorities Meeting requirements of domestic law Different procedures may apply Need to apply flexible approach 42

43 C. Confiscation Tracing, freezing, or restraining and final confiscation Different domestic schemes Criminal forfeiture vs. Civil forfeiture Enforcement of foreign confiscation and restraint orders 43

44 D. Cyber Crime New challenges to global law enforcement Trans-border nature of the Internet High-tech crime requires speedy assistance Bilateral or multi-lateral approach Council Of Europe Cyber-Crime Convention 44

45 E. Costs And Asset Sharing Locating proceeds of crime costly Sophisticated financial tracing necessary Small states disadvantaged How to apportion costs Asset sharing But not for grand corruption? 45

46 Conclusion The Way Forward Strategic Alliances Specialized Units. E.g. Forensic Accounting Squads Fast-track procedures Crime must not pay 46

47 THE END Any questions? 47