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Issuing and enforcing of MLA requests in criminal matters – global and regional experiences Analysis of status, best practices and recommendations for.

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Presentation on theme: "Issuing and enforcing of MLA requests in criminal matters – global and regional experiences Analysis of status, best practices and recommendations for."— Presentation transcript:

1 Issuing and enforcing of MLA requests in criminal matters – global and regional experiences Analysis of status, best practices and recommendations for promotion of legal communication Workshop on judicial cooperation in criminal matters in South Eastern Europe, 7-8 November 2011, Belgrade

2 Context –Transnational organized crime today Increasingly global, varied and threatening –Regional responses to judicial cooperation CoE, Mercosur and SEE –Global Responding to TOC Defining UNTOC’s role in judicial cooperation in criminal matters Best practice modalities and examples Closing remarks UNODC – Tools and Technical Assistance Agenda

3 TOC: Increasingly global Selected Transnational Organized Crime Flows (published in 2010) Context Most TOC flows begin on one continent and end on another, often by means of a third, so only interventions at the scale of the problem – global – are likely to have a sustained effect. - The Globalization of Crime, UNODC 2010

4 TOC: Increasingly diverse Traditional forms of TOC –Heroine and cocaine trafficking –Extortion –Human trafficking –Migrant smuggling –Firearms trafficking –Money laundering → (Re-)emerging forms of TOC –Natural resource trafficking –Counterfeit goods trafficking –Cultural property trafficking –Piracy –Cybercrime → New players → New means Context

5 Increasingly threatening TOC threatens international peace and security, human rights and development The Security Council has noted with growing concern the threat TOC poses to international security (S/PRST/2010/4) The intersection of TOC and instability (published in 2010) Context

6 Responding to TOC today An effective response to today TOC must be –Global, integrated and coordinated –Strategic: including policy and operations in combating TOC –Comprehensive: Addressing all aspects of the “value chain” UNTOC and UNCAC’s contribution to judicial cooperation: –Article 16 UNTOC (and Article 44 UNCAC) - Extradition –Article 18 UNTOC (and Article 46 UNCAC) - MLA –Offer tools that are flexible, practical and effective –Can be used to supplement existing bilateral and multilateral agreements Context

7 Regional initiatives for judicial cooperation Council of Europe –3rd Additional Protocol to the European Convention on Extradition –Draft 4th Additional Protocol to the European Convention on Extradition MERCOSUR –Initiative for Arrest Warrant of MERCOSUR South Eastern Europe –Constitutional changes for enabling extradition of own nationals –Bilateral agreements Context

8 The response Convention against Transnational Organized Crime (UNTOC) And its Protocols on:  Trafficking in Persons  Smuggling of Migrants  Trafficking in Firearms A global, flexible and practical legal instrument with the aim of promoting cooperation to prevent and combat transnational organized crime more effectively (UNTOC, Art.1) UNTOC

9 A global instrument Ratified/Acceded Signed Not signed or ratified Ratification of the Organized Crime Convention (In force 09/2003) 157 countries have ratified or acceded to UNTOC (as of 10/2010) UNTOC: Global

10 Tools for cooperation Extradition (Art.16) –Minimum standards Mutual legal assistance (Art.18) –“Mini treaty” International cooperation for the purpose of confiscation (Art.13) –Proceeds of crime, instrumentalities Law enforcement cooperation (Art.27) –Measures to enhance communication and collaboration Joint investigations (Art.19) –Creation of international teams Special investigative techniques (Art. 20) –Domestically and internationally UNTOC establishes legal frameworks that enable and legal obligations that compel international cooperation Acts as an autonomous legal basis for:Permits case-by-case cooperation for: UNTOC: Practical

11 Dualist/Monist Question Inquisitorial and adversarial system Flexibility in the Common and Civil law traditions (e.g. “process verbal”) Evidentiary considerations (e.g. “hearsay”) Points to remember: education and contact with the Central Authority Different Legal Systems UNTOC: Practical

12 Central Authority (CA) in Article 18(13) UNTOC Benefits of a CA – uniform response to incoming and outgoing requests Complementarities and interaction with INTERPOL National Central Bureaus (NCBs) and I-24/7 network The ideal functions of CA – Centre of Expertise, ideal candidates and senior justice official’s support Central Authorities UNTOC: Practical

13 TOC Article 16 No positive obligation on any state to extradite Subject to the conditions provided by the domestic law of each state (e.g. extraditable offence, dual criminality, speciality rule, non- extradition of nationals etc.) Human Rights Considerations Direct and constant contact with CA of the requested state key for succesful request Extradition UNTOC: Practical

14 Examples of alternatives to extradition when there is no viable and legal method: - Luring; Expulsion and Deportation. Illegal in some legal systems Sometimes any type of communication is better than no communication European Arrest Warrant – future of extradition Extradition UNTOC: Practical

15 Some useful references for international cooperation: - The Judicial Regional Platforms of Sahel and Indian Ocean Commission Countries - Judicial Regional Platform of Sahel countries, currently: Burkina Faso, Mali, Mauritania, and Niger, launched in Bamako, from 22 to 24 June 2010 - Commonwealth Network of Contact Persons - European Judicial Network (EJN) - Eurojust - Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition of the Organization of American States - Ibero-American Legal Assistance Network (IberRed) Extradition UNTOC: Practical

16 TOC Article 18 – Mini treaty The Types of assistance: Taking evidence or statements from persons. Effecting service of judicial documents. Executing searches and seizures and freezing: Examining objects and sites. Providing information, evidence, items and expert evaluations. Providing originals or certified copies of relevant documents and records, including, government, bank, financial, corporate or business records. Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes. Facilitating the voluntary appearance of persons in the requesting State Party Any other type of assistance that is not contrary to the domestic law of the requested State Party. Ibroamerican covenant on the use of videoconference in the international cooperation between systems of justice MLA request Writer Tool MLA UNTOC: Practical

17 Limitations to UNTOC Has not yet achieved universal ratification Has not achieved full implementation Lack of data collected/available/shared Operationally, hurdles remain for effective international cooperation and coordinated responses to organized crime “The legal instruments needed to give [these] regional institutions and the world at large the ability to deliver crime-control results already exits. There is no need to reinvent the wheel.” - Commissions on Narcotic Drugs and on Crime Prevention and Criminal Justice, in 2009 speaking of UNTOC and its protocols Next steps

18 Improving implementation: Towards a review mechanism –Pursuant to Art.32(3) UNTOC: COP4 took the decision to explore a review mechanism –Launch of a voluntary pilot review program in January 2010 –Operating under 2 tracks to test different methods Track 1: Peer review (15 counties) –Self assessment, dialogue, country visits Track 2: Thematic expert review (5 countries) –Self-assessment, expert meeting –Deliberations at COP5 (October 2010) Promoting universal adherence –UNODC Secretariat: Promoting ratification of the Protocol through raising awareness and providing pre-ratification assistance Moving UNTOC forward Next steps

19 Closing remarks “Ultimately, even when there is no legal basis for co-operation, practitioners should still ask the foreign state for assistance. The foreign state could well be amenable to the request.” -Kimberley Prost, “Practical solutions to legal obstacles in mutual legal assistance” Next steps

20 Moving UNTOC forward Improving implementation: Tools and Technical Assistance in MLA and Extradition –Online Directory of Competent National Authority –MLA Request Writer Tool –Legislative Guides and Model Legislation –Assistance with legislative drafting –Criminal Justice Assessment Toolkit –Threat Assessment Tool –The catalogue of examples of cases Next steps

21 For further information: UNODC Office in Belgrade Djuke Dinica 12/21 11000 Belgrade, Serbia Davor Raus, LL.M. Tel: +381-11-241-27-01 Fax: +381-11-241-28-85 Email: THANK YOU!

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