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Manual on Mutual Legal Assistance and Extradition

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Manual on Mutual Legal Assistance and Extradition Manual on Mutual Legal Assistance and Extradition UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Manual on Mutual Legal Assistance and Extradition UNITED NATIONS New York, 2012 © United Nations, September 2012. All rights reserved. The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Publishing production: English, Publishing and Library Section, United Nations Office at Vienna. Contents Page I. Introduction .......................................................... 1 A. The Organized Crime Convention and the need for the present Manual ....... 2 II. Legal traditions and systems and how they affect the provision of international legal assistance ......................................................... 7 A. Legal traditions .................................................... 9 B. The dualist/monist question .......................................... 9 C. A brief overview of the common law and civil law traditions ................ 11 D. How to address the differences: flexibility in the common and civil law traditions ...................................................... 12 III. The legal basis for mutual legal assistance and extradition: general principles ....... 19 A. Mutual legal assistance and extradition .................................. 19 B. Treaties ........................................................... 19 C. Domestic law ...................................................... 22 D. The principle of reciprocity ........................................... 23 IV. The Organized Crime Convention as the basis for international cooperation ....... 25 A. Scope. 25 B. The Organized Crime Convention and pre-existing treaties ................. 26 C. Pre-existing extradition treaties ........................................ 27 D. Pre-existing mutual legal assistance treaties ............................... 27 E. The importance of checking ratification ................................. 27 V. Central authorities: the importance of communicating with the right people and the case for domestic expertise in an international world ....................... 29 A. The central authority and the Organized Crime Convention ................ 30 B. The benefits of a central authority and the duties it can perform ............. 30 C. The International Criminal Police Organization and its complementary interaction with central authorities ..................................... 31 D. Police liaison officer programmes and their complementary interaction with INTERPOL and central authorities ................................ 32 E. Creating a central authority .......................................... 33 F. Staffing and locating the central authority ............................... 36 G. The central authority and international staff: an argument for posting members of the central authority abroad ........................................ 36 iii Page VI. Extradition: the process for a successful return of the accused ................... 41 A. Extradition as a tool of international cooperation ......................... 41 B. Extradition and how it is governed .................................... 41 C. Extradition preconditions ............................................ 45 D. Evidentiary tests. 47 E. Refusal of an extradition request ...................................... 49 F. Refugee status and non-refoulement: the interplay between asylum proceedings and extradition .................................................... 54 G. Open communication in the event of a refusal to extradite ................. 55 H. The extradition process .............................................. 55 I. Drafting and transmitting the request for extradition ...................... 58 J. Logistical concerns if extradition is successful ............................ 60 K. Alternatives to extradition: their use and reception ........................ 61 VII. Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests .......................................... 65 A. Alternatives to formal requests for mutual legal assistance ................... 65 B. General principles of mutual legal assistance ............................. 69 C. Grounds of refusal of a mutual legal assistance request ..................... 70 D. Refusal of a mutual legal assistance request: the provisions of the Organized Crime Convention ......................................... 74 E. Drafting the outgoing request ......................................... 75 F. Comments on the actual writing of the request .......................... 77 G. Processing incoming mutual legal assistance requests ....................... 81 H. Specific issues in processing incoming requests for the purpose of confiscation pursuant to the Convention .......................................... 82 I. Videoconferencing .................................................. 83 J. Logistics/practical considerations ....................................... 84 K. Travel arrangements ................................................. 85 L. Costs of executing the request ........................................ 85 M. Other considerations: prisoner transfer for testimony and safe conduct of consenting witnesses pursuant to the Organized Crime Convention ........... 86 Annexes I. General checklist for requesting mutual legal assistance ........................ 91 II. Supplemental checklist for specific types of mutual legal assistance requests ........ 93 III. Sample cover note for an outgoing mutual legal assistance request, acknowledgment of receipt of an incoming request and sample authentication certificate ............ 95 IV. Checklist for the contents of an outgoing extradition request .................... 99 V. Checklist for outgoing extradition requests: casework planning ..................101 VI. United Nations human rights instruments that apply to mutual legal assistance and extradition matters ..................................................103 Glossary ................................................................107 iv I. Introduction “Criminal groups have wasted no time in embracing today’s globalized economy and the sophisticated technology that goes with it. But our efforts to combat them have remained up to now very fragmented and our weapons almost obsolete. The Convention gives us a new tool to address the scourge of crime as a global problem. With enhanced international cooperation, we can have a real impact on the ability of international criminals to operate successfully and can help citizens everywhere in their often bitter struggle for safety and dignity in their homes and communities.” Source: Secretary-General Kofi Annan, foreword to United Nations Convention against Transnational Organized Crime and the Protocols Thereto (New York, United Nations, 2004). 1. The above quote from then Secretary-General of the United Nations Kofi Annan describes the challenges facing all nations today, challenges that have inextricably tied all people, including those involved in illegal activities, to one another. Criminals have embraced the breakdown of the traditional barriers of nation States far more readily than have the Governments that promoted and embraced such barriers in the first place. Those who operate outside the law are in no way bound by it; instead, they capitalize on the new international state of affairs, which allows them newfound flexibility and areas of operation, in which they enforce their own regime, which is well funded and brutal in its approach.1 The types of crimes anticipated by the United Nations Con- vention against Transnational Organized Crime2 and the threats they pose are many, varied, constant and real. In a time of limited budgets and resources and in the light of the seriousness of the offences, it is imperative that States requesting mutual legal assistance make every effort to provide cogent and legally sound requests, thereby conserving precious resources. Requested States also have a major role to play in the process, as their flexibility in interpreting their own laws, along with their ability and desire to advise the requesting State on substantive and procedural requirements in their own country, have a major impact on the success or failure of any extradition or mutual legal assistance request. 2. Nations are bound to embrace globalization while at the same time maintaining their sover- eignty in order to protect their citizenry and maintain their nationhood. Those tasked with enforcing the law are in the ironic and unfortunate position of being potentially fettered by the very laws 1 Bernard Rabatel describes that dynamic and its history in the following manner: “Fifty years ago, they could rely in most cases on evidence obtained locally or nationally. Nowadays, crimes (including corruption) are increasingly complex. Criminals are more sophisticated and employ teams of highly qualified lawyers.” (Bernard Rabatel, “Legal challenges in mutual legal assistance”, in Denying Safe Haven to the Corrupt and the Proceeds of Corruption: Enhancing Asia-Pacific Coopera- tion on Mutual Legal Assistance, Extradition, and Return of the Proceeds of Corruption—Capacity-Building Program, Anti- Corruption Initiative for Asia and the Pacific of the Asian Development
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