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COUNTER-TERRORISM COMMITTEECOUNTER-TERRORISM COMMITTEE

CTED PRESENTATION ON MUTUAL LEGAL CTED PRESENTATION ON MUTUAL LEGAL ASSISTANCEASSISTANCE

TO MEMBER STATESTO MEMBER STATES

presentation by presentation byCTED GENERAL LEGAL ISSUES GROUP, CTED GENERAL LEGAL ISSUES GROUP,

INCLUDING LEGISLATION, EXTRADITION, AND INCLUDING LEGISLATION, EXTRADITION, AND MUTUAL LEGAL ASSISTANCEMUTUAL LEGAL ASSISTANCE

New York, 17 February 2010

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Introduction

In the Committee’s interim review of the work of CTED:

Thematic aspects of the implementation of Security Council resolution 1373 (2001)

Ways and means to enhance international legal and judicial cooperation.

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Presentation on Mutual Legal Assistance

I. Framework for International Mutual Legal Assistance

II. Practical challenges for effective international judicial cooperation

III. Human rights and international judicial cooperation

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Framework for International Mutual Legal Framework for International Mutual Legal AssistanceAssistance

United Nations Security Council resolutions, United Nations Security Council resolutions, including resolution 1373 (2001)including resolution 1373 (2001)

United Nations Global Counter-Terrorism StrategyUnited Nations Global Counter-Terrorism Strategy International counter-terrorism conventions and International counter-terrorism conventions and

protocols protocols UN Conventions against transnational organized UN Conventions against transnational organized

crime crime Bilateral treaties on mutual legal assistanceBilateral treaties on mutual legal assistance Relevant regional, sub-regional treatiesRelevant regional, sub-regional treaties Domestic law Domestic law

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Security Council resolution 1373 (2001) Security Council resolution 1373 (2001)

2. Decides also that all States shall:(f) Afford one another the greatest measure of assistance in connection

with criminal investigations….

3. 3. Calls Calls upon all States to:upon all States to:(a) Find ways of intensifying and accelerating the exchange of (a) Find ways of intensifying and accelerating the exchange of

operationaloperationalinformation, information, (b) Exchange information….and cooperate on administrative and (b) Exchange information….and cooperate on administrative and

judicial matters to prevent the commission of terrorist acts;judicial matters to prevent the commission of terrorist acts;(c) Cooperate, …through bilateral and multilateral arrangements(c) Cooperate, …through bilateral and multilateral arrangements(d) Become parties as soon as possible to the relevant international (d) Become parties as soon as possible to the relevant international

conventions and protocols relating to terrorism…..conventions and protocols relating to terrorism…..(e) Increase cooperation and fully implement the relevant international(e) Increase cooperation and fully implement the relevant internationalconventions and protocols relating to terrorism and Security Council conventions and protocols relating to terrorism and Security Council

resolutionsresolutions

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United Nations Global Counter-Terrorism Strategy

II. Measures to prevent and combat terrorism To cooperate fully in the fight against

terrorism Endeavour to conclude and implement

mutual judicial assistance and extradition agreements

To strengthen coordination and cooperation among States in combating crimes that might be connected with terrorism

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International ConventionsInternational Conventions

Convention for the Suppression of Unlawful Convention for the Suppression of Unlawful Seizure of Aircraft, 1970:Seizure of Aircraft, 1970:

“…“…..States shall afford one another the ..States shall afford one another the greatest measure of assistance in greatest measure of assistance in connection with criminal proceedings connection with criminal proceedings brought in respect of the offence…”brought in respect of the offence…”

((article 10article 10))

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International ConventionsInternational Conventions

Convention on the Prevention and Punishment Convention on the Prevention and Punishment of Crimes Against Internationally Protected of Crimes Against Internationally Protected Persons, Including diplomatic Agents, 1973Persons, Including diplomatic Agents, 1973

Increased requirements:Increased requirements:

““States Parties shall afford one another the States Parties shall afford one another the greatest measure of assistance in connection greatest measure of assistance in connection with criminal proceedings ……, with criminal proceedings ……, including the including the supply of all evidence at their disposal supply of all evidence at their disposal necessary for the proceedings..”necessary for the proceedings..”

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International ConventionsInternational Conventions

International Convention for the Suppression International Convention for the Suppression of the Financing of Terrorism, 1999 of the Financing of Terrorism, 1999

States Parties may not refuse a request for States Parties may not refuse a request for mutual legal assistance on the ground of mutual legal assistance on the ground of bank secrecybank secrecy (article 12) (article 12)

May give consideration to …sharing May give consideration to …sharing information or evidence needed to establish information or evidence needed to establish criminal, civil or administrative liabilitycriminal, civil or administrative liability (article 12)(article 12)

Fiscal offence (Fiscal offence (article 13article 13).).

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Bilateral arrangementsBilateral arrangements

Bilateral arrangements may include the Bilateral arrangements may include the requirements of the various requirements of the various conventions to which they are a party.conventions to which they are a party.

Certain issues (e.g. Certain issues (e.g. cross-border cross-border investigations, controlled delivery, investigations, controlled delivery, covert investigations and joint covert investigations and joint investigations teamsinvestigations teams between States) between States) may be more easily achieved through a may be more easily achieved through a bilateral arrangement.bilateral arrangement.

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Domestic law Domestic law   

Does the State have a domestic legal framework Does the State have a domestic legal framework covering mutual legal assistance (Acts of Parliament)?covering mutual legal assistance (Acts of Parliament)?

Is the legislative framework broad enough to cover the Is the legislative framework broad enough to cover the obligations under resolution 1373 obligations under resolution 1373 ((in particular refer to in particular refer to codification of offences, international instruments)codification of offences, international instruments)

Member States may make requests for assistance to Member States may make requests for assistance to foreign States with which they do not have treatiesforeign States with which they do not have treaties

These requests for assistance are treated on a case-by-These requests for assistance are treated on a case-by-case basis and the receiving State will respond at its case basis and the receiving State will respond at its discretion, depending on its domestic lawdiscretion, depending on its domestic law

Non-treaty requests may also be used where the State Non-treaty requests may also be used where the State has a treaty with another State, but the type of offences has a treaty with another State, but the type of offences or assistance may not be covered by the treaty.or assistance may not be covered by the treaty.

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  Domestic law Domestic law

A State may rely on a combination of A State may rely on a combination of domestic legislation, bilateral agreements, domestic legislation, bilateral agreements, multilateral agreements, and regional or sub multilateral agreements, and regional or sub regional agreements regional agreements

Domestic legislation may also include Domestic legislation may also include practices and procedures for the effective practices and procedures for the effective implementation of bilateral and multilateral implementation of bilateral and multilateral agreements.agreements.

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Dialogue with Member StatesDialogue with Member States  

CodificationCodification The State should have adequate measures on The State should have adequate measures on

international legal cooperation obligationsinternational legal cooperation obligations Cooperate internationally (formally and informally)Cooperate internationally (formally and informally) Execute correctly mutual legal assistance requestsExecute correctly mutual legal assistance requests Legislation criminalizing the provision of safe haven to Legislation criminalizing the provision of safe haven to

terrorists and their supporters by individuals or terrorists and their supporters by individuals or organizations.organizations.

Requests for extradition or mutual legal assistance Requests for extradition or mutual legal assistance based on a terrorist offence cannot be refused on the based on a terrorist offence cannot be refused on the grounds that the offence is of a political nature.grounds that the offence is of a political nature.

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Focus Areas: international legal frameworkFocus Areas: international legal framework

Implementation of Security Council resolutions, including Implementation of Security Council resolutions, including resolution 1373 (2001)resolution 1373 (2001)

Encouraging ratification of international instrumentsEncouraging ratification of international instruments Full implementation of the international instrumentsFull implementation of the international instruments Encouraging the use of the international instruments as Encouraging the use of the international instruments as

a basis for mutual legal assistancea basis for mutual legal assistance Encouraging the implementation of regional and sub Encouraging the implementation of regional and sub

regional instrumentsregional instruments Reviewing, modernizing and updating domestic law. Reviewing, modernizing and updating domestic law.

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Focus areas: international legal frameworkFocus areas: international legal framework

Promote best practices and facilitate capacity-building and training for members of the judiciary and law enforcement agencies in procedures for requesting and offering assistance in mutual legal assistance

Work with international, regional and sub regional organizations on effectively implementing modern tools, best practices, instruments and mechanisms for cooperation.

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Sample ReferencesSample References United Nations Model Treaty on Mutual Legal Assistance (A/RES/45/116)United Nations Model Treaty on Mutual Legal Assistance (A/RES/45/116) United Nations Office on Drugs and Crime, Revised Manuals on the Model Treaty on United Nations Office on Drugs and Crime, Revised Manuals on the Model Treaty on

Extradition and on the Model Treaty on Mutual Legal Assistance in Criminal MattersExtradition and on the Model Treaty on Mutual Legal Assistance in Criminal Matters United Nations Office on Drugs and Crime, Guide For the Legislative Incorporation United Nations Office on Drugs and Crime, Guide For the Legislative Incorporation

and Implementation of the Universal Anti-Terrorism Instruments, United Nations, New and Implementation of the Universal Anti-Terrorism Instruments, United Nations, New York, 2006York, 2006

Implementation Kits for the International Counter-Terrorism Conventions, Implementation Kits for the International Counter-Terrorism Conventions, Commonwealth Secretariat Commonwealth Secretariat

Conference of the Parties to the United Nations Convention Against Transnational Conference of the Parties to the United Nations Convention Against Transnational Organized Crime (CTOC/COP/2008/L.5/Rev.1Organized Crime (CTOC/COP/2008/L.5/Rev.1

Report Informal Expert Working Group on Mutual Legal Assistance Casework Best Report Informal Expert Working Group on Mutual Legal Assistance Casework Best Practice, UNODC, Vienna 2001Practice, UNODC, Vienna 2001

Rabat Declaration, Annex Convention on Extradition and Mutual Legal Assistance in Rabat Declaration, Annex Convention on Extradition and Mutual Legal Assistance in Counter-terrorism (A/62/939, S/2008/567)Counter-terrorism (A/62/939, S/2008/567)

ASEAN Treaty on Mutual Legal Assistance in Criminal MattersASEAN Treaty on Mutual Legal Assistance in Criminal Matters Inter-American Convention on Mutual Assistance in Criminal Matters Additional references see CTED presentation on “The Challenge of Effective Judicial

Cooperation.”

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