Matti Joutsen. Handbook of Transnational Crime & Justice. Editor: Philip Reichel. Sage Publication. 2005.
International instruments provide the rules needed for effective international cooperation. This chapter examines (a) the concept of international instruments and how they supplant less formal forms of international cooperation and (b) how international instruments have evolved. The chapter also examines the main form of cooperation under these international instruments—(c) extradition, (d) mutual legal assistance, (e) the transfer of proceedings, (f) recognition of judgments, and (g) the transfer of prisoners. The final section summarizes the development of international instruments.
The Concept of International Instruments
International instruments (treaties) are the cornerstone of international law and of international criminal justice. They can be defined as formally signed and ratified international agreements between two or more states or other international entities.
International instruments may deal with substantive or procedural issues. In criminal law instruments, the substantive provisions almost invariably deal with the definition of certain crimes. The procedural provisions may deal with the exercise of jurisdiction—in other words, with which state has the right or duty to place offenders on trial. The procedural provisions may also deal with the right or duty of signatory states to extradite suspected or convicted offenders to another state for trial or with what mutual legal assistance (such as the hearing of witnesses or the service of summons) may or should be extended among the signatories. More rarely, international instruments may deal with issues such as the transfer of proceedings, the recognition of foreign judgments, cooperation in enforcement, and the transfer of convicted persons. Increasingly, international criminal law instruments also contain provisions that seek to protect certain fundamental human rights.
The earliest international instruments were bilateral; in other words, they were signed between two states. The advantage of bilateral agreements is that they can be tailored to the specific needs of the states in question and can be expanded, amended, or (if necessary) terminated relatively easily. They are adaptable to the specific interests of the two states, which is a particular concern if differences between legal systems must be overcome. On the down side, they are very resource-intensive to negotiate, especially for smaller or developing states that cannot afford an extensive international negotiating program.
Multilateral agreements (conventions) have several signatories. They are more difficult than bilateral agreements to draft, amend, and terminate. The implementation of some multilateral agreements may require a permanent infrastructure (e.g., a secretariat), which requires, in turn, the investment of additional resources. At the same time, however, multilateral agreements provide a greater degree of stability to international cooperation. The parties to multilateral conventions are signaling their intention to establish lasting rules and institutions based on mutual solidarity and shared responsibilities. Moreover, accession to a multilateral agreement relieves the state in question of the need to enter into a number of different bilateral agreements, each of which may require different procedures. Finally, the extension of the geographical scope of multilateral agreements on cooperation in crime prevention and criminal justice lessens the possibility that offenders can evade justice by operating in or from, or escaping to, states that are not parties to such agreements.
At present there are no truly universal criminal law instruments, global conventions that have been ratified by every state around the world. It is unlikely that such instruments will ever be developed, due largely to the differences in legal systems and in political priorities. The heated discussions, for example, on terrorism have illustrated a third difficulty in drafting universal instruments—differences in the definition of the issue that is being addressed.
International instruments are binding on the signatory states and are subject to international law. In some rare cases, widely ratified international instruments that define certain crimes may contribute to the evolution of customary international law, as defined by Article 38 of the Statute of the International Court of Justice. Once the definition of a crime becomes part of such customary international law, it is binding on all states (thus, at the same time, eliminating much of the need for developing universal instruments on such crimes). Even persons from states that have not signed any of the relevant international instruments may be convicted by the courts of any other state that claims jurisdiction or by an international tribunal that exercises jurisdiction. Although there are different views on which international crimes have moved from the status of being based (solely) on international agreements to becoming part of customary international law, the prevailing view is that this is the case at least with war crimes, crimes against peace, crimes against humanity, genocide, piracy, slavery, and torture.
One offense conspicuously absent from the list of international crimes is terrorism. No single definition of terrorism has yet gained universal acceptance, although a number of conventions have entered into force on specific features of terrorism.
International cooperation need not be based on formal agreements between states. Domestic law may allow the authorities to engage in various forms of cooperation. Moreover, where the authorities of two states have worked in close contact with one another (e.g., because of extradition cases, requests for mutual assistance, or general concerns about transnational crime), they generally build up a relationship of trust. This often leads to less formal forms of bilateral cooperation between the central authorities (such as officials at departments or ministries of justice or of the interior) or, for example, between the local authorities on both sides of the border (in particular, police and customs authorities). Such forms of cooperation may in time be guided by bilateral executive agreements between the agencies involved.
Examples of less formal multilateral arrangements among states for cooperation in criminal law issues include the cooperation carried out within the framework of the Commonwealth, the French-speaking states, the Economic Community of West African States, the Council of Europe, the Nordic Council, the African Union (formerly the Organization of African Unity), the Southern African states, the Organization of American States, and the Mercosur structure (Argentina, Brazil, Paraguay, and Uruguay). Such arrangements, for example, provide the participating states with a framework for aligning their policy on topical issues, agreeing on matters such as technical assistance and the exchange of personnel, and where necessary, agreeing on the drafting of formal international instruments. The close and effective cooperation overseen by the International Criminal Police Association (Interpol) is not based on any international instrument; instead, the criminal police of each participating state have simply decided to cooperate with one another within the framework of Interpol.
The European Union provides a unique framework for rapidly deepening cooperation among its member states. This cooperation ranges from networking among officials and the funding of joint projects to the drafting of so-called framework decisions that directly affect the domestic legislative process all the way to the mutual recognition of decisions and judgments and the establishment of formal bodies that have a mandate to act on behalf of all the member states. For example, Europol serves as a body for cooperation among the police forces of the European Union and is taking on increasing duties in, for example, the analysis of crime data and the provision of technical expertise to national police forces.
Over the years, several multilateral treaties have been drafted that deal with international cooperation. In addition, many states have entered into bilateral treaties with other states. As a result, two or more treaties may be applicable to the same facts. Because there are almost inevitably differences between these treaties (e.g., in relation to the conditions under which cooperation may or should be provided or the procedure used), the question arises of which treaty should be applied.
General conflicts between treaties can be decided on the basis of the 1969 Vienna Convention on the Law of Treaties. Among the principles applied are that, other things being equal, a later treaty replaces an earlier one, and a treaty dealing with a specific issue replaces a treaty dealing only with general issues.
In addition, some new treaties contain specific provisions on the resolution of possible conflicts between treaties. For example, Article 18(6) of the U.N. Convention against Transnational Organized Crime (known as the Palermo Convention) provides that “the provisions of this article shall not affect the obligations under any other treaty, bilateral or multilateral, that governs or will govern, in whole or in part, mutual legal assistance.” This provision means in practice that obligations under other agreements remain in force. The practitioner should examine the agreements side by side and identify which provisions of the different agreements would, in combination, result in the highest possible level of cooperation.
The Evolution of International Instruments
As long as crime was regarded as (and, in most respects, actually was) a local or, at most, a national issue, criminal law remained almost wholly territorial, concerned only with acts or omissions committed in the territory of the forum state. This was the approach taken in particular by the common law states: Offenses committed abroad were not their concern, and their authorities tended to be unwilling to assist the authorities of another state in bringing offenders to justice.
Where formal cooperation in criminal cases is impossible, informal cooperation may arise. Such informal cooperation began to emerge in law enforcement during the 1700s and early 1800s, when the major international law enforcement concerns were related to piracy, the slave trade, smuggling, and cross-border forays by bandits. At that time, the tendency was for states to take unilateral action to make arrests and bring the offenders to justice. This could take the form of blatant incursions into foreign territory (with or without the support of law enforcement colleagues on the other side of the border). Examples were seizures of suspected pirate or slave trade ships even when they lay in the territorial waters of a foreign state or the posses that rode across the Rio Grande from the United States to Mexico in pursuit of bank robbers or cattle rustlers.
Such informal and unilateral actions— colorful as they may be—were an unsatisfactory response to a growing problem. Unilateral action can create unnecessary tensions between nations. Under international law, states may not intervene in the domestic affairs of other states. In particular,
A party has no right to undertake law enforcement action in the territory of another party without the prior consent of that party. The principle of non-intervention excludes all kinds of territorial encroachment, including temporary or limited operations (so-called “in-and-out operations”). It also prohibits the exertion of pressure in a manner inconsistent with international law in order to obtain from a party the subordination of the exercise of its sovereign rights.
Judicial cooperation in criminal matters was slower to emerge than was cooperation in law enforcement. A few bilateral instruments were developed during the late 1800s. Two early efforts to develop a multilateral instrument, the 1928 draft developed within the framework of the League of Nations and the 1939 Harvard Draft Convention, never entered into force (McClean, 1992, p. 125). In respect to extradition, the first multilateral instrument did not emerge until 1933. This was the Convention on Extradition prepared within the framework of the Organization of American States. In respect of mutual assistance in criminal matters, even more years had to pass until a multilateral instrument entered into force: the 1959 Convention on Mutual Assistance in Criminal Matters, prepared within the framework of the Council of Europe.
On substantive issues, the first international instruments tended to deal with the definition of drug offences. The International Opium Convention was completed in 1912, and a second convention on this subject appeared in 1925. This was followed, in 1931, by the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, and in 1953 by the Protocol Limiting and Regulating the Cultivation of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium.
Bringing these multilateral treaties up to the present, the 1961 Single Convention established new mechanisms and obligations. It assigned certain functions to the Commission on Narcotic Drugs and to an International Narcotics Control Board. It also required states to provide annual estimates of drugs used for various purposes; to abide by restrictions on manufacture, production, and import; and to criminalize the possession, supply, and transport of drugs and make them extraditable offences.
The main drug treaty today is the U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, which entered into force in 1990. The 1988 Convention calls for criminalization of a range of criminal offenses, including the organization, management, or financing of drug offenses and the laundering of the proceeds of drug offences (Article 3). According to Article 6, the offenses criminalized by the 1988 Convention are by definition extraditable offenses, and the convention itself can be regarded as providing the necessary legal basis for extradition and mutual assistance. Article 5 contains provisions on confiscation, Article 7 on mutual assistance, Article 8 on the transfer of proceedings, and Article 11 on controlled delivery.
Aside from the topic of drugs, before the Palermo Convention was opened for signature at the end of 2000, there were almost no multilateral treaties that would have defined an offense. During the 1970s, in response to a rash of skyjacking and other hostage taking, treaties were signed on this topic. In 1980, a convention was completed on the physical protection of nuclear material; 10 years later the Council of Europe completed the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds From Crime, and in 1996 the Inter-American Convention against Corruption was completed. As the following examples show, it has taken a long time for the world to realize the need for agreeing on the rules for international cooperation in responding to crime.
The Concept of Extradition
Extradition is the process by which a person charged with an offense is forcibly transferred to a state for trial, or a person convicted of an offense is forcibly returned for the enforcement of punishment (see, e.g., Restatement of the law third, 1990, pp. 556-557).
For a long time, no provisions or international treaties existed on the conditions for extradition or on the procedure that should be followed. Extradition was largely a matter of either courtesy or subservience, applied in the rare cases where not only did a case have international dimensions but also the requesting and the requested states were prepared to cooperate. In practice, extradition was rarely required, more rarely requested, and even more rarely still granted.
Bilateral extradition treaties did not begin to emerge until the 1800s. In particular the common law states have made wide use of bilateral treaties. The first multilateral convention on this topic was the Organization of American States Convention on Extradition in 1933. It was followed 20 years later by the Arab Extradition Agreement in 1952 and then by the influential European Convention on Extradition in 1957 and the 1966 Commonwealth scheme for the rendition of fugitives. The most recent multilateral treaties have been the 1995 European Union Convention on simplified extradition within the European Union and the 1996 European Union Convention on the substantive requirements for extradition within the European Union.
To promote new extradition treaties and to provide guidance in their drafting, the U.N. prepared a Model Treaty on Extradition (General Assembly Resolution 45/116 of December 14, 1990).
In addition to these general treaties on extradition, provisions on extradition have also been included in several international conventions that deal with specific subjects. Perhaps the best-known example is the 1988 U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Article 6 of which deals with extradition. The extradition provisions in the Palermo Convention were largely drafted on the basis of this 1988 Convention.
The Conditions for Extradition
Among the common conditions included in international instruments dealing with extradition are the double criminality requirement (generally accompanied by the definition of the level of seriousness required of the offense before a state will extradite), a refusal to extradite nationals, and the political offense exception.
The principle of double criminality (dual criminality). The great majority of extradition treaties require that the offense in question be criminal in both the requesting and the requested state and, often, that it is subject to a certain minimum punishment, such as imprisonment for at least 1 year. Even where a state allows extradition in the absence of an extradition treaty, this principle of double criminality is generally applied.
The double criminality principle may cause legal and practical difficulties. Legal difficulties may arise if the requested state expects more or less similar wording of the provisions, which is often an unrealistic expectation, in particular if the two states represent different legal traditions. Practical difficulties may arise when the requesting state seeks to ascertain how the offense in question is defined in the requested state.
Double criminality can be assessed both in the abstract and in the concrete. In the abstract, what is required is that the offense is deemed to constitute a punishable offense in the requested state. In the concrete, the offense will be deemed extraditable only if the constituent elements of the offense in both states correspond with each other. The present tendency (as supported for example by Article 2(2)(a) of the U.N. Model Treaty on Extradition) is to favor the simpler approach, an assessment in the abstract.
In practice, it is possible that extradition is sought for several separate offenses, and some of these do not fulfill the conditions of double criminality. The general rule expressed in Article 2(2)(a) of the U.N. Model Treaty on Extradition and Article 2(2) of the Council of Europe Extradition Convention is that the offenses in question must be criminal in both states; however, the condition of the minimum punishment can be waived for part of the offenses. Thus, for example, if extradition is sought for a bank robbery as well as for several less serious offenses for which the minimum punishment would not otherwise meet the conditions for extradition, all of them can nonetheless be included in the request.
Recent trends in extradition have attempted to ease difficulties with double criminality by inserting general provisions into agreements, either listing acts and requiring only that they be punished as crimes or offenses by the laws of both states or simply allowing extradition for any conduct criminalized to a certain degree by each state (Blakesley & Lagodny, 1992, pp. 87-88).
The rule of speciality. The so-called rule of speciality stipulates that the requesting state may not, without the consent of the requested state, try or punish the suspect for an offense not referred to in the extradition request and committed before he or she was extradited.
This rule does not prevent an amendment of the charges, if the facts of the case warrant a reassessment of the charges. For example, even if a person has been extradited for fraud, he or she may be prosecuted for embezzlement as long as the facts of the case are the ones referred to in the request for extradition.
If, following extradition, the person in question is released in the territory of the requesting state, he or she may not be prosecuted for an offense that had been committed before the extradition took place until after he or she has had a reasonable opportunity to depart from this state.
The nonextradition of nationals. As a rule, states have long been willing to extradite nationals of the requesting state or nationals of a third state. When it comes to extraditing their own citizens, however, most states have traditionally been of the opinion that such extradition is not possible. Some states have even incorporated such a prohibition into their constitution. Furthermore, the principle of the nonextradition of nationals is often expressly provided for in international instruments. The rationale for such a view is a mixture of the obligation of a state to protect its citizens, a lack of confidence in the fairness of foreign legal proceedings, the many disadvantages that defendants face when defending themselves in a foreign legal system, and the many disadvantages of being in custody in a foreign state (Nadelmann, 1993, p. 427).
The United States, the United Kingdom, and most other common law states have been prepared to extradite their own nationals. This may have been due in part to the fact that these states have been less likely than, for example, civil law states to assert jurisdiction over offenses committed by their citizens abroad—and thus, failing extradition, the offender could not have been brought to justice at all. The common law states have also stressed the advantages of trying the suspect in the place where the offense was alleged to have been committed. There is, for example, the greater ease with which evidence and testimony can be obtained in the forum delicti and the difficulties in submitting evidence obtained in one state to the courts of another state.
In cases where the requested state does in fact refuse to extradite on the grounds that the fugitive is its own national, the state is generally seen to have an obligation to bring the person to trial. This is an illustration of the principle of aut dedere aut judicare—“extradite or prosecute,” “extradite or adjudicate.”
The reluctance to extradite one’s own nationals appears to be lessening in many states. The recent Palermo Convention incorporates a provision that reflects this development. According to Article 16(11),
Whenever a State Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that State Party to serve the sentence imposed as a result of the trial or proceedings for which the extradition or surrender of the person was sought and that State Party and the State Party seeking the extradition of the person agree with this option and other terms that they may deem appropriate, such a conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 10 of this article.
Thus, under the Palermo Convention a national can be extradited on condition that he or she be returned to serve out the possible sentence.
The political offense exception. During the 1700s and the early 1800s, extradition was used very much on an ad hoc basis primarily in the case of political revolutionaries who had sought refuge abroad (Restatement of the law third, 1990, p. 558). However, during the 1830s, the view developed in France and Belgium that suspects should not be extradited for politically motivated offenses (Nadelmann, 1993, p. 419).
There is no universally accepted definition of what constitutes a “political offense.” In deciding whether an offense qualifies as political, reference is generally made to the motive and purpose of the offense, the circumstances in which it was committed, and the character of the offense as treason or sedition under domestic law. One of the leading cases internationally is In re Castione ( 1 Q.B. 149), where the refusal to extradite the suspect was based on the view that alleged offenses that had been committed in the course of, or incident to, a revolution or uprising are political (cited in Nadelmann, 1993, p. 420).
Recent developments suggest that attempts are being made to restrict its scope or even abolish it. The recent Palermo Convention does not make specific reference to political offenses as grounds for refusal, even though the U.N. Model Treaty on Extradition, adopted only 10 years earlier, had clearly included this as a mandatory ground for refusal. On the other hand, Article 16(7) of the Palermo Convention provides states parties with a built-in escape clause. It states that
extradition shall be subject to the conditions provided for by the domestic law of the requested State Party or by applicable extradition treaties, including, inter alia, … the grounds upon which the requested State Party may refuse extradition.
Thus, if the domestic law of the requested state allows for the possibility of the political offense exception (as would almost inevitably be the case), this option remains, even if not specifically mentioned in the Palermo Convention.
One factor behind the restriction or abolition of the political offense exception is the growth of terrorism. A distinction is commonly made between “pure” political offenses (such as unlawful speech and assembly) and politically motivated violence (Restatement of the law third, 1990, p. 558). If the offense is serious—such as murder, political terrorism and genocide—courts in different states have (to varying degrees) tended not to apply the political offense exception. Examples include the extradition from the United States of several persons suspected of being Nazi war criminals or IRA terrorists (Nadelmann, 1993, pp. 421, 424). Violation of international conventions is one criterion in determining such seriousness; a case in point is the readiness of many states to extradite persons suspected of skyjacking.
The refusal to extradite on the grounds of the danger of persecution or unfair trial, or of the expected punishment. Originally, extradition treaties between states were seen to be just that, treaties between sovereign and equal states as parties. According to this approach, other parties, in particular the fugitive in question, had no standing to intervene in the process, nor was the nature of the proceedings or expected treatment in the requesting state a significant factor. Recently, however, the individual has also been increasingly regarded as a subject of international law. This has perhaps been most evident in extradition proceedings. Democratic states have been increasingly reluctant to extend full cooperation to states that do not share the same democratic values— for example, on the grounds that the political organization of the latter states is undemocratic or because their judicial system does not afford sufficient protection to the prosecuted or convicted individual (Gully-Hart, 1992, p. 249).
In line with this reassessment in the light of the strengthening of international human rights law, many of the more recently concluded treaties pay particular attention to the nature of the proceedings or the expected treatment in the requesting state. States will generally refuse to extradite if there are grounds to believe that the request has been made for the purpose of persecution of the person in question or that the person would not otherwise receive a fair trial (Gully-Hart, 1992, pp. 249-251, 257).
Refusal on the grounds of expected persecution is dealt with in, for example, Article 16(14) of the Palermo Convention:
Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s sex, race, religion, nationality, ethnic origin or political opinions or that compliance with the request would cause prejudice to that person’s position for any one of these reasons.
The question of fair trial and treatment is in principle distinct from the question of persecution. Article 3(f) of the U.N. Model Treaty on Extradition gives as a mandatory ground for refusal the possibility that the person in question would be subjected to torture or cruel, inhuman or degrading treatment or punishment, or the absence of the minimum guarantees in criminal proceedings, as contained in Article 14 of the International Covenant on Civil and Political Rights.
The issue of fair trial and treatment is dealt with in Article 16(13) of the Palermo Convention:
Any person regarding whom proceedings are being carried out in connection with any of the offences to which this article applies shall be guaranteed fair treatment at all stages of the proceedings, including enjoyment of all the rights and guarantees provided by the domestic law of the State Party in the territory of which that person is present.
This provision is a new one in U.N. conventions. No similar provisions are to be found in the 1988 Convention or in the U.N. Model Treaty on Extradition.
Perhaps the most notable and influential case concerning fair treatment is the transatlantic case of Soering v. the United Kingdom (European Court of Human Rights, 1/89/ 161/217). Soering had been charged with murder in Virginia, where murder was a capital offense. Following a request for extradition from the United States, he was arrested in the United Kingdom and his extradition was prepared. He appealed the extradition decision. Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits torture or inhuman and degrading treatment or punishment. The European Court of Human Rights unanimously found that extradition would be a violation of this, since circumstances on death row—6 to 8 years of isolation, stress, fruitless appeals, separation from family, and other damaging experiences—would be inhuman and degrading. (The follow-up to this case is that Soering was extradited, after the attorney general had promised not to seek the death penalty.)
Following the adoption in 1983 of Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which abolished the death penalty, European states have been reluctant to extradite suspects to states where the death penalty might be imposed. One common resolution to this difficulty is that, as in the Soering case, the requesting state agrees to waive the death penalty or, if this is imposed by the court, the requesting state agrees to ensure that it is not enforced. Another option is to agree that the suspect, if convicted, will be returned to the requested state for enforcement of the sentence (and where capital punishment would be commuted to long-term imprisonment).
Other grounds for refusal to extradite. One of the fundamental legal principles of the rule of law is that no one should be subjected to double jeopardy (non bis in idem). Consequently, extradition will generally be refused if the person requested has already been prosecuted in the requested state for the acts on the basis of which extradition is requested, regardless of whether the prosecution ended in conviction or acquittal (Restatement of the law third, 1990 p. 568). According to Article 3(d) of the U.N. Model Treaty on Extradition, extradition shall not be granted “if there has been a final judgment rendered against the person in the requested State in respect of the offence for which the person’s extradition is requested.”
Some states may also deny extradition if the person in question has been prosecuted in the requesting state or in a third state (Restatement of the law third, 1990 p. 568). The U.N. Model Treaty on Extradition also includes, as a mandatory grounds for refusal, the fact that “the person whose extradition is requested has, under the law of either Party, become immune from prosecution or punishment for any reason, including lapse of time or amnesty.”
Mutual Legal Assistance
The Concept of Mutual Legal Assistance
The purpose of mutual legal assistance is to get a foreign state to assist in the judicial process—for example, by securing the testimony of possible victims, witnesses, or expert witnesses; by taking other forms of evidence; or by checking judicial or other official records.
Over the years, some multilateral instruments have been drafted that deal with specific offenses. These instruments generally include extensive provisions on mutual legal assistance as well as on extradition. The sets of provisions included in some of these agreements are so extensive that they have been referred to as “minitreaties” on mutual legal assistance.
Such is the case, for instance, with the following conventions:
- The Convention for the Suppression of Unlawful Seizure of Aircraft of December 16, 1970 (Article 10)
- The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of September 23, 1971 (Article 11)
- The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, of March 10, 1988
- The U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of December 19, 1988 (Article 7)
- The International Convention against the Taking of Hostages of December 17, 1979 (Article 11)
- The Palermo Convention, opened for signature on December 12, 2000 (Article 18)
In addition, two influential multilateral arrangements apply to a wide spectrum of offenses, a convention prepared by the Council of Europe and an instrument applied within the context of the British Commonwealth (the so-called Harare Scheme).
The oldest, most widely applied and arguably most influential is the Council of Europe Convention on Mutual Assistance in Criminal Matters. This was opened for signature in 1959 and entered into force in 1962.
The Council of Europe Convention focuses on assistance in judicial matters (as opposed to investigative and prosecutorial matters). Furthermore, because it has been in force for over 40 years, it has in some respects been bypassed by practice. To improve the effectiveness of the convention, the European Union prepared its own Mutual Assistance Convention of May 29, 2000. This supplements the 1959 Council of Europe convention and its protocol in order to reflect the emergence of “good practices” over the past 40 years.
The Commonwealth Scheme for Mutual Assistance in Criminal Matters does not create binding international obligations; instead, it represents more an agreed set of recommendations (McClean, 1992, p. 151). It deals with identifying and locating persons, serving documents, examining witnesses, search and seizure, obtaining evidence, facilitating the personal appearance of witnesses, effecting a temporary transfer of persons in custody to appear as a witness, obtaining production of judicial or official records, and tracing, seizing, and confiscating the proceeds or instrumentalities of crime. A model bill to assist states in preparing legislation has been developed by the Commonwealth Secretariat.
The Commonwealth scheme extends to both “criminal proceedings that have been instituted in a court” and when “there is reasonable cause to believe that an offence in respect of which such proceedings could be instituted have been committed.” Thus, it effectively also allows mutual assistance when certain serious offenses, such as terrorism, could potentially be prevented.
The U.N., in turn, has prepared a Model Treaty on Mutual Assistance in Criminal Matters (General Assembly Resolution 45/117 of December 14, 1990). The purpose of the Model Treaty is to provide a suitable basis for negotiations between states that do not have such a treaty. The Model Treaty is by no means a binding template. The states can freely decide on any changes, deletions, and additions. However, the Model Treaty does represent a distillation of the international experience gained with the implementation of such mutual legal assistance treaties, in particular between states representing different legal systems.
The Scope of Mutual Legal Assistance
The earliest international instruments on mutual legal assistance referred primarily to the hearing of witnesses and other taking of evidence. The scope has been constantly expanded. The listing in Article 18(1) of the Palermo Convention illustrates what types of measures are envisaged under more modern instruments:
- Taking evidence or statements from persons
- Effecting service of judicial documents
- Executing searches and seizures, and freezing; examining objects and sites
- Providing information, evidentiary 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
Most of the items on the above list are familiar from Article 7(2) of the 1988 Convention, Article (2) of the U.N. Model Treaty and paragraph 1 of the Commonwealth Scheme, as well as from many bilateral instruments. The Palermo Convention, however, allows several forms of assistance that were not envisaged under most earlier instruments. Examples include the freezing of assets (under Point c), video conferences (Article 18(18)), and what is known as the “spontaneous transmission of information,” whereby the authorities are allowed, even without a prior request, to pass on information to the competent authorities of another state.
Grounds for Refusal of a Request for Mutual Legal Assistance
There are several basic common grounds for refusal to grant a request for mutual legal assistance:
- The absence of double criminality
- The offense is regarded as a political offense
- The offense is regarded as a fiscal offense
- The granting of mutual legal assistance would be counter to the vital interests (ordre public) of the requested state
Absence of double criminality. A longstanding rule in international instruments has been that a state may decline mutual legal assistance if the offense in question is not an offense under its laws. More recent instruments, however, give the requested state the discretionary option of providing the assistance even if the act in question is not an offense under its laws.
Political offenses. In respect to extradition, the political nature of the offense is generally a mandatory cause for refusal. In respect to mutual legal assistance, in turn, this is generally only an optional reason for refusing cooperation. Moreover, over the years the possibility or obligation to refuse assistance in such conditions has in general been curtailed, in particular with a view toward the need to combat terrorism (see, e.g., Article 2 of the 1959 Council of Europe Convention, when read together with Article 8 of the European Convention on the Suppression of Terrorism of January 27, 1977).
Fiscal offenses. Under the 1959 Council of Europe Convention, mutual legal assistance may be refused where the requested state considers the offense to be a fiscal offense. To restrict the scope of these grounds of refusal, an additional protocol to the European Convention was drawn up at the same time, in 1959. Signatories to this additional protocol undertake not to refuse assistance on the grounds that the offense in question is a fiscal offense.
According to Article 18(22) of the Palermo Convention, states parties may not refuse a request for mutual legal assistance on the sole ground that the offense is also considered to involve fiscal matters.
Violation of the vital interests of the requested state (ordre public). Generally speaking, conventions on mutual legal assistance on criminal matters provide that the requested state can refuse assistance that it deems might endanger its sovereignty, security, law and order, or other vital interests (see, e.g., Article 18(21)(b) of the Palermo Convention).
Conflict with the laws of the requested state. Since the procedural laws of states differ, it is possible that some measure requested by a state (such as electronic surveillance of a suspect) is not allowed by the laws of the requested state. International instruments generally specify such a conflict to be grounds for refusal (see, e.g., Article 18(21) of the Palermo Convention).
Bank secrecy. One relatively common ground for refusal is that granting the request would be contrary to bank secrecy. The scope of this ground for refusal has been restricted during recent years. In line with this development, Article 7(5) of the 1988 Convention and Article 18(8) of the Palermo Convention stipulate that states parties shall not decline to render mutual legal assistance on the ground of bank secrecy.
The need to indicate the ground for refusals. Good practice in mutual legal assistance requires that the requested state, if it refuses to grant assistance, should indicate the grounds for such refusal (see, e.g., Article 18(23) of the Palermo Convention, Article 19 of the 1959 Council of Europe Convention, and paragraph 6(3) of the Commonwealth Scheme).
The Mutual Legal Assistance Procedure
Letters rogatory. The traditional tool of mutual legal assistance has been letters rogatory, a formal mandate from the judicial authority of one state to a judicial authority of another state to perform one or more specified actions in the place of the first judicial authority (see, e.g., 1959 Council of Europe Convention, chap. 2). The concept of letters rogatory had been taken from civil procedure and focuses on judicial action in the taking of evidence. More recent international instruments simply refer to “requests.”
In international practice, letters rogatory have typically been transmitted through diplomatic channels. The request for evidence, almost always originating from the prosecutor, is authenticated by the competent national court in the requesting state and then passed on by that state’s foreign ministry to the embassy of the requested state. The embassy sends it on to the competent judicial authorities of the requested state, generally through the foreign ministry in the capital. Once the request has been fulfilled, the chain is reversed.
Central authorities or direct contacts? Increasingly, treaties require that states parties designate a central authority (generally, the ministry of justice) to whom the requests can be sent, thus providing an alternative to diplomatic channels. The judicial authorities of the requesting state can then contact the central authority directly. Today, to an increasing degree, even more direct channels are being used, in that an official in the requesting state sends the request directly to the appropriate official in the other state.
Direct requests may also be possible under some instruments in case of emergency. For example, Article 15(1) of the 1959 Council of Europe Convention allows the judicial authority of the requesting state to send the letter of request directly to the competent judicial authority of the requested state. Article 18(13) of the Palermo Convention allows the possibility that, in urgent cases and when the states in question agree, the request can be made through the International Criminal Police Organization, if possible.
Execution of the Request for Mutual Legal Assistance
Law governing the execution. The procedural laws of states differ considerably. The requesting state may require special procedures (such as notarized affidavits) that are not recognized under the law of the requested state. Traditionally, the almost immutable principle has been that the requested state should follow its own procedural law.
This principle has led to difficulties, in particular when the requesting and the requested state represent different legal traditions. For example, the evidence transmitted from the requested state may be in the form prescribed by the laws of this state, but such evidence may be unacceptable under the procedural law of the requesting state.
The 1959 Council of Europe Convention is one international instrument that has been drafted to apply to states representing two quite different legal traditions, the common law and the continental law systems. Although Article 3(1) of this convention follows the traditional principle referred to above, the commentary notes that the requesting state can ask that witnesses and experts be examined under oath, as long as this is not prohibited in the requested state.
According to Article 7(12) of the 1988 Convention, a request shall be executed in accordance with the domestic law of the requested state and, to the extent not contrary to the domestic law of the requested state and where possible, in accordance with the procedures specified in the request. Thus, although the 1988 Convention does not go so far as to require that the requested state comply with the procedural form required by the requesting state, it does clearly exhort the requested state to do so. This same provision was taken verbatim into Article 18(17) of the Palermo Convention.
Promptness in fulfilling the request. One of the major problems in mutual legal assistance worldwide is that the requested state is often slow in replying, and suspects must be freed due to absence of evidence. There are many understandable reasons for the slowness: a shortage of trained staff, linguistic difficulties, differences in procedure that complicate responding, and so on. Nonetheless, it can be frustrating to find that a case must be abandoned because even a simple request is not fulfilled in time.
The 1988 Convention does not make any explicit reference to an obligation on the part of the requested state to be prompt in its reply. The 1990 U.N. Model Treaty (Article 6) does state that requests for assistance “shall be carried out promptly.” Paragraph (1) of the Commonwealth Scheme calls for the requested state to grant the assistance requested as expe-ditiously as practicable.
The Palermo Convention is even more emphatic about the importance of promptness, and makes the point in two separate provisions. Article 8(13) of the Palermo Convention provides that if the central authority itself responds to the request, it should ensure speedy and prompt execution. If the central authority transmits the request on to, for example, the competent court, the central authority is required to encourage the speedy and proper execution of the request. Article 18(24) provides that the request is to be executed “as soon as possible” and that the requested state is to take “as full account as possible of any deadlines suggested by the requesting State Party and for which reasons are given.”
Good practice in execution. Other elements of “good practice” in mutual legal assistance also worked their way into the Palermo Convention, making the life of the practitioner easier than under, for example, the 1988 Convention. According to Article 18(24) of the Palermo Convention:
- the requested state should not only execute the request as soon as possible but also “take as full account as possible of any deadlines suggested by the requesting State Party”;
- the requested state should respond to reasonable requests by the requesting state for information on progress of its handling of the request; and
- the requesting state should promptly inform the requested state when the assistance sought is no longer required.
Article 18(25) of the Palermo Convention states that mutual legal assistance may be postponed by the requested state party on the ground that it interferes with an ongoing investigation, prosecution, or judicial proceeding. Article 7(17) of the 1988 Convention is in this respect similar.
Article 18(26) of the Palermo Convention states that before refusing a request for mutual legal assistance or postponing its execution, the requested state should consult with the requesting state to consider whether assistance may be granted subject to such terms and conditions as it deems necessary. (The 1988 Convention (Article 7(18)) called for consultations only in the case of postponements, not refusals.) The model for the wider formulation used in the Palermo Convention was taken from Article 4(4) of the 1990 U.N. Model Treaty.
Confidentiality of information and the rule of speciality. Once the information has been sent by the requested state to the requesting state, how can it be used?
The requested state may ask that any information provided be kept confidential except to the extent necessary to execute the request (this is provided, for example, in Article 18(5) and 18(20) of the Palermo Convention). However, the situation may arise that the information received in respect of one offense or suspect at the same time exculpates another suspect in a completely separate procedure. To address this potential problem, Article 18(20) of the Palermo Convention goes on to provide that the state receiving the information is not prevented from disclosing it in its proceedings if this information is exculpatory to an accused person. (The provision also deals with the necessity to inform and, if requested, consult with the other state prior to such disclosure.)
Article 18(19) of the Palermo Convention embodies the rule of speciality: The state receiving information may not transmit or use it for investigations, prosecutions, or judicial proceedings other than those stated in the request without the prior consent of the requested state party. Again, however, exculpatory information may be disclosed.
Costs. According to Article 18(28) of the Palermo Convention, the ordinary costs of executing a request shall be borne by the requested state party, unless otherwise agreed by the states parties concerned. If expenses of a substantial or extraordinary nature are or will be required to fulfill the request, the states parties shall consult to determine the terms and conditions under which the request will be executed, as well as the manner in which the costs shall be borne. This latter provision has been modeled on, for example, Article 8(3) of the Canadian-U.S. treaty and paragraph 12(3) of the Commonwealth Scheme.
Transfer of Proceedings
A relatively new option in international criminal justice is for the state in which the offense took place to transfer proceedings to another state, often the state in which the suspect is found. This would be an appropriate solution in cases where this other state appears to be in a better position to conduct the proceedings or the defendant has closer ties to this state—for example, because the defendant is a citizen of this state.
One multilateral convention has been adopted on the transfer of proceedings. Within the framework of the Council of Europe, the European Convention on the Transfer of Proceedings in Criminal Matters was signed in 1972 and entered into force in 1978. It has not been widely ratified, however; of the 45 member states of the Council of Europe, only 19 states are currently parties (as of May 4, 2004).
The convention in itself is complicated, but the underlying concept is simple: When a person is suspected of having committed an offense under the law of one state party, that state may request another state party to take action on its behalf in accordance with the convention, and the latter would prosecute it under its own law. The convention requires double criminality.
The U.N. has sought to promote the development of bilateral and multilateral agreements on this subject, by preparing a Model Treaty on the Transfer of Proceedings in Criminal Matters (1990). This is only a framework treaty, which has to be adapted to the specific requirements of the two or more states that are negotiating such a treaty.
Recognition of Judgment
For a variety of reasons, states may want judgments passed by criminal courts in one state to be carried out in another. There are two general mechanisms for this. One, which applies to all types of judgments (including imprisonment, fines, confiscation, and disqualification from certain rights), is that of recognition of judgment. The other relates specifically to the transfer of sentenced persons from one state to another. Both mechanisms are designed for use primarily when the offender has closer ties to the state where the enforcement of the judgment is desired rather than to the state where the judgment was passed. (For example, the offender may be a resident in the state in question.)
In 1970, the Council of Europe adopted a convention on the international validity of criminal judgments. This was followed by a spate of bilateral instruments on the same topic—for example, between France and several African states.
The process outlined by the 1970 Convention is that the state where the judgment was passed requests a second state to take over the enforcement of the judgment. If the requested state is prepared to act, this request will then be brought before a court (or, optionally, an authority) in the requested state (Articles 37-52). This court is charged with ensuring that the conditions laid out in the convention are met and with “translating” the judgment into one that is recognized by the laws of that jurisdiction. The court is bound by the findings as to the facts in the case.
The convention can be invoked only by the state where the judgment was passed (Article 3(2)). Thus, it cannot formally be invoked by the state where the judgment would be enforced, much less by the offender. (Nonetheless, the convention provides the offender with some rights to intervene in the process. In the case of judgments in absentia and “ordonnance penal,” the offender is provided some rights of intervening, under Article 24 ff. More important, the offender is to be heard by the court in the requested state regarding the enforcement, under Article 39.)
According to the convention, the conditions for recognition of judgment include double criminality (Article 4). Considerations of ordre public and related concerns of justice may be taken into account (Articles 6 and 7). The convention also notes the principle of ne bis in idem—in other words, the prohibition of double jeopardy (Article 53).
Once the judgment has been recognized under the convention, the enforcement is to be governed only by the law of the requested state. As a result, questions of conditional release and correctional treatment and the like are decided by this latter state. One exception is made: Also the requesting state can exercise the right of amnesty or pardon (Articles 10 and 12).
In October 1999, the European Union agreed on the importance of mutual recognition of decisions and judgments, which, in its view, “should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union.” The argument was that already today, the member states of the European Union share fundamental values and legal principles. The authorities of a member state should have confidence in the operation of the legal system of the other states and (much as is done within the United States on the basis of Article 4(1) of the Constitution) should therefore be prepared to give full faith and credence to any decision or judgment handed down in other states.
Work proceeded slowly. For a time, it seemed as if work on mutual recognition would be buried by the many technical problems involved. The terrorist attacks on September 11, 2001 changed the situation dramatically. Within only a few months, agreement was reached on an E.U. arrest warrant. Simply put, the new decision in fact replaces extradition among the E.U. member states with a new system whereby suspects and convicted offenders are “surrendered” to the requesting state. The process no longer needs to go through the central authorities. An arrest warrant issued by a court in one state will be recognized as valid throughout the European Union and is to be enforced.
A European arrest warrant may be issued for offenses punishable by the law of the issuing member state by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for punishments of at least 4 months. In some cases, the requested state must refuse to surrender the person in question. These are cases where the offense is covered by an amnesty in the requested state, ne bis in idem (double jeopardy), and the lack of criminal responsibility due to age.
Subsequently, the European Union adopted a second decision on mutual recognition, related to orders on the freezing of assets and evidence. In effect, a court decision in one member state to freeze the assets of a suspect (such as ban accounts) or evidence will immediately enter force throughout the European Union.
Transfer of Convicted Persons
International instruments on the transfer of convicted persons are assuming increasing importance. This is due largely to the increasing number of foreign suspects and convicted offenders to be found in pretrial detention and prisons. Among the benefits seen of the transfer of prisoners are (a) the strong state interest in how its citizens are treated abroad and in the future behavior of its citizens, (b) the increased probability of rehabilitation, (c) the improvement of bilateral relations, (d) the interest of law enforcement, (e) humanitarian consideration, and (f) administrative savings (Plachta, 1993, pp. 164-167).
The first U.S. treaty in which the transfer of prisoners was covered was with the Republic of Korea (ROK) in 1954: The Status of Forces Agreement provided that the ROK would give “sympathetic consideration” to any U.S. request for custody of American citizens sentenced by Korean courts (Plachta, 1993, pp. 143-144). In the 1951 NATO Transfer of Forces Agreement, this was reversed: The agreement provides that the authorities of the receiving state shall give “sympathetic consideration” to a request from the authorities of a sending state for assistance in carrying out a sentence of imprisonment pronounced by the authorities of the sending state within the territory of the receiving state.
In 1995, the U.N. General Assembly approved the U.N Model Agreement on the Transfer of Foreign Prisoners.
The various instruments tend to raise the same issues. The sentence should be final and enforceable (see, e.g., Article 3(1) of the Council of Europe Convention and Article 10 of the U.N. Model Agreement). There should be a certain minimum period left in the sentence (Article 3(1) of the Council of Europe Convention and Article 10 of the U.N. Model Agreement). The double criminality condition should be met (Article 6 of the Council of Europe Convention and Article 3 of the U.N. Model Agreement).
The offender should be a national of the enforcing state (Article 3(1) of the Council of Europe Convention). In the arrangements among the five Nordic States, permanent residents will also be considered; some other bilateral instruments may contain similar exceptions.
The request may emanate from either state concerned (Article 2(3) of the Council of Europe Convention, Article 4 of the U.N. Model Agreement). Both the Council of Europe Convention (Article 2(2)) and the U.N. Model Agreement (Article 4) also allow the prisoner (and the latter, even close relatives of the prisoner) a limited right of initiation. The consent of the prisoner is required (Article 7 of the Council of Europe Convention and Articles 5 through 7 and 9 of the U.N. Model Agreement). In particular, in some of the older bilateral instruments, consent was not a requisite; it was generally enough that the prisoner be heard regarding the request.
The administering state is entitled to adapt the sentence according to its national law (Articles 9 and 11 of the Council of Europe Convention and Article 6 of the U.N. Model Agreement) but is bound by the findings as to the facts (Article 11 of the Council of Europe Convention and Article 17 of the U.N. Model Agreement). This process of adaptation (recognition and conversion) is referred to as exequatur. Also in the bilateral U.S. treaties, the sentencing state has exclusive jurisdiction over proceedings intended to challenge convictions or sentences handed down by its courts, and the transferee is required to waive his or her rights to judicial review in the enforcing state as a precondition to transfer.
Either the sentencing or administering state may grant pardon and amnesty (Article 12 of the Council of Europe Convention and Article 22 of the U.N. Model Agreement).
With the increase in international travel, the improvement in technology and communications, the greater likelihood that a crime can have an impact beyond national borders, and the increased profits that can be made from organized crime, the need to obtain assistance from other states in bringing offenders to justice has expanded rapidly. The basic tools that can be used—in particular extradition and mutual legal assistance in criminal matters— have regrettably not evolved to keep pace with developments in crime.
Much of the everyday practice of extradition and mutual assistance continues to be based on bilateral and multilateral instruments that have been drafted many years ago. The transfer of proceedings, mutual recognition of judgments, and the transfer of prisoners remain rarities. Moreover, many states that are parties to instruments on these issues still do not have the necessary legislation or resources to respond to requests for extradition or mutual assistance. The following represent some of the problems commonly encountered:
Requests are often transmitted through diplomatic channels or from government to government, and the resulting delays may cause a carefully assembled case to collapse in the hands of the prosecutor.
The requesting state may misunderstand the formal requirements in the requested state as to the presentation and contents of the request. For example, the requesting state may not realize that, under some treaties, it must present documentation that the double criminality requirement is met, that the offense is extraditable, and that execution is consistent with the law of the requested party.
The requested state, in turn, may not always demonstrate flexibility in demanding more details about the offense and the offender. Often, very specific information may be difficult to provide if the investigation is still underway.
Nonetheless, some developments have taken place to strengthen the importance of international instruments in practice, in particular over the past 10 years.
Bilateral instruments are being increasingly replaced by multilateral instruments. Although bilateral instruments have been preferred, for example, by the common law states, the simultaneous existence of many international instruments complicates the work of the practitioner. For this and other reasons, the common law states are seeing the advantages of multilateral instruments that have a wide scope of application.
The earliest international instruments were based on lists of offenses. If an offense was not included in the list, extradition or mutual legal assistance could not be granted. More recent instruments tend to be generic, in that they apply to a broad scope of offenses.
Because courts have traditionally been cautious in applying coercive measures, the courts, in particular in common law states, have required prima facie evidence that the suspect had indeed committed the offense in question before a request for extradition would be granted. Because of the differences in the law of evidence and in criminal procedure in different states, such prima facie evidence was often difficult to provide. More recent instruments have generally regarded it as sufficient that the requesting state (at least if it belongs to a select group of states) produce a valid arrest warrant.
One of the most cherished principles in extradition law has been that states will not extradite their own nationals and will, at most, undertake to bring them to trial in their own courts. Today, more and more states are allowing extradition of their own nationals, although some conditions may be placed, such as that the national, if convicted, should be returned to his or her own state to serve the sentence.
The range of measures offered under mutual legal assistance instruments (and domestic laws in many states) has expanded. At first, the focus was on service of summons. Today, a wide range of measures are offered.
There is currently a clear trend toward elimination of the many grounds for refusal to extradite or grant a request for mutual legal assistance, such as the elimination of the political offense exception.
There is a trend toward granting greater rights to the person in question as an object (as opposed to subject) of the process and to greater consideration of how he or she would be treated or punished in the requesting state. Consideration can be given, for example, to the possibility of persecution on the grounds of sex, race, religion, nationality, ethnic origin or political opinions, the possibility of unfair trial, and the possibility of punishment that, in the requested state, is deemed inhumane.
Another trend is toward less rigid procedural requirements, including direct communications and simplified procedure.
During the years after World War II, international cooperation in responding to transnational crime has expanded and deepened. International instruments have provided the main building blocks for this development. The pace of development has clearly quickened during the 1990s and the beginning of the new millennium. The 1988 U.N. “Drug Convention” and the 2000 U.N. Convention against Transnational Organized Crime are clear signs that multilateral instruments are assuming increasing importance. More such globally applicable instruments will undoubtedly be drafted. At the same time, however, states will continue to enter into bilateral arrangements with those states with which they share particular concerns and interests.
Along with the spread of transnational crime, these multilateral and bilateral instruments will also assume increasing importance. Law enforcement authorities, prosecutors, defense counsels, and judges will find that cases no longer have solely domestic connections; they must turn to their colleagues in other countries for assistance. Without international instruments, such assistance would be difficult if not impossible to obtain.