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Manual on International Cooperation in Criminal Matters Related to Terrorism

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Vienna International Centre, PO Box 500, 1400 Vienna, Austria Tel: (+43-1) 26060-0, Fax: (+43-1) 26060-5565, www.unodc.org Manual on International Cooperation in Criminal Matters related to Terrorism FOR UNITED NATIONS USE ONLY *0856712* Printed in Austria V.08-55977—July 2009—1,000 UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Manual on International Cooperation in Criminal Matters related to Terrorism UNITED NATIONS New York, 2009 Preface The Terrorism Prevention Branch of the United Nations Office on Drugs and Crime (UNODC), as mandated by the General Assembly, provides assistance to requesting countries in the legal and related aspects of counter-terrorism, especially for the purposes of ratifying and implementing the universal legal instruments against terrorism and strengthening the capacity of national criminal justice systems to apply the provisions of those instruments in compliance with the principles of the rule of law. In order to assist Member States in understanding the provisions contained in the universal instruments, drafting new legislation that complies with the requirements of the universal instruments and enhancing international cooperation in criminal matters relating to terrorism, UNODC has developed a number of technical assistance tools. One of these tools is the present Manual on International Cooperation in Criminal Matters related to Terrorism, which has been developed to enable legal practitioners specialized in the fight against terrorism to efficiently and speedily utilize international cooperation measures such as extradition and mutual legal assistance, as well as to give them practical advice concerning the difficulties and obstacles they may encounter. It can also serve as an educational tool to be used in the training of legal practitioners in the fight against terrorism. iii Contents Page Preface............................................................. iii Introduction ........................................................ 1 Module 1. Basic principles of international cooperation against terrorism ........... 5 1.A. Criminalization of acts of terrorism ..................................... 5 1.B. Legal basis for international cooperation against terrorism: the instruments for cooperation ......................................................... 16 1.C. Obligations as regards international cooperation against terrorism ............ 27 1.D. Rules for effective cooperation ......................................... 63 1.E. Competent national authorities ......................................... 67 Module 2. Mutual legal assistance in criminal matters ............................ 75 2.A. Goals of mutual legal assistance ........................................ 75 2.B. Types of mutual legal assistance currently in use .......................... 77 2.C. Mutual legal assistance in the fight against the financing of terrorism: identification, detection, freezing, seizure and confiscation.................. 95 2.D. Request for mutual legal assistance ..................................... 113 2.E. Joint investigations................................................... 142 Module 3. Extradition ........................................................ 143 3.A. Goals of extradition .................................................. 143 3.B. Provisional arrest for the purpose of extradition ........................... 144 3.C. Request for extradition ............................................... 146 3.D. Applicable law: execution of the request in accordance with the law of the requested or requesting State........................................... 153 3.E. Outcome of the request ............................................... 153 3.F. Cost of extradition ................................................... 161 3.G. Surrender of the person to be extradited.................................. 161 Module 4. Other types of cooperation ........................................... 163 4.A. Other types of surrender .............................................. 163 4.B. Transfer of criminal proceedings: official request for the purpose of prosecution ......................................................... 165 4.C. Transfer of detained persons already convicted............................ 167 Annexes I. The United Nations Global Counter-Terrorism Strategy..................... 169 v II. Cooperation as regards exchange of information: relevant provisions of the universal instruments ................................................. 179 III. Offences defined by the universal instruments ............................ 181 IV. Indicative list of regional instruments relating to the prevention of terrorism and the suppression of the financing of terrorism .......................... 187 V. Mutual legal assistance: relevant provisions of the universal instruments ...... 191 VI. Indicative list of multilateral conventions relating to mutual legal assistance and extradition ...................................................... 193 VII. Model declaration on cooperation in matters of extradition .................. 199 VIII. The right to information and communication from the time of arrest: relevant provisions of the universal instruments .................................. 201 IX. Notification of the arrest or detention of an alleged offender to all States and/or authorities concerned: relevant provisions of the universal instruments ........ 205 X. List of national financial intelligence units ............................... 211 XI. Model of a hypothetical request to obtain written evidence .................. 217 XII. Model of a hypothetical request to obtain testimony........................ 223 XIII. Model of a hypothetical request for seizure ............................... 229 XIV. Model of a hypothetical request for the voluntary appearance of a person in the requesting State ..................................................... 237 XV. Model of a hypothetical request for interception or recording ................ 243 XVI. List of national central authorities in the fight against terrorism .............. 249 XVII. Indicative list of international instruments that mention the role of the International Criminal Police Organization in the transmission of information . 253 Index .............................................................. 259 vi Introduction A. Context 1. Terrorism: a threat to international peace and security Since the adoption of the Convention for the Prevention and Punishment of terrorism by the League of Nations in 1937, the fight against terrorism has been continuously on the agenda of the international community. Thus, since 1963 the international community has armed itself with an arsenal of 16 universal legal instruments relating to the prevention and suppression of terrorist acts. Moreover, for more than a decade, the General Assembly of the United Nations, in particular on the initiative of its Sixth Committee, has adopted annual resolutions on measures intended to fight international terrorism. As part of the plan of action of the United Nations Global Counter-Terrorism Strategy, Member States, resolved1 to cooperate fully in the fight against terrorism, in accordance with their obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle to extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or perpetration of terrorist acts or provides safe havens; and to ensure the apprehension and prosecution or extradition of perpetrators of terrorist acts, in accordance with the relevant provisions of national and international law, in particular human rights law, refugee law and international humanitarian law. The Security Council has also adopted several resolutions regarding the fight against terrorism. Resolution 1373 (2001),2 of 28 September 2001, adopted following the attacks of 11 September 2001, is of particular importance because of its effective range of action. Importantly, the resolution was adopted by the Council under Chapter VII of the Charter of the United Nations,3 which means that terrorism must be regarded as a threat to international peace and security. In the resolution, the Council called on States to work together urgently to prevent and suppress terrorist acts, including through increased cooperation and full implementation of the relevant international conventions relating to terrorism, and recognized the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism. Before the adoption of resolution 1373 (2001), the number and the complementarity of conventions, protocols and resolutions of the United Nations against terrorism already constituted a structure that offered an effective legal framework for international legal cooperation in criminal matters. However, in that resolution, the Security Council called upon all States to become parties as soon as possible to the relevant international conventions and protocols relating to terrorism __________________ 1 General Assembly resolution 60/288, annex, section II, paragraphs 2 and 3 (see annex I for the text of the resolution). 2 See http://daccessdds.un.org/doc/UNODC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement. 3 See http://www.un.org/aboutun/charter/. 1 Manual on International Cooperation in Criminal Matters related
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