Response

MLA and police cooperation are two different realms with overlapping corners. While MLA is being done through judicial authorities, bearing the legality it provides, police cooperation is done through the law enforcement agencies, therefore preliminary and legally less forceful.

MLA can be triggered only when there is an actual investigation or prosecution is underway. Police cooperation, on the other hand, can be used before, during or after the actual criminal proceedings.

While MLA is used primarily to obtain evidence to build or conclude a criminal case before courts and prosecutorial bodies, police cooperation is mainly focused on obtaining crucial practical information like the whereabouts of suspects or witnesses, verification of suspicious transactions and so on. As you can see, police cooperation serves as the first step, a preliminary to MLA requests.

The most well-known body of police cooperation is the INTERPOL, the International Criminal Police Organization. However, there are regional police cooperation bodies like EUROPOL, AFRIPOL or AMERIPOL as well.

As mentioned earlier, INTERPOL can be used as a means of communication within the scope of MLA procedures.[1]

However, due to the need for speed in MLA practice, the INTERPOL is eager to be present in the field. There is an ongoing initiative under the INTERPOL called ‘e-MLA’, which aims to transmit MLA requests, responses and everything related between the central authorities of member states. The details of the initiative can be accessed at the INTERPOL’s website.

[1] See for example European Convention on Mutual Assistance in Criminal Matters, article 15.

Response

In an MLA relation, parties generally tend to use diplomatic means to communicate, to send and receive documents or evidence. However, this often takes a long time since there are more institutions involved.[1] Therefore, direct communication between central authorities is highly recommended.

Some states assist each other in urgent situations through simpler means of communication like emails.

One other alternative is using the INTERPOL or similar criminal police networks for swift communication, which brings us to the next question.

[1] In a normal example, a request from a court in X state goes to the central authority, central authority sends it to the Ministry of Foreign Affairs and the Ministry of Foreign Affairs sends it to its diplomatic mission in Y state. The diplomatic mission sends it to the Ministry of Foreign Affairs of Y state and the Ministry of Foreign Affairs sends it to the central authority, which in turn send it to the actual practitioners for completion. The whole process repeats in reverse once the request is completed.

Response

MLA is an exclusive procedure between two or more sovereign states. So, the main interlocutors of MLA are states. Persons who are party to a criminal proceeding or attorneys or representatives of parties cannot conduct MLA relations but can only trigger the process by asking or directing the court or prosecutorial bodies.

Other than that, international organizations acting as conduits are becoming more and more active in the field to create platforms for MLA and promote its use.

In the national sense, most countries designate central authorities to deal with incoming and outgoing MLA requests, instead of leaving the issue at the hands of local courts or prosecutorial bodies.

There are several reasons behind this. One is to sort out and make the prima facie evaluation of the requests and prioritize them on tailor-made criteria if need be or simply refuse them without having to send them to the courts if they lack the requirements. Imagine, as a practitioner yourself, the workload judges and prosecutors would have if all requests for MLA would come directly.

Second is the need to centralize and unify the MLA practice. Since we established that MLA is in direct relation with sovereignty, we can safely say that it also constitutes a part of the policy of criminal law. A centralized body in MLA would be more efficient in formulating and applying this aspect of the policy of criminal law. A centralized body will also serve to unify the national practice.

For more information on central authorities, please check out the IIJ’s Global Central Authorities Initiative and IIJ Good Practices for Central Authorities, which can be accessed here.

Last but not least, central authorities are there to provide everything beyond the mandate of courts and prosecutorial bodies and keep track of the request, both incoming and outgoing. As explained before, MLA can rely on the principle of reciprocity, as well as international agreements. And sometimes both.

Central authorities can give or demand guarantees within the scope of MLAs and keep the track record of compliance of other central authorities with their commitments, both within the frame of international agreements or outside.

Response

In general, no. However, international conventions and agreements call for states to afford one another the highest possible assistance in criminal matters. If there are no substantial reasons to refuse MLA requests, states should provide the widest extent of assistance, in accordance with their international commitments and their responsibilities in the fight against crime.

When it comes to what amounts to the bases of refusal, in most international agreements it is provided in numerus clausus. Requests of assistance relating to political crimes, military offences, or fiscal offences may be refused.

However, there are exceptions where these reasons cannot amount to a basis for refusal. For example, acts of murder or attempted murder of a head of state are not accepted as political offences and therefore, in such a case, requests cannot be refused on the basis that it relates to a political offence.

For military offences, in cases where a military offence also constitutes an offence under civilian criminal law (i.e. genocide, crimes against humanity, voluntary manslaughter etc.), same thing can be said.

And for fiscal offences, we can say that there is a growing tendency to remove them from the bases of refusal as fiscal offences can be easily related to grave predicate offences and fiscal transactions can be used for money laundering purposes.

Lastly, countries may refuse MLA requests if they consider the execution of the request is likely to prejudice their sovereignty, security or ‘ordre public’. What amounts to a prejudice to sovereignty or security can be clear in most cases. However, ordre public is a vague term and needs to be elaborated.

Ordre public has two aspects. One relates to the conditions of human rights in requesting party and the other relates to the observance and respect of the fundamental rights which relate to criminal and criminal procedure law of the requested party. [1]

For example, if a person faces the danger of inhumane treatment or torture in the requesting country, the requesting country should refuse the request based on ordre public. Also, if the request is against the provisions of criminal procedure of the requested state and in contradiction to the rights and duties it provides, the request will be refused based on ordre public.

[1] GILLMEISTER, F., Auslieferung und Auslieferungshaft – mit Berücksichtigung des Betäubungsmittelrechts, NJW 1991, p. 2249.

Response

In practice, when there is an absence of agreements regulating the procedures of MLA between two states, the problem arises from two main points.

One, since there is no agreement, the responsibilities and rights of states against each other is not set a priori. Therefore, some states, choose to lay down their demands and guarantees within the scope of the request with the request itself. Others opt-out from this and choose to be asked by the requested state to provide guarantees.

These demands and guarantees can relate to the expenses of the proceedings relating to the MLA and commitments to engage similarly if the other state asks for assistance in such a case.

Second is the problem of how to deliver the assistance. This is easier to resolve once the first one is established. In most instances, MLA requests are tended by the requested states according to their national regulations, even when there are international agreements in effect. However, should the requesting state ask for a specific way of rendering assistance, it must be explicitly demanded. Requested state may or may not agree to entertain these demands if it so deems appropriate to its national laws.

Response

As mentioned before, there are numerous international and regional agreements on MLA. In the Council of Europe sphere, the European Convention on Mutual Legal Assistance in Criminal Matters is the primary basis for MLA.

Under the United Nations, many thematic agreements cover MLA. UN Convention against Transnational Organized Crime, UN Convention against Corruption, UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, and International Convention for the Suppression of the Financing of Terrorism are some of the most used ones.

In Africa, the African Charter on Human and Peoples’ Rights, Organization of African Unity Convention on the Prevention and Combating Terrorism, and African Union Convention on Preventing and Combating Corruption can be shown as the basis for MLA.

It is best to check out the provisions and state parties of the convention relating to the crime for which the MLA is requested.

Response

There are numerous international conventions and agreements which cover MLA. In that sense, MLA’s primary basis is international agreements between states, both bilateral and multilateral. On a national scale, most countries have some sort of legislations on MLA, generally based on international agreements, to set out the national rules and standards. In most cases, not having legislation on MLA is not a basis to abstain from asking for the assistance of foreign authorities nor it is a basis to refuse to afford assistance to foreign interlocutors. However, it is strongly advised to have national legislation on MLA.

Most countries that have legislation on MLA in effect have separate legislations covering the issue. However, it is not necessary as there are numerous countries that cover MLA within their criminal or criminal procedure codes.

The absence of bilateral or multilateral agreements is generally not a basis to refuse demands of legal assistance as well. However, some countries require the existence of bilateral or multilateral agreements covering the issue, as per their national legislations.

In the event of the absence of bilateral or multilateral agreements, countries can afford assistance to each other on the basis of international customary law and the principle of reciprocity and comity. After all, the first examples of MLA were based on these fundamental ideas.

MLA is a tool aimed at concluding the criminal proceedings. Within this scope, service of writs and summons, hearing of witnesses, suspects, victims and experts, obtaining evidence (i.e. bank records, tools and weapons used for committing the crime, information stored in computing systems, biometric data, DNA samples) is the basic types of proceedings that can be conducted through MLA.

There are also new forms of MLA proceedings like joint investigation teams (JITs), hearing of persons related to the criminal investigations or prosecutions through teleconference or videoconference, temporary transfer of detained persons, cross-border observations, controlled delivery, and covert investigations. This, in general, is called the MLA in ‘strictu sensu’.

Broadly speaking, procedures of extradition, transfer of sentenced persons and transfer of criminal proceedings are also forms of inter-state judicial assistance. Accordingly, this is called mutual legal assistance in ‘lato sensu’. By MLA, in practice, we mean MLA in strictu sensu.

Mutual legal assistance - or simply MLA- is a tool used by authorities of criminal investigation and prosecution to further their investigations and finalize the prosecutions when certain elements of the crime are outside of their jurisdictions and in a foreign country. Oftentimes, due to the globalization of the ‘phenomenon of crime’, the need for obtaining the testimonies of witnesses or physical or intangible evidence situated abroad and serving of court decisions or summons to persons in foreign countries emerge and actors of the criminal procedure is compelled to resort to the mechanisms of MLA.

Response

The resolutions are typically adopted upon a finding by the Council of threats to international peace and security, such as from various forms of terrorism.   See The Role of Security Council. Council on Foreign Relations, https://www.cfr.org/backgrounder/un-security-council  (August 12, 2021); see also https://www.un.org/en/our-work/maintain-international-peace-and-security#:~:text=Under%20Chapter%20VII%20of%20the,Operations%20and%20Special%20Political%20Missions (discussing the role of the Security Council in maintaining international peace and security).  The treaties are negotiated and ratified by Members States under the UN umbrella in response to a need for cross-border action to tackle problems like terrorism and corruption, which by their nature do not respect national boundaries.   Knowledge of and adherence to the international instruments and standards, as a practical matter, will often make your job easier.  For example, if your national jurisdiction ratifies an international instrument, as a prosecutor you will receive assistance pursuant to that treaty from all other States which have ratified it, enhancing your ability to receive international assistance and facilitating the prosecution of your cases.  See International Law Aspects of Countering Terrorism, https://www.unodc.org/documents/terrorism/Publications/FAQ/English.pdf

In addition, knowledge of and adherence to Security Council resolutions and the work of the Council regarding, for example, terrorism and the threat posed by specific groups such as ISIL or Al-Qaeda, will inform you as to the threat posed by these groups in your region and national jurisdiction, which can be useful in the investigation and prosecution of cases.  Further, adherence to the resolutions by Member States can help to lessen the threat these groups pose to international peace and security, thereby benefitting the global community.

Response

Terrorist organizations plan, organize, and execute their terrorist attacks beyond national borders.  Efficient and effective prosecution of these terrorist acts, therefore, requires the collection of evidence scattered over several states with sometimes different legal systems through requests for mutual legal assistance. However, this activity must be done in strict compliance with the rules of procedure, human rights, and the rule of law.

In the context of the judicial treatment of terrorist cases in the Sahel region, very few requests for mutual assistance in criminal matters have been made. Magistrates often explain this lack of interest by the fact that these requests for mutual assistance in criminal matters are rarely or never executed. When they are, they are unacceptably delayed.

This is often caused by the time elapsed during the transmitting of the actual documents. When time is of the essence in criminal proceedings, especially the ones relating to acts of terrorism, the very formalities which are there to ensure a safe working relation put society in danger by delaying justice.

The use of advance copy in the transmission of requests for mutual assistance in criminal matters may be a way of getting around these difficulties. It consists of sending a copy of the officially transmitted request for mutual assistance in criminal matters to the requested party directly or via preferred cooperation networks. This presupposes that all the information required for the proper execution of the request has been gathered and sent beforehand to ensure swift results: the competent authority for execution, the legal basis of the request, the requirements of the law of the requested country, the form in which the request must be transmitted and received, etc.

While the use of direct communication between central authorities or the authorities which deal with mutual legal assistance requests, it is important to know that these cooperation networks have a large community of practitioners and can therefore facilitate the connection between requesting and requested magistrates so that they can discuss the details of the execution of the mutual assistance request.

These cooperation networks include, but are not limited to:

1.           The Sahel Cooperation Platform ( PCJC)

2.           The West African Network of Prosecutors and Authorities ( WACAP)

3.           INTERPOL Regional and National Bureaus

RB.ABIDJAN@INTERPOL.INT

Response

The short answer is - save lives and don’t worry about the crime scene!  Preservation of life should always be the priority of first responders at the scene of a terrorist incident.  The senior investigator should recognise this too.  It is inevitable that the life saving process means that first responders will leave traces of their presence at the scene - footprints, DNA, fibres and so on - and take some forensic evidence away from the scene when they leave.  This is, after all, what Locard’s Principle is about: every contact leaves a trace.  Having said this, damage to vital forensic evidence can be minimised by creating a common approach path, so that all responders come and go using the same route. It’s vital too that access to the crime scene is kept to a minimum and that a record is kept of every person entering the scene and the reason for their presence there - a crime scene log.  Once the life saving is over, the scene should then be preserved for the crime scene investigators to start the process of collecting forensic samples and working out what was left by the criminals and what was left by first responders. They will refer to the crime scene log to help them eliminate samples left accidentally by those involved in the all important life saving process.    

Response

Whilst the law and procedure on special investigative techniques are specific to each jurisdiction, there are some fundamental principles that underpin the use of the techniques and these are common to all countries.  

Special investigative techniques - covert surveillance of one form or another - are vital tools in the pursuit of terrorists.  The issue with them is that they tend to undermine the human rights of those they are used to investigate or, worse still, of innocent people who encounter the subject of the investigation in their everyday lives.  It’s usually the right to privacy which is undermined most readily by the techniques.  That’s why most countries have special laws and procedures designed to ensure that the techniques are not abused.

The four fundamental principles that underpin the use of these techniques are called the human rights principles.  They are: Proportionality, Legality, Accountability and Necessity (so we can use the nemonic ‘PLAN’ to remember them).

Proportionality - is the objective proportional to the technique?

Legality - is the use of the technique legal in the circumstances?

Accountability - is the use of the technique correctly authorised and recorded?

Necessity - is it necessary to use the technique in the circumstances, or could a less intrusive technique achieve the same objective?

All four principles must be adhered to.