2007/ACT/WKSP/006 Mutual Legal Assistance and Extradition: Mitigating the Impact of Money Laundering and Corruption

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1 2007/ACT/WKSP/006 Mutual Legal Assistance and Extradition: Mitigating the Impact of Money Laundering and Corruption Submitted by: Australia Capacity Building Workshop on Combating Corruption Related to Money Laundering Bangkok, Thailand August 2007

2 Australian Government Mutual Legal Assistance and Extradition: Mitigating the Impact of Money Laundering and Corruption Rob McCusker Transnational Crime Analyst Context In his foreword to A new extradition system: A review of Australia s extradition law and practice the then Minister for Justice and Customs, Senator Ellison noted [t]ransnational crime and the threat of terrorism are now among the highest priorities for law enforcement agencies. Improved communications have made it easier for criminals to plan crimes and commit them across borders, and increased international travel has made it easier for them to escape justice. 1

3 UN Secretary-General s High-level Panel on Threats, Challenges and Change (2004) Six key security challenges 1. Economic and social threats Poverty Infectious disease Environmental degradation 2. Inter-state conflict 3. Internal conflict Civil war Genocide 4. Nuclear, radiological, chemical and biological weapons 5. Terrorism 6. Transnational organised crime Complex operations Real Virtual Economic imperative Exploitation of financial systems Target Facilitator Symbiotic relationship with corrupt public officials and judiciary 2

4 Guiding Principles of Mutual Assistance Efficiency Role clarity Responsiveness Compatibility of evidence Effective law enforcement Normalising mutual assistance Accountability Safeguards Confidentiality Sovereignty Technological neutrality 3

5 Cycle of Cumulative Impact Generic characteristics of a region Political instability Socio-economic factors Cultural diversity Law enforcement capacity issues Exacerbated by corruption Facilitated by corruption Transnational crime response Transnational criminal endeavours Money laundering Report of the Secretary-General s High-level Panel on Threats, Challenges and Change (UN 2005) noted [m]ember States should establish a central authority to facilitate the exchange of evidence among national judicial authorities, mutual legal assistance among prosecutorial authorities and the implementation of extradition requests. 4

6 Preparation of the Investigative Environment (PIE) Intelligence Preparation of the Battlespace (IPB) Physical composition of the threat Topography of the terrain Operational tendencies and capabilities that serve as the doctrine for the opposing force Preparation of the Investigative Environment (PIE) Organisational composition of networks/organisations Environment in which they meet Behavioural patterns of each group (Source: Shelley et.al. 2005) 5

7 Vertical thinking Digging the same hole deeper Lateral thinking Digging somewhere else Thinking outside the box/square/tradecraft 6

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9 Australia: International Crime Cooperation Extradition Surrender by one state, at the request of another, of a person who is accused of, or has been sentenced for, a crime committed within the jurisdiction of the requesting state Mutual Legal Assistance Process to obtain and provide assistance in gathering evidence for use in criminal cases, transfer criminal proceedings to another state or execute foreign criminal sentences 8

10 Dual Reality 1. Reliance on international cooperation to mitigate transnational crime is a necessity 2. Extradition and mutual legal assistance are not ready-made tools Legal basis Practitioners must know how, and if, that legal basis is applicable Existence, age and contents of a valid international agreement Type of offence Legislation and practice in a particular country Practitioners in requesting and requested country must be able to work together towards a common goal 1. Treaty-based cooperation Advantages Obligation to cooperate under international law Detailed provisions on Procedure Parameters Certainty and clarity a. Bilateral Treaties b. Multilateral Treaties a. UN Convention against Corruption b. OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 9

11 UN Convention against Corruption Legal basis for extradition Offences established under the auspices of the Convention deemed to be included in any existing bilateral extradition treaty between States and must be included in any future bilateral treaties If a State party requires a treaty as a precondition to extradition it may consider the UN Convention as that treaty If a State party does not require a treaty as a precondition to extradition, it shall consider offences under the UN Convention as extraditable offences UN Convention also provides legal basis for MLA Parties are obliged to provide the widest measure of assistance in investigations, prosecutions and judicial proceedings OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions OECD Convention contains provisions on extradition and MLA Bribery of foreign public officials is an extradition offence under the laws of the Parties and in extradition treaties between them A Party is required to provide prompt and effective assistance to other Parties 10

12 Other initiatives South-East Asian Mutual Legal Assistance in Criminal Matters Treaty UN Convention against Transnational Organized Crime 2. Non-treaty-based cooperation Cooperation based on domestic law Of utility where no treaties exist between countries concerned Speed No binding obligations under international law Judicial assistance and Letters Rogatory Of utility where no MLA treaties exist Restricted ambit (service of documents, obtaining testimony) No obligation to assist Issues Jurisdiction Artificial to examine issues of mutual legal assistance without considering the notion of competing jurisdictions Extent of State jurisdiction Determination of best jurisdiction Few international instruments determine jurisdiction for a particular type of cases Inapproximate regimes lack of commonality between legal systems 11

13 Mutual legal assistance/mutual assistance Distinction between MLA and MA MA Inquiry is routine and does not require the country of whom request is made to seek coercive powers Potential witnesses might be contacted to see if they are willing to assist voluntarily MLA Obtaining testimony from non-voluntary witness Seeking to interview suspect under caution Obtaining account information and documentary evidence from financial institutions Requests for search and seizure Extradition Common conditions included in agreements regarding extradition are Double or dual criminality Offence in question is criminal in both the requesting and requested State Legal difficulties Similar wording different legal traditions Practical difficulties Seeking to ascertain how offence is defined in requested State Does offences constitute a punishable offence? Do the constituent elements of the offence in both States correspond? 12

14 The Rule of Speciality The requesting State must not, without the consent of the requested State, try or punish the suspect for an offence not referred to in the extradition request and committed before s/he was extradited The Non-Extradition of Nationals Obligation to protect citizens Lack of confidence in the fairness of foreign legal proceedings Disadvantages defendants face when defending themselves under a foreign legal system Disadvantages of being in custody in a foreign country Political offences Danger of persecution, unfair trial or expected punishment Know the enemy and know yourself; in a hundred battles you will never be defeated. When you are ignorant of the enemy but know yourself, your chances of winning or losing are equal. If ignorant both of your enemy and of yourself, you are sure to be defeated in every battle. 13

15 Australian Government Mutual Legal Assistance and Extradition: Mitigating the Impact of Money Laundering and Corruption Rob McCusker Transnational Crime Analyst 14