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.
e 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 Oce at Vienna.
iii
Contents
Page
I. Introduction .......................................................... 1
A. e Organized Crime Convention and the need for the present Manual ....... 2
II. Legal traditions and systems and how they aect the provision of international
legal assistance ......................................................... 7
A. Legal traditions .................................................... 9
B. e dualist/monist question .......................................... 9
C. A brief overview of the common law and civil law traditions ................ 11
D. How to address the dierences: exibility in the common and civil
law traditions ...................................................... 12
III. e 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. e principle of reciprocity ........................................... 23
IV. e Organized Crime Convention as the basis for international cooperation ....... 25
A. Scope ............................................................ 25
B. e Organized Crime Convention and pre-existing treaties ................. 26
C. Pre-existing extradition treaties ........................................ 27
D. Pre-existing mutual legal assistance treaties ............................... 27
E. e importance of checking ratication ................................. 27
V. Central authorities: the importance of communicating with the right people and
the case for domestic expertise in an international world ....................... 29
A. e central authority and the Organized Crime Convention ................ 30
B. e benets of a central authority and the duties it can perform ............. 30
C. e International Criminal Police Organization and its complementary
interaction with central authorities ..................................... 31
D. Police liaison ocer programmes and their complementary interaction
with INTERPOL and central authorities ................................ 32
E. Creating a central authority .......................................... 33
F. Stang and locating the central authority ............................... 36
G. e central authority and international sta: an argument for posting members
of the central authority abroad ........................................ 36
iv
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. e 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. Specic issues in processing incoming requests for the purpose of conscation
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 specic 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 certicate ............ 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
1
“Criminal groups have wasted no time in embracing today’s globalized economy and the
sophisticated technology that goes with it. But our eorts to combat them have remained
up to now very fragmented and our weapons almost obsolete. e 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 Ko Annan, foreword to United Nations Convention against Transnational Organized Crime and the
Protocols ereto (New York, United Nations, 2004).
1. e above quote from then Secretary-General of the United Nations Ko 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 rst place. ose who operate outside the law are in no way
bound by it; instead, they capitalize on the new international state of aairs, which allows them
newfound exibility and areas of operation, in which they enforce their own regime, which is well
funded and brutal in its approach.
1
e types of crimes anticipated by the United Nations Con-
vention against Transnational Organized Crime
2
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
oences, it is imperative that States requesting mutual legal assistance make every eort 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 exibility 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. ose 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 qualied lawyers.” (Bernard Rabatel, “Legal challenges in
mutual legal assistance”, in Denying Safe Haven to the Corrupt and the Proceeds of Corruption: Enhancing Asia-Pacic Coopera-
tion on Mutual Legal Assistance, Extradition, and Return of the Proceeds of Corruption—Capacity-Building Program, Anti-
Corruption Initiative for Asia and the Pacic of the Asian Development Bank (ADB) and the Organization for Economic
Cooperation and Development (OECD) (Manila, ADB; Paris, OECD, 2006), p. 38.
2
United Nations, Treaty Series, vol. 2225, No. 39574.
I. Introduction
2
Manual on Mutual Legal Assistance and Extradition
that they are asked to uphold.
3
e Organized Crime Convention was designed not only to combat
the criminal acts listed therein, but also to address the challenges facing States when they are tasked
with cooperating internationally while at the same time maintaining their sovereignty and uphold-
ing their national laws.
4
e tension between these two occasionally competing interests need not
be the impediment that it once was, and cannot continue to be an obstacle if States wish to truly
take on the challenge of global crime. e challenges to international cooperation are many. ey
have been well documented by many experts and will be referred to throughout the body of the
present Manual. Reference will also be made to the most recent responses to those challenges
demonstrating that the state of the law is certainly not static, that change can be eected through
practical eorts made on the part of States and that those changes need not be of such a novel
nature that the sovereignty of any nation is threatened.
A. The Organized Crime Convention and the need for the present Manual
3. e Organized Crime Convention can be viewed as a model or blueprint for international
cooperation in extradition and mutual legal assistance. Article 16 of the Convention allows States
parties that make extradition conditional on the existence of a treaty to consider the Convention
as the legal basis for extradition in their relations with other States parties. e Convention also
allows for exibility in approach in that all oences under the Convention are deemed to be
included in existing extradition treaties, thus allowing States parties ease of implementation with
respect to those crimes. at in turn lessens the eort and potential expense of implementing that
section of the Convention.
4. With respect to mutual legal assistance, article 18 of the Convention is often referred to as a
“mini-treaty”. Article 18 allows States parties to provide one another the widest mutual legal assis-
tance possible in relation to the oences under the Convention. At the time of writing, the Con-
vention has been ratied by over 160 States, which are listed in the United Nations Oce on
Drugs and Crime (UNODC) online directory of competent national authorities.
5
It is hoped that
the Convention will increasingly be used as a legal basis for extradition and mutual legal
assistance.
5. e Conference of the Parties to the United Nations Convention against Transnational Organ-
ized Crime, in its resolution 5/8, entitled “Implementation of the provisions on international
cooperation of the United Nations Convention against Transnational Organized Crime”,
6
directed
the Secretariat to develop a practical guide to facilitate the drafting, transmission and execution of
requests for extradition and mutual legal assistance pursuant to articles 16 and 18 of the Conven-
tion in cases in which the Convention was used as a basis. e present Manual has been prepared
in response to that mandate.
3
For a discussion on the extent of global organized crime, the exibility of organized criminals and their ability to capi-
talize on failed States and to feed the desires of non-failed States, see Misha Glenny, McMaa: A Journey rough the Global
Criminal Underworld (New York, Knopf, 2008).
4
Philip Reichel described the challenge in the following manner: “e tricky part, as you can well imagine, is to provide
a specialized supranational structure that combats transnational crime but does not violate the spirit of each country’s crimi-
nal code or criminal procedure.” (Philip L. Reichel, Comparative Criminal Justice Systems: A Topical Approach, 5th ed. (Upper
Saddle River, New Jersey, Pearson Prentice Hall, 2008), p. 11).
5
Available from www.unodc.org/compauth/en/index.html.
6
CTOC/COP/2010/17, chap. I.A.
3
Introduction
Who the Manual is for
6. “In earlier times, most prosecutors would go through their entire career without ever having
to obtain evidence from outside national borders.”
7
is is certainly not the case today. e Manual
is designed to be used by three major groups that are involved in international legal assistance:
• Central andothercompetent national authorities
• Policymakers
• Criminaljusticepractitioners,includinglawyers,investigators,judgesandmagistrates,who
are involved in international legal assistance.
7. Some of those who read the Manual will be experienced practitioners of criminal law who
have been regularly involved in international cooperation cases, either in a management or an
operational position, while others may be novices in that area. e Manual oers practical step-
by-step suggestions on how best to initiate and follow through on the processes of both extradition
and mutual legal assistance as a requesting State and how best to respond to and follow up on
incoming requests when representing the interests of a requested State. ese suggestions are
intended to benet both the novice and the experienced practitioner. e suggestions are imparted
to the reader through summaries, case studies and quotes from authors who are leading practition-
ers in the eld of international cooperation. e text itself is also augmented with various checklists,
which are appended as best practice guidelines (see annexes I-VI).
8. Certain sections of the Manual will be of particular interest to those practitioners who are
responsible for the management of law and policy within their respective Governments and are in
a position to eect change. Topics such as the importance, organization and creation of central
authorities and their place within a country’s justice apparatus are discussed, and the importance
of early and constant communication between States throughout the mutual legal assistance and
extradition process is stressed repeatedly throughout the Manual. Emphasis is also placed on utiliz-
ing existing tools, such as the Mutual Legal Assistance Request Writer Tool, to aid in that
communication.
The Manual in relation to other established tools
9. In order to promote eective communication, UNODC provides the following tools that help
ensure that practitioners speak to the right people when requesting extradition or mutual legal
assistance, communicate eectively in writing when making requests, can speak knowledgeably in
the area of mutual legal assistance and extradition and can gain insight into how dierent States
view the law and procedure in these areas:
• e onlinedirectoryofcompetent national authorities
• e Mutual Legal Assistance RequestWriterTool
• e onlinelegallibrary
• e humantrackingcase law database
8
7
Kimberly Prost, “Breaking down the barriers: international cooperation in combating transnational crime”, p.13.
Available from www.oas.org/juridico/mla/en/can/en_can_prost.en.html.
8
Available from www.unodc.org/unodc/en/legal-tools/index.html.
4
Manual on Mutual Legal Assistance and Extradition
10. Manuals on the Model Treaty on Mutual Legal Assistance in Criminal Matters and the Model
Treaty on Extradition have already been published.
9
e present Manual should be viewed as one
of a suite of tools provided by UNODC that can be used in conjunction with one another in
accomplishing the goal of eective international cooperation in general, and with respect to the
Organized Crime Convention in particular. e wealth of information that is readily available from
recognized experts in the eld is ever expanding and can only help practitioners and Governments
to achieve their goals. Recent reviews by expert working groups of the tools prepared by UNODC
have emphasized that the tools are of high quality but are underutilized.
10
e present Manual
stresses the fact that utilization of the tools will facilitate the drafting of documents in anticipation
of requesting international assistance and that the tools themselves are a highly valuable source of
information, allowing requested and requesting States to educate themselves with respect to one
another and to engage in eective communication when discussing issues.
11
How to use the Manual
11. e Manual has been divided into a number of chapters, which are intended roughly to
follow the thought processes a practitioner would go through in deciding whether to use the
Organized Crime Convention as the legal basis for either an outgoing or incoming mutual legal
assistance or extradition request. Within the text of each chapter, there are additionally a number
of dierent subheadings and text boxes, which are colour coded for ease of reference.
• e greyboxes showquotes from various sources thatcrystallize the issue thatistobe dis-
cussed in each chapter of the Manual. ere will usually be two of these quotes, one at the
beginning of the chapter and one at the end to reinforce what has been discussed.
• e blue boxes summarize the essential points to be stressed in each chapter and will
normally make reference to the various sections and subsections of the treaty and the best
practices of various countries.
• eyellowtextboxesmakereferencetosituationsorcasesfromvariousjurisdictionsaround
the world. ese illustrate how mutual legal assistance and extradition cases are adjudicated
around the world in a general sense and, more particularly, how the provisions of the Organ-
ized Crime Convention have been perceived by the States themselves or by their courts.
12. All of the sections of the Manual show that, at an operational level, there must be eective
coordination, a knowledgeable group of practitioners and a desire to move the law forward based
upon sound and timely legal analysis. At the same time, there must be an acknowledgement and
a management of expectations with respect to what one country can do for another. is entails
eective communication and exchange of information or knowledge regarding their respective
systems, rather than curt refusals and statements that requests cannot be complied with. Addition-
ally, there must be eective communication before, during and after the requests have been made.
9
Available from www.unodc.org/unodc/en/legal-tools/model-treaties-and-laws.html.
10
See the 2004 report of the Informal Expert Working Group on Eective Extradition Casework Practice (available
from www.unodc.org/pdf/ewg_report_extraditions_2004.pdf).
11
As an example of the usefulness of the tools prepared by the United Nations Oce on Drugs and Crime (UNODC),
it should be noted that the central authority of the Russian Federation, in a conference room paper entitled “Requesting
mutual legal assistance in criminal matters from G8 countries: a step-by-step guide”, encouraged countries to refer to the
UNODC Mutual Legal Assistance Request Writer Tool for “additional guidance on making mutual legal assistance requests
to the Russian Federation”.
5
Introduction
13. In order to assist the reader, a brief glossary has been provided at the end of the Manual for
ease of reference with regard to some of the terminology and acronyms used herein.
A point to ponder while using the Manual:
Cooperation is as much of a way of thinking and working as it is a collection of
“tools” or processes.
Source: Pauline David, Fiona David and Anne Gallagher, ASEAN Handbook on International Legal Cooperation in Tracking
in Persons Cases (Jakarta, Association of Southeast Asian Nations, Australian Agency for International Development and
United Nations Oce on Drugs and Crime, 2010), p. 23.
7
“But eective implementation is not limited to legislation and administration. It runs far
deeper than that. A country may have an excellent legislative and treaty scheme for mutual
assistance and an established administrative process and it still may be virtually impossible
to provide eective assistance; because the best designed system is only as good as the
people who operate it on a practical level. In many instances, success in mutual assistance
is dependent almost entirely on the knowledge and most critically—the exibility—of the
authorities request and, even more importantly, providing the assistance.”
Source: Kimberley Prost, “Breaking down the barriers: International cooperation in combating transnational crime”. Available
from www.oas.org/juridico/mla/en/can/en_can_prost.en.html.
14. Over 160 States are parties to the Organized Crime Convention and are now obligated to
cooperate internationally as per the terms of the Convention. In order to eectively combat trans-
national organized crime, national authorities must be able to work together on a variety of levels,
including the provision of international legal assistance. Cooperating in this realm requires partici-
pants to become aware of and appreciate dierences in legal traditions and systems so that they
can work eectively with one another and provide the important exibility of approach that is the
hallmark of eective international cooperation.
15. All people, legal practitioners included, are products of the society and legal norms within
which they live. Lawyers and the judiciary, of course, have the added dynamic of having studied
the law of their country and then gone on to practise it, usually without giving much thought to
the legal traditions or systems of other nations. Mutual legal assistance and extradition requests
put that legal and societal knowledge decit in sharp relief, sometimes with negative results. How
can the habits and professional biases ingrained by a lifetime of practising within one legal tradi-
tion be overcome, and how can knowledge of another legal tradition that usually takes a lifetime
of practice to gain be achieved? e answer lies in exhibiting a desire to appreciate another country’s
legal system and to impart knowledge of one’s own legal system to others.
12
It should always be
kept in mind that, although legal traditions and systems may vary in their approach, all of them
are in place to ascertain the guilt or innocence of the accused. is commonality of purpose provides
a basis for international cooperation.
12
“Both bilateral and multinational cooperation in law enforcement present many problems for the countries involved.
However, increasing transnational crime suggests that the potential benets of cooperative eorts outweigh the problems. A
necessary step in achieving that cooperation is an increased understanding of criminal justice systems in the various nations.
us, more people taking an international perspective towards criminal justice will have denite universal benets.” (Reichel,
Comparative Criminal Justice Systems, p. 13).
II. Legal traditions and systems and how they affect
the provision of international legal assistance
8
Manual on Mutual Legal Assistance and Extradition
16. ere are few aspects of a country and a society that are as fundamental to its identity as
the laws that it imposes on its citizenry.
13
e law is part of the fabric of a nation and is a reec-
tion of its history and its culture. Sovereignty and legal systems can be used as both a sword and
a shield, and criminals are well aware of this. “e challenge for law enforcement authorities in
every nation is that sovereignty, a fundamental principle which grounds the relations of States, is
also a major tool in the armoury of the criminal element of our societies. Criminals depend heavily
upon the barriers of sovereignty to shield themselves and evidence of their crimes from detection.”
14
17. Counsel grow accustomed to the legal regime within which they work on a daily basis, and
it can sometimes be dicult to overcome the biases that become almost second nature when there
has been limited exposure to other legal systems. Lawyers are usually trained in one of the major
legal traditions of the world and, even today, it is relatively rare to see a lawyer who has been
trained and practises in more than one of the major traditions. is is particularly the case for
criminal law, in which the overwhelming number of cases pleaded before the courts in any juris-
diction are factually and procedurally based in one jurisdiction.
18. Government lawyers also view themselves as being the guardians of their nation’s laws and
can view the unfamiliar as being the unobtainable, particularly as it relates to the possible dilution
of laws that are designed to govern and protect the country’s citizenry. Legal systems are heavily
entrenched in a society, and particularly among members of the legal profession and judiciary.
“Upholding” the law has sometimes meant being inexible in its application, perhaps nowhere
more so than when members of one legal tradition ask members of another legal tradition to adopt
their ways with respect to international cooperation. Such a reaction can sometimes have negative
consequences when it comes to international cooperation.
19. Much has been said regarding the need to “break down barriers” or enter into a new era
of cooperation and exibility, but those who have been involved in the eld of transnational
crime and international cooperation know that this is easier said than done.
15
Treaties create
binding obligations on States parties,
16
but the actual execution of an extradition or mutual legal
assistance request also requires analysis and consideration of the domestic laws of the requesting
and requested States. Gaining a basic understanding of the legal traditions of the world, ascer-
taining which legal tradition a country is subject to and then determining the legal systems that
each country utilizes are necessary aspects of international cooperation. In the present Manual,
a “legal tradition” is the rationale and methodology behind how laws are created, interpreted
and enforced in a country, whereas a “legal system” is how an individual country utilizes or
interprets that legal tradition, particularly with respect to procedure. e Manual will start by
looking at legal traditions.
13“
A legal tradition puts the legal system into a cultural perspective. It refers to deeply rooted and historically condi-
tioned attitudes about things such as the nature of law, the role of law in society, how a legal system should be organized and
operated, and the way the law is or should be made, applied or perfected.” Ibid., p. 100, paraphrasing John Henry Merryman,
e Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin Western America, 2nd ed. (Stanford, California,
Stanford University Press, 1985).
14
Prost, “Breaking down the barriers”, p. 2.
15
2004 report of the Informal Expert Working Group on Eective Extradition Casework Practice; Prost, “Breaking
down the barriers”.
16
See articles 26 and 27 of the Vienna Convention of the Law of Treaties (United Nations, Treaty Series, vol. 1155,
No.18232).
9
Legal traditions and systems and how they affect the provision of international legal assistance
A. Legal traditions
20. Over the centuries, a number of dierent legal traditions have evolved; these traditions are
now the basis for the law in every country. Owing to historical factors, some countries have blended
legal traditions, creating unique procedural and legal requirements that may vary among dierent
regions of the same country and/or for dierent areas of law. Ongoing communication with the
central authority of a country can avoid any challenges that may arise as a result of this interweav-
ing of legal traditions. Some legal traditions are more widespread than others; these will be examined
more closely later in the present chapter. Given the global scope of transnational organized crime,
however, it is useful to at least be cognizant of all of the major traditions of the world, given that
mutual legal assistance and extradition requests may truly be global in scope.
21. e three major legal traditions are the following:
•
e civil law tradition is premised on the system of codication of laws, thus giving clear
direction to a State’s citizenry as to what the law is. It is the most commonly found legal
tradition in the world.
• ecommonlawtraditionispremisedonthelawbeingdevelopedthroughjurisprudence,
essentially meaning that the courts make the law. Common law originated in England and
is the legal tradition typically followed in the Commonwealth countries of the former
British Empire. It is the second most commonly found legal tradition in the world.
• e Islamic legal tradition is premised on the fact that there is no distinction between a
legal system and other controls on a person’s behaviour. e tradition operates under the
assumption that Islam, as a religion, provides all the answers to questions about appropriate
behaviour and acceptable conduct. It is important to note that not all Muslim societies
are bound solely by Islamic law and that some have a blended approach to their laws that
incorporates other legal traditions.
17
,
18
B. The dualist/monist question
22. Countries also have dierent traditions for creating and incorporating international law. ese
are known as the dualist and monist traditions. Each country will utilize the tradition to which it
subscribes in order to implement the Organized Crime Convention pursuant to its article 34. at
article requires each State to take the “necessary measures, including legislative and administrative
measures” in accordance with domestic law to implement the Convention. It further requires that
oences be established in the domestic law of each party, in accordance with articles 5, 6, 8 and
23 of the Convention, independent of the transnational nature of the oence or the involvement
an organized criminal group. e only exception requiring the involvement of an organized criminal
group is for oences pursuant to article 5. In combating organized crime, each State may adopt measures
that are stricter and more severe than those provided for by the Convention (art. 34, para. 3).
17
Countries such as Jordan and Kuwait have a mixture of civil and Islamic law; Kenya and Nigeria, on the other hand,
have a mixture of common and Islamic law. (Philip Reichel, Comparative Criminal Justice Systems, A Topical Approach, 3rd ed.
(Upper Saddle River, NJ, Prentice Hall, 2002, p. 98.)
18
Reichel also mentions the socialist legal tradition as one of the four legal traditions found in the world today, although
there is some dispute among scholars as to whether it can still be viewed as such. e socialist legal tradition is the newest of
the legal traditions mentioned in the present Manual. Some scholars view it as being a modication of the civil law tradition.
Other scholars, including Reichel, believe that it warrants consideration as its own, distinct legal tradition. e socialist legal
tradition is evolving with the new world order and appears to have become an amalgam of other legal traditions and systems.
(Reichel, Comparative Criminal Justice Systems, 3rd ed., p. 81.)
10
Manual on Mutual Legal Assistance and Extradition
23. In a dualist system, international and domestic law are viewed as separate entities and, for
the most part, they function independently of one another. As a general rule, States that follow
the common law tradition are dualist in nature, although there are exceptions. A State can ratify
an international treaty or convention without it automatically having the force of law in that
particular State until the State enacts new or amends existing domestic legislation to reect the
provisions of the treaty or convention. In dualist systems, once the State raties the treaty or
convention, it is compelled to ensure that its domestic legislation reects the requirements of that
particular treaty or convention. e time period between ratication and enactment in domestic
law can be lengthy, as legislative drafters must draft the new domestic legislation and it must go
through whatever government process exists for it to become law.
24. In a monist system, international and national law are of a unied nature. us, when a
State raties a treaty, the treaty automatically has the same authority as domestic law and there is
no need to go through the additional step of including it in domestic legislation. Many civil law
States have a monist system, although, as with dualist States and the common law tradition, there
are exceptions. ere are two points to consider with monist systems: a State may consider only
certain treaties as applicable to domestic law, and the treaty may be viewed as inferior to any
constitutional provisions that exist in the State. Finally, monist States may need to amend their
domestic law to create penalties or provide for other measures that are not clearly set forth in the
treaty, if the treaty requires them to do so.
An example of a dualist regime awaiting incorporation of the Organized Crime Convention
into its domestic legislation:
e United Kingdom of Great Britain and Northern Ireland notied the Secretariat that
it did not have practical examples demonstrating the eective use of the Organized Crime
Convention, as that treaty had not yet been included in its domestic legislation on extradi-
tion ... it was noted that the United Kingdom was currently amending its domestic legisla-
tion in that regard.
Source: Conference room paper entitled “Catalogue of cases involving extradition, mutual legal assistance and other forms
of international legal cooperation requested on the basis of the United Nations Convention against Transnational Organized
Crime” (CTOC/COP/2010/CRP.5 and Corr.1), para. 98.
25. e descriptions of legal traditions and legal systems found in the present chapter provide
only an overview. Variations in the traditions are to be found in the legal systems of each State,
along with the possible commingling of dierent legal traditions. As a result, there may be con-
siderable variation in the rules of legal procedure, evidence and legislation, even among States that
share the same legal tradition. is illustrates the need for practitioners to apprise themselves of
the various legal traditions and systems so that eective communication can take place between
requested and requesting States.
26. As previously mentioned, the civil law tradition and the common law tradition are the two
most prevalent legal traditions. For that reason, the Manual will focus on comparing and contrast-
ing the two.
11
Legal traditions and systems and how they affect the provision of international legal assistance
C. A brief overview of the common law and civil law traditions
27. As has been previously stated, civil law is based on the codication of laws, while common
law is based on law made by judges, or stare decisis. e major dierence between the two tradi-
tions that causes the greatest challenge for practitioners in international legal cooperation relates
to the criminal procedures that each tradition follows.
19
Procedurally, the civil law tradition follows
the premise that the trial is an ongoing investigation in a search for the truth rather than a com-
petition between two sides.
20
is allows the judge to take all information that is proered as
evidence as part of the continuum of the investigation. As a result of being part of the investigative
process, the judge can decide what the relative strength of each piece of evidence is by examining
it as part of the investigation.
28. By contrast, the adversarial system found in the common law tradition “assumes truth will
arise from a free and open competition over who has the correct facts. e struggle is between the
State on one side and the defendant on the other.”
21
A salient part of the litigation process in
adversarial common law traditions is the subjection of all information, both documentary and oral,
that is intended for the court to rules of procedure and evidence. Argument and cross-examination
regarding the admissibility of evidence are allowed; only after the judge has ruled on its admissibil-
ity will evidence be admitted and considered by the judge.
29. ese dierences in procedure between the civil law and common law traditions are of par-
ticular importance in the mutual legal assistance and extradition process. is is especially the case
in the mutual legal assistance process, in which evidence is being gathered, as there are dierences
in who does the gathering (a magistrate in the civil law tradition or an investigator in the common
law tradition) depending on the matter in which it is being gathered: no rules of evidence bar
admissibility in the civil law tradition, while multiple evidentiary rules aect all aspects of an
investigation in the common law tradition. In the extradition process, the challenges are similar,
as evidence gathered in one legal tradition must be collated and presented in a form to which a
judge from another legal tradition can apply the rules of evidence and procedure.
30. e paragraphs above give a brief description of the major dierences between the common
law and civil law traditions, particularly as they relate to the duties and responsibilities of the judici-
ary. How does this translate into challenges in international cooperation? e following quote high-
lights typical challenges that may be faced with respect to mutual legal assistance requests by common
law and civil law systems and is illustrative of the challenges posed by the two systems regarding
items that practitioners within those two systems take for granted regarding witness statements:
A witness statement is sometimes admissible in a requesting State only if it meets specic
requirements:
• InterviewbyajudgeorbyapoliceoceroftherequestedState,ordirectquestion-
ing by a prosecutor, an investigating judge, or a police ocer of the requesting State
• Presence of the accused or his or her counsel, or both (either in person or via
videoconference)
• Statement made under oath by the accused, or verbatim statement or summary
(procès-verbal) of the interview with the accused
19
Reichel, Comparative Criminal Justice Systems, 5th ed., p. 162.
20
Ibid., p. 166.
21
Ibid., p. 169.
12
Manual on Mutual Legal Assistance and Extradition
• Originaldocuments or certied copies ofdocuments
At the same time, the requested State may have no such requirements for the admissibility
of witness statements.
22
31. With respect to extradition, the dierences between the two major legal traditions are even
more pronounced. In some legal systems arising from the civil law tradition, the judiciary has the
nal say in deciding whether to extradite an individual. In legal systems based on the common
law tradition, the extradition is a bifurcated process, usually involving an initial hearing by a court.
If the court grants the extradition request, the case is forwarded to the executive branch of the
Government, where the ultimate decision to surrender the fugitive is made. Depending on the
State, the decisions of either the court or the executive may be reviewed by a higher court before
the issue of surrender is nally decided. In some civil law jurisdictions, the decision to extradite
may be within the sole purview of the judiciary, with no executive involvement; however, this is
changing in some States.
23
32. e above brief discussion regarding the dierences between the substantive and procedural
aspects in the civil and common law traditions illustrates the challenges that exist when addressing
issues of international cooperation that involve two dierent legal traditions. e dierences may
seem insurmountable at times, but is there room for exibility in the approach? e next section
of the Manual addresses this important aspect of international cooperation.
24
D. Howtoaddressthedifferences:exibilityinthecommonandcivillawtraditions
33. e present Manual and other literature addressing the challenges of international cooperation
speak of the need for exibility in approach when it comes to requesting and providing mutual
assistance and extradition. e present section provides some examples and explains in general
terms how exibility can be found in the common law and civil law traditions. A basic understand-
ing of those legal traditions and how exibility is built into them is benecial when discussions
take place between requesting and requested States, as it allows both parties to speak knowledgeably
as to how such exibility can be found in their respective systems in an attempt to achieve a suc-
cessful outcome. Later in the present section, two hypothetical situations are given to explain that
dynamic in more concrete terms.
1. A summary of the differences between common and civil law procedures and
other practical differences
34. e following are some of the dierences between civil and common law countries with
respect to the requesting and provision of mutual legal assistance or extradition that may create
challenges:
22
Rabatel, “Legal challenges in mutual legal assistance”, p. 42.
23
An example of changing legislation can be found in Austria and Germany: with the entry into force of the European
arrest warrant, both Austria and Germany made substantial amendments regarding their extradition legislation. In both
countries, the initial decision on the extradition remains with the courts; however, Austrian and German legislation no longer
leave it for the courts to take the ultimate decision, but rather assigns this competence to the executive. In Austria, however,
in cases in which the request for extradition has been found to be inadmissible (by a prior decision rendered by the competent
judicial authority), the minister of justice must reject the request for extradition.
24
e United Nations Convention against Transnational Organized Crime exhorts signatories to provide the widest pos-
sible cooperation and to be exible in their approach to international cooperation (art. 1; art. 16, para. 8; and art. 18, para. 1).
13
Legal traditions and systems and how they affect the provision of international legal assistance
• Language and legal terminology: for example, an adavit or writ of habeas corpus may
not understood by civil law practitioners, or a commission rogatory or procès-verbal may
not be understood by common law practitioners.
• Role and functions of competent authorities: throughout the procedure, there may be a
lack of understanding of such roles and functions, in particular those of the juge d’instruction
(investigating judge) in civil law systems and the police, lawyers, prosecutors and judges
in common law systems.
• Criminal terminologyandtheelementsof the oence: this may cause problems of inter-
pretation of the double, or dual, criminality principle (e.g. conspiracy/association de
malfaiteurs).
• e law surrounding non-extradition of nationals: the law in civil law countries is often
misunderstood by common law practitioners. It is important to note that, unlike common
law countries, countries that do not extradite nationals often establish their jurisdiction on
the basis of the “active nationality” principle in compensation for that fact. is principle
allows those countries to apply their domestic criminal law to oences committed by their
nationals abroad.
• Condentiality: civil law practitioners may lack awareness of the fact that common law
States are often not in a position to maintain the condentiality of requests. As a conse-
quence, the contents of mutual legal assistance requests may be disclosed and prejudice
the proceedings.
• Judgementsinabsentia:traditionally,commonlawcountriesrejectthepossibilityofjudging
a person who was not personally present at trial, whereas civil law countries accept judge-
ments in absentia.
25
2. Flexibility in common law
35. How a judge adjudicates in the common law tradition and what results from the adjudica-
tion can be explained in the following quote:
Luckily for the judge, and therefore for the nations under this tradition, common law provides
for exibility by empowering judges to develop solutions to unique cases by “making law”
(Postema, 1986). e only restraint requires the solution to be built from a base of existing
law. e result is law established by judicial decision and precedent rather than issuing from
statutes, codes or divine proclamation.
26
3. Flexibility in civil law
36. Flexibility in civil law is not found in the ability of a judge to create law based upon the
application of precedent to a unique set of facts. Instead, exibility in a civil law system is found
in the ability to characterize legal issues as either problems of law or problems of fact. e
25
United Nations Oce on Drugs and Crime, Counter-Terrorism Legal Training Curriculum, Module 3, International
Cooperation in Criminal Matters: Counter-Terrorism, sect. 6.
26
Reichel, Comparative Criminal Justice Systems, 3rd ed., p. 140.
14
Manual on Mutual Legal Assistance and Extradition
following quote illustrates the degree of exibility that a civil law judge has respecting issues of
evidence and testimony:
While common law requires many issues to be considered questions of law, civil law provides
courts with the discretion to view those same issues as questions of fact. Consider, for exam-
ple, issues about evidence and testimony. A civil court judge may nd it strange to keep an
important piece of evidence or relevant testimony out of court, yet for that judge these are
issues of fact: Did this person commit this oence? For the common law judge, the same
issues may be legal ones: Was this evidence or testimony gathered in the appropriate (legal)
manner? Obviously, providing the civil court judge discretion to decide whether an issue is
a factual or legal question gives that tradition a degree of exibility not found under com-
mon law.
27
4. Anexampleofexibility:hypotheticalmutuallegalassistancerequestsbycommon
law and civil law jurisdictions and their resolution
37. e following is an example of how a exible approach can be used to deal with a common
challenge that could arise between a requesting civil law jurisdiction and a requested common law
jurisdiction. It is important to note the distinction between what is illegal and what is viewed as
merely inconsistent. A request received or made may procedurally be viewed as a novelty, and the
fact that the requested or requesting State is unfamiliar with the action proposed can lead to
practitioners becoming uneasy when they view the request in the light of their own law and experi-
ences. It is key to remember that refusal will occur when what is being asked is illegal in the
requested State. Nevertheless, a request should not be refused because it has entered the realm of
the unfamiliar. Analysis should be conducted to see if the request can be honoured:
If an investigating judge seeks to interview a witness in a common law State, strictly speak-
ing, it would be “inconsistent” with the law of the requested State for that judge to conduct
the interview. It would not however be a violation of the domestic law if the judge were
allowed to conduct the interview. In this instance, success or failure depends entirely on
whether the authorities in the requested State allow the evidence to be gathered in an appro-
priate form for the requesting State, even where it is inconsistent with the normal process
employed in the requested State.
28
38. Conversely, here is an example of a request to a civil law jurisdiction by a common law State
and how a exible approach could lead to a successful result:
In a civil law system very often an investigating judge hearing a witness will prepare a sum-
mary or “procès verbale” of what the witness said. In the common law, when a witness is
examined and cross-examined before the court, his or her evidence must be recorded verbatim.
A summary or “procès verbale” is not admissible. If a request is made by common law
authorities to take the evidence of a witness on “commission” in a foreign State and to record
the evidence verbatim, once again that process would be inconsistent with the practice of
the requesting State. However, the foreign authorities would not be violating the law by
allowing a verbatim record.
29
27
Ibid., p. 141.
28
Prost, “Breaking down the barriers”, p. 17.
29
Ibid.
15
Legal traditions and systems and how they affect the provision of international legal assistance
5. Evidentiary considerations
39. It has been mentioned previously that criminal procedure in the common law tradition is
governed by complex rules of evidence. In the realm of international cooperation, there have been
steps taken, particularly in the area of extradition, to address the challenges that arise with respect
to these rules. In mutual legal assistance matters, such challenges are more pronounced, owing to
the fact that the evidence that is gathered abroad will be tendered in a domestic court. Here are
some very basic examples of common law evidentiary rules found in both extradition and mutual
legal assistance matters that can prove to be problematic when dealing with requests involving two
dierent legal traditions:
• Hearsay. Simply put, hearsay is a statement made outside of court by someone other than
the person who is making the same statement in court. A more complete denition of the
rule is found in the glossary section of the present Manual. As a general rule, hearsay
evidence is inadmissible for the truth of its contents at trial. e rules against hearsay have
been relaxed by some countries in the extradition context, thus allowing for hearsay to be
considered by the courts in order to decide the narrow issue of extradition. In a criminal
trial, however, in which, for example, evidence obtained by mutual legal assistance will be
used to decide the ultimate issue of guilt or innocence of the accused, the rule against
admitting hearsay will be applied far more stringently and be relaxed only under certain,
well-established circumstances.
• Prima facie case. From the Latin meaning “on its rst appearance”, prima facie is an evi-
dentiary standard commonly applied to extradition cases in common law countries. Prima
facie denotes evidence that, unless rebutted, would be sucient to prove a particular
proposition or fact. In the extradition context, a judge hearing an extradition case must
have some admissible evidence to rule that there is sucient evidence of the commission
of an oence that the fugitive could stand trial in the requested State and therefore be
extraditable to the requesting State. is evidentiary standard is sometimes a challenge for
civil law countries, as they are not familiar with this burden and therefore do not draft
their extradition requests with it in mind. e prima facie evidentiary standard is much
lower than the “beyond a reasonable doubt” standard that must be met in order to convict
someone in a criminal trial in a common law country.
• Continuity. When an item is seized as evidence in a common law country and is to be
entered into evidence at trial, it is normal for a “chain of custody” to be established to
show that, once the police seized the exhibit, it remained within their control and was not
tampered with in a manner that would lead a judge to an erroneous decision. is is
particularly important in the eld of forensic science, where, for example, DNA samples
or tests for drugs are susceptible to possible contamination. Loss of continuity may not
render an exhibit inadmissible, but a judge may ascribe very little evidentiary weight to it,
meaning that the evidence becomes essentially worthless in deciding the issue of guilt or
innocence. is rule can have a bearing on how mutual legal assistance requests are crafted
because sometimes it may be very important to the requesting State to maintain the con-
tinuity of a particular exhibit, particularly if it is of a forensic nature.
• Cross-examination. In the common law system, any evidence that is proered to a court
by either of the parties to a proceeding can be challenged by the opposing side before the
judge rules on its admissibility or weight. Testimony from witnesses is no exception, and
the method used by the opposing party to challenge the testimony is cross-examination.
16
Manual on Mutual Legal Assistance and Extradition
After the party proering the witness has asked the witness questions (evidence in chief),
the opposing party or parties may ask questions challenging that version of events. Con-
siderable leeway is given in many common law countries as to what can be asked of a
witness in cross-examination, and the questioning can sometimes be quite aggressive. In
mutual legal assistance situations, this part of a common law proceeding can prove to be
problematic if the requested State has a civil law tradition and is either not familiar with
the process or does not allow it.
40. Dierent legal traditions and legal systems require dierent procedures and requirements for
obtaining evidence during an investigation and using that same type of evidence at trial. ese
procedural and evidentiary rules can prove to be a challenge within the realm of mutual legal
assistance and extradition.
30
Some legal systems will require less evidence in order to obtain a certain
result, while others will require considerably more. e lesson to be remembered is to not assume
that matters will be dealt with in the same manner as they are in the requesting State’s jurisdiction.
Eorts must be made by the authorities of the requesting State to educate themselves on what can
be expected by speaking with authorities of the requested State. e requesting State’s own evi-
dentiary requirements must also be made clear to avoid the following observation made by Kim-
berley Prost: “Requested States must bear in mind that evidence inadmissible in the requesting
State is equivalent to no evidence at all.”
31
e nal word on dierent legal systems:
“In fact, the greater problem often is not dierences in legal systems, but misunderstand-
ings about those dierences. In many instances, dierences in systems can be overcome if
both States make a concerted eort to carefully and fully explain the niceties of their laws
to each other. Equally important, States should make inquiries about the other country’s
legal systems whenever there is a doubt.”
Source: Bernard Rabatel, “Legal challenges in mutual legal assistance”, in Denying Safe Haven to the Corrupt and the Proceeds
of Corruption: Enhancing Asia-Pacic Cooperation on Mutual Legal Assistance, Extradition and Return of the Proceeds of Cor-
ruption—Capacity-Building Programme, Asian Development Bank (ADB)—Organization for Economic Cooperation and
Development (OECD) Anti-Corruption Initiative for Asia and the Pacic (Manila, ADB; Paris, OECD, 2006), p. 39.
30
Kimberly Prost,” Practical solutions to legal obstacles in mutual legal assistance”, in Denying Safe Haven, p. 36.
31
Ibid., p. 37.
17
Legal traditions and systems and how they affect the provision of international legal assistance
Points to remember regarding dierent legal traditions:
It is important to make the eort to educate oneself as best one can about the legal tradi-
tions of the requested or requesting State. Miscommunication and the problems it creates
are founded in misunderstanding.
When making mutual legal assistance and extradition requests, clarity as to what the legal
requirements of the requesting State are with respect to the information being sought is
key. If the information does not come in a usable form, then it is of no use, either in
furtherance of an investigation or in a trial.
It is important to educate oneself further by understanding the legal system within which
the requested and requesting State are working. e domestic legislation of each State is
instructive, and early eorts to understand these systems and their methods will pay divi-
dends, not only with the case at hand, but also for every case in the future.
One should speak with the central authorities. ey are the national experts in the eld
of international assistance. By making use of their knowledge, trust and enhanced coopera-
tion will follow.
Requests may take one out of one’s comfort zone. It is key to remember, however, to dif-
ferentiate between that which is illegal in a legal system and that which is inconsistent. A
request inconsistent with a legal system could potentially still be processed and become a
successful request.
19
41. e present chapter deals with the law that is the basis for any request for mutual legal
assistance or extradition, whether that request is made under a treaty, under domestic law or by
way of the principle of reciprocity. e following chapters deal more specically with the making
of these types of requests pursuant to the Organized Crime Convention, but it is useful to look
at the legal basis for mutual legal assistance and extradition, as it explains how requests are drafted,
why certain items are asked for in the Convention and generally what can be expected during the
mutual legal assistance or extradition process.
A. Mutuallegalassistanceandextradition
42. Mutual legal assistance in criminal matters is a process by which States seek and provide
assistance in gathering evidence for use in criminal cases. Extradition is the formal process whereby
a State requests the enforced return of a person accused or convicted of a crime to stand trial or
serve a sentence in the requesting State.
B. Treaties
43. Treaties have been utilized as a basis for international cooperation throughout the world for
many years. On the spectrum of international cooperation, they represent the most formal vehicle
that can be used, whether for mutual legal assistance or extradition. Treaties allow for a focusing
of eort and for either cooperation on certain types of oences or the consideration of regional
concerns and the legal systems of a specic region. Treaties also oblige the parties to cooperate
with one another under international law, provided that the request falls within the terms of the
treaty.
32
is “scope” consideration will be discussed more fully throughout the present Manual, as
it is a fundamental question that will have to be asked each time a treaty request is made.
44. Bilateral treaties can be tailored between States and provide a high degree of certitude regard-
ing the obligations and expectations in the extradition process. is is particularly the case when
States share the same legal tradition, as the commonality found in the treaty will follow through
to the domestic court process as well. As shown in the chapter on legal traditions, the quest for
certainty and clarity becomes more problematic when the States in a bilateral treaty come from a
dierent legal tradition. Another challenge to engaging in bilateral treaties is the expense and eort
it takes to see each bilateral treaty through to fruition.
45. Parties to regional treaties tend to share either the same geographical concerns regarding, for
example, certain types of crime, or else they share the same legal traditions. ere are many such
32
United Nations Oce on Drugs and Crime, Manual on International Cooperation in Criminal Matters related to
T errorism (New York, 2009), pp. 9-10.
III. The legal basis for mutual legal assistance
andextradition:generalprinciples
20
Manual on Mutual Legal Assistance and Extradition
treaties currently in place; some have been in existence for some time and have proven to be
quite successful.
33
Regional treaties have also led to the creation of regional instruments that allow
the treaty to be implemented. One of the most well-known of these instruments is the European
arrest warrant, which has changed the manner in which individuals are extradited within the
European Union.
46. e European arrest warrant can be dened as any judicial decision issued by a member State
of the European Union with a view to the arrest or surrender of a requested person by another
member State, for the purposes of conducting a criminal prosecution or executing a custodial
sentence or a detention order. e warrant may be issued for acts punishable by the law of the
issuing State by a custodial sentence or a detention order for a maximum period of at least 12
months or, if a sentence has been passed or a detention order has been made, for sentences of at
least 4 months.
47. e principle of mutual recognition of judicial decisions replaces the traditional extradition
system between the member States of the European Union. It requires each national judicial author-
ity acting as an executing judicial authority to recognize requests for the surrender of a person
made by the judicial authority of another member State (the issuing judicial authority).
48. e European arrest warrant process has the following innovations compared with the former
extradition procedures:
• Expeditiousproceedings:thenaldecisionontheexecutionoftheEuropeanarrestwarrant
should be taken within a maximum period of 90 days after the arrest of the requested
person. If that person consents to the surrender, the decision shall be taken within 10 days
after consent has been given.
• Abolitionofthedoublecriminalityrequirementinprescribedcases:thedoublecriminality
principle is not required for 32 enumerated oences punishable in the issuing member
State by a maximum period of at least three years of imprisonment and dened by the
law of the member State. Oences that are not included in the list or do not fall within
the three-year threshold are still subject to the double criminality principle.
• “Judicialization”ofthesurrender:thenewsurrenderprocedurehasbeenremovedfromthe
executive and placed in the hands of the judiciary. Both the issuing and executing authori-
ties are considered to be the judicial authorities that are competent to issue or execute a
European arrest warrant by virtue of the law of the issuing or executing member State.
• Surrenderofnationals:EuropeanUnionmemberStatesmaynolongerrefusetosurrender
their own nationals; however, there is an optional provision for making execution of the
warrant conditional on a guarantee that, upon conviction, the individual will be returned
to his or her State of nationality to serve the sentence there.
• Abolitionofthepoliticaloenceexception:epoliticaloenceexceptionisnotenumer-
ated as a mandatory or optional ground for the non-execution of a European arrest warrant.
e sole remaining element of this exception is conned to the recitals in the preamble
33
See, for example, the Inter-American Convention on Mutual Assistance in Criminal Matters, and the Inter-American
Convention on Extradition. Both of these conventions are utilized in the region covered by the Organization of American
States and are facilitated by the Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and
Extradition, the aim of which is to provide a portal for the exchange of information regarding mutual legal assistance and
extradition matters for member States, thus making the mutual legal assistance and extradition process more ecient. For
more information, see the box at the end of section VI.B. below.
21
The legal basis for mutual legal assistance and extradition: general principles
of the Council of the European Union framework decision 2002/584/JHA on the European
arrest warrant and the surrender procedures between member States (recital 12) and takes
the form of a modernized version of a non-discrimination clause.
• Deviation from the rule of speciality: member States are required to notify the general
secretariat of the Council that, in their relations with other member States that have given
the same notication, consent is presumed to have been given for the prosecution, sentenc-
ing or detention to carry out a custodial sentence or detention order for an oence com-
mitted prior to surrender, other than the oence for which the person concerned was
surrendered.
49. e multilateral conventions are also a powerful tool in international cooperation. Multilat-
eral conventions such as the anti-terrorism conventions may apply to a specic type or group of
oences, or they may be specic in the actions that are to be taken, as is the case in the Organ-
ized Crime Convention.
34
e international drug conventions were the rst multilateral conven-
tions that required international cooperation among member States; they established this
requirement in all other criminal conventions, the Organized Crime Convention included, that
followed. As a multilateral convention, the Organized Crime Convention covers a number of dif-
ferent types of oences, and a potentially very broad geographical area. How that Convention is
used as a basis for extradition and mutual legal assistance will be looked at more closely in the
followingchapters.
50. Originally, extradition was based on pacts, courtesy or goodwill between Heads of sovereign
States.
35
ere was historically no general duty to extradite. Countries that desired such a relation-
ship would enter into bilateral extradition treaties or agreements. e advent and increasing
implementation of treaties, however, has created obligations to extradite where none existed
before.
36
Article 16, paragraph 3, of the Organized Crime Convention states that any oence to
which the Convention alludes is “deemed to be included as an extraditable oence in any extradi-
tion treaty existing between States Parties.” In the absence of a treaty and if a State usually insists
on the existence of a treaty for extradition, the option is given for that State to use the Conven-
tion itself as the vehicle for extradition. Article 16, paragraph 4, of the Convention provides that,
in the absence of a treaty and if a State normally insists on a treaty for extradition, it “may
consider [the Convention] the legal basis for extradition in respect of any oence to which this
article applies.”
51. e negotiating and drafting of individual treaties can be a costly and time-consuming exercise
that may not be within the nancial means of all States. us, bilateral treaties, although very
common and eective, may not be possible, even if it is the desire of the participating States to
have them. Realistically, it is not possible to have a bilateral treaty with every country in the world,
but the increasing globalization of crime requires States to have some means of international
co operation with all parts of the globe. For those States that wish to embark on the treaty-drafting
process with another State, or perhaps a region, UNODC has prepared the Model Treaty on Mutual
34
Multilateral conventions may also have organizations created by member States to aid in facilitating international
cooperation. An example is the Ibero-American Legal Assistance Network (IberRed), the organization created to promote
judicial cooperation among Ibero-American countries. IberRed provides support for and facilitates judicial cooperation with
respect to extradition and mutual legal assistance in criminal matters, the abduction of minors, the transfer of sentenced
persons, the United Nations Convention against Transnational Organized Crime and the United Nations Convention
against Corruption. For more information, see the box at the end of section VI.B. below.
35
See 2004 Report of the Informal Expert Working Group on Eective Extradition Casework Practice, para. 8.
36
Ibid., para. 9.
22
Manual on Mutual Legal Assistance and Extradition
Assistance in Criminal Matters,
37
which can greatly assist those tasked with drafting the documents
and achieving a timely resolution of the drafting process. e interplay between bilateral and
multilateral treaties and the Organized Crime Convention is addressed in article 18, paragraphs6
and 7, of the Convention. Major points to remember regarding the Convention and mutual legal
assistance by way of treaty are the following:
• e Convention does not override any existing mutual legal assistance treaty already in
place between States. Instead, the Convention gives States the option to use its article18,
paragraphs 9-29, if they would facilitate cooperation.
• Article 18,paragraphs 9-29, oftheConvention willapply if thereis noexistingtreaty in
place between two States parties, thus allowing for a framework for mutual legal assistance
to be followed when making a request pursuant to the Convention.
• Ifa State hasratied theConvention, itis boundbythoseobligationsthat areviewedas
non-discretionary. For example, article 18, paragraph 8, states that States parties may not
decline a mutual legal assistance request on the ground of bank secrecy.
52. e Organized Crime Convention also encourages States parties to enter into their own
regional or bilateral agreements, with a view to enhancing cooperation regarding transnational
organized crime.
38
C. Domestic law
53. While many States rely upon the Organized Crime Convention, with its many strategic and
procedural benets, as the vehicle of choice for international assistance, some countries utilize their
domestic law as the foundation, in whole or in part, for either extradition or mutual legal assis-
tance. In some instances, domestic law addresses the issue of dealing with incoming requests for
either extradition or mutual legal assistance. Other countries have domestic laws that go beyond
the procedural and actually grant authority to accept such requests, while others have a combina-
tion of both approaches. Still other countries have in their legislation specic provisions that allow
for extradition pursuant to their domestic law instead of in reliance upon a treaty. It is advisable
for practitioners to look closely at the domestic law of a country and speak with representatives
of its central authority to discern whether extradition without a treaty is an avenue that can be
pursued in a specic case.
54. Normally, domestic legislation species the procedure to be followed in processing both
incoming and outgoing requests, the type of requests that can be processed and how those requests
are to be transmitted. A review of a country’s legislation prior to contacting it with a request can
be highly benecial, as it allows the requesting State to converse knowledgeably about the request
that it intends to make and provide clarity when the request is actually made. Domestic law can
therefore provide direction and assistance to a requesting or requested State in two ways: the law
can provide direction with respect to the implementation of any treaties, and it can be used as a
legal basis for international assistance. In some instances, it can also provide information on whether
the type of information that is required needs to be the subject of a request at all.
37
See General Assembly resolutions 45/117, annex, and 53/112, annex I.
38
“States Parties shall consider, as may be necessary, the possibility of concluding bilateral or multilateral agreements or
arrangements that would serve the purposes of, give practical eect to or enhance the provisions of this article” (art. 18,
para.30) and “States Parties shall seek to conclude bilateral and multilateral agreements or arrangements to carry out or to
enhance the eectiveness of extradition” (art. 16, para. 17).
23
The legal basis for mutual legal assistance and extradition: general principles
D. The principle of reciprocity
55. e principle of reciprocity has long been an established principle in the relations of States
with respect to matters of international law and diplomacy. It is basically a promise that the
requesting State will provide the requested State the same type of assistance in the future, should
the requested State ever be asked to do so. is principle is usually incorporated into treaties,
memorandums of understanding and domestic law. It is particularly prevalent in States with a civil
law tradition, where it is viewed as a binding covenant. In common law countries, it is not viewed
as an obligatory principle. Some countries use their domestic legislation as a basis for extradition
and apply the principle of reciprocity as a precondition to considering extradition to another State.
39
e Organized Crime Convention specically mentions the principle of reciprocity in its article
18, paragraph 1, and obliges all States parties to adhere to it.
40
e principle can also be a useful
tool in a situation in which there is no treaty, as it can be viewed as a stand-alone promise that
one State will do the same for another State in future should the need arise. As with any promise,
every eort should be made to ensure that it can be kept. Jean-Bernard Schmid, investigating
magistrate for Geneva, Switzerland, had the following observation to make regarding the importance
of honouring the promises that are made: “Finally, there always is a next time. In international
cooperation, as in any business, it is in the interest of every party to respect promises that aremade.”
41
39
Japan provides international cooperation (mutual legal assistance and extradition) based on its domestic laws that
consider assurances of reciprocity as preconditions to providing such assistance (see art. 3, para. (ii), of the Act of Extradition,
and art. 4, para. (ii), of the Act on International Assistance in Investigation and Other Related Matters; both are available
from the Ministry of Justice of Japan at www.moi.go.jp/ENGLISH).
40
e article states, in part, that States “shall reciprocally extend to one another similar assistance”.
41
Jean-Bernard Schmid, “Legal problems in mutual legal assistance from a Swiss perspective”, in Denying Safe Haven,
p.47.
25
“When determining whether there is a legal basis for seeking mutual legal assistance,
practitioners should think broadly in terms of applicable instruments.”
Source: Kimberley Post, “Practical solutions to legal obstacles in mutual legal assistance”, in Denying Safe Haven, p. 32.
56. Although the above quote refers to mutual legal assistance, it could just as easily refer to
extradition. e present chapter addresses the issue of the application of the Organized Crime
Convention in a formal mutual legal assistance or extradition request. Issues such as scope, the
relationship of the Convention to pre-existing treaties and ratication are discussed. As with any
aspect of international cooperation, prior research, eective communication between the two States
parties involved and clarity of purpose will be key in obtaining a successful and timely outcome.
57. Whether the Organized Crime Convention can be used as the legal basis for international
cooperation is dependent upon a number of factors:
• Scope
• Whether therequesting or requestedStatehas ratied the Convention
• WhethertheStatehasincorporatedtheConventionintoitslaws,thusgivingtheConven-
tion the eect and force of law (the dualist/monist question). Non-incorporation of the
provisions of the Convention into domestic laws does not mean that a State is not bound
by the provisions of the Convention once it is ratied. is obligation is founded in arti-
cle 27 of the Vienna Convention on the Law of Treaties,
42
which states that a party to a
treaty “may not invoke the provisions of its internal law as justication for its failure to
perform a treaty”.
• Whether the State has led a reservation or declaration that limits its involvement with
respect to the Convention.
A. Scope
58. Article 16, paragraph 1, of the Organized Crime Convention denes the scope of the obliga-
tion to extradite by providing that an extradition request is to be granted, subject to the double
criminality requirement, respecting “the oences covered by this Convention or in cases where an
oence referred to in article 3, paragraph 1 (a) or (b), involves an organized criminal group and
the person who is the subject of the request for extradition is located in the territory of the
42
United Nations, Treaty Series, vol. 1155, No. 18232.
IV. The Organized Crime Convention as
the basis for international cooperation
26
Manual on Mutual Legal Assistance and Extradition
requested Party”. e extradition obligation applies initially to oences covered by the Convention,
serious crimes punishable by a maximum deprivation of liberty of at least four years or by a more
severe penalty, and to the oences covered under its Protocols,
43
provided that they are transnational
in nature and involve an organized criminal group.
59. In addition, subject to the dual criminality requirement, the extradition obligation also applies
in cases in which the oences involve an organized criminal group and the person whose extradi-
tion is requested is simply located in the territory of the requested State, without a need for the
transnational nature of the criminal conduct to be established. In this sense, the scope of applica-
tion of article 16 of the Convention is broader than the scope of application of the Convention
itself, since this provision could also be applicable in cases of domestic tracking in which the
oender is simply apprehended in the territory of another State party.
60. Similarly broader in scope is the application of the mutual legal assistance provisions found
in article 18 of the Convention. In article 18, paragraph 1, States parties are required to provide
“the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceed-
ings in relation to the oences covered by the Convention”. is means that these investigations,
prosecutions or proceedings should relate to Convention oences, serious crimes and Protocol
oences, provided that they are transnational in nature and involve an organized criminal group.
61. In addition, States parties are also obliged to “reciprocally extend to one another similar
assistance” if the requesting State has “reasonable grounds to suspect” that one or more of the
oences are transnational in nature, including that victims, witnesses, proceeds, instrumentalities
or evidence of such oences are located in the requested State party and that they involve an
organized criminal group.
62. It is evident that the specic provision on mutual legal assistance sets a lower evidentiary
standard, as compared with article 3 of the Convention, requiring only a reasonable possibility,
rather than evidence based on facts, with respect to the transnational nature of the oence and
the involvement of an organized criminal group. e lower evidentiary threshold is intended to
facilitate mutual legal assistance requests for the purpose of determining whether the transnational
nature of the oence and organized crime are present in a certain case, and whether international
cooperation may be necessary and may be sought under the Convention for subsequent investiga-
tive measures, prosecution or extradition.
63. Clarifying the nature and extent of the crime being alleged or investigated by applying the
facts to the denitions will become important when it comes time to initiate communications with
the central authority of the requested State. Any discussions that are held prior to the preparation
of the mutual legal assistance or extradition request and the contents of the actual application will
be much clearer if the issue of how the alleged oence ts within the framework of the Conven-
tion is carefully considered.
B. TheOrganizedCrimeConventionandpre-existingtreaties
64. ere are provisions in both article 16 (extradition) and article 18 (mutual legal assistance)
of the Organized Crime Convention that address pre-existing treaties and how they interact with
the Convention. ese articles are unique to the Convention and are an important component in
43
Ibid., vols. 2225, 2237, 2241 and 2326, No. 39574.
27
The Organized Crime Convention as the basis for international cooperation
allowing States to easily interact domestically with this international convention. It is important
to note these provisions, as they may have a bearing on how actual requests are conducted pursu-
ant to the Convention.
C. Pre-existingextraditiontreaties
65. Article 16, paragraphs 3-6, of the Convention relate to how the Convention is to be perceived
by States depending on whether they require a treaty in order to eect extradition. ey can be
summarized as follows:
• Article16,paragraph3,statesthatalltheoencesarticulatedintheConventionaredeemedto
be extraditable oences in any pre-existing or future extradition treaty between States parties.
• Article16,paragraph4,statesthat,ifarequestedStatepartythatrequiresatreatytoeect
extradition receives a request from a requesting State party with which it has no extradition
treaty, the requested State party may consider the Convention itself as the legal basis for
eecting extradition for any of the oences covered by the Convention.
• Article 16, paragraph 5, compels a State party that requires an extradition treaty to
(a) indicate whether it will take the Convention as the legal basis for extradition involving
other States parties to the Convention, and (b) if it does not accept the Convention as a
legal basis, to seek to conclude extradition treaties with other States parties to the
Convention.
• Article16, paragraph6,compels Statesparties thatdonot requireatreatyfor extradition
to recognize the oences listed in the Convention as being extraditable oences between
themselves.
D. Pre-existingmutuallegalassistancetreaties
66. Article 18, paragraphs 6 and 7, relate to how the Convention is to be perceived by those
States which already have pre-existing mutual legal assistance treaties, either bilateral or multilateral.
ey can be summarized as follows:
• Article18,paragraph6,statesthatthemutuallegalassistanceprovisionsoftheConvention
shall not aect obligations arising from any pre-existing or future mutual legal assistance
treaty, be it bilateral or multilateral.
• Article18,paragraph 7,states that,if Statespartiesarenotboundbyatreaty, thenpara-
graphs 9-29 (which cover all facets of a mutual legal assistance request) apply. If the States
parties are bound by a treaty, then the provisions of the treaty apply, unless the States
parties agree to apply paragraphs 9-29. States parties are urged to apply those paragraphs
if they contribute to more eective mutual legal assistance.
E. Theimportanceofcheckingratication
67. It will be possible to use the Organized Crime Convention only if both the requesting and
requested States are parties to it. Requesting and requested States should verify the website of the
28
Manual on Mutual Legal Assistance and Extradition
depositary
44
to see if both States are parties to the Convention. If they are not, both States should
still endeavour to engage in mutual legal assistance or extradition, either by using other methods
or treaties or by exploring whether there is an intention to become a party to the Convention
sometime in the future, as the below case summary shows:
An example of ratication leading to cooperation:
... in June 2007, the United Arab Emirates had requested the extradition of a Serbian
national suspected of being involved in an armed robbery at a jewellery store in April 2007.
Since there was no treaty base, the Netherlands refused the request, arguing that the Organ-
ized Crime Convention could supply the legal basis needed if the United Arab Emirates
were a State party. e United Arab Emirates ratied the Organized Crime Convention
on 7 May 2007 and again submitted the request for the extradition of the suspected Serbian
national. e High Court of the Netherlands granted the request, using as a legal basis
the Organized Crime Convention. e suspect was extradited in February 2009.
Source: Conference room paper entitled “Catalogue of cases involving extradition, mutual legal assistance and other forms
of international legal cooperation requested on the basis of the United Nations Convention against Transnational Organized
Crime” (CTOC/COP/2010/CRP.5 and Corr.1), para. 79.
Points to remember in deciding whether to utilize the Organized Crime Convention:
Consider and enquire as to whether a formal request for the assistance you require has to
be made at all. Are there alternatives available that allow you to achieve your goal without
having to prepare a formal request?
Conrm through the depositary website or other means that the requested or requesting
State has ratied the Convention.
Conrm through the central authorities that the articles of the Convention have been
incorporated into the domestic law of the State.
Conrm through your central authority that there is no bilateral or other type of treaty
that takes precedence in international cooperation with the requested State.
Conrm that the type of crime that your request refers to falls within the scope of the
Convention.
Review the terms found in article 2 of the Convention, as these will help clarify your
discussions and correspondence with the requested or requesting State.
44
e website of the United Nations Treaty Collection is http://untreaty.un.org.
29
e critical problem is a lack of, or inadequate, programmes and procedures for eective
implementation of mutual assistance programmes and the provision of evidence on a practi-
cal, case-by-case, level ... Governments must enact the relevant legislation, negotiate the
necessary instruments and establish some form of administrative framework, most critically
a central authority, for the processing of mutual assistance requests and resources to imple-
ment requests.
Source: Kimberley Prost, “Breaking down the barriers”, p. 16.
68. International cooperation with respect to criminal matters has grown considerably in recent
years.
45
e ability to perpetrate crime via the Internet, the ease of international travel and the
globalization of international markets have all created an increase in requests for international
assistance. To combat the growing threat of international crime, many countries have begun
relying heavily on existing agreements or are busy creating new bilateral, multilateral, regional
or subject-matter agreements to combat the moving targets that today’s criminals have become.
In many instances, the groups and individuals perpetrating international crime are well funded
and show considerable intelligence and sophistication when it comes to the perpetration of
their crimes, the lengths to which they will go to hide the evidence of their acts and the wealth
accumulated as a result. ere are many people in many parts of the world using many dier-
ent international treaties to bring these people to justice, but the criminals are exible and
resourceful and will capitalize on any opening that disarray or disagreement between States can
oer them.
69. Organizing the efforts of a State to combat transnational organized crime is a complex
task. Keeping track of all of the agreements, treaties, memorandums of understanding, police
liaison services, legal regimes, developments in domestic and international law and various
enforcement and investigative services that are the source of the requests, along with all of
the incoming and outgoing requests themselves, requires legal and administrative expertise
and authority in order to be effective. This area of law is growing increasingly complex,
with many different instruments utilized among many different nations. A designated central
authority is the tool that is needed to maintain the necessary control and supervision over
these matters.
45
Prost, “Breaking down the barriers”, p. 1.
V. Central authorities: the importance of
communicating with the right people
andthecasefordomesticexpertisein
an international world
30
Manual on Mutual Legal Assistance and Extradition
A. The central authority and the Organized Crime Convention
70. e Organized Crime Convention, in article 18, paragraph 13, specically references the
creation of a central authority
46
for each of the parties to the Convention and makes it compulsory
that each party designate a central authority for the purposes of mutual legal assistance:
Each State Party shall designate a central authority that shall have the responsibility and
power to receive requests for mutual legal assistance and either to execute them or to transmit
them to the competent authorities for execution. Where a State Party has a special region or
territory with a separate system of mutual legal assistance, it may designate a distinct central
authority that shall have the same function for that region or territory. Central authorities
shall ensure the speedy and proper execution or transmission of the requests received. Where
the central authority transmits the request to a competent authority for execution, it shall
encourage the speedy and proper execution of the request by the competent authority. e
Secretary-General of the United Nations shall be notied of the central authority designated
for this purpose at the time each State Party deposits its instrument of ratication, acceptance
or approval of or accession to this Convention. Requests for mutual legal assistance and any
communication related thereto shall be transmitted to the central authorities designated by
the States Parties. is requirement shall be without prejudice to the right of a State Party
to require that such requests and communications be addressed to it through diplomatic
channels and, in urgent circumstances, where the States Parties agree, through the Interna-
tional Criminal Police Organization, if possible.
47
ere is no requirement for the central authority to be created for the purposes of extradition,
although States may wish to consider this oce to be responsible for dealing with extradition
matters, as is the practice in some countries.
B. Thebenetsofacentralauthorityandthedutiesitcanperform
71. e central authority should be the home of all information pertaining to the conduct of
any sort of international criminal legal cooperation with a State. e benet of having a central
authority is that a State has more control over incoming and outgoing requests and begins to create
a centre of expertise with respect to international cooperation. With the plethora of international
instruments to which each State may be a party and therefore be tasked with dealing with, the
concept of a central authority to provide a uniform response to incoming and outgoing requests
makes perfect sense. It also avoids duplication of eort and inconsistency resulting from a lack of
control.
48
Ongoing and consistent responses from central authorities help not only in advising on
domestic requirements but also in developing a knowledge base of other legal systems and the
requirements of those systems, either as a result of dealing with these foreign requirements on a
daily operational basis or through outreach and liaison functions that can be performed by these
46
e United Nations Oce on Drugs and Crime makes available an online directory of competent national authorities.
is allows for quick and easy reference in contacting those countries which are parties to the United Nations Convention
against Illicit Trac in Narcotic Drugs and Psychotropic Substances of 1988 (United Nations, Treaty Series, vol 1582,
No.27627) and the Organized Crime Convention and which have set up authorities to deal with international cooperation
in criminal matters (see www.unodc.org/unodc/en/legal-tools/directories-of-competent-national-authorities.html).
47
Note that there is no direction as to how the central authority should be managed or staed. Various publications,
however, speak of the need for experienced criminal practitioners to be part of the central authority.
48
See 2001 report of the Informal Expert Working Group on Mutual Legal Assistance Casework Best Practice
(www.unodc.org/pdf/lap_mlaeg_report_nal.pdf), p. 7.
31
Central authorities: communicating with the right people and the case for domestic expertise in an international world
authorities. A comprehensive list of the duties and services that a central authority can perform is
included later in the present chapter to give practitioners guidance on the scope of duties and
expertise that these oces are expected to be able to perform in order to be eective.
72. Consistently dealing with the day-to-day business of international cooperation has the added
benet of creating a cadre of lawyers who will develop an expertise in an increasingly complex and
growing eld of law.
49
is expertise can in turn be used internally to advise other Government
departments with respect to issues involving international cooperation and can perform an educa-
tional function, in the advising and mentoring of police agencies and prosecutors with respect to
the issues that arise in this sort of enterprise.
50
Examples of the additional duties that can be
performed as a result of having this expertise include the coordination of arrests of fugitives and
their transfer, the coordination and support of searches in other States and the provision of legal
advice on matters pertaining to international cooperation to Government ministers.
C. The International Criminal Police Organization and its complementary inter-
action with central authorities
73. Article 18, paragraph 13, of the Organized Crime Convention mentions that the Interna-
tional Criminal Police Organization (INTERPOL) can be utilized in urgent circumstances as a
communications conduit for mutual legal assistance should the need arise. e use of the services
oered through INTERPOL is also urged in both the enforcement and the international coopera-
tion provisions of the Convention, found in articles 26-29.
74. It is useful to be aware of the considerable assets that INTERPOL can bring to States seeking
eective communication in matters of international assistance. In that realm, the police, judiciary
and counsel are tasked with nding methods of complementing one another in investigations that
span dierent countries and legal traditions. e contribution of INTERPOL to the realm of central
authorities is the parallel network of national central bureaux. ese bureaux are created pursuant
to article 32 of the Constitution of INTERPOL and are mandated to be the focal points of each
member State for the purpose of liaising internally with other departments of that member State,
with national central bureaux in other States and with the General Secretariat of INTERPOL.
75. Each national central bureau is connected to the I-24/7 network, which enables the transmis-
sion of requests for cooperation in a timely and secure manner. rough this system, requests
related to mutual legal assistance and extradition may be forwarded in the following ways (which
are not mutually exclusive):
(a) From the relevant national authority (e.g. national court) or from the central authority
to the national central bureau in the country. e national central bureau will then
forward the request to the national central bureau of the requested country, which in
turn will forward it to the relevant authorities. is scenario is implemented in the cur-
rent practice of INTERPOL on a regular basis;
(b) Extending, in accordance with national legislation and the legal framework of INTERPOL,
the I-24/7 system beyond the national central bureau to relevant national authorities
49
“Laws on extradition and mutual legal assistance can appear obscure to non-specialists. Many prerequisites for coop-
eration derive from concepts that are unique to these two elds of law.” (Seehanat Prayoonrat, “e use of nancial intelli-
gence units for mutual legal assistance in the prosecution of corruption”, in Denying Safe Haven, p. 29).
50
See 2001 Report of the Informal Expert Working Group on Mutual Legal Assistance Casework Best Practice, sect.3.1.
32
Manual on Mutual Legal Assistance and Extradition
which are authorized to full the role of a public institution in enforcing criminal law.
Accordingly, the possibility of connecting the central authorities directly to the I-24/7
system for the purposes of circulating mutual legal assistance requests merits considera-
tion and discussion at the national level.
76. e I-24/7 system also enables investigators to check relevant information against INTERPOL
databases (e.g. on criminal background, DNA, ngerprints and stolen or lost travel documents).
77. Requests for cooperation circulated via INTERPOL channels can be made in a number of ways:
(a) rough the publication of INTERPOL notices by the General Secretariat upon the
request of a member country. Among the various notices that can be published by
INTERPOL, the following may be of particular relevance to extradition and mutual
legal assistance requests: (i) red notices, which are requests to seek the location and arrest
of a person with a view to his or her extradition and which in many INTERPOL
member countries are considered valid requests for provisional arrest pending extradition;
and (ii) blue notices, which are requests to obtain information (e.g. location, identica-
tion) about a person of interest in a criminal investigation;
(b) rough a message called a “diusion”, sent directly by a requesting country to all or
some INTERPOL member countries and recorded in INTERPOL databases;
(c) rough an exchange of messages on a bilateral level between the requesting and
requested States.
D. Policeliaisonofcerprogrammesandtheircomplementaryinteractionwith
INTERPOL and central authorities
78. Police liaison ocer programmes, found in many police forces around the world, can also
be highly benecial to those who are involved in international cooperation. Many police forces
throughout the world have ocers posted overseas to liaise with police forces in specic countries
or geographical areas. As a result, they possess knowledge in their area of operations, such as the
command structure of local police forces; the structure of local administrations, including the
courts; and local geographical or political challenges that may exist, all of which may have a bear-
ing on matters pertaining to international cooperation. e liaison ocers can also perform a useful
reporting function, being the “eyes and ears” of a central authority and keeping other participants
informed of potential challenges that may arise in the course of a mutual legal assistance or extra-
dition request. Many of these liaison ocers are members of police forces that are also members
of INTERPOL, and thus have access to the powerful investigative tools that this agency makes
available to its members. For these reasons, the liaison ocers should be viewed as a group that
complements the eorts of the central authority and agencies such as INTERPOL.
INTERPOL and police liaison programmes: complementary entities to the central
authority
Central authorities should consider utilizing the expertise and capabilities found in these
entities to complement the work of the central authority and address the challenges of
international cooperation.
33
Central authorities: communicating with the right people and the case for domestic expertise in an international world
E. Creating a central authority
79. A central authority is an administrative entity and as such can be created simply by placing
it into the organizational chart of whatever Government agency or department is responsible for
international assistance and justice matters. A “central” authority should be just that, a central
repository of expertise and information where all international assistance matters pertaining to a
State are acted upon. is allows for a consistency of response and a focusing of eort that will
benet the State, whether it is requesting or responding to a request.
51
Where the central authority
is placed, what its dened role is in relation to other agencies or departments that are tasked with
justice matters and who stas it, however, are factors that will decide whether the central authority
is simply a response to article 13 of the Organized Crime Convention or a major facilitator of
international assistance as envisioned by the Convention.
80. States should make every eort to create a central authority as soon as possible, as they are
at a distinct disadvantage in both requesting and providing international assistance if they do not
have this important oce. ose responsible for procedural policy in each State should also empha-
size to their domestic counterparts that consultation with their central authority should be one of
the foremost concerns when dealing with international matters, as it leads to eective coordination
of both incoming and outgoing requests, policy and general international cooperation.
81. e ideal to be striven for by those intent on creating a central authority or restructuring an
existing one is described in the actions listed below. e list emphasizes the importance of the
functions of a central authority and the challenges in creating one that is eective. It also describes
the functions that a strong and vigorous central authority can bring to bear in the realm of inter-
national cooperation. is ideal is dicult to attain, but illustrative of what should be striven for
in order to be eective:
Practicalprocessingofrequests
• Actastherecipientofallincomingandoutgoingextraditionandmutuallegalassistance
requests
• Reviewallrequests for adequacyandassign to counsel foraction
• Correspond with requesting States regarding the adequacy of or the need to supplement
a request, e.g. provide legal advice on what is needed to comply with the laws of the
requested State
• Reviewdraftrequestsforadequacyandprovideinformationonhowtheycanbeimproved
• Provide round-the-clock coverage so as to be able to respond to urgent requests in a
timely way
• Answerqueriesand prepareinformation, templatesandexamples forcountrieswishingto
make requests
• Coordinatewith othercentralauthoritiessothatarrestsor searchesin complexcaseswith
multiple accused in multiple jurisdictions and countries are carried out at the same time
and in a coordinated manner that best meets law enforcement needs, e.g. when the element
of surprise is of benet
51
Ibid. sect. 2.
34
Manual on Mutual Legal Assistance and Extradition
• Provide advice on extradition and/or mutual legal assistance law and practice to police,
crown prosecutors and investigating magistrates making or executing requests
• Instructcounselwhomayappearincourtonpositionstotake,fromarrestthroughtothe
surrender process, including appeals
• Provide advice to ministers, including by summarizing case law, evidence, the history of
the proceedings in court and advice as to the application of extradition law to the facts of
the request and by providing any other relevant information
• Act as liaison with immigration/border authorities and other governmental departments
that may have an interest in the person sought in extradition cases, or in the evidence
sought in mutual legal assistance cases
• MakeanyarrangementsforprisonertransitthroughtheStateduringthesurrenderprocess
to the requesting State
• Can advise prosecutors/judicial authorities and police on what to expect when they have
to travel to collect evidence in a requested State, e.g. the need to obtain prior approvals
or anything else needed to comply with other aspects of the laws of the requested State
• Canmaintain toolscurrentlyavailable onlineforuseandreview byrequestingStatesthat
are considering making a request to the State
Channel of communication
• Actas a communication conduit totheexecuting authority for incomingrequests and as
the means of communicating with other central authorities for outgoing requests
• Actasaliaisontojudicialauthoritieswhomayexecuterequestsandmonitorcasedevelop-
ments as they proceed through the judicial system of a requested State
• Conductoutreachtoothercentralauthorities—throughinformalmechanisms(e.g.bilateral
meetings) or formal ones (e.g. regularly scheduled visits)—to discuss issues and/or cases of
mutual concern and to open channels of communication
Centre of expertise
• Actasacentreofexpertiseininternationalcriminallawasitrelatestoextradition/mutual
legal assistance
• Negotiate treaties and act as a centre of expertise in not only the theory but also the
practice of implementing treaties
• Advisenational politicians about extraditionandmutual legal assistance law andpolicy
• Instructlegislativedrafters if changes inlegislationare proposedorneeded
• Providepractical adviceand suggestions topolicymakers considering amendinglegislation
to make extradition or mutual legal assistance statutes operate more eectively
35
Central authorities: communicating with the right people and the case for domestic expertise in an international world
• Actas liaison to diplomaticchannels/foreignpolicy specialists andministers
• Participate in regional and multilateral forums, e.g. the Conference of the Parties to the
United Nations Convention against Transnational Organized Crime
• Provide training to both internal and external stakeholders, e.g. prosecutors within the
country and extradition and mutual legal assistance partners outside of the country
• Establish andmaintainrepresentationinmagistrat de liaison-type programmes
Idealcandidatesforstafngacentralauthority
• Toheadtheauthority,someonewhohasexpertiseinextraditionandmutuallegalassistance
law, including both practical and theoretical knowledge
• Lawyers (as opposed to diplomats or policymakers) with criminal law experience as
prosecutors or magistrates who have dealt with actual cases in the State’s criminal law
system
• Candidates with capability in more than one language, as well as diplomatic skills and
discretion
• Candidates with exibility and creativity in terms of trying to nd solutions and assist
(rather than who simply say “We don’t do it that way”) and with open-mindedness regard-
ing the requirements of another State’s laws
• Counselwhoaregenuinelyinterestedinthisareaofthelaworprosecutorswhocanrotate
in and out of a unit to better learn how to obtain evidence abroad and to bring fugitive
criminals to justice
Managementconsiderations
• Seniormanagement needstorecognizethatnancialandtimely investmentsinathriving
and strong central authority will bring results. While crime is an intensely local, sensitive
national issue, States can no longer aord not to invest in creating a strong central author-
ity, because a great deal of local crime has international dimensions to it.
• ere needs to be recognition that there is only way forward: more cooperation between
States.
• Extraditionandmutuallegalassistancearebasedonreciprocity:onedayyouwillneedto
make an urgent request, and you will want a cooperative response; the best way to ensure
cooperation is to keep lines of communication open through regular contact and to assist
others when they need help.
• Havingthesefunctions concentrated inoneplace assists witheciencies,leading to con-
sistent and speedier responses as counsel develop both legal expertise and relationships with
other central authorities. ese relationships can be invaluable in ensuring that cases move
forward expeditiously.
36
Manual on Mutual Legal Assistance and Extradition
F. Stafngandlocatingthecentralauthority
82. Sta in a central authority are required to deal with broad and complex issues, such as weak
or outdated laws and treaties, lack of awareness of national and international extradition law and
practice, and communication and coordination problems between domestic agencies and States.
ey are also required to give a good representation of the breadth and the complexity, both legal
and organizational, that exist in this realm.
52
83. Outgoing or incoming mutual legal assistance or extradition requests will essentially be a
legal exercise involving domestic criminal law and procedure, such as the rules of evidence and
search and seizure, of at least two States, along with the applicable domestic laws, if any, pertaining
directly to mutual legal assistance or extradition. Issues of international criminal practice such as
the interpretation of a treaty, or perhaps a number of treaties, in an attempt to either nd standing
to make a request or respond to a request, may also have to be considered. In many cases, there
will also be interaction with police, appearances before magistrates and judges, negotiations with
defence counsel, communication with prosecutors and witnesses and the management and assess-
ment of legal documentation, pleadings and exhibits.
84. Counsel who are sta members of a central authority should have the experience to operate
and communicate eectively within an area that requires these multiple skill sets. Experienced
criminal practitioners with prior litigation experience and a desire to work together with foreign
and domestic partners should be the type of persons considered to sta this important oce.
85. Dierent States view the role and responsibilities of a central authority in dierent ways and
place the central authority in dierent branches of their Governments. Some States view the central
authority as having a foreign relations or diplomatic function, while others view it as having a
legal function with foreign relations overtones. Still others view it as having an administrative
function, forwarding requests to other branches of Government for action, with little or no review
or analysis being conducted at the central authority level.
86. e role and responsibilities of such an oce have been described above, along with the
suggested prole of the counsel who should sta it. Given the nature and type of work described,
it is suggested that a justice department would be best placed to house a central authority. Legal
expertise of the type previously mentioned, as well as already established domestic lines of com-
munication to the courts, prosecutors, police and other investigative agencies, all bolster the concept
of housing the central authority in this department.
G. The central authority and international staff: an argument for posting
members of the central authority abroad
87. In previous chapters of the present Manual, it has been mentioned that diering legal tradi-
tions can create barriers to eective international assistance. Unfamiliarity with foreign legal systems
and the biases inherent in one’s own legal system can make for what sometimes are perceived as
insurmountable diculties. e marked dierences in the requirements of dierent legal systems
can lead to ineective mutual legal assistance and extradition requests, which in turn leads to delay,
frustration and wastage in the processing of requests.
53
52
2004 Report of the Informal Expert Working Group on Eective Extradition Casework Practice, para. 12.
53
Ibid., para. 68.
37
Central authorities: communicating with the right people and the case for domestic expertise in an international world
88. Having a national representative in a foreign posting is a positive step in creating a more
eective international cooperation regime, and oers the following benets:
• Anationalrepresentativecanadviseandprocessarequestinrealtimeduringthebusiness
hours of the requesting or requested State.
• Anationalrepresentativehastheopportunitytopersonally interactwithother representa-
tives, thus gaining invaluable rst-hand knowledge of other legal traditions and systems.
• National representativescanpersonally impart theirknowledgeof theirown legalsystems
to each other during the course of providing assistance or in informal or educational
settings.
89. e central authority is a necessary part of any regime of international assistance and should
be given all of the authority and power necessary for it to be able to perform its duties. It should
be staed by knowledgeable personnel who have the dedicated task of engaging in international
legal assistance and outreach. Central authorities will become more and more necessary as States
engage in addressing the ever-increasing challenge of international crime.
e nal word on the importance and duties of, and requirement for expertise in, central
authorities:
As crime and criminals continue to have less respect for international boundaries,
which modern society dictates they are both bound to do, the function of extradi-
tion becomes more vital. Concurrently, those involved in the practice will be required
to become ever increasingly familiar with international legal practice, not solely on
a theoretical but on a practical level as well. Functionally, modern criminal justice
systems must discover, collate, and absorb the rules, policies and practices of their
partners in the international community.
Source: Charles A. Caruso, “Legal challenges in extradition and suggested solutions”, in Denying Safe Haven, p. 66.
38
Manual on Mutual Legal Assistance and Extradition
An example of successful communication between two central authorities
In January 2008, the law enforcement authorities of the United Kingdom carried out
an investigation of a case of value-added tax fraud and money-laundering involving
a large amount of funds. Since a Chinese company, in Guangdong Province of China,
was related to the case, United Kingdom authorities made a request of mutual legal
assistance in criminal matters to the Ministry of Justice of China, on the basis of the
Organized Crime Convention, with the hope of sending ocials to China for evidence
collection. e Ministry of Justice of China transmitted the request to the General
Administration of Customs of China after it had reviewed the request and conrmed
that the request was in conformity with the main elements of the Organized Crime
Convention format. Authorities of the two countries conducted several rounds of
consultations on the timing and means of evidence collection; ways for witnesses to
present testimony and the associated costs; and the methodology and scope of the
inquiry. On 15 April 2008, presided by the Chinese central authorities, the witness
testimony and related evidential documentation were provided to the United Kingdom
authorities. e Chinese authorities concerned did a large amount of work throughout
the process to ensure the successful collection of evidence for the case.
Source: See conference room paper entitled “Catalogue of cases involving extradition, mutual legal assistance and other forms
of international legal cooperation requested on the basis of the United Nations Convention against Transnational Organized
Crime” (CTOC/COP/2010/CRP.5/Corr.1), para. 1.
Importance of tracking incoming and outgoing requests
• Acknowledging receipt of and providing updates on requests has been cited as one
of the most important factors in international cooperation.
• ose States which have made requests should also make every eort to keep track
of them from an outgoing perspective. If the assistance is no longer needed, this
should be communicated to the requested State promptly so that it can close its
le and turn its attention to those matters which are still ongoing.
• Communication and courtesy can go far in promoting international cooperation.
39
Central authorities: communicating with the right people and the case for domestic expertise in an international world
Best practices in international cooperation: the Brazilian experience
Brazil has developed a reminder system that aids in tracking and automating the responses
to be furnished by its central authority when processing outgoing requests. is system has
been found to assist greatly in achieving the goals of timely and ongoing communication
with requested States. e Brazilian system requires the following for each request that the
central authority receives from other agencies:
• Acknowledgement by ocial letter or e-mail to the requesting agency that the
request has been forwarded to the requested State.
• e lling out of an “alert system” form, which enables reminders to be provided
so that the requested State can be contacted every 30, 60 or 90 days (depending
on the urgency of the matter) for an update on executing the request.
• e notication of the requesting authority that enquiries have been made and
the encouragement of both requested and requesting authorities to use e-mail or
other technologies to quickly communicate the results of the request.
Points to remember with respect to central authorities
• Article 18, paragraph 13, of the Organized Crime Convention requires that a
central authority be created with respect to mutual legal assistance. (States may
wish to have this entity deal with extradition matters as well.) is entity should
be created as soon as possible to ensure operational eectiveness with respect to
international cooperation.
• e central authority should be more than a distribution centre for the dissemina-
tion of requests. It should take an active role in international cooperation and be
staed, mandated and supported accordingly.
• e central authority should actively promote cooperation with established net-
works such as those provided and maintained by INTERPOL and the various
police liaison ocer programmes.
• Acknowledgment of receipt of a request for mutual legal assistance or extradition
and timely updates and communication with respect to the progress or challenges
experienced with these requests are a cornerstone of international cooperation that
should be actively promoted by the central authority.
41
“At the international level, the sheer size and scope of the resulting domestic variations
in substantive and procedural extradition law create the most serious ongoing obstacles
to just, quick and predictable extradition”.
Source: 2004 Report of the Informal Expert Working Group on Eective Extradition Casework Practice, para. 11.
90. “Extradition is the formal process by which one jurisdiction asks another for the enforced
return of a person who is in the requested jurisdiction and who is accused or convicted of one or
more criminal oences against the law of the requesting jurisdiction. e return is sought so that
the person will face trial in the requesting jurisdiction or punishment for such an oence
or oences”.
54
91. Extraditions can be time-consuming and expensive for both the requesting and requested
State; it is therefore important to have a sound grounding in the general principles of extradition
and how these principles are reected in the Organized Crime Convention.
A. Extraditionasatoolofinternationalcooperation
92. Extradition is one of the oldest forms of international cooperation; its roots can be traced
to antiquity. Originally designed to seek the return of persons alleged to have committed political
oences, the concept has grown and evolved so that it now covers a plethora of criminal oences,
and obligations related thereto have been solidied by way of bilateral, regional and multilateral
treaties. Although extradition has been used for centuries, the law has not developed to the point
where it places a positive obligation on any State to extradite. e obligation to extradite arises
only in the presence of a treaty and, even then, there are certain limitations, as shall be shown
below, regarding certain oences and classes of persons, who, depending upon the jurisdiction,
may not be extraditable. Not being subject to extradition, however, does not necessarily mean not
being subject to trial or punishment, as will be discussed later in the present chapter. First, the
Manual will look at how extradition is governed, preconditions for extradition in States and how
the Organized Crime Convention ts into all of these factors.
B. Extraditionandhowitisgoverned
93. How extradition is governed is as varied as the States that entertain such an action, as it is
usually within a State’s domestic laws or its treaties that the rules of procedure and evidence are
54
Ibid., para. 7.
VI. Extradition:theprocessforasuccessfulreturn
of the accused
42
Manual on Mutual Legal Assistance and Extradition
articulated.
55
e following issues are usually addressed in domestic law, and as such it is instructive
to review the legislation of the State from which extradition is being sought, in order to set the
tone for the communications that will later be made with the requested State’s central authority:
• Proceduresfor arrest, searchand seizure andsurrender
• How anextraditionrequest will beactedupon
• What refusalgrounds apply andwhetherrefusal is mandatory or discretionary
• Which decisions,ifany,are taken bythe executiveandwhich, if any, by thejudiciary
• What evidentiary requirements govern that decision-making and to what extent, if any,
evidentiary rules exclude relevant material from consideration
• Whether persons sought remain in custody pending those decisions and, if not, what
conditions are set to ensure that the person does not ee
• Which review and appeal mechanisms apply to which decisions and at what stage(s) of
the extradition process
• How much time elapses between receipt of an extradition request and the nal decision
on whether or not to return the person.
56
94. Article 16, paragraph 7, describes the interplay between the Organized Crime Convention
and the domestic law of a State as it relates to extradition:
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, conditions in relation
to the minimum penalty requirement for extradition and the grounds upon which the
requested State Party may refuse extradition.
95. Depending upon the domestic legislation of the State, a number of factors may be considered
by a requested State when dealing with an extradition matter. e decision to surrender a person
to another State is usually the result of a bifurcated system involving the judiciary at the outset
of the process and the executive branch during the latter part of the process. Depending on the
jurisdiction, the courts may consider a number of dierent factors in deciding to extradite, among
them dual criminality, identity, suciency of the supporting evidence and the existence of an
extradition treaty. Once the case is turned over to the executive, the Government representative
responsible for extradition matters may, before ordering surrender, consider other issues, such as
human rights concerns, that are separate from those considered by the court. In some jurisdictions,
the decisions of either the court or the executive can be appealed or reviewed, with further litiga-
tion arising as a result. e process is subject to strict timelines for ling documents, perfecting
appeals, bringing the suspect before court and surrendering the suspect if ordered to do so. e
process can seem quite complex to those unfamiliar with a particular legal system, and there is a
high degree of risk that attempting to navigate a foreign process without constant consultation
with the central authority will lead to failure.
55
Ibid., para. 90.
56
Ibid., para. 92.
43
Extradition: the process for a successful return of the accused
Some useful references for determining the extradition requirements of various States
It is sometimes dicult to readily discern the requirements of various States with respect
to extradition. UNODC has compiled a compendium of databases, both internal and from
regional agencies, that provide links to the international cooperation requirements of many
countries, including all of those States which have ratied the Organized Crime Convention.
Below is a summary of what each of these agencies does and the geographical area that it
covers. e links to these can be found on the UNODC website at
www.unodc.org/unodc/en/legal-tools/international-cooperation-networks.html.
UNODC online directory of competent national authorities
e online directory of competent national authorities provides access to the contact infor-
mation of competent national authorities designated under the United Nations Convention
against Illicit Trac in Narcotic Drugs and Psychotropic Substances of 1988
a
and the
United Nations Convention against Transnational Organized Crime and the Protocols
thereto.
With a view to facilitating communication and problem-solving among competent authori-
ties at the interregional level, the directory contains essential information on:
• State membership in existing international cooperation networks
• Legal and procedural requirements for the granting of requests
• Use of the Organized Crime Convention as the legal basis for requests
• Links to national laws and websites
• Indication of requests that can be made through INTERPOL
All States parties to the Conventions can access the directory, which is password protected.
Regional judicial platforms for Sahelian and Indian Ocean Commission countries
Regional judicial platforms have been established by the Terrorism Prevention Branch and
the Organized Crime and Illicit Tracking Branch of UNODC to strengthen international
cooperation in criminal matters in the regions of the Sahel and the Indian Ocean. UNODC
has developed a compendium of bilateral, regional and international agreements on extradi-
tion and mutual legal assistance, which is a practical guide for formulating eective requests
for extradition and mutual legal assistance to the ve States members of the Indian Ocean
Commission.
e regional judicial platform for Sahelian countries (currently Burkina Faso, Mali,
Mauritania and Niger) was launched at a meeting held in Bamako from 22 to 24 June 2010.
a
United Nations, Treaty Series, vol. 1582, No. 27627).
44
Manual on Mutual Legal Assistance and Extradition
Commonwealth Network of Contact Persons
e purpose of the Commonwealth Network of Contact Persons is to facilitate international
cooperation in criminal cases between Commonwealth member States, including on mutual
legal assistance and extradition, and to provide relevant legal and practical information.
e Network comprises at least one contact person from each of the jurisdictions of
the Commonwealth.
Members:
Antigua and Barbuda, Australia, Bahamas, Bangladesh, Barbados, Belize, Botswana, Brunei
Darussalam, Cameroon, Canada, Cyprus, Dominica, Fiji, Gambia, Ghana, Grenada,
Guyana, India, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Maldives, Malta,
Mauritius, Mozambique, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Papua New
Guinea, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa,
Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, Swaziland,
Tonga, Trinidad and Tobago, Tuvalu, Uganda, United Kingdom, United Republic of
Tanzania, Vanuatu and Zambia.
European Judicial Network
e European Judicial Network is a network of national contact points for the facilitation
of judicial cooperation in criminal matters between the member States of the European
Union. e Network’s secretariat forms part of Eurojust but functions as a separate unit.
Eurojust
Eurojust is a judicial cooperation body that was established with the goal of providing an
area of freedom, security and justice within the European Union. It is also able, through
the Council of the European Union, to conclude cooperation agreements with non-member
States and international organizations or bodies such as UNODC for the exchange of
information or the secondment of ocers. At the request of a member State, Eurojust may
assist investigations and prosecutions concerning that particular member State and a non-
member State, if a cooperation agreement has been concluded or if there is an essential
interest in providing such assistance. In addition to cooperation agreements, Eurojust also
maintains a network of contact points worldwide.
Members:
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta,
Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and United
Kingdom.
45
Extradition: the process for a successful return of the accused
Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters
and Extradition of the Organization of American States
e Hemispheric Information Exchange Network for Mutual Assistance in Criminal Mat-
ters and Extradition has three components: a public website, a private website and a secure
electronic communications system.
e public component of the Network provides legal information related to mutual assis-
tance and extradition for the 34 States members of the Organization of American States.
e private component of the Network contains information for individuals who are
directly involved in legal cooperation in criminal matters. e private site includes informa-
tion on meetings, contact points in other countries, a glossary of terms and training on
the secure electronic communication system.
Members:
Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia (Plurinational State of ),
Brazil, Canada, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador,
El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua,
Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the
Grenadines, Suriname, Trinidad and Tobago, United States, Uruguay and Venezuela
(Bolivarian Republic of).
Ibero-American Legal Assistance Network (IberRed)
e Ibero-American Legal Assistance Network (IberRed) is a structure formed by contact
points from the ministries of justice, central authorities, prosecutors and public prosecutors
and judicial branches of the 23 countries and territories comprising the Latin American
community of nations. It is aimed at optimizing instruments for civil and criminal judicial
assistance and strengthening cooperation between countries.
Members:
Andorra, Argentina, Bolivia (Plurinational State of), Brazil, Chile, Colombia, Costa Rica,
Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico,
Nicaragua, Panama, Paraguay, Peru, Portugal, Puerto Rico, Spain, Uruguay and Venezuela
(Bolivarian Republic of).
C. Extraditionpreconditions
1. Extraditable offence
96. e rst precondition that must be looked at by both the requested and requesting State is
whether the oence alleged in the extradition request is an oence for which the law allows extra-
dition. e issue of what is an extraditable oence is found in two ways in a treaty: either by the
46
Manual on Mutual Legal Assistance and Extradition
listing method or the penalty method. e listing method means that the treaty lists the oences
for which extradition may be allowed. is method is usually found in older treaties and can be
problematic, as it requires a degree of accuracy that is dicult for the requesting State to attain.
In the penalty method, the extraditable oence is determined by the seriousness of the penalty
that may be imposed. In this case, the denition can be more general because the potential length
of punishment will be the deciding factor in whether it is an extraditable oence. e Organized
Crime Convention recognizes both methods in article 16, paragraph 1.
97. Article 16, paragraph 1, of the Convention denes the scope of the obligation to extradite
by providing that an extradition request is to be granted, subject to the double criminality require-
ment, with respect to “the oences covered by this Convention or in cases where an oence referred
to in article 3, paragraph 1 (a) or (b), involves an organized criminal group and the person who
is the subject of the request for extradition is located in the territory of the requested State Party…”.
e extradition obligation applies initially to oences covered by the Convention, serious crimes
punishable by a maximum deprivation of liberty of at least four years or by a more severe penalty
(art. 3), and to oences covered under the Protocol oences, provided that they are transnational
in nature and involve an organized criminal group.
98. Subject to the dual criminality requirement, however, the extradition obligation under article
16 also applies in cases in which these oences involve an organized criminal group and the person
whose extradition is requested is simply located in the territory of the requested State, without the
necessity of establishing the transnational nature of the criminal conduct. In this sense, the scope
of application of article 16 of the Organized Crime Convention is broader than the scope of
application of the Convention itself, since this provision could also be applicable in cases of internal
tracking in which the oender is simply apprehended in the territory of another State party.
99. Article 16, paragraph 2, expands the scope of what is an extraditable oence in that it allows
for the realistic eventuality that, when a “request for extradition includes several separate serious
crimes” and some of them are not covered by the Convention, the requested State “may apply this
article” with respect to the oences that are not covered by the Convention. is is of great benet
to both requesting and requested States, as it allows for extradition to be undertaken pursuant to
one Convention (the Organized Crime Convention) with respect to a fugitive or group of fugitives
who are alleged to have committed a plethora of oences covering a broad range of criminal
behaviour. is allows just one request to go through to the requested State, and gives the requested
State the option of being able to deal with that request as a single action, thereby greatly stream-
lining the extradition process.
2. ExtraditableoffencesandtheOrganizedCrimeConvention
100. e Organized Crime Convention creates extraditable oences in a number of ways:
• Article16,paragraph3,statesthatalltheoencesarticulatedintheConventionaredeemed
to be extraditable oences in any pre-existing or future extradition treaty between States
parties.
• Article16,paragraph4,statesthat,ifarequestedStatepartythatrequiresatreatytoeect
extradition receives a request from a requesting State party with which it has no extradition
treaty, the requested State party may consider the Convention itself as the legal basis to
eect extradition for any of the oences covered by the Convention.
47
Extradition: the process for a successful return of the accused
• Article 16, paragraph 5, compels States parties that require an extradition treaty to:
(a) indicate whether they will take the Convention as the legal basis for extradition with
other States parties to the Convention; and (b) if they do not accept the Convention as
such a legal basis, seek to conclude extradition treaties with other States parties to
the Convention.
• Article16, paragraph6,compels Statesparties thatdonot requireatreatyfor extradition
to recognize the oences listed in the Convention as being extraditable oences between
themselves.
To utilize the Organized Crime Convention for extradition, it must rst be established
that the fugitive is in another State before continuing on with the actual extradition request.
D. Evidentiary tests
101. As mentioned earlier, the evidentiary requirements for an extradition request will be found
either in the treaty that is being utilized or within the domestic law of the requested State. ere
will always be variations in the requirements, based on the legal tradition and legal system of the
State and possibly the specic requirements of the treaty, particularly if it is bilateral. Listed below
are the three major tests that are used in extradition; it is usually one of these, or a variation of
them, that is found in most domestic legislation or treaties:
• e “no evidence” test requires no actual evidence of the oence that is alleged; instead,
a statement of the oence, the applicable penalty, the warrant of arrest for the person and
a statement setting out the alleged criminal conduct are required to found a request for
extradition in jurisdictions using this test.
• e“probablecause”evidencetestrequiressucientevidencetocreatereasonablegrounds
to suspect that the person sought has committed the alleged oence.
• e “prima facie” evidence test requires actual evidence that must be presented to the
authorities that would allow them to form the opinion that the person sought would have
been required to stand trial had the alleged conduct of the criminal oence occurred in
the requested State.
102. As a general rule, common law States require actual evidence in addition to any warrant
for the extradition of a person, while civil law States tend to require the warrant plus a statement.
It is the process of discerning what is required in each requested State, along with the actual
preparation of the documentation, that prove to be the greatest challenges for requesting States
making extradition requests to a State from another legal tradition. As with mutual legal assistance
requests, prior research into the requirements of the requested State, along with ongoing commu-
nication with the requested State’s central authority, will be key to moving an extradition request
forward. Article 16, paragraph 8, of the Convention also seeks to further break down the barriers
to extradition by exhorting States to simplify their extradition requirements.
48
Manual on Mutual Legal Assistance and Extradition
1. Dual criminality
103. Dual, or double, criminality is a concept prevalent in the law of extradition, although eorts
have been made to limit the diculties that it had previously posed. When looking at the question
of dual criminality with respect to extradition, it is good to keep the following factors in mind:
• e focus of dual criminality should be the substantive underlying conduct and not the
technical terms or denitions of the crime. Article 43, paragraph 2, of the United Nations
Convention against Corruption
57
denes the conduct-based test as follows:
In matters of international cooperation, whenever dual criminality is considered a
requirement, it shall be deemed fullled irrespective of whether the laws of the
requested State Party place the oence within the same category of oence or denomi-
nate the oence by the same terminology as the requesting State Party, if the conduct
underlying the oence for which assistance is sought is a criminal oence under the
laws of both States Parties.
• elawsoftherequestingandrequestedStatesgenerallyneedonlybesubstantiallysimilar
as to the harm they seek to prevent and the activity they intend to punish
• Ifthelaw ofoneStateisbroaderthan thethatof theotherinscope,solongasthecon-
duct for which extradition is sought could be included in both laws, then it is an extradit-
able oence
• Purely jurisdictional elements of statutes need not be replicated under both systems in
order for the conduct to be an extraditable oence
58
2. DualcriminalityandtheOrganizedCrimeConvention
104. e concept of dual criminality is addressed in article 16, paragraph 1, of the Organized
Crime Convention, which states that the dual criminality requirement will be met if the oence
for which the extradition is sought “is punishable under the domestic law of both the requesting
State Party and the requested State party”. Upon becoming parties to the Convention, all States
must adopt legislation to establish the oences envisaged by the Convention. As a result, once the
Convention is implemented, there is automatically a commonality of law between the requesting
and requested States, which have both ratied the Convention, allowing for the dual criminality
question to be resolved.
3. Rule of speciality or use limitation
105. e rule of speciality or use limitation is designed to ensure that the oence or oences for
which the requesting State seeks the return of the suspect to answer pursuant to the extradition
request are the only oences for which the suspect will have to answer in the requesting State.
is ensures that the requested State is aware of what it consented to when it ordered the extradi-
tion of a person in its jurisdiction to the requested State and that the suspect was aware, both
during his extradition hearing and afterwards, what the allegations against him are. As with many
57
United Nations, Treaty Series, vol. 2349, No. 42146.
58
Charles A. Caruso, “Legal challenges in extradition and suggested solutions”, in Denying Safe Haven to the Corrupt and
the Proceeds of Corruption.
49
Extradition: the process for a successful return of the accused
investigations and trials, new facts may arise that, in turn, give rise to new allegations and perhaps
new charges. If new charges are considered after surrender in the requesting State, they must be
laid only with the consent of and in consultation with the requested State. Ongoing communica-
tion between the requesting and requested State allows for those eventualities to be dealt with
should they arise. e rule of speciality becomes critical when drafting an extradition request. Time
must be taken to consider exactly what oences are alleged against the suspect.
4. Retroactivity
106. e Organized Crime Convention is silent with respect to the question of whether the
Convention applies retroactively. e question to be answered is whether the Convention applies
to conduct that occurred prior to the entry into force of the Convention in the requested State.
It is not clear if any court has yet addressed this issue with respect to the Convention. Several
domestic courts, however, have addressed this issue, with respect to the retroactive application of
other treaties, and have held that a treaty may be applied retroactively, as an extradition proceeding
is not a criminal proceeding.
An example of the challenge of retroactivity in dual criminality
One State reported that an extradition request had been refused on the grounds of a lack
of dual criminality, as the conduct was not unlawful in the requested State at the time the
oence was committed, although the conduct had subsequently been criminalized in the
requested State and was a criminal oence at the time the request was made.
E. Refusalofanextraditionrequest
107. Traditionally, there have been a number of principles or factors that can prove to be either
an impediment or an outright bar to extradition. ese principles or factors, discussed in further
detail below, are:
• Non-extradition ofnationals
• Concerns over theseverityof punishment of thefugitivein the requestingState
• Human rights issues, with respectto either punishment or the fairness of the trial in the
requesting State
• Non-extradition forscaloences
• e politicaloenceexception toextradition
1. Non-extradition of nationals
108. e doctrine of non-extradition of nationals is found in many States, particularly those with
a civil law tradition. Depending on the country, the refusal may be mandatory or discretionary;
as always, it is worthwhile to look at the domestic legislation of the requested State to see if there
50
Manual on Mutual Legal Assistance and Extradition
is a possibility that the suspect who is a national of that State can be extradited under its legal
system. It should be noted, however, that non-extradition does not necessarily mean non-prosecu-
tion. ere are no safe havens in the world for many types of crimes, including those contemplated
by the Organized Crime Convention. ose States which are parties to the Convention should
enact domestic laws pursuant to the Convention that are designed to punish those who are guilty
of these oences.
109. e principle of aut dedere aut judicare (extradite or prosecute) is a principle that should
be explored in cases in which a national cannot be extradited. e Convention recognizes this
principle in article 16, paragraph 10; however, that paragraph does not go so far as to compel a
State to prosecute. Instead, it compels the requested State that refuses extradition, when requested
by the State seeking extradition, to “submit the case without undue delay to its competent authori-
ties for the purpose of prosecution”. e diculty of successfully mounting a prosecution in these
types of cases is of course compounded by the fact that the crime was not perpetrated in the State
where the suspect now resides. Dierences in legal traditions and systems between where the
investigation was conducted and where the case is to be tried can further compound the problem.
is is particularly the case if there is a question as to whether the requested State has the jurisdic-
tion to prosecute the case domestically. Mutual legal assistance should be utilized in cases of this
type to aid in the proposed prosecution in the requested State. Evidence gathered to date by the
requesting State can be provided, and any additional evidence can be acquired through further
mutual legal assistance requests.
59
110. Conditional extradition of nationals is contemplated in article 16, paragraph 11, for those
States whose laws allow for the extradition of their nationals conditional upon the service of the
sentence imposed as a result in the requested State. Diculties can potentially arise with respect
to this option if both the requesting and requested States do not coordinate their eorts with
regard to the amount of time needed to try the fugitive in the requesting State and the amount
of time that the requested State is prepared to allow one of its nationals to remain in the request-
ing State’s custody before being returned. To avoid this problem, the conditions imposed with
regard to the temporary removal of a fugitive to stand trial in another State should be limited to
those required by the domestic law of the requested State and those necessary to ensure the fugi-
tive’s return from the requesting State upon completion of the trial.
2. Severity of punishment
111. Considerations of the likely severity of punishment have been a concern with respect to
extradition cases. If the domestic law of the requested State contains provisions regarding refusal
of extradition on the basis of the potential imposition of the death penalty, the requested State
may consider exercising the following options:
• Seeking assurances or obtaining necessary information from the requesting State that the
death penalty will not be imposed should the suspect be convicted
• If legally possible, prosecuting the case in its own jurisdiction, given the commonality of
oences in the Organized Crime Convention
• Seeking the return of the suspect upon conviction from the requesting State to serve his
or her sentence in the requested State’s jurisdiction
59
See 2004 Report of the Informal Expert Working Group on Eective Extradition Casework Practice, para. 134.
51
Extradition: the process for a successful return of the accused
Even if the requested State has constitutional or other legally based bars to extradition to a State
for a crime for which the death penalty is possible, it may be able to honour a request from that
requesting State and still meet its own legal and/or constitutional obligations. It is always worth
enquiring with one’s own central authority and asking if it could undertake exploratory discussions
with the central authority of the other State.
3. Humanrightsissuesregardingtorture/treatment
112. e issue of human rights, particularly the potential of extradition to lead to torture, is also
a concern that has to be considered when engaging in the extradition process. If concerns do arise,
States should communicate with one another and seek assurances that this type of prohibited
conduct will not occur. If these assurances cannot be given, States should consider having the
suspect, if convicted in the requesting State, serve his sentence in the requested State. e Conven-
tion against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
60
imposes
specic obligations upon signatory parties with respect to the transfer of individuals to other
countries. Article 3 of that convention requires that no State party expel, return or extradite a
person to another country where “there are substantial grounds for believing that he would be in
danger of being subjected to torture.” us, requested States are required to consider whether
grounds exist to believe an individual would be in danger of being subjected to torture. States
parties are required to take into account “all relevant considerations including, where applicable,
the existence in the State concerned of a consistent pattern of gross, agrant or mass violations of
human rights” in deciding whether to extradite.
113. Some States will extradite individuals if they receive assurances from the requesting State
that it won’t use torture and other inhuman and degrading treatment against such individuals. In
his report to the General Assembly, however, the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment concluded that “States cannot resort to diplomatic
assurances as a safeguard against torture and ill-treatment where there are substantial grounds for
believing that a person would be in danger of being subjected to torture or ill-treatment upon
return” (A/60/316, para. 51). Indeed, several arguments tend to demonstrate that such diplomatic
assurances are imperfect: for example, concerns that requiring a diplomatic assurance from a request-
ing State is equivalent to an implicit acknowledgement that torture is used generally and systemati-
cally in the requesting State. In addition, post-return monitoring mechanisms have proven to be
no guarantee against torture: diplomatic assurances are not legally binding and therefore carry no
legal weight and no sanctions if breached; and the person whom the assurances are aimed at pro-
tecting has no recourse if the assurances are violated.
114. Other guiding principles that States must consider when deciding on extradition are found
in the Universal Declaration of Human Rights.
61
e relevant principles in these conventions are
the following:
• e righttolibertyand security of the person
62
• e rightnotto be subject totortureor cruel, inhumane or degradingpunishment.
63
60
United Nations, Treaty Series, vol. 1465, No. 24841.
61
General Assembly resolution 217 A (III).
62
Ibid., art. 3.
63
Ibid., art. 5.
52
Manual on Mutual Legal Assistance and Extradition
4. Humanrightsconsiderations
115. Human rights considerations are an important part of the analysis that all parties to the
process of extradition must engage in when considering an extradition request. Article 16, para-
graph13, of the Organized Crime Convention alludes to human rights with regard to due process
and the fairness of the extradition process:
Any person regarding whom proceedings are being carried out in connection with any of the
oences 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.
5. Humanrightsissuesattrial
116. It is important to be cognizant of the following issues when dealing with an extradition
request: the process that is taking place, i.e. the extradition request; and the end result of a potential
trial in another jurisdiction, which must be viewed through the lens of human rights considerations
throughout the extradition process.
117. Article 16, paragraph 14, of the Organized Crime Convention specically refers to particular
human rights issues regarding discrimination where it states that there is no obligation on any
State to extradite if that State believes that the extradition request was 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”.
118. e following list shows other concerns that must be taken into consideration with respect
to human rights issues that have a bearing on the fairness of a trial:
• e righttoequality before thelaw
64
• e righttoa fair and publichearing
65
• e righttocounsel and interpreters
66
• e righttobe presumed innocent
67
• erightnottobeheldguiltyofoencesretrospectivelyortohaveretrospectivepenalties
imposed
68
• e righttonot be compelled toincriminateoneself
69
119. e issues raised in paragraph 116 above can arise when a fugitive has been tried in absentia
and a request has been made for his extradition to serve a sentence. States should consider a number
of factors when deciding whether to extradite in response to this type of request:
64
Ibid., art. 7; and International Covenant on Civil and Political Rights, art. 14, para. 1.
65
International Covenant on Civil and Political Rights (General Assembly resolution 2200 A (XXI), annex), art. 14,
para.1; and Universal Declaration of Human Rights, art. 10.
66
Ibid., art. 14, para. 3.
67
Universal Declaration of Human Rights, art. 11, para. 1.
68
Ibid., art. 11, para. 2.
69
International Covenant on Civil and Political Rights, art. 14, para. 3 (g).
53
Extradition: the process for a successful return of the accused
• Didthe proceedings deny thefugitive the right toafair trial?
• Didthe fugitive participate meaningfully in hisor her defence?
• Will the fugitive be given an opportunity to appeal his or her verdict upon his or her
return to the requesting State?
• Can therequesting Stategrant a new trial?
Two examples of decisions made on whether to grant or refuse extradition based upon
conviction after trial in absentia:
• A fugitive who was a lawyer ed the jurisdiction of the requesting State prior to
charges being laid, knowing that his arrest was imminent. He was tried in absentia.
It was conrmed that he had been in contact with his court-appointed counsel
during the course of his trial in absentia. In this case, there was found to be no
legal bar to his extradition.
• In another case, there was evidence that the fugitive knew nothing of the charges
against him or of his subsequent trial in absentia. e fugitive’s court-appointed
counsel had gone on to exhaust his appeal rights, and the domestic law of the
requesting State did not allow for a new trial. In this case, extradition was refused.
6. Fiscal offences
120. Article 16, paragraph 15, of the Convention prohibits the refusal of extradition based upon
the fact that the alleged crime is scal in nature. In doing so, the Convention reects the growing
concern that oences with scal overtones, such as money-laundering, are major components of
transnational organized crime and should therefore not be immune to investigation, extradition
and prosecution.
70
7. Political offences exception
121. e political oences exception is founded on three basic premises:
• e recognitionof political dissent
• e guaranteeofthe rights of theaccused
• e protectionof both the requestingand requested States.
71
122. Based upon the above, it can be seen that the premise behind the exception is the balancing
of two main competing interests: the recognition of political dissent as a form of protest and the
70
United Nations Oce on Drugs and Crime, Revised Manuals on the Model Treaty on Extradition and on the Model
Treaty on Mutual Assistance in Criminal Matters, para. 23. Available from
www.unodc.org/pdf/model_treaty_extradition_revised_manual.pdf.
71
Caruso, “Legal challenges in extradition and suggested solutions” in Denying Safe Haven, p. 60.
54
Manual on Mutual Legal Assistance and Extradition
rights inherent in the pursuit of that ideal; and the rights of States to protect themselves from
inuences that may be bent on harming or destroying them. us, terrorist acts, such as bombing
or the nancing of terrorism, do not benet from this protection.
72
e political oences exception
is sometimes used as a reason for refusing extradition. It sometimes proves to be problematic, as
what constitutes a political oence is poorly dened.
73
is can lead to accusations, recriminations
and defences being elded under this exception, which could lead to suspicion and confusion
becoming the norm in this eld. Eorts should be made to look behind what is being alleged in
the request to see if it is indeed a political oence in and of itself or if the criminal charges shield
what is essentially a request that is political in nature.
123. e universal counter-terrorism instruments prohibit States parties from rejecting another
State party’s extradition request (concerning any oence based on those instruments) on the grounds
that it concerns a political oence, an oence connected with a political oence or an oence with
political motives. e International Convention for the Suppression of Terrorist Bombings
74
explic-
itly rejects the political oence exception for the oences dened in the Convention. All subsequent
conventions and protocols against terrorism contain the same provision:
None of the oences set forth in article 2 shall be regarded, for the purposes of extradition
or mutual legal assistance, as a political oence or as an oence connected with a political
oence or as an oence inspired by political motives. Accordingly, a request for extradition
or for mutual legal assistance based on such an oence may not be refused on the sole ground
that it concerns a political oence or an oence connected with a political oence or an
oence inspired by political motives.
75
124. Security Council resolution 1373 (2001) validated this approach by extending the exclusion
of the political oence exception to acts of terrorism in general. In paragraph 3 (g) of that resolu-
tion, the Council called upon States to “ensure ... that claims of political motivation are not
recognized as grounds for refusing requests for the extradition of alleged terrorists”.
F. Refugee status and non-refoulement: the interplay between asylum
proceedingsandextradition
125. Another factor that must be taken into account with respect to extradition is the protection
aorded to refugees under international treaties and the limits of this protection should the asylum-
seeker be accused of a serious crime or terrorist act that is the subject of an extradition request.
As can be seen below, there is an analysis to be conducted that is designed to reconcile the two
competing interests of refugee protection and the protection of the country in which the asylum-
seeker nds himself or herself if convicted by nal judgement of a “particularly serious crime”.
126. e principle of non-refoulement is found in article 33, paragraph 1, of the Convention
relating to the Status of Refugees,
76
which states that:
72
See article 11 of the International Convention for the Suppression of Terrorist Bombings (United Nations, Treaty
Series, vol. 2149, No. 37517); and article 14 of the International Convention for the Suppression of the Financing of Terror-
ism (United Nations, Treaty Series, vol. 2178, No. 38349).
73
Schmid, “Legal problems in mutual legal assistance from a Swiss perspective”, p. 48.
74
United Nations, Treaty Series, vol. 2149, No. 37517.
75
Ibid., art. 11.
76
United Nations, Treaty Series, vol. 189, No. 2545.
55
Extradition: the process for a successful return of the accused
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion.
127. It should be noted, however, that there are limits to the protections granted by the Conven-
tion relating to the Status of Refugees. In its resolution 1373 (2001), the Security Council called
upon States to “take appropriate measures in conformity with the relevant provisions of national
and international law, including international standards of human rights, before granting refugee
status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated
in the commission of terrorist acts”.
77
128. Article 33, paragraph 2, of the Convention relating to the Status of Refugees shows that
the mere claim of refugee status does not amount to automatic protection under article 33, para-
graph 1, of that Convention:
e benet of the present provision may not, however, be claimed by a refugee whom there
are reasonable grounds for regarding as a danger to the security of the country in which he
is, or who, having been convicted by a nal judgment of a particularly serious crime, consti-
tutes a danger to the community of that country.
G. Opencommunicationintheeventofarefusaltoextradite
129. Communication is important even in the event of a potential refusal of an extradition
request. Article 16, paragraph 16, of the Organized Crime Convention states that, before refusing
extradition, the requested State should, where appropriate, give the requesting State ample oppor-
tunity to address any concerns that the requested State may have. is gives the requesting State
the opportunity to either rectify defects that may be present in its extradition request or at least
come away from the discussions with new knowledge and a better appreciation of the requirements
of the requested State. A central authority that is well versed in international criminal law and has
experience in dealing with certain regions of the world or countries where this outcome is likely
can assist in anticipating that such an issue may arise and be proactive in addressing it with the
requesting State.
H. Theextraditionprocess
130. e process of one State seeking the removal of a person from another State for the purpose
of a criminal trial is a complex and serious endeavour. What is being asked in an extradition request
is extraordinary in that it involves the legal systems of more than one State—a complex set of laws
and procedures that are meant to protect the sovereignty of a nation, the rights of an accused and
the integrity of a justice system. e extradition process is legally and procedurally complex, with
strict ling requirements and deadlines. e exercise can prove to be logistically complex as well,
with the transfer of a suspect having to be carried out sometimes at the last minute. e present
section of the Manual is meant to address these concerns and hopefully provide some guidance in
avoiding some of the common challenges that have been identied in extradition requests.
77
See also extract of International Cooperation in Criminal Matters: Counter-Terrorism, Counter-Terrorism Legal Train-
ing Curriculum Module 3, sect. 2.3.1.2.
56
Manual on Mutual Legal Assistance and Extradition
131. As always, communication will be key. Communication must be commenced and maintained
before, during and after the request.
78
1. Locatingthesuspect
132. In order to ask a State to extradite a person from its territory, the requesting State rst has
to prove that the person is in the requested State. e more information that can be provided to
the requested State the better, as locating an individual in a country can potentially be a time- and
asset-consuming process:
• Mutual legal assistance or INTERPOL requests (blue or red notices) made early in the
investigation may help in locating the suspect.
• When seeking the suspect, the requesting State should send a physical description and
other modes of identication, if available, e.g. DNA, ngerprints, nationality, passport
number and identity card.
• Insomejurisdictions,thenamesofotherfamilymembers,particularlythefather,canhelp
establish identity.
133. As much information as possible should be provided and every eort made, using available
methods, to verify that the suspect is actually in the territory of the requested State prior to
requesting the authorities of the requested State to locate him. e requested State should make
every eort, once in receipt of the information provided by the requesting State, to quickly locate
the fugitive so that extradition proceedings can be commenced and the possibility avoided of the
fugitive absconding to another jurisdiction, requiring another extradition request.
134. It is important for requested States to attempt to locate the suspect as quickly as possible.
is allows for either the formal extradition process to be commenced or, if the suspect is no
longer within the jurisdiction, for the requesting State to continue its investigation and possibly
initiate the extradition process in another State. Once a fugitive is located, the requesting State
must ensure that he or she is the person sought.
2. Three major factors to be considered once the suspect is located
135. Once a suspect has been located and his or her identity conrmed, the requesting State
must ensure the following before moving forward with an extradition request:
• e requestedStateis able to extradite theperson.
• e legalbasisthat grounds therequestfor extradition hasbeendened.
• erequirementsofthedomesticlaw oftherequestedStateregardingtheform andcon-
tents of an extradition request have been ascertained. It is important to remember that
each State has dierent requirements.
79
78
See 2004 Report of the Informal Expert Working Group on Eective Extradition Casework Practice, paras.113-115.
79
Ibid., para. 91.
57
Extradition: the process for a successful return of the accused
e three aforementioned factors arise at the beginning of what can become a very long and
involved process involving multiple parties, levels of court and jurisdictions. Planning is key, and
keeping track of events as they unfold is the responsibility of all those involved. One way of doing
so is to utilize a checklist for outgoing extradition requests such as the one found in annex IV to
the present Manual. at checklist guides the practitioner through factors that will have an eect
on any extradition, allowing him or her to focus on various factors before they become a potential
challenge or bar to an anticipated extradition request and to provide further tracking and guidance
if the request becomes active.
3. Provisional arrest
136. A provisional arrest allows a suspect to be detained prior to extradition proceedings being
commenced against him or her. is is particularly useful in cases of the type anticipated by the
Organized Crime Convention, as international criminals could have contacts and networks that
would allow them to evade the authorities should they be at large. A requesting State should speak
with the central authority of the requested State to conrm what is needed in order to aect a
provisional arrest in the requested State. Article 16, paragraph 9, of the Organized Crime Conven-
tion speaks to the possibility of a provisional arrest warrant being issued:
Subject to the provisions of its domestic law and its extradition treaties, the requested State
Party may, upon being satised that the circumstances so warrant and are urgent and at the
request of the requesting State Party, take a person whose extradition is sought and who is
present in its territory into custody or take other appropriate measures to ensure his or her
presence at extradition proceedings.
When seeking a provisional arrest, it is important to bear in mind the following:
• Ideally,arequest for provisionalarrest or for extradition shouldcitetheapplicable provi-
sions of the Organized Crime Convention and the fact that both the requesting and
requested States are party to the Convention (and its Protocols, if applicable).
• Oncetheprovisionalarresthasbeenmade,theclockstartstickingandtherequestingState
will have to provide all of the information needed to commence the extradition hearing
within a certain time frame. Domestic laws usually establish the time limit for commence-
ment as between 30 and 60 days. ese short time frames mean that care must be taken
early on to establish the time constraints for each case. Previous chapters in the present
Manual have addressed the varying requirements of dierent legal traditions and systems
and how they can cause frustration and delay. ose challenges are nowhere more pro-
nounced than with respect to extradition.
80
• Early and ongoing contact with the central authority of the requested State will aid in
alleviating the procedural stress that will arise once the extradition process has been set in
motion. With a bit of planning and foresight, discussions regarding possible bail, the
preparation of supporting documentation, ling deadlines, a description of the entire pro-
cess in the requested State and what is expected of the requesting State can all be conducted
beforehand.
80
Ibid., paras. 88-89.
58
Manual on Mutual Legal Assistance and Extradition
• Provisionalarrest shouldbeusedonlyif itis urgentlyneeded toensurethe attendanceof
the suspect at subsequent hearings.
81
• Communicationofarequestforprovisionalarrestpendingextraditionmaybedone,inter
alia, by using the I-24/7 system of INTERPOL. States should consider availing themselves
of this service.
Advice on drafting the extradition request for provisional arrest:
From time to time, there will be situations in which several international conventions may
have provisions that are applicable to the facts alleged. ere may also be times when the
facts are not suciently developed to enable a prosecutor to identify with certainty which
international convention is applicable. In such cases, the request for provisional arrest should
refer to any specic provisions known and “to any other relevant provisions of international
agreements to which both requesting and requested States are a party”.
I. Draftingandtransmittingtherequestforextradition
137. e present chapter started with a quote from the UNODC Informal Expert Working
Group on Eective Extradition Casework Practice stating that the major challenge to extradition
was the size and scope of the laws that governed it around the world. e Organized Crime Con-
vention attempts to limit this challenge through the provisions that allow for States parties to attain
some degree of commonality regarding the oences themselves and its eect on principles such as
dual criminality and with respect to some other procedural factors. What remains, however, is an
area of law that is still very dependent on the legal systems of each State and their respective
legislation governing extradition. e present section of the Manual will deal generally with the
preparation and transmission of extradition requests. It is important to keep in mind that there
will be many variations on the required material and timing from State to State.
138. e major factor that will lead to success in the preparation of an extradition request is
ongoing communication between the requesting and requested State. Communication before, dur-
ing and after the request is transmitted will assist greatly and have a tangible eect on the potential
success of the application.
139. ere is a plethora of considerations to keep in mind when preparing an extradition request.
e best method to approach this in an organized and consistent manner is to have a generic
checklist such as the one provided in annex V to the present Manual. A checklist of this type may
not be exhaustive or speak to every possible eventuality, but it is a good starting point. If such a
checklist is completed, the requesting State will be in a much better position to begin communi-
cating with the central authority of the requested State. If, as is a distinct possibility, the requesting
State nds itself in the position of being unsure as to the legal requirements that need to be satis-
ed in the requested State in order to complete the checklist, then any conversation had with the
central authority can focus on that particular issue. e checklists should be viewed not as an
exercise in lling in the blanks, but rather as a guide to communication, both oral and written,
which will lead to the drafting of a proper extradition request prior to it being submitted.
81
Ibid.
59
Extradition: the process for a successful return of the accused
A note on translation
• Requesting States should ensure the quality of translations so that they accurately
describe what is being requested and, most importantly, the requisite legal concepts
and terms
• Ongoing communication between central authorities and the sharing of draft
requests can help ensure that the request is accurately transmitted to the requested
State
• Requesting States should take care in preparing packages pursuant to a request
for extradition
• Sucient facts should be detailed to demonstrate that the applicable legal standard
(as outlined in the treaty or domestic law of the requested State) has been met:
that the oence was an oence where it is alleged to have occurred, that the oence
was committed by the fugitive and that the person sought for extradition is
the fugitive
• Packages that contain large amounts of documentation that relates to the criminal
case itself, but does not assist in addressing the narrower issues of extradition,
should be avoided, as analysing them for relevance requires considerable eort,
which can lead to lengthy delays in processing the request.
• Formal proof of documentation may sometimes be a dicult requirement to meet
and a potential impediment to a successful extradition request. In order to avoid
this, the Swiss authorities, for example, maintain a database that contains the
extradition and mutual legal assistance requirements of other countries. e website
is available in French, Italian and German and is accessible to the public
(www.rhf.admin.ch/rhf/fr/home/rhf/index.html)
• A similar source of information on extradition and mutual legal assistance in
Europe, in both English and French, is the Council of Europe website on trans-
national criminal justice
(www.coe.int/t/dghl/standardset ting/pc-oc/Tools_implementation1_en.asp).
60
Manual on Mutual Legal Assistance and Extradition
Points to remember in all extradition matters:
• Each State has dierent legislation with respect to extradition, with dierent pro-
cedures, dierent timelines and dierent evidentiary tests.
• Timelines and deadlines are part of the process the world over. Regardless of its
strengths or merits, a case can be dismissed for failure to abide by those
requirements.
• It is important for the requesting State to consult with the central authority of
the requested State, as that authority will be able to explain the process to the
requesting State and keep it engaged in the process.
• e central authority of the requesting State will rely on the requested State to
inform it of its obligations. Timely requests and advice, along with ongoing com-
munication, will help ensure that the requesting State provides the required material
at the required time.
J. Logisticalconcernsifextraditionissuccessful
140. Moving a prisoner who has been accused of an oence related to transnational organized
crime and has been the subject of an extradition request is not just a matter of putting him on a
plane or other form of transport. e decision to order surrender, once made, sets in motion events
that can occur quite quickly, and a requesting State must be prepared to act with promptness once
the surrender order has been made. Careful planning with respect to the timing, routing and
responsibility for the move all have to be considered. e following factors should be
considered:
• Whichpartywillberesponsibleforthetransferoftheprisoner?Oncethishasbeendecided,
others should not be involved, as the potential for confusion multiplies with each new
participant. ere are too many factors, e.g. tickets, visas, security, actions to be taken if
the aircraft is diverted, to let too many people be involved in this process.
• erouteshould beplannedcarefully, keepinginmind thenationalityand citizenshipof
the prisoner and his family. Direct routing is best, but, if it cannot be achieved, then
third-country stops that may provide an opportunity to the prisoner to exercise citizenship
rights or otherwise seek to circumvent the extradition process should be avoided.
82
Prisoners
may also attempt to claim refugee status; attention should be paid to this possibility.
• Any requirements or concerns that may arise if the surrendered individual has to pass
through a third county should be addressed. Problems may arise with respect to authoriza-
tion to transit through the third country.
82
Ibid., para. 121.
61
Extradition: the process for a successful return of the accused
A cautionary tale regarding travel arrangements
A requesting State made arrangements to bring a foreign national back to its jurisdiction
through the extradition process. In transit, the foreign national was routed through a
country where the fugitive had citizenship. Upon arrival, the fugitive claimed his citizenship
and asked not to be extradited to the requesting State. e country of citizenship did not
allow for extradition to the requesting State. As a result, despite a successful extradition
request, the choice of routing for the return of the fugitive led to him claiming citizenship
in another country, thus avoiding trial.
An example of a successful transit through a third country based on communication and
planning
In August 2011, Brazilian authorities received a transit request from a European country.
It was intended that the fugitive would be transferred from a South American country,
with a stop in Brazil while in transit, and then continue on to the European country. Prior
to the transit taking place, the central authority of the European country contacted Brazil’s
central authority to conrm which documents were needed to allow the transfer. Brazil
responded to the enquiry, providing information on the documentation required. e
completed documents were returned to Brazil via diplomatic channels, and the Brazilian
central authority issued the transfer authorization. As a result, the transfer occurred without
incident and the fugitive was successfully returned.
K. Alternativestoextradition:theiruseandreception
141. In the past, some States have exercised alternatives to extradition when the option of formal
extradition was not available. Listed below are actions that have been taken by some States to
achieve the return of a fugitive without having to actually initiate the formal extradition process.
Decisions on when or whether to exercise those alternatives must be made on a case-by-case basis
and in the light of the fact that such actions have been ruled as illegal in some jurisdictions and
should be viewed with great caution. Options such as a country allowing a suspect to “informally
surrender” without an extradition process or the arrest of a suspect while in international waters
83
are two alternatives to a formal extradition request. Two other options—luring, and expulsion and
deportation—are illustrative of the weighing of factors that may have to take place when using
alternatives to extradition.
1. Luring
142. When extradition is not available, such as when no treaty exists, luring has been used as an
option.
84
is method usually involves undercover operators creating a scenario that draws the
suspect out from his safe haven to a country from which he or she can be extradited.
83
Caruso, “Legal challenges in extradition and suggested solutions”, p. 63.
84
Ibid.
62
Manual on Mutual Legal Assistance and Extradition
143. Dierent jurisdictions view this option in dierent ways. Some view these types of actions
as illegal, thus warranting possible criminal sanctions, while others do not. us, depending upon
the State, there may be a possibility that any goodwill that existed or was hoped to be gained
between the State initiating the action and the safe-haven State could either be compromised or
disappear as a result of the action taken. States have long memories and, legal or not, this type of
activity can be viewed in a negative light. is type of action should be taken only after discussion
with subject-matter experts in the central authority.
85
2. Expulsion and deportation
144. Expulsion and deportation is another possible action that has been taken when no treaty
exists between two States. e dierence with this approach is that it can be used for the return
of a national of the requesting State when he or she has ed to the requested State in an eort
to avoid arrest and/or trial and punishment. is option operates on the premise that the suspect
has ed to the requested State’s jurisdiction on the requesting State’s passport.
86
e requesting
State then cancels that passport, leaving the suspect with no valid travel documents. What happens
next is up to the requested State: it has the option of deporting the suspect back to the requesting
State, as the suspect is now without valid travel documents. at potentially triggers the immigra-
tion law regime in the requested State, with deportation of the fugitive back to the requesting
State being a potential remedy.
145. ere are potential challenges to this method, as it is illegal in some jurisdictions. is
method is also dependent on whether the requested State has a mandate under its domestic law
to pursue the matter in this fashion, as well as whether it is prepared to do so. ese factors
reinforce the need for careful consideration of this course of action by subject matter experts in
the central authorities of both jurisdictions, so as to avoid an accusation of disguised
extradition.
87
85
Ibid.
86
Ibid., p. 64.
87
For the legal parameters of disguised extradition see Rebmann v. Canada (Solicitor General) (F.C.), 2005 FC 310
[2005] 3 F.C.R. 285, paras. 10 and 11:
[10]e applicant has not convinced me that the exclusion order is, in reality, a disguised extradition. e onus of
proving that a deportation order is not valid on its face, is a sham, or is not bona de is on the party who alleges it
(Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839). In other words, to support a disguised extradi-
tion argument, an applicant must show an improper purpose or bad faith on the part of the government. Further-
more, to establish a disguised extradition, the applicant has a very heavy onus to bear.
[11]Moreover, this Court has conrmed in Halm v. Canada (Minister of Employment and Immigration), [1996] 1 F.C.
547 (T.D.) that [at pages 562-563]:
1. If the purpose of the exercise is to deport the person because his presence is not conducive to the public good, that
is a legitimate exercise of the power of deportation.
2. If the purpose is to surrender the person as a fugitive criminal to a State because it asked for him, that is not a legiti-
mate exercise of the power of deportation.
3. It is open to the courts to inquire whether the purpose of the government was lawful or otherwise.
4. e onus is on the party alleging an unlawful exercise of power. It is a heavy onus.
5. To succeed, it would be necessary to hold that the Minister did not genuinely consider it in the public interest to
expel the person in question.
6. e adoption of the Charter has not lessened the onus.
63
Extradition: the process for a successful return of the accused
146. ere may be times, after reviewing the facts and the law, when it appears to a requesting
State that there is no viable and legal method of seeking the return of the accused. Requesting
States should still speak with their counterparts in the requested State to see if they have any
insight into how a return of the accused may be accomplished in a legal manner. It should be
kept in mind that any type of communication is better than no communication at all, and that
discussions with the requested State may result in a resolution that is legally sound and satisfactory
to both parties.
A nal thought on extradition practice:
“In striving for eective and predictable extradition, it is essential that the State seeking
the enforced return of a person (the requesting State) proceed from the axiom that extradi-
tion is country-specic.”
Source: 2004 Report of the Informal Expert Working Group on Eective Extradition Casework Practice, para. 90.
Points to remember regarding extradition requests
Review the Organized Crime Convention to decide whether it can provide the needed
legal basis to make the request.
Utilize other tools oered by UNODC, websites of the State to which you intend to make
the request or other international websites to familiarize yourself with the legal tradition,
legal system and domestic law that have a bearing on your request.
Initiate contact with the central authority of the requested State as early as possible after
educating yourself as much as possible regarding the requirements of the requested State,
and discuss your intended request with the central authority.
If applicable, submit a draft request to the central authority of the requested State to see
if it meets the requirements of the requested State. Discuss this further with the requested
State to further improve your application.
Early on in the request process, address logistical issues such as timelines, costs, travel
arrangements and transport.
Maintain communication with the requested State, initiating it before the request, main-
taining it during the request and following up after the request. Remember that, although
this is a legal exercise, much will depend on the relationships you develop and endeavour
to maintain both in relation to the subject of this request and in future requests.
65
Commentary on mutual legal assistance
“Two problems of a general nature arise regularly. First, neither the requesting nor the
requested state masters the other’s legal system, such that requests for cooperation are badly
formulated, precious time is wasted, and legally awed means of proof that are of little
use to the requesting state are communicated. Second, red tape and appeal procedures can
slow any mutual legal assistance request down to a near standstill.”
Source: Jean-Bernard Schmid, “Legal problems in mutual legal assistance from a Swiss perspective”, in Denying Safe Haven,
p. 45.
147. “To obtain evidence, judges and prosecutors must rely on the goodwill of foreign states even
in the presence of international obligations stated in treaties and agreements.”
88
No matter how
involved the treaties or agreements between two States are, mutual legal assistance is still a matter
of asking another State for help. How those acting for the requesting State describe the required
assistance, and whether they are viewed as being reliable and trustworthy, will be the barometer
of the degree of assistance the State receives. Conversely, as a requested State, how well those acting
for the State provide that assistance, and the timeliness and candour of any refusals of or postpone-
ments to a mutual legal assistance request, will go far in building trust. Finally, how well two States
communicate with one another will ultimately decide the success or failure of any mutual legal
assistance request.
148. Mutual legal assistance is meant to allow for a wide range of assistance between States in
the production of evidence. Article 18, paragraphs 1 and 2, of the Organized Crime Convention
speak of States parties aording “one another the widest measure of mutual legal assistance” and
mutual legal assistance being “aorded to the fullest extent possible”, but these actions can only
take place when the request itself is communicated eectively and ongoing communication takes
place during its execution. e above commentary illustrates not only what the common challenges
are to mutual legal assistance but also gives direction on how to avoid these pitfalls. An under-
standing of the needs of the requesting State, as well as the needs of the requested State, is impera-
tive to conducting a successful mutual legal assistance request.
A. Alternatives to formal requests for mutual legal assistance
149. Before embarking on the creation of a formal request for mutual legal assistance, time should
be taken to consider and enquire as to whether the formal request actually has to be drafted at
that time. In the case of mutual legal assistance, consideration should be given to whether current
88
Rabatel, “Legal challenges in mutual legal assistance”, p. 38.
VII. Mutual legal assistance: preparing, issuing and
following up on outgoing requests and acting
on incoming requests
66
Manual on Mutual Legal Assistance and Extradition
goals can be achieved through police-to-police cooperation or whether the documentation required
is in the public domain of the requested State and is therefore something that does not require
mutual legal assistance. Normally, the less intrusive or coercive a request, the more likely it can be
achieved without having to resort to a formal request which, no matter how ecient a system is
in place, will take more time than an informal request.
89
If an investigation is viewed as a con-
tinuum, there may be a period of time, particularly in the early stages of a mutual legal assistance
relationship, when there will be no need to prepare a formal request. Knowing when to initiate
formal requests is just as important as knowing how to initiate them.
150. ought should be given to utilizing the options discussed below, especially during the
initial phases of an investigation.
1. Police-to-policecommunication:liaisonofcersand
agency-to-agencycommunication
151. As previously stated, there are a number of dierent channels of communication that can
be utilized by investigators prior to going to a central authority for a formal mutual legal assistance
request. Investigators are encouraged to avail themselves of these options, particularly during the
early phases of an investigation, in order to attain information that can be used in any judicial
proceedings or as the basis for a later mutual legal assistance request. Caution should be exercised,
however, when availing oneself of these services, so that investigators do not obtain evidence from
a source the introduction of which into evidence at trial is not allowed. Ongoing communication
with the central authority of the investigator’s State and keeping in mind the general rule that
the more sensitive the information, the more likely it will require a mutual legal assistance request,
will help ensure that international investigations are successful in obtaining evidence from
foreignsources.
152. It is particularly important to avoid a situation in which a mutual legal assistance request
is perceived in the requested State as an attempt to conduct a foreign criminal investigation, which
may be in violation of the laws of that State. To that end, it would be useful for each State to
put in place step-by-step instructions on how to conduct foreign investigations in its territory. An
example of these instructions can be found in the Protocol on Foreign Criminal Investigators in
Canada (www.rcmp-grc.gc.ca/interpol/fcip-pcece-eng.htm).
153. Police-to-police communication can be a very useful way of acquiring information, especially
in the early phases of both an investigation that requires mutual legal assistance and in extradition
matters.
90
Police agencies have well-established networks of liaison ocers throughout the world,
as well as tried-and-true lines of communication and protocols with the many police agencies that
they consistently deal with. In addition, there is INTERPOL, which consistently assists its members
in their investigations.
91
In some cases, matters like locating witnesses or suspects, conducting
89
2001 Report of the Informal Expert Working Group on Mutual Legal Assistance Casework Best Practice, sect. 4.
90
See 2004 Report of the Informal Expert Working Group on Eective Extradition Casework Best Practice. e
Expert Working Group suggests, in paragraph 52 of that report, using mutual legal assistance to enhance and bolster
extradition requests.
91
e Informal Expert Working Groups strongly advocate utilizing the resources of INTERPOL when preparing
mutual legal assistance and extradition requests (see 2004 Report of the Informal Expert Working Group on Eective Extra-
dition Casework Practice, paras. 83-87; and 2001 Report of the Informal Expert Working Group on Mutual Legal Assistance
Casework Best Practice, sect. 4).
67
Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
interviews, sharing police les or documentation on a person or assessing whether a witness would
be prepared to speak with investigators can all be done through police agencies, with no need to
resort to a mutual legal assistance request. As a rule, the more coercive a request is, the less likely
that information can be obtained by this method, but such initial, simple steps in an investigation
can be done quickly and cheaply. ey can prove invaluable when it comes time to initiate a
formal request, as this information can be incorporated into the request, thus improving the chances
of the request being successful the rst time around. It is important to remember that there are
limits to what can be asked for and what can be done with informally obtained information, but
that such information can be very useful when preparing formal requests.
An example of potential penalties for not seeking the proper authorization to investigate
Article 271 of the Swiss Criminal Code
Unlawful activities on behalf of a foreign State
1. Any person who carries out activities on behalf of a foreign State on Swiss territory
without lawful authority, where such activities are the responsibility of a public author-
ity or public ocial, any person who carries out such activities for a foreign party or
organization, any person who encourages such activities, shall be liable to a custodial
sentence not exceeding three years or to a monetary penalty, or in serious cases to a
custodial sentence of not less than one year.
2. Any person who abducts another by using violence, false pretences or threats and takes
him abroad in order to hand him over to a foreign authority, party or other organiza-
tion or to expose him to a danger to life or limb shall be liable to a custodial sentence
of not less than one year.
3. Any person who makes preparations for such an abduction shall be liable to a custodial
sentence or to a monetary penalty.
2. Agency-to-agencycommunication
154. Agency-to-agency communication can also help facilitate mutual legal assistance without
the need for a formal request. A good example of this is communication between the central
authorities and the liaisons that report to them. e lines of communication that can be established
between these agencies complement the lines that the police and INTERPOL have already estab-
lished. It is important to note the ability of INTERPOL to assist in the timely and secure com-
munication of mutual legal assistance requests. Article 18, paragraph 13, of the Organized Crime
Convention refers to the fact that States may wish to utilize this option. e I-24/7 system of
INTERPOL, mentioned earlier in the present Manual, is well established, with national central
bureaux spread around the world. is network of bureaux can be utilized during the investigative
phase of a le but can also be used in conjunction with central authorities as a conduit for for-
warding requests from one central authority to another when direct communication may be
a challenge.
68
Manual on Mutual Legal Assistance and Extradition
155. e Organized Crime Convention also has language that relates to the informal provision
of information. Article 18, paragraph 4, allows States to proactively transmit information relating
to criminal matters to other States. Article 18, paragraph 5, outlines the protocol for using and
disseminating the information with respect to issues such as condentiality and disclosure. Addi-
tional language that relates to the informal sharing of information, such as article 18, para-
graph29, compels States to provide government documentation that is available to the general
public and gives them the discretion to provide government documentation that is not in the
public domain.
Practitioners should remember that any informal contact with a requested State’s authorities
should be referenced in any formal mutual legal assistance request.
An example of potential problems arising as a result of informal communications between
investigators.
An investigator posted abroad used his informal relationship with another investigative
agency to acquire sensitive information that normally would have required a search warrant
to obtain. ese documents contained exculpatory information and, pursuant to the law
of the requesting State, they had to be disclosed to defence counsel. e requested and
requesting States were both placed in a dicult position owing to the fact that:
• e information was of a sensitive nature, the requested State had not consented
to its release and that same information was potentially sought to be presented in
a public forum.
• e requested State could not consent to the release of the information without
a search warrant and therefore the information could not be disclosed by the
requesting State as per its obligations under the law.
3. Consular communications
156. Some countries rely on their consulates abroad to assist in obtaining mutual legal assistance
as an alternative to preparing a formal mutual legal assistance request. Mexico, for example, utilizes
its consulates to obtain evidence, declarations or information regarding particular investigations or
judicial causes.
92
Once the consular channel has been exhausted, the Mexican authorities then turn
to a formal mutual legal assistance request as the instrument of international cooperation.
92
Mexico bases its consular model on article 5, paragraph (j), of the Vienna Convention on Consular Relations (United
Nations, Treaty Series, vol. 596, No. 8638). Article 59 of the Mexican Criminal Procedure Code and article 44 of the Mexican
Foreign Service Act augment international cooperation in regulating the use of consulates as a venue for executing letters
rogatory emanating from Mexican authorities.
69
Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
B. General principles of mutual legal assistance
1. Sufciencyofevidence
157. In order for a successful mutual legal assistance request to be prepared, there must be
sucient evidence to make that request. e amount of evidence required is dictated partly by
the legislation of the requested State and partly by the nature of the assistance sought. Generally,
the more coercive the means of obtaining the evidence, the more involved and complex the
evidentiary requirements become. For example, the interviewing of a witness who provides a
statement to the police will require less evidence than a mutual legal assistance application that
seeks the conducting of a search of a person’s business or home. e evidentiary requirements
to obtain the same type of assistance in dierent States will vary greatly, depending on treaty
requirements, domestic legislation and the legal systems of the States involved. Reviewing the
laws of the requested State and holding prior discussions with the requested State’s central
authority will enable a requesting State to provide a mutual legal assistance request that satises
these basic requirements.
2. Dual/doublecriminality
158. Dual or double criminality is a legal principle that requires that the conduct of the
person who, in this case, is the subject of a mutual legal assistance request be conduct that
can be viewed as a criminal oence in both the requesting and the requested State. It is a
concept that tends to play a larger role in the law pertaining to extradition; however, it can
be found from time to time in the law pertaining to mutual legal assistance. It can range from
not being required at all, to being required for certain coercive acts of mutual legal assistance,
to being required for any type of mutual legal assistance.
93
All of this will be dependent upon
the domestic legislation of the requested State, and drafters of a mutual legal assistance request
should keep this in mind when drafting their request.
94
It should be emphasized that the test
for dual criminality is whether the conduct that is the subject of the mutual legal assistance
request is criminal in both States, not whether the conduct is punishable as the same oence
in each State.
95
93
Prost, “Practical solutions to legal obstacles in mutual legal assistance”, in Denying Safe Haven, p. 32.
94
“For this reason, it is important to describe the underlying crime very clearly, so that the foreign authorities can iden-
tify a similar oense in its own legal system. For example, the French oense of abus de biens sociaux, or the misuse of com-
pany property, needs to be explained in a manner that allows the foreign authorities to determine whether the conduct
amounts to breach of trust or embezzlement in their jurisdiction. A clear description of the criminal conduct also has the
advantage of preventing misunderstandings about the rule of ‘Non bis in idem’ (double jeopardy).” (Rabatel, “Legal chal-
lenges in mutual legal assistance” in Denying Safe Haven, p. 40).
95
Prost, “Practical solutions to legal obstacles in mutual legal assistance”, in Denying Safe Haven, p. 33; see also arti-
cle43, paragraph2, of the United Nations Convention against Corruption, in which the issue of dual criminality is addressed
even more forcefully than in the Organized Crime Convention. e dual criminality requirement is deemed fullled as long
as the conduct constitutes a criminal oence in both States:
In matters of international cooperation, whenever dual criminality is considered a requirement, it shall be deemed
fullled irrespective of whether the laws of the requested State Party place the oence within the same category of
oence or denominate the oence by the same terminology as the requesting State Party, if the conduct underlying
the oence for which assistance is sought is a criminal oence under the laws of both States Parties.
70
Manual on Mutual Legal Assistance and Extradition
3. DualcriminalityandtheOrganizedCrimeConventioninmutuallegal
assistance matters
159. Article 18, paragraph 9, of the Organized Crime Convention addresses the issue of dual
criminality, allowing a State to decline a request in the absence of dual criminality but giving it
the option to waive the requirement of dual criminality and provide the assistance in any situation
it sees t, irrespective of whether the conduct in question would constitute an oence in the
requested State. Requesting States should explore this option with requested States that have the
dual criminality requirement as part of their laws pertaining to mutual legal assistance. Article46,
paragraph9(b), of the United Nations Convention against Corruption goes further by stating that
dual criminality is required only with respect to coercive measures.
4. Limitsontransmissionoruseofinformationobtainedbymutuallegalassistance
160. Article 18, paragraph 19, of the Organized Crime Convention enshrines the principle of
limiting the use of information gathered as a result of the mutual legal assistance request to the
investigation, proceeding or prosecution that is the subject matter of the request unless permission
is granted to use it in other matters. Information that has been gained that is exculpatory in nature
may be disclosed to an accused. If this action is be taken, “the requesting State Party shall notify
the requested State Party prior to the disclosure and, if so requested, consult with the requested
State Party. If, in an exceptional case, advance notice is not possible, the requesting State Party
shall inform the requested State Party of the disclosure without delay.”
C. Grounds of refusal of a mutual legal assistance request
1. National or public interest
161. e principle of national or public interest is a broad concept that covers a multitude of
aspects that a State may wish to protect. Although not commonly used, it can usually be applied
in cases with national security overtones.
96
What practitioners may see in this day and age is a situ-
ation in which a number of dierent agencies—some law enforcement, some intelligence—are
looking at the same target for a variety of reasons.
97
ese types of scenarios may be more prevalent
than initially suspected, and this principle may be used more frequently in the future. Article18,
paragraph 21 (b) of the Organized Crime Convention lists this as one of the grounds on which
mutual legal assistance may be refused.
162. e judgment of the International Court of Justice dated 4 June 2008 in the case of Certain
Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)
98
is instructive, as it enshrines
96
Prost, “Practical solutions to legal obstacles in mutual legal assistance”, p. 34.
97
“Testifying to the House Committee on Banking in 1999, the former director of the Central Intelligence Agency,
James Woolsey, illuminated this conundrum when he asked the congressmen and women to consider the following hypo-
thetical situation: ‘If you should chance to strike up a conversation with an articulate, English-speaking Russian in, say, the
restaurant of one the luxury hotels along Lake Geneva, and he is wearing a $3,000 suit and a pair of Gucci loafers, and he
tells you that he is an executive of a Russian trading company and wants to talk to you about a joint venture, then there are
four possibilities. He may be what he says he is. He may be a Russian intelligence ocer working under commercial cover.
He may be part of a Russian organized crime group. But the really interesting part is that he may be all three.’” (Glenny,
McMaa: A Journey rough the Global Criminal Underworld, pp. 110-111).
98
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 177.
71
Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
the principle that States have the discretion to refuse mutual legal assistance in certain cases but
that the underlying premise is to provide assistance to the fullest extent and only refuse a request
in good faith and within a limited category of permitted exceptions. e observations of the court
regarding mutual legal assistance, although not pertaining directly to the Organized Crime Con-
vention, still resonate with respect to the principles enshrined in the Convention.
2. Severity of punishment
163. More recently, considerations of the likely severity of punishment have arisen in mutual
legal assistance cases. is principle has been concerned with respect to extradition cases, but it
has been seen in mutual legal assistance cases as well. ere are treaties and laws of States that
include provisions for the refusal of mutual legal assistance in cases in which the investigation may
lead to charges that may result in the imposition of the death penalty or cruel, inhuman, degrad-
ing punishment or torture. e challenge for a requested State is that there could be little to
indicate that this would be the likely outcome of an investigation, particularly if the investigation
is in its early stages. A central authority that is well versed in international criminal law and has
experience in dealing with certain regions or countries where this outcome is likely can assist in
anticipating that this issue may arise and be proactive in addressing it with the requesting State
by obtaining necessary information regarding sentencing in the event of a conviction prior to the
assistance being provided.
An example of assurances of the non-imposition of the death penalty that led to the provi-
sion of mutual legal assistance
A requesting State made a mutual legal assistance request to a requested State for informa-
tion to be used in relation to a hostage-taking investigation involving the attempted murder
of the hostages by a terrorist group. e attempted murder charge carried a potential
imposition of the death penalty. e requested State sought assurances that the death
penalty would not be imposed in the case. In response to this request, the requesting State
provided information that, over the previous 20 years, none of the persons convicted of
attempted murder had been sentenced to the death penalty nor had life imprisonment
been imposed upon them. As a result of these assurances, the requested State decided to
provide the requesting State with the information it sought.
3. Bank secrecy
164. e principle of bank secrecy has, in the past, been a ground of refusal of mutual legal
assistance for some States. Article 18, paragraph 8, of the Convention prohibits States parties from
refusing mutual legal assistance pursuant to the Convention on this ground. Similarly, article 18,
paragraph 22, prohibits States parties from refusing to provide assistance solely on this ground
when the case involves scal oences. Nonetheless, there may be situations in which a State is
insistent on maintaining bank secrecy even in the face of provisions like those found in article18,
paragraph 22. If a requesting State anticipates or actually is faced with a scenario of this type, it
is advisable to look carefully at what is being requested and for what purpose to see if the refusal
72
Manual on Mutual Legal Assistance and Extradition
is based upon how the request is worded, and to speak with the central authority to enquire as
to what can be done to resolve this situation.
99
4. Political offences
165. As with extradition, the political oences exception is a potential ground for refusal of mutual
legal assistance. e law and constituent elements that make up this exception are the same as
those articulated in the extradition chapter of the present Manual. e same caveats exist with
respect to mutual legal assistance requests as for extradition, and eorts should be made to look
behind what is being alleged as the crime in the mutual legal assistance request to see if it is indeed
a political oence in and of itself or if the charges shield what is essentially a request that is politi-
cal in nature.
5. Humanrightsconsiderations
166. Human rights considerations are an important component in preparing an outgoing mutual
legal assistance request and taking action on an incoming one. e following aspects of human
rights will have to be looked at in relation to mutual legal assistance matters:
• e righttolibertyand security of the person
100
• e rightnotto be subject totortureor cruel, inhumane or degradingpunishment
101
• e righttoequality before thelaw
102
• e righttoa fair and publichearing
103
• e righttocounsel and interpreters
104
• e righttobe presumed innocent
105
• erightnottobeheldguiltyofoencesretrospectivelyortohaveretrospectivepenalties
imposed
106
• e righttonot be compelled toincriminatehimself
107
167. When addressing a request from a requesting State, all of these factors need to be taken
into consideration. For those preparing outgoing requests, it is important to address any concerns
that may arise regarding the information that is being requested and how it is to be obtained.
ese factors should be considered on an ongoing basis by both requested and requesting States.
99
Schmid, “Legal problems in mutual legal assistance from a Swiss perspective”, p.48. e author alludes to the dier-
ence between scal fraud and scal evasion under Swiss law and how the one allows for a claim of bank secrecy while the
other does not. Consultation with an expert in the eld may enable one to overcome any problems experienced with claims
of this type.
100
Universal Declaration of Human Rights, art. 3.
101
Ibid., art. 5.
102
Ibid., art. 7.
103
International Covenant on Civil and Political Rights, art. 14, para. 1.
104
Ibid., art. 14, para. 3.
105
Universal Declaration of Human Rights, art. 11, para. 1.
106
Ibid., art. 11, para. 2.
107
International Covenant on Civil and Political Rights, article 14, para. 3 (g).
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Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
168. Although initially it may seem that breaches, or concerns regarding potential breaches, of
any of these principles may mean that there will be automatic refusal, that is not necessarily the
case. Before refusal is given regarding concerns on any of the aforementioned grounds, the provi-
sions of article 18, paragraph 26, of the Organized Crime Convention are triggered. at article
states that a “requested State Party shall consult with the requesting State Party to consider whether
assistance may be granted subject to such terms and conditions as it deems necessary. If the request-
ing State Party accepts assistance subject to those conditions, it shall comply with the
conditions.”
6. Double jeopardy
169. Double jeopardy is a principle that can sometimes prove problematic when dealing with
issues of mutual legal assistance. Dierent States have dierent denitions of what constitutes
double jeopardy in treaties to which they are party and in their domestic legislation. Various de-
nitions take into account the following:
• Hastheperson been punished forthecrime in the requestedand/or requested State?
• Hastheperson been punished forthecrime in a thirdState?
• Sometimes the question is not whether the person has been punished but whether the
person has been (a) tried, (b) convicted or (c) acquitted?
170. e answer to whether any of these scenarios exist with respect to a specic mutual legal
assistance request is dependent upon the facts surrounding each case and the legislation or treaty
requirements of the requested State. If the issue of double jeopardy arises, it is possible that the
mutual legal assistance request may be successful if the facts support a charge other than the one
in which double jeopardy is claimed.
108
7. Therightsofsuspectschargedwithcriminaloffences
171. Individuals who are the target of an investigation or who become a suspect in a crime are
entitled to their rights in the country where they are being interviewed. It is important in matters
of mutual legal assistance to indicate whether the person who is to be interviewed is a suspect in
the investigation. If this is not done, there is a risk that the evidence will be inadmissible at trial.
Example of a refusal of mutual legal assistance on procedural grounds:
A requesting State requested a hearing via videoconference from a requested State. e
requested State, through a court decision, refused on multiple grounds, one of which was
that it considered videoconference hearings inadmissible. In this particular case, the
requested State was to hear bank account administrators, who had given prior consent
for the hearing to take place via videoconference and for their ocial report to be sent
to the requesting State.
108
Prost, “Practical solutions to legal obstacles in mutual legal assistance”, p. 35.
74
Manual on Mutual Legal Assistance and Extradition
At the other end of the videoconference, a public hearing by a court was to be taking
place. One of the grounds for refusal was the following:
“e process had no basis in the requested State (neither the exchange of letters between
the requested and requesting State, the domestic law of the requested State concerning
mutual assistance, nor the federal criminal procedure provide for the possibility of organ-
izing a hearing via videoconference).”
D. Refusal of a mutual legal assistance request: the provisions of the Organized
Crime Convention
172. ere may be times when a mutual legal assistance request from a requested State is refused.
e Organized Crime Convention has a number of articles that address the issue of refusal and
what can be done in the alternative if refusal is given. As with other parts of the Convention, the
focus is not just on the action that can be taken, but also on maintaining open communication
and seeking alternatives between the two States.
173. Pursuant to article 18, paragraph 21, a mutual legal assistance request may be refused for
the following reasons:
• Iftherequestisnotmadeinconformitywiththeprovisionsofarticle18.Ascanbeseen,
deviating from the form can potentially have negative consequences.
• If the requested State party considers that execution of the request is likely to prejudice
its sovereignty, security, public order or other essential interests.
• If the authorities of the requested State party would be prohibited by its domestic law
from carrying out the action requested with regard to any similar oence, had it been
subject to investigation, prosecution or judicial proceedings under their own jurisdiction.
• Ifitwouldbecontrarytothelegalsystem oftherequestedStatepartyrelatingto mutual
legal assistance for the request to be granted.
1. Postponementofmutuallegalassistancerequest
174. e other option available to requested States, other than refusal, is postponement, which
is discussed in article 18, paragraph 25, of the Convention. Postponement is not based on the
same reasons as refusal and has its own set of triggers that would lead a State to grant the request,
only at a later date. Reasons for postponing a request are based on the fact that the timing of the
request interferes with:
• An ongoinginvestigation
• An ongoingjudicialproceeding
• An ongoingprosecution.
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Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
2. Timelinesforprocessingamutuallegalassistancerequest
175. Normally, a requested State would execute a mutual legal assistance request made pursuant
to the Organized Crime Convention as soon as possible and would attempt to abide by any time-
lines mentioned in the request as per article 18, paragraph 24. Refusals or postponements can
generate what could be lengthy delays in the execution of the request, and a reassessment may
have to be undertaken by the requesting State to see if it still wants to pursue this avenue or
whether the information can be found from other sources.
3. Lines of communication to remain open in the event of a refusal or
postponementofamutuallegalassistancerequest
176. If a mutual legal assistance request is refused or postponed, it is not the end of the matter.
Article18, paragraphs23, 25 and 26, all deal with the eventuality that a refusal or a postponement
may occur. Paragraph 23 obligates the requested State to give reasons for the refusal. Paragraph26
places an obligation on the requested State to discuss with the requesting State whether it would
be amenable to terms and conditions that would allow for the request to be granted or for its
execution not to be postponed.
109
4. Fiscalmattersexception:mutuallegalassistanceshallnotberefused
177. Pursuant to article 18, paragraph 22, no mutual legal assistance request can be refused solely
because the oence is considered to involve scal matters, such as money-laundering or proceeds
of crime.
E. Drafting the outgoing request
178. When a mutual legal assistance request is made pursuant to the Organized Crime Conven-
tion, how it is made and how it is grounded are important points to be considered. ese will be
discussed in the present section of the Manual. One should keep in mind that communication
with the central authority before, during and after the request will help ensure a successful outcome
to the request or a cogent explanation as to why it cannot be complied with.
1. ThetypesofassistancethatcanberequestedpursuanttotheOrganized
Crime Convention
179. Pursuant to article 18, paragraph 3, the following types of assistance can be asked for in a
mutual legal assistance request pursuant to the Convention:
• Takingevidence or statements frompersons
109
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), (see in particular paras. 151-152). e
Court highlighted the importance of providing notication of the reasons for refusing to execute a letter rogatory. It found
that this obligation was not fullled through the requesting State learning of the relevant documents only in the course of liti-
gation, some months later. e Court further observed that the mere reference to the article in the Convention based on
which the refusal had been made would not have suced to meet the obligation to provide notication of the reasons. Some
brief further explanation was called for, not only as a matter of courtesy but also to allow the requested State to substantiate
its good faith in refusing the request and to enable the requesting State to see if its letter rogatory could be modied so as to
avoid the obstacles to implementation.
76
Manual on Mutual Legal Assistance and Extradition
• Eecting service of judicialdocuments
• Executingsearches and seizuresand freezing
• Examiningobjectsand sites
• Providinginformation, evidence, itemsandexpertevaluations
• Providingoriginalsorcertiedcopiesofrelevantdocumentsandrecords,includinggovern-
ment, bank, nancial, 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
2. Specictypesofassistanceinvolvingtheseizingandfreezingofassets
180. e seizure and freezing of assets deemed to be proceeds of crime follow a specic protocol
pursuant to the Organized Crime Convention that should be read in conjunction with article 18
when making a mutual legal assistance request for this specic type of action. Article 12 of the
Convention addresses the issues surrounding conscation and seizure, article 13 addresses the issue
of international cooperation in identifying assets and making the actual seizures, and article 14
addresses the issue of disposal of seized property and assets and the potential repatriation of these
assets to the requesting State. For the purposes of mutual legal assistance, the most salient article
is article 13, particularly its paragraph 3. In order to obtain an order of seizure, an outgoing request
shall contain the specic information listed in article 13, paragraph 3, in addition to the other
information normally contained in a mutual legal assistance request:
e provisions of article 18 of this Convention are applicable, mutatis mutandis, to this article.
In addition to the information specied in article 18, paragraph 15, requests made pursuant
to this article shall contain:
(a) In the case of a request pertaining to paragraph 1 (a) of this article, a description
of the property to be conscated and a statement of the facts relied upon by the
requesting State Party sucient to enable the requested State Party to seek the order
under its domestic law;
(b) In the case of a request pertaining to paragraph 1 (b) of this article, a legally admis-
sible copy of an order of conscation upon which the request is based issued by
the requesting State Party, a statement of the facts and information as to the extent
to which execution of the order is requested;
(c) In the case of a request pertaining to paragraph 2 of this article, a statement of the facts
relied upon by the requesting State Party and a description of the actions requested.
181. Requests involving the seizure or freezing of property are, by their very nature, complex
undertakings requiring accurate descriptions of the property to be seized or frozen and coordina-
tion of eort by agencies tasked with seizing, freezing and potentially disposing of or returning
77
Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
the property in the requesting and requested State. States are advised to make every eort to
establish and maintain communication between investigators and central authorities when engaging
in actions of this type.
F. Comments on the actual writing of the request
182. It is evident that the scope of assistance that can be requested is quite broad and that the
type of assistance described in the last bullet in paragraph 179 above may allow for assistance that
does not neatly t into the other types listed. It is important, however, to found the application
in one or more of the above modes of assistance or, in the case of the last bullet, that the docu-
ment accurately and concisely explain the type of assistance that is sought. is is important for
more than just the purpose of style and clarity itself. Being clear in what is being requested assures
the requested State that: (a) it can actually comply with the request; and (b) the request is founded
in an investigation and is not just a “shing expedition”. e Mutual Legal Assistance Request
Writer Tool is an excellent option to utilize in providing clarity and consistency to both the form
and content of the request, thus avoiding the problems arising from vague drafting.
A note on the UNODC Mutual Legal Assistance Request Writer Tool
• e Mutual Legal Assistance Request Writer Tool has been prepared by expert
practitioners for practitioners and provides a step-by-step guide in preparing
requests, allowing even the most inexperienced practitioner to draft an acceptable
mutual legal assistance request, thus avoiding potential postponement or refusal of
the request.
• e software prompts the drafter to choose the type of mutual legal assistance
required and then to supply information in a series of templates. e drafter is
notied if essential information is missing. Once all of the required information
is provided, a draft request is produced.
• e Mutual Legal Assistance Request Writer Tool can be easily adjusted to use a
specic country’s substantive and procedural law and can be utilized in many
languages. It also allows access to key information on treaties and national
legislation.
• An integrated case management system for both incoming and outgoing requests
is part of the suite of services oered with the tool. is allows central authorities
using the tool to keep track of incoming and outgoing cases that they are respon-
sible for.
Ease of use, knowledge at one’s ngertips, designed by acknowledged experts and the
capability to perform the all-important task of tracking incoming and outgoing requests:
there is no reason not to use this tool, which is available from
www.unodc.org/mla/en/index.html.
78
Manual on Mutual Legal Assistance and Extradition
183. Preparation of a request for assistance involves the consideration of a number of requirements:
• Treaty provisions (whereapplicable)
• Domesticlaw
• e requirements of therequested State.
110
184. e drafting should be conducted in a clear, concise manner, with attention being paid to
articulating what the desired outcome of the request is. ere has to be enough information in
the request to allow the requested State to act upon it without being bogged down in extraneous
facts or limiting the requested State in how it can provide the assistance that is required. e major
requirements for drafting a successful request for mutual legal assistance are:
• To be very specic in presentation
• To link the existing investigationor proceedings totheassistance required
• To specify the preciseassistance sought
• To focus, where possible, on the end result and not on the method of securing that end
result (for example, it may be possible for the requested State to obtain the evidence by
means of a production or other court order, rather than by means of a search warrant).
111
A note on focusing on the end result and not the method of obtaining evidence
Asking for what you require and not dictating the method of acquiring the item leads to
a better method of cooperation.
1. Theformandsubstanceofamutuallegalassistancerequestpursuanttothe
OrganizedCrimeConvention
185. e present Manual has previously discussed the challenges posed by dierent legal tradi-
tions and cultures and how a lack of understanding can lead to negative results that possibly could
have been avoided. An appreciation of dierent legal traditions and systems can lead to better
communication, as can nding common ground with respect to that communication. Article18,
paragraph 15, of the Organized Crime Convention is designed to provide that common ground
when it comes to the form of mutual legal assistance requests made pursuant to the Convention.
Over 160nations can avail themselves of the Convention, and the potential for miscommunication
would be very high if there were not a common form that everyone who wished to do so could
use. For that reason, article 18, paragraph 15, provides the minimum requirements for an applica-
tion for mutual legal assistance pursuant to the Convention. Not providing this information will
probably lead to a request for more information or possibly to a refusal of the application. e
minimum provisions that should be within each mutual legal assistance request are as follows:
• e identityofthe authority making therequest
110
2001 Report of the Informal Expert Working Group on Mutual Legal Assistance Casework Best Practice, sect. 6.
111
Ibid.
79
Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
• e subject matter and nature of the investigation, prosecution or judicial proceeding to
which the request relates and the name and functions of the authority conducting the
investigation, prosecution or judicial proceeding
• A summary of the relevant facts, exceptinrelationto requestsfor the purpose of service
of judicial documents
• A description of the assistance sought and details of any particular procedure that the
requesting State party wishes to be followed
• Wherepossible, the identity, location and nationalityofany person concerned
• e purposeforwhich the evidence, informationoraction is sought
186. In urgent circumstances, a verbal request can be made for mutual legal assistance in place
of a written one if both the requested and requesting States agree to it. is is usually because of
a time-sensitive issue that does not allow for a written mutual legal assistance request to be pre-
pared. It is important to remember that, even if the request is a verbal one pursuant to article 18,
paragraph 14, it will have to comply with the form found in article 18, paragraph 15, and will
have to be followed up with a written version of the request.
187. Checklists of the type found in the annexes to the present Manual can assist in ensuring
that the above information has been gathered and addressed prior to initiating contact with the
requested State’s central authority and prior to any drafting taking place. Once all of this required
information has been gathered, then the actual drafting of the outgoing request can begin.
A note on priorities
Central authorities throughout the world have, over the years, seen a substantial increase
in the number of incoming requests. Some States submit requests for mutual legal assistance
in all criminal cases, including cases involving minor oenses such as theft of a bicycle or
failure to pay a restaurant bill. To more eectively manage the caseload, requesting States
should limit their requests for mutual legal assistance to serious, signicant oenses. States
receiving requests for minor oenses have noted that such requests will not be denied, but
may not be processed, owing to the need to focus limited resources on processing more
signicant requests rst.
188. As with all written communication, clarity and brevity are valued in requests for mutual
legal assistance. e present Manual has repeatedly stressed the importance of eective communica-
tion, and it is no dierent with respect to actually sitting down to draft a request. ere are several
steps that can be taken to assist with clarity in drafting a request. ese common-sense and plain-
language approaches will assist in the actual drafting of the request and also allow for eective
ongoing communication in discussing the request with the requested State.
189. Every legal tradition and legal system has its own specic legal lexicon that has been devel-
oped over the years. Challenges arise when certain words or phrases that may very well be com-
monplace and well understood in one legal tradition or system are used consistently throughout
the letter of request, particularly when they are found in the part of the letter in which the actual
80
Manual on Mutual Legal Assistance and Extradition
request is set out. It is easy to picture the potential confusion that can arise when the central
authority of a requested State is unclear on what exactly the requesting State is asking for. is is
particularly the case when requests must be translated into another language. If the State acts on
the request, the requesting State may not obtain what it is actually seeking. If the State does not
act on the request owing to a lack of clarity, delays will occur. To avoid this simple yet serious
challenge, it is suggested that the following be considered:
• Contacting the central authority of the requested Statebefore drafting to explain what it
is that is being sought and seeking input as to how to clearly articulate the request before
preparing the draft.
112
• Using clear language and avoiding legal jargon as much as possible in the request, with
explanations given for all necessary legal terms.
113
• WhenusingtheOrganizedCrimeConventionas thebasisfor arequest,usingthe termi-
nology found in articles 2 and 3 of the Convention. ese denitions and statements with
respect to scope can be incorporated into the body of the application, thus providing a
commonality of language that both the requesting and requested State can be condent
of understanding.
• Utilizing the MutualLegal Assistance RequestWriterTool provided by UNODC. It will
ground a written draft in a language and format that has been approved by specialists in
mutual legal assistance from around the world and which was designed specically for this
purpose. As with any legal problem, mutual legal assistance can be fact-specic, with
sometimes subtle variations in the nature of the request and timing, among other things.
e Mutual Legal Assistance Request Writer Tool will provide a draft that can be the basis
for discussion that will lead to the perfection of the document. Eorts made with the
assistance of the Tool can help ease the time constraints under which all those involved in
international legal assistance operate, while providing accurate, legally sound and timely
assistance to the drafting process.
2. Thelanguageoftherequestandtranslationissues
190. Another consideration that must be taken into account is the accuracy of the actual language
of the request. Defects in translation can lead to delays, confusion and frustration. Every eort
should be made to secure the services of a translator who is well versed in legal terminology and
who can accurately translate the contents of the request into the language of the requested State.
Article 18, paragraph 14, of the Convention addresses the language requirement, and discussions
should be had with the central authority of the requested State if it is unclear which language
should be utilized for the request.
112
See conference room paper entitled “Requesting mutual legal assistance in criminal matters”, in which every member
asked that its central authorities be contacted before a mutual legal assistance request was made.
113
“Every legal system has its own terminology. For example, an ‘adavit’ may have meaning in Canada but not in
Switzerland. As a request for assistance is addressed to and intended for a foreign authority, system-specic terminology
should be avoided. Instead the request should describe what is sought, rather than referring to a term. For example, rather
than ‘adavit’, the request should refer to a statement which is sworn or armed to by the person providing it.” (Prost,
“Breaking down the barriers”).
81
Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
3. Requestsforcondentiality
191. In many investigations, there are sensitive aspects that cannot be divulged until the inves-
tigation is completed and charges are laid, or it may not be possible to divulge them at all. Arti-
cle18, paragraph 20, of the Convention allows for the requesting State to ask for the application
for mutual legal assistance to be kept condential, and requires the requested State to inform the
requesting State promptly if such a request cannot be granted. It should be noted that it will
normally not be possible for a request for condentiality to be granted with a simple request.
Justication for the request may be required, particularly if a court will be required to gather
evidence. When sensitive information will be contained within an application for mutual legal
assistance, it is therefore useful to address this issue with the requested State’s central authority
before the sending of the application itself. In this way, an informed choice can be made as to
whether to proceed with the mutual legal assistance or whether the application itself can be suc-
cessful without the inclusion of this information.
4. Communication is key
192. Communication before, during and after the request will aid in ensuring a successful request.
G. Processing incoming mutual legal assistance requests
193. e previous paragraphs discussed how requesting States can enhance the mutual legal
assistance process by ensuring that the proper format and language are used in the request. It was
also emphasized that early and ongoing communication are key to a successful outcome to the
request. Much the same can be said with respect to those tasked with processing the requests made
by requesting States. Communication will be key in bringing clarity to this action, particularly if
the initial request is unclear or perhaps even not possible to comply with. e Organized Crime
Convention exhorts those States which have ratied the Convention to not stop at refusal but
rather to carry on to see if there is an alternate remedy available. e present section deals with
the ongoing eorts that are entailed in the processing of a mutual legal assistance request.
194. It is hoped that, if requesting States follow the process of educating themselves on the legal
tradition, legal system and legislation of the requested State, and with the assistance of tools such
as the Mutual Legal Assistance Request Writer Tool and in compliance with the minimum require-
ments of the Organized Crime Convention, more and more mutual legal assistance requests will
be successful the rst time they are made. ere will, of course, always be requests for which,
owing to their extent or complexity and the resultant problems arising in the drafting of the request,
the rst attempt may not be the one that can be acted upon. e Convention has a number of
articles that deal with the all-important matter of maintaining communication throughout the
process. Both requested and requesting States should keep those in mind once a request has
been made.
State may ask for additional information
195. Article 18, paragraph 16, of the Convention allows a requested State to ask for more infor-
mation in order to be able to comply with a request. is allows a requested State to not have to
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Manual on Mutual Legal Assistance and Extradition
refuse a request outright owing to a lack of information contained within it. Instead, an ongoing
dialogue can be entered into in which the requested and requesting State can discuss what is miss-
ing and steps can be taken to rectify the shortcomings in the request. It should be noted that this
action may not need to take place if: (a) early informal communication took place between the
central authorities of the requested and requesting State, at which point possible shortcomings
could be identied and rectied prior to the formal request being sent; and (b) a draft mutual
legal assistance request was sent to the requested State’s central authority prior to a perfected formal
request being sent. ere will be times, of course, when such actions cannot be undertaken, owing
to time constraints, or when the information required is easily found and inserted into an amended
request. More eort during the initial stages, however, will always pay o once the formal request
is sent.
196. When a requested State takes action on a mutual legal assistance request, it does so acting
under its own laws. is part of the equation is the one that provides many of the challenges in
mutual legal assistance and why it is so important to develop an understanding of the legal tradi-
tion and legal system of the requested State and to maintain good lines of communication. Refer-
ring back to the section II of the present Manual, on legal traditions, it is easy to see how, if the
domestic law analysis were taken literally, there would be a great many problems with acting on
even the most simple request. e Convention, however, has language that urges requested States
to be exible in their approach and not to reject a request simply because it is unfamiliar but
rather to undertake the requisite analysis to see if the request actually runs afoul of its laws. Arti-
cle18, paragraph 17, of the Convention also urges requested States to assist as much as possible,
but within the bounds of their own laws, by executing the request in compliance with their own
procedures where possible.
H. Specicissuesinprocessingincomingrequestsforthepurposeof
conscationpursuanttotheConvention
197. Article 13, paragraphs 1 and 2, of the Convention deal with the procedure and obligations
to be followed with respect to processing an incoming mutual legal assistance request for interna-
tional cooperation in conscation. Care should be taken to establish good lines of communication
between the requesting and requested State, as these types of matters can, by their nature, become
extremely complex and technical, particularly when it comes to locating and tracing assets that a
criminal may have taken great pains to conceal or commingle with legitimate assets. e technical
expertise required to perform the duties mentioned in those paragraphs of the Convention may
not be readily available in some jurisdictions and may prove costly to acquire. ought should be
given ahead of time to addressing the issue of costs pursuant to article 18, paragraph 28, should
the need arise. Article 13, paragraphs 1 and 2 read as follows:
1. A State Party that has received a request from another State Party having jurisdiction over
an oence covered by this Convention for conscation of proceeds of crime, property, equip-
ment or other instrumentalities referred to in article 12, paragraph 1, of this Convention situ-
ated in its territory shall, to the greatest extent possible within its domestic legal system:
(a) Submit the request to its competent authorities for the purpose of obtaining an order
of conscation and, if such an order is granted, give eect to it; or
(b) Submit to its competent authorities, with a view to giving eect to it to the extent
requested, an order of conscation issued by a court in the territory of the requesting
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Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
State Party in accordance with article 12, paragraph 1, of this Convention insofar as it
relates to proceeds of crime, property, equipment or other instrumentalities referred to
in article 12, paragraph 1, situated in the territory of the requested State Party.
2. Following a request made by another State Party having jurisdiction over an oence
covered by this Convention, the requested State Party shall take measures to identify, trace
and freeze or seize proceeds of crime, property, equipment or other instrumentalities referred
to in article 12, paragraph 1, of this Convention for the purpose of eventual conscation to
be ordered either by the requesting State Party or, pursuant to a request under paragraph 1
of this article, by the requested State Party.
198. e tracing and seizing of assets is an area in which dierences in legal traditions will come
to the fore. Property (both real estate and personal property), banking systems and their protec-
tions, the management and disposal of seized assets and a plethora of other considerations are part
and parcel of the regime of asset seizure and forfeiture. Communication will be key in ensuring
that all phases of the seizure and forfeiture of assets run smoothly and that a successful result
is obtained.
I. Videoconferencing
199. One developing area of law and procedure is that of videoconferencing. e benet of this
type of testimony is obvious. e videoconferencing option, which the Convention makes specic
reference to in article 18, paragraph 18, allows for evidence to be gathered while at the same time
avoiding what can be the prohibitively high costs and logistical challenges of obtaining testimony
in another State. Earlier in the Manual, mention was made of the fact that not all States are legally
capable of allowing evidence to be taken via videoconference. ose tasked with making a mutual
legal assistance application for testimony from another State should nevertheless explore this option
with the requested State to see if its legal system allows for it. An example of a regional agreement
that allows for the taking of video evidence is the following, which describes the Mexican experi-
ence in the Ibero-American region:
e Mexican experience in videoconferencing in the regional cooperation context
e Ibero-American Convention on the Use of Videoconferencing in International Co-
operation between Judicial Systems facilitates the use of videoconferencing between com-
petent parties in civil, commercial and penal cases. e Convention makes possible the
cross-examination of a person, as party, witness or expert, residing in another State, via
videoconference. Article 5 of the Ibero-American Convention states that the cross-exam-
ination will be performed directly by the requesting State, under the supervision of a
person from the requested State. States parties may choose not to use videoconferences
with respect to people who are presently subject to legal process, or with respect to those
who are suspected criminals. Article 9 requires that parties to the Ibero-American Con-
vention declare, upon ratication, which national authorities will be responsible for the
process in their State.
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Manual on Mutual Legal Assistance and Extradition
An example of exibility and communication to obtain testimony by video link
Two accused were charged with assault and robbery in the requesting State. e sole wit-
ness to the crime was the victim, who was hospitalized and returned to the requested State
and was unable to travel to the requesting State to testify. A request was made to have the
victim testify via video link. e requesting State was concerned that the testimony would
be inadmissible should the evidence be elicited in the manner normally required under the
procedures of the requested State. e requested State was concerned that, if the requesting
State’s trial procedure was used, then its sovereignty would be violated.
To resolve the issue, the requested State considered the following:
• e victim was the only witness to the crime. An acquittal would be the likely
verdict should he not testify and as such there was merit in the victim testifying
in the case.
• e only way for the victim to testify was via video link.
• e criminal procedure of the requested State established universal jurisdiction
over the crimes alleged, as they were perpetrated against a national of the requested
State. Having the accused tried in the jurisdiction where the crime was allegedly
committed was considered as having positive merit by the requested State.
• e requested State considered the request to testify via video link and compared
it to a foreign authority conducting an investigation on the requested State’s soil.
is analysis showed the violation of sovereignty through the video link request
to be minimal.
Other procedural concerns when assurances were sought by the requested State:
• at the appearance of the witness would be voluntary, with no sanctions sought
for non-appearance.
• at the taking of the oath would be voluntary and there would be no sanctions
sought for not taking the oath.
• at any claims of privilege not to testify would be in accordance with the request-
ing State’s procedures but that ocials from the requested State could observe the
process and intervene if they saw t.
• at the requesting State understood that it might be dicult for the requested
State to extradite the witness should there be an allegation and charge of perjury.
J. Logistics/practical considerations
200. Any eorts that have been made in order to ensure a successful conclusion to a mutual
legal assistance request will not end with a properly drafted request. Requesting States should
anticipate a myriad of logistical concerns well ahead of the actual execution of the request so as
85
Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
to avoid problems that can seriously aect the outcome of the request. Travel arrangements, the
timing of the travel, inoculations, interpreters, local guides, vehicles, the availability of personnel
to assist in the requested State, the costs of providing the request and other considerations have
to be taken into account before the request can be successfully processed.
201. It should be noted that dierent jurisdictions will have dierent capabilities regarding the
processing of requests. is will be even more pronounced as the complexity of the request increases.
Requesting States should consider being proactive in oering assistance to the requested State that
will assist in the granting of these requests.
K. Travel arrangements
202. If ocials from a requesting State must travel to a requested State pursuant to a mutual
legal assistance request, care should be taken to ensure that the visit is eectively coordinated
through the respective central authorities and diplomatic channels. Scheduling, travel arrangements,
transportation and contacts in the requested State should all be handled before arrival. is will
ensure that any costly delays or problems will be avoided during the mission.
L. Costsofexecutingtherequest
203. Article 18, paragraph 28, of the Organized Crime Convention addresses the issue of costs
in providing mutual legal assistance. International investigations cost money and, in a time of
shrinking budgets and fewer resources, the costs of investigations have to be borne in mind almost
as much as the investigation itself. Pursuant to article 18, paragraph 29, the ordinary costs of execut-
ing a request will be borne by the requested State. States can, however, agree to dierent terms,
including the sharing of costs if they wish. is is of particular use when a State does not have
the nancial or logistical ability to comply with a request.
114
204. In some cases, the costs that are incurred as a result of international assistance are no more
onerous to the requested State than if it were conducting its own domestic investigation. e police
who conduct the interviews will be paid whether they are interviewing a witness for one of their
own cases or for a foreign agency, for example. From time to time, however, a situation arises in
which the nature and type of assistance requested result in costs above and beyond those which
are normally incurred by a requested State. A search of a home or oce on dry land is one thing;
a search of an oceangoing ship, where there is evidence that drugs have been secreted either on
the hull or within the actual superstructure of the ship, is an entirely dierent matter. e costs
of a search of this type, with specialist divers, naval architects, shipwrights and possibly a master
and a crew to move the ship, will cause costs to quickly mount far beyond the nancial capabili-
ties of a normal operation. Article 18, paragraph 28, addresses this issue by placing a duty on each
State to consult before engaging in costly assistance so that some manner of nancing the assistance
can be discussed. Further cooperation is encouraged between States to share limited resources, be
they monetary, personnel or equipment.
115
114
e 2001 Report of the Informal Expert Working Group on Mutual Legal Assistance Casework Best Practice, p. 14,
refers to maximizing the availability and use of resources between States.
115
e 2001 Report of the Informal Expert Working Group on Mutual Legal Assistance Casework Best Practice, p. 14.
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Manual on Mutual Legal Assistance and Extradition
M. Other considerations: prisoner transfer for testimony and safe conduct of
consenting witnesses pursuant to the Organized Crime Convention
205. Article 18, paragraphs 10-12, are the provisions in the Convention that pertain to the
transfer of prisoners in the requested State for identication purposes, testimony or the provision
of other assistance in the requesting State. Although this scenario may have been somewhat rare
in the past, the growth of international organized crime means this will become more common-
place. As States work together to combat dierent branches of the same organized criminal groups
in their own territory, there will increasingly arise situations in which members of one branch of
an organization who have been convicted and are serving their sentences may have information
that is needed by way of testimony or otherwise in another jurisdiction.
206. e two ways in which a prisoner transfer pursuant to article 18, paragraph 10, can occur are:
• e prisonerconsentsto the transfer
• e requesting andrequestedStatesagree to thetransfer,subjectto agreed-upon conditions
e requesting State must, after the prisoner has been transferred:
• Keeptheprisoner in custody whilewithinthe requesting State’s jurisdiction
• Returntheprisonerto therequestedState’s jurisdictionwithout delayas perthe termsof
their agreement
• Not requireextradition proceedings tobeinstituted by the requestedStateforthereturn
of the prisoner
e prisoner shall receive credit towards his or her sentence for any time served while in the
requesting State’s custody.
207. A prisoner transferred to a requesting State shall not be prosecuted, detained, punished or
subjected to other restrictions on his liberty for any acts, omissions or convictions occurring prior
to his leaving the requested State’s jurisdiction unless both States agree to do so.
208. It is important that both the requested and requesting States establish travel arrangements
that allow for an orderly transfer of the inmate and that the appropriate orders, warrants of com-
mittal or other documents be prepared and proper notication given to the prison authorities to
allow for the transfer to occur into the custody of the requested State.
209. Situations arise in which a witness is not detained in custody in a requested State and a
requesting State wishes to secure the testimony or assistance of that witness in its jurisdiction for
the purposes of prosecution or a judicial proceeding or investigation. Article 18, paragraph 27,
provides the framework for the transfer and safe conduct for a witness of the type described. In
order for the transfer of a witness who is not incarcerated to take place, the following steps and
procedures apply:
• ewitnessmustconsenttogiveevidenceinaproceeding,ortoassistinaninvestigation,
prosecution or judicial proceeding in the territory of the requesting State.
• While in the requesting State’s territory, the witness shall not be prosecuted, detained,
punished or subject to any restriction of liberty respecting any acts, omissions or convic-
tions that took place prior to his or her departure from the requested State’s territory.
87
Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
• e above-mentioned safe conduct ceases after 15 consecutive days (or a period agreed
upon between both States) have passed from the day when the witness was ocially
informed that his or her testimony or assistance was no longer required, and the witness,
having had an opportunity to leave the jurisdiction, did not avail himself or herself of it
or, after leaving the jurisdiction, returned of his or her own volition.
210. It is important to have travel arrangements in place that allow for the witness to return to
the requested State at the expiration of the 15-day or otherwise agreed-upon period. It is also
important that it be clearly expressed to the witness when his or her services are no longer needed
and the witness is truly released from the obligations that resulted in his or her travel to the
requesting State. Requesting States should also consider, before requesting the transfer of the wit-
ness, whether there is a potential for an asylum or refugee claim that could result in lengthy
proceedings before the witness can be returned to the requested State. If this turns out to be a
concern, then the requesting State may consider seeking the assistance or testimony of the witness
through videoconferencing pursuant to article 18, paragraph 18, of the Convention.
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Manual on Mutual Legal Assistance and Extradition
Points to remember regarding mutual legal assistance requests
Decide whether a formal mutual legal assistance request is needed or if one of the alterna-
tives satisfy your requirements.
Investigators should stay in communication with their own legal advisers when engaging
in police-to-police communication. Prior communication between police agencies may be
of great importance and must be mentioned when making a formal mutual legal assistance
request. Consistent communication will ensure that investigators are advised as to when
the rules of evidence and procedure of their own country require a formal mutual legal
assistance request instead of an informal police-to-police request.
Review the Organized Crime Convention to decide whether it is the tool needed to make
the request.
Utilize other tools oered by UNODC, such as the Mutual Legal Assistance Request Writer
Tool, websites of the State to which you intend to make the request or other international
websites, to familiarize yourself with the legal tradition, legal system and domestic law that
has a bearing on your request.
Initiate contact through your central authority with the central authority of the requested
State after educating yourself as much as you can regarding the requirements and, if pos-
sible, discuss your intended request with the central authority
If applicable, submit a draft request to the requested State’s central authority to see if it
meets the requirements of the requested State and whether the requested State will be able
to provide you with the evidence you intend to elicit in a format that can be utilized
byyou.
Early on in the request process, address logistical issues such as timelines, costs, travel
arrangements and transport.
Maintain communication with the requested State, initiating it before the request, main-
taining it during the request and following up after the request. Remember that this is a
legal exercise; much will hinge on the relationships you develop and endeavour to maintain,
both in relation to the subject of this request and in future requests.
“Ultimately, even when there is no apparent legal basis for cooperation, practitioners should
still ask the foreign State for assistance. e foreign State could well be amenable to the
request.”
Source: Kimberley Prost, “Practical solutions to legal obstacles in mutual legal assistance”, in Denying Safe Haven, p. 32.
89
Mutual legal assistance: preparing, issuing and following up on outgoing requests and acting on incoming requests
e nal word on mutual legal assistance requests:
“... all the experts and participants agreed that communication is the most important factor
in resolving legal obstacles in extradition and mutual legal assistance ... legal obstacles often
do not result from dierences between the legal systems of the countries involved, but from
a failure to appreciate those dierences. Direct dialogue between the requesting and requested
States, whether formal or informal, can eliminate many of these misunderstandings.”
Source: “Overcoming legal challenges in mutual legal assistance and extradition”, in Denying Safe Haven, p. 30.
91
Mutual legal assistance requests should include the following:
• Identication. Identication of the oce/authority presenting or transmitting the request
and the authority conducting the investigation, prosecution or proceedings in the request-
ing State, including contact particulars for the oce/authority presenting or transmitting
the request and, unless inappropriate, the contact particulars of the relevant investigating
ocer/prosecutor and/or judicial ocer (see form I in annex III below).
• Consideration as to what formal requirements need to be complied with, e.g. authentication or
certication of documents. Consideration of whether or not there is a requirement for trans-
lation services and where to make use of competent translators familiar with the legal lexicon
of the States involved.
• Prior contact. Details of any prior contact between ocers in the requesting and requested
States pertaining to the subject matter of the request.
• Use of other channels. e request should make clear whether a copy of the request has
been or is being sent through other channels.
• Acknowledgement of the request. A cover sheet incorporating the acknowledgement, for
completion and return to the requesting State (see form I in annex III).
• Indication of urgency and/or time limit. A prominent indication of any particular urgency
or applicable time limit within which compliance with the request is required and the
reason for the urgency or time limit.
• Condentiality. A prominent indication of any need for condentiality and the reason
therefore, and the requirement to consult with the requesting State prior to the execution
if condentiality cannot be maintained.
• Legal basis for the request. A description of the basis upon which the request is made, e.g.
bilateral treaty, multilateral convention or scheme or, in the absence thereof, on the basis
of reciprocity.
• Summary of the relevant facts. A summary of the relevant facts of the case including, to the
extent possible, full identication details of the alleged oender(s).
• Description of the oence and applicable penalty. A description of the oence and applicable
penalty, with an excerpt or copy of the relevant parts of the law of the requesting State.
• Description of the evidence/assistance requested. A description in specic terms of the evidence
or other assistance requested.
AnnexI. Generalchecklistforrequestingmutual
legal assistance
92
Manual on Mutual Legal Assistance and Extradition
• Clear link between proceeding(s) and evidence/assistance sought. A clear and precise explana-
tion of the connection between the investigation, prosecution or proceedings and the
assistance sought, i.e., a description of how the evidence or other assistance sought is
relevant to the case.
• Description of the procedures. A description of the procedures to be followed by the authori-
ties of the requested State in executing the request to ensure that the request achieves its
purpose, including any special procedures to enable any evidence obtained to be admissible
in the requesting State and reasons why the procedures are required.
• Presence of ocials from the requesting State in execution of request. An indication as to
whether the requesting State wishes its ocials or other specied persons to be present at
or participate in the execution of the request and the reason why this is requested.
• Language. All requests for assistance should be made in or accompanied by a certied
translation into a language specied by the requested State.
Note: If it becomes evident that a request or the aggregate of requests from a particular State involve
a substantial or extraordinary cost, the requesting and requested States should consult to determine
the terms and conditions under which the request is to be executed and the manner in which the
costs are to be borne.
93
Search and seizure
In the case of a request for search and seizure, the request should include the following:
• As specic a description as possible of the location to be searched and the documents or
items to be seized, including, in the case of records, the relevant time periods
• Reasonablegrounds(sucientevidence)tobelievethatthedocumentationorthingsought
is located at the place specied within the requested State
• Reasonable grounds to believe that the documentation or thing will aord evidence of
the commission of the oence that is the subject of investigation or proceeding(s) in the
requesting State
• Anexplanationofwhylessintrusivemeansofobtainingthedocumentorthingwouldnot
be appropriate
• Anindicationof any special requirementsin relationtothe executionofthe search or seizure
• Any knowninformation about thirdparties who may haverightsin the property
Production of documents
In the case of a request for the production of documents, the request should include the following:
• Sincea courtorderisgenerally required, asspecic adescription aspossibleof thedocu-
ments to be produced and their relevance to the investigation
• An identicationofthe location and/or custodianofthe requireddocuments
• Anindicationastowhethera copyorcertiedcopyof thedocumentswillsuceand,if
not, the reason why the original documents are required
• Ifcerticationorauthenticationisrequired,theformofcertication/authentication,speci-
ed in an attached pro forma certicate (see form II below) if possible
• Anindicationastowhetheritislikelythatanyofthedocumentsmightbesubjecttoany
claim of privilege, e.g. legal professional privilege
It is important to check with the requested State, as some may have additional requirements for
the production of documents.
In cases involving requests for the production of computer records, the risks of deletion or destruc-
tion should be considered in consultation with the requested State. In such a case, an expedited,
secure means of preservation may be required, e.g. special preservation order, or search and seizure.
AnnexII. Supplementalchecklistforspecictypes
of mutual legal assistance requests
94
Manual on Mutual Legal Assistance and Extradition
Takingofwitnessstatements/evidence
In the case of a request for a statement or testimony, the request should include the following:
• e identity and location of the person from whom the statement or testimony is to be
obtained
• A description of the manner in which the evidence should be taken (e.g. under oath or
any appropriate cautions to be administered) and recorded (e.g. procès verbale, verbatim,
videotaped, via video link) and whether and in what manner the authorities of the request-
ing State’s authorities wish to participate and why
• If ocers of the requesting State are not participating, a list of the topics to be covered
and specic questions to be asked, including a point of contact in the requesting State,
should consultation by telephone become necessary during questioning
• Inthecaseofvideo-linktestimony,thereasonswhyvideolinkispreferabletothephysical
presence of the witness in the requesting State, and a point of contact in the requesting
State to be consulted with on the procedures to be followed
• IfrepresentativesofthedefenceintherequestingStatearerequestedtobepresent,aclear
specication thereof, with the reasons made clear
Temporarytransferofprisonerstogiveevidence
In the case of a request for temporary transfer of prisoners to give testimony, the request should
include the following:
• An explanationofhow theprisoneris able to assist intheinvestigation or proceeding(s)
• An indication as to whether the prisoner has consented to travel to the requesting State,
or a request for that consent to be sought by the requested State
• An assurance that, if transferred, the prisoner will be held in custody by the requesting
State at all times
• Anassurancethat the prisonerwillbe returnedtothe requestedState as soon aspossible
when his or her assistance is no longer required for the purposes of the request or as
otherwise agreed by the States involved
• To the extent required by the requested State, an assurance that the prisoner will not be
detained, prosecuted or punished in the requesting State for any oence committed prior
to his or her transfer to the requesting State
• An assurance that the prisoner will be returned to the requested State without the need
for extradition
• A point of contact in the requesting State to be consulted with on any relevant issues,
including credit for time spent in custody in the requesting State, the logistical arrange-
ments and costs of the transfer, and any other relevant pre-conditions
95
Form I
Cover note for all mutual legal assistance requests
(To be lled in by requesting authority)
Case:
Case number:
Name(s) of suspect(s):
Authority who can be contacted regarding the request
Organization:
Place:
Country:
Name:
Function:
Spoken language:
Telephone number:
Fax number:
E-mail:
Deadline
is request is urgent.
Please execute this request before: [date]
Reasons for deadline:
Date:
Signature:
AnnexIII. Samplecovernoteforanoutgoing
mutual legal assistance request,
acknowledgment of receipt of
an incoming request and sample
authenticationcerticate
96
Manual on Mutual Legal Assistance and Extradition
Acknowledgement of request
(To be lled in by the requested authority)
Registration
Registration number:
Date:
Authority receiving the request
Organization:
Place:
Country:
Name:
Function:
Spoken language:
Telephone number:
Fax number:
E-mail:
Authority who can be consulted on the execution of the request
Same as above
See below
Organization:
Place:
Country:
Name:
Function:
Spoken language:
Telephone number:
Fax number:
E-mail:
Deadline
e deadline will probably [be met/not be met].
Reason:
Date:
Signature:
Please ll in this form upon receipt and fax it to:
97
Sample cover note
Form II
Apostille
1. Country: _________________________________________________
is public document
2. has been signed by _________________________________________
3. acting in the capacity of _____________________________________
4. bears the seal/stamp of ______________________________________
Certied
5. at ____________________ 6. the _________________________
7. by ______________________________________________________
8. No. _______________________
9. Seal/stamp: 10. Signature:
______________________ ____________________________
Note: In cases where authentication of foreign public documents is required, the Hague Convention
of 5 October 1961 abolishing the requirement of legalization for foreign public documents provides
for a simplied and speedy way of certifying such authentication by means of the “apostille”
attached to that Convention.
99
Treaty requirements
Make sure to check the treaty requirements before continuing with
the remainder of the checklist.
Domestic law
requirements
Make sure to check any domestic legal requirements in the requested
State prior to continuing with the remainder of the checklist.
Identity of the person
sought
Provide a description of the person sought and, optionally, all
other information that may help to establish that person’s identity,
nationality and location (including, for example, identity card,
ngerprints, photo, DNA material).
Facts and procedural
history of the case
Give an overview of the facts and procedural history of the case,
including the applicable law of the requesting State and the crimi-
nal charges against the person sought.
Legal provisions
Provide a description of the oence and applicable penalty, with an
excerpt or copy of the relevant parts of the law of the requesting State
Statute of limitation
Specify any relevant limitation period beyond which prosecution of
a person cannot lawfully be brought or pursued, with legal provi-
sions provided in support.
Legal basis
Give a description of the basis upon which the request is made,
e.g. national legislation, a relevant extradition treaty or arrangement
or, in the absence thereof, by virtue of reciprocity.
Ifthepersonsoughtisaccusedofanoffence(butnotyetconvicted)
Warrant of arrest
Provide the original or certied copy of a warrant issued by a
competent judicial authority for the arrest of that person, or
other documents having the same eect.
Statement of the
oence(s)
Provide a statement of the oence(s) for which extradition is
requested and a description of the acts or omissions constituting
the alleged oence(s), including as accurate an indication as
possible of the time and place of the commission given the status
of the proceedings at that time, maximum sentences for each
oence, the degree of participation in the oence by the person
sought and all relevant limitation periods.
AnnexIV. Checklistforthecontentsof
anoutgoingextraditionrequest
100
Manual on Mutual Legal Assistance and Extradition
 Evidence
Identity evidence is always required. Check whether sworn
evidence is also required. If so, check whether the witness must
depose that he or she both knows the person sought and knows
that the person engaged in the relevant acts or omissions
constituting the relevant oence(s). Suspicion of guilt for every
oence for which extradition is sought must be substantiated by
evidence. Check in advance whether this must take the form of
sworn or unsworn evidence of witnesses, or whether a sworn or
unsworn statement of the case will suce. If a statement of the
case will suce, check whether it has to contain the particulars
of every oence. If sworn evidence is required, check whether
this has to show prima facie evidence of every oence for which
extradition is sought. If so, clarify what is required and admis-
sible to meet that or any lesser test. Ensure that everything is
provided in the form required.
Ifthepersonsoughthasbeenconvictedofanoffenceandhas:
 Been sentenced
Include an original or a certied/authenticated copy of the
original conviction/detention order, or other documents having
the same eect, to establish that the sentence is immediately
enforceable. e request should also include a statement establish-
ing to what extent the sentence has already been carried out.
  Been sentenced
in absentia
Provide a statement indicating that the person was summoned in
person or otherwise informed of the date and place of the hearing
leading to the decision or was legally represented throughout the
proceedings against him or her, or specifying the legal means
available to him or her to prepare a defence or to have the case
retried in his or her presence.
  Not yet been
sentenced
Provide a document setting out the conviction and a statement
arming that there is an intention to impose a sentence.
101
Earliest contact with
requested State
When the location of the person sought is known, communicate
informally before making the request for provisional arrest and/or
extradition in order to nd out all of the relevant requirements
and acceptable fast communication/transmission channels of the
requested State.
Concurrent requests Check for concurrent requests at the earliest stage. If there are
any, ensure that the case for priority is prepared, communicated
and negotiated as soon as possible.
Legal basis Check whether a legal basis exists for an extradition request to be
made to the proposed requested State.
Arrest, search and seizure Check legal preconditions and limitations of the requested State
for arrest, search and seizure in order to pre-empt any potential
problems.
Check whether conditional release/bail is possible. If so, supply
(before arrest, if possible) all relevant information on the issue.
Time limits Check the time limits in the requested State for receipt of the
request following arrest and ensure that the time limits will be met.
Format of documents and
any evidentiary requirements
Always check with the requested State to make sure that docu-
ments are in the correct format. If evidentiary rules apply, check
for evidentiary requirements in the requested State, particularly as
to the standard of proof required and the types of evidence
needed. Check whether they should be in deposition or adavit
format, e.g. with one signed/sworn by the correct ocer of the
State/judicial authority and sealed together, to ensure that they
will be admissible in the requested State.
Potential grounds for refusal e requesting and requested States should communicate at the
outset of the process to identify any issues that could be raised as
potential grounds for refusal.
In absentia proceedings Warn the requested State in advance if the proposed extradition
request relates to in absentia proceedings. Check the requirements
of the requested State for extradition in such cases and ensure
that it will be possible to meet justiable requirements.
AnnexV. Checklistforoutgoingextradition
requests: casework planning
102
Manual on Mutual Legal Assistance and Extradition
Rule of speciality Ensure that you identify all oences for which extradition will be
sought, whether extraditable oences or not (this may not be
possible for non-extraditable oences under domestic law). is
avoids later problems with seeking a waiver of the rule of special-
ity from the requested State because you want to prosecute for
another prior oence.
Language of request e request and accompanying documents should be made in or
accompanied by a certied translation into a language specied
by the requested State.
Draft request for feedback Consider submitting a draft request for feedback, particularly if
you are not familiar with the requirements of the requested State
or if the case is complex.
Presence of representatives
at hearings
Check whether police, legal/liaison representatives and consular
ocials may be present at foreign extradition proceedings to
assist if needed. If so, ensure the necessary arrangements and
monitor the proceedings.
Transit arrangements Responsibility should be clearly xed as to which authority will
secure the necessary transit authorizations. Care should be taken
to avoid unnecessary risk factors. Ensure that the process is
eectively planned, organized, conducted and monitored.
Surrender arrangements Check time limits and the precise date by which the person must
be surrendered in the requested State. Calculate the local time
and date equivalents. Organize and ensure the entry before that
date of escorts to remove the person from the requested State.
103
Universal Declaration of Human Rights
1. e following articles of the Universal Declaration of Human Rights
a
apply to mutual legal
assistance and extradition matters:
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection
of the law. All are entitled to equal protection against any discrimination in violation of this
Declaration and against any incitement to such discrimination.
Article 8
Everyone has the right to an eective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.
Article 11
(1) Everyone charged with a penal oence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees necessary for
his defence.
(2) No one shall be held guilty of any penal oence on account of any act or omission
which did not constitute a penal oence, under national or international law, at the time
when it was committed. Nor shall a heavier penalty be imposed than the one that was appli-
cable at the time the penal oence was committed.
AnnexVI. UnitedNationshumanrights
instruments that apply to mutual legal
assistanceandextraditionmatters
a
General Assembly resolution 217 A (III).
104
Manual on Mutual Legal Assistance and Extradition
International Covenant on Civil and Political Rights
2. e following paragraphs of the International Covenant on Civil and Political Rights,
b
apply
to mutual legal assistance and extradition matters:
Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law. e press and the public may be excluded from all or part of a trial for
reasons of morals, public order (ordre public) or national security in a democratic society, or
when the interest of the private lives of the parties so requires, or to the extent strictly neces-
sary in the opinion of the court in special circumstances where publicity would prejudice the
interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be
made public except where the interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal oence shall have the right to be presumed innocent
until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the
nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to com-
municate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance
of his own choosing; to be informed, if he does not have legal assistance, of this right;
and to have legal assistance assigned to him, in any case where the interests of justice
so require, and without payment by him in any such case if he does not have sucient
means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the
language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their
age and the desirability of promoting their rehabilitation.
b
General Assembly resolution 2200 A (XXI).
105
United Nations human rights instruments that apply to mutual legal assistance and extradition matters
5. Everyone convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.
6. When a person has by a nal decision been convicted of a criminal oence and when
subsequently his conviction has been reversed or he has been pardoned on the ground that a
new or newly discovered fact shows conclusively that there has been a miscarriage of justice,
the person who has suered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown fact in time is
wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an oence for which he has
already been nally convicted or acquitted in accordance with the law and penal procedure
of each country.
107
Central authority A central authority is an administrative entity designated by a State
to be the central contact point for matters of international coopera-
tion with other States. Treaties usually compel States to create a
central authority as part of complying with the treaty.
Competent authority A competent authority is an entity within a State with the legal
competence or responsibility to respond to a request for interna-
tional assistance and to take the steps required under domestic law
to comply with the request.
Continuity of evidence
(chain of custody)
When an item is seized as evidence in a common law country and
is to be entered into evidence at trial, it is normal that the “chain
of custody” is established to show that, once the police seized the
item, it remained within their control and was not tampered with
in a manner that would lead the judge to an erroneous decision.
Continuity of evidence is particularly important in relation to
forensic evidence.
Cross-examination Cross-examination, the questioning of a witness proered by the
opposing party in attempting to challenge his or her testimony, is a
cornerstone of the adversarial system and an important component
of any common law trial in which evidence is tested through close
and potentially aggressive questioning. Once the testimony is tested,
the judge can decide to accept some, all or none of it as evidence.
Extradition Extradition is the formal process whereby a State requests the
enforced return of a person accused or convicted of a crime to
stand trial or serve his sentence in the requesting State.
Hearsay A denition of the general hearsay rule can be found in Subrama-
niam v. Public Prosecutor [1956] 1 W.L.R.965 (P.C.), at p. 970:
Evidence of a statement made to a witness by a person who is
not himself called as a witness may or may not be hearsay. It
is hearsay and inadmissible when the object of the evidence is
to establish the truth of what is contained in the statement. It
is not hearsay and is admissible when it is proposed to
establish by the evidence, not the truth of the statement, but
the fact that it was made. e fact that the statement was
made, quite apart from its truth, is frequently relevant in
considering the mental state and conduct thereafter of the
witness or of some other person in whose presence the
statement was made.
Glossary
108
Manual on Mutual Legal Assistance and Extradition
Traditionally, there was a prohibition in common law countries
against allowing hearsay evidence into court. In the extradition
context, however, there has been a relaxation of this rule in many
common law countries which allows a court to accept hearsay
evidence for the truth of its contents if certain conditions are met.
In the extradition context, hearsay is increasingly allowed into
evidence for the purpose of extradition hearings.
International Criminal
Police Organization
(INTERPOL)
INTERPOL is the world’s largest international police organization,
with 190 member countries. Its role is to enable police around the
world to work together to make the world a safer place and ensure
public safety. In the extradition and mutual legal assistance eld,
the communications network and other services of INTERPOL
provide highly eective assistance in furtherance of these actions.
INTERPOL red notice An INTERPOL red notice is an international notice posted by a
requesting State on the INTERPOL computer system seeking the
arrest or provisional arrest of a fugitive for the purpose of
extradition.
a
INTERPOL blue notice An INTERPOL blue notice is an international request posted by
a requesting State on the INTERPOL computer system seeking
assistance in obtaining additional information about a person’s
identity or activities in relation to a crime.
Mutual legal assistance Mutual legal assistance in criminal matters is a process by which
States seek and provide assistance in gathering evidence for use in
criminal cases.
Prima facie From the Latin term meaning “on its rst appearance”, prima facie
is an evidentiary burden commonly applied to extradition cases in
common law countries. In common law jurisdictions, “prima facie”
denotes evidence that, unless rebutted, would be sucient to prove
a particular proposition or fact.
Reciprocity In treaties and some domestic laws, the principle of reciprocity
states that favours, benets or penalties that are granted by one
State to the citizens or legal entities of another State should be
returned in kind. In the context of mutual legal assistance and
extradition, it may constitute a written agreement, by means of
which a State commits itself, under the same conditions and
circumstances, to grant the same kind of request in the future to
the requested State. It may be a useful legal basis for cooperation
in the absence of a treaty basis, or it may be a requirement of
domestic law.
Surrender In extradition law, the term “surrender” is used to describe that
phase in the proceedings when the fugitive who was the subject of
an extradition request is ordered by the requested State to be
turned over to the jurisdiction of the requesting State.
a
Further information regarding the types of notices maintained by the International Criminal Police Organization
(INTERPOL) is available from www.interpol.int/INTERPOL-expertise/Notices.
Vienna International Centre, PO Box 500, 1400 Vienna, Austria
Tel.: (+43-1) 26060-0, www.unodc.org
*1255935*
United Nations publication
Printed in Austria
V.11-87422—July 2012
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