international cooperation against transnational organized

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INTERNATIONAL COOPERATION AGAINST TRANSNATIONAL ORGANIZED CRIME: EXTRADITION AND

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

Matti Joutsen*

I. EXTRADITION AND MUTUAL LEGAL ASSISTANCE: THE BASIC

TOOLS OF INTERNATIONAL COOPERATION IN CRIMINAL

MATTERS

Investigating and prosecuting casesa ga in st p ers ons su sp ect ed o fparticipation in organized crime is oftennotoriously difficult. It is all the moredifficult to try to bring a case togetherw hen the su spec t , the v ict im, keyevidence, key witnesses, key expertise orthe profits of crime are located outsideone’s jurisdiction. Dealing with suchcases can be so daunting that the file maybe placed aside and “forgotten”, perhapswith the fervent hope that the authoritiesin other countr ies will take up thematter.

This, of course, is what organizedcriminals acting across internationalborders very much hope will happen. Byf l ee ing to an oth er c oun tr y an d inparticular by sending the profits fromcrime beyond the reach of the domesticauthorities, offenders seek to frustratethe purposes of law enforcement. If lawenforcement remains passive in the faceof transnational crime, this will onlyencourage of fenders to cont inue tocommit crime. For the investigator andprosecutor confronted with modernorganized crime, relying on internationalcooperation has become a necessity, andextradition and mutual legal assistance

in criminal matters have become two keytools.1

Ex tr ad i t i on a nd mu tu al lega lassistance, however, are not tools thatcan simply be taken down from the shelf.The legal bas is (whether treaty orlegislation) must exist, the practitionersmust know how (and if) this basis can beapplied to the case at hand, and above allthe practitioners in both the requestingand requested country must be able towork together to achieve the desiredresult.

Furthermore, as tools, extradition andmutual legal assistance can take manydifferent forms. The possibilities dependnot only on the ex istence , age andco nt ent s o f a va l id in ter n at i ona lagreement, but also, for example, on thetype of offence and on the legislation andpractice in a country. The new UnitedNat ion s C onv ent ion ag ai ns tTransnational Organized Crime (the“Palermo Convention”) is a case in point.It does, indeed, set out detailed provisionson how extradition and mutual legalassistance should be provided. In manyways, it has expanded the possibilitiesavailable. However, these possibilitiesmust first be implemented in domesticlaw and practice.

This presentation looks at the extent towhich the new Palermo Convention can

* Director, International Affairs

Ministry of Justice, Finland

1 The terms mutual assistance, mutual legal

assistance and mutual assistance in criminal

matters are often used interchangeably.

119TH INTERNATIONAL TRAINING COURSEVISITING EXPERTS’ PAPERS

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improve the basic tools available to thepractitioner. Even though the focus is onextradition and mutual legal assistance,the Palermo Convention also requiresStates Parties to make other majorchanges that can facilitate internationalcooperation. Examples of this are thecriminalisation of four specific offences,provisions on joint investigations, specialinvestigative techniques, protection ofvictims and witnesses, improving thereadiness of suspects to cooperate withlaw enforcement authorities, cooperationamong law enforcement authoritiesthemselves, confiscation and seizure, thetransfer of proceedings and the transferof sentenced persons, the collection,exchange and analysis of information onorganized cr ime , and training andtechnical assistance. As noted by Mr. KofiAnnan, the Secretary-General of theUnited Nations, the Palermo Conventionis a milestone in the f ight againstTransnational Organized Crime. Heemphasised that “we can only thwarti nt ern at ion al c r imin al s th r oug hinternational cooperation.” It is thePalermo Convention that provides astrong framework for this cooperation.

II. EXTRADITION

A. The Evolution of the Extradition of Offenders

Extradition is the process by which aperson charged with an offence is forciblytransferred to a state for trial, or a personc on victed of an of f ence i s fo r c ib lyr e tu r ned fo r t he enfor c emen t o fpunishment (see, for example, ThirdRestatement, pp. 556–557).

For a long time, no provisions orinternational treaties existed on theconditions for extradition or on theprocedure which should be followed.Extradition was largely a matter of either

courtesy or subservience, applied in therare cases where not only did a case haveinternational dimensions, but also therequesting and the requested states wereprep ar ed t o coope ra te . I n sh or t ,extradition was rarely required, evenmore rarely requested, and even morerarely still granted.

In the absence of effective treaties onext ra d i t ion a nd on mu tu al l ega lassistance, some States have engaged inunilateral actions. This, however, is aviolation of international law. Accordingto u ni ver s a l l y ac c epted an d we l l -established principles, states enjoysov er eign equal i ty and terr i tor ia lintegrity. States should not intervene inthe domestic affairs of other states. Inparticular,

“a party has no right to undertakelaw enforcement act i on in theterritory of another party withoutthe prior consent of that party. Thepr inc ip l e o f no n- in t e rv e nt ionexcludes all kinds of territorialencroachment, including temporaryor limited operations (so-called “in-an d-ou t oper a t i on s ” ) . I t a l s oprohibits the exertion of pressure ina man ne r i nc on si s t e nt wi thinternational law in order to obtainfrom a party “the subordination ofthe exercise of its sovereign rights”(Com me ntar y t o th e 198 8Convention, para. 2.17).2

2 The Commentary cites as authority the

Declaration on Principles of International Law

concerning Friendly Relations and Co-operation

among States in accordance with the Charter of

the United Nations (General Assembly resolution

2625 (XXV), annex), and the principle concerning

the duty not to intervene in matters within the

domestic jurisdiction of any State, contained in

para. 2 of the Charter.

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The principles of sovereign equality,territorial equality and non-interventionin the domestic affairs of other States areexplicitly noted in art. 4(1) of the PalermoConvention. To further clarify the point,art. 4(2) of the Palermo Convention statess pec i f i c a l ly th at “Not hi ng in th isConvention entitles a State Party toundertake in the territory of anotherState the exercise of jurisdiction andperfor mance o f fun ct ions that ar ereserved exclusively for the authorities ofthat other State by its domestic law.”

Bilateral extradition treaties did notbegin to emerge until the 1800s. Inparticular the common law countries andthe (former) USSR have made wide use ofbilateral treaties. The first multilateralconvention was the Organization ofA mer ic an S tat es Con ven t ion onExtradition in 1933.3 It was followedt wen ty y ear s lat er by th e Ar abExtradition Agreement in 1952, and thenby the influential European Conventionon Extradition in 1957 and the 1966Commonwealth scheme for the renditionof fugitives.4 The most recent multilateraltreaties have been the 1995 EuropeanU nio n C onv en t ion on s imp l i f i edextradition within the European Union,a nd th e 199 6 Eu ropea n Un ionC onv en t ion on t he su bs ta nt iv erequirements for extradition within theEuropean Union.

In order to promote new extraditiontreaties and to provide guidance in theirdrafting, the United Nations prepared aM ode l Tr eat y on Ex tr ad i t ion (GAresolution 45/116 of 14 December 1990).

In addition to these general treaties onextradition, provisions on extraditionhave also been included in severa linternational conventions that deal withspecific subjects. Perhaps the best-knownexample is the 1988 United NationsConvention against Ill icit Traffic inNar c o t i c Dr u gs an d P s y ch otr op icSubstances; the twelve paragraphs ofarticle 6 deal with extradition. Article 16of the Palermo Convention was largelydr af ted o n th e ba s i s o f th is 198 8Convention.

B. The Conditions for ExtraditionAm ong th e c omm on c on d i t ion s

included in agreements are the doublecr iminality requirement (general lyaccompanied by the definition of the levelof seriousness required of the offencebefore a State will extradite), a refusal toextradite nationals, and the politicaloffence exception.

1. The Principle of Double Criminality (Dual Criminality)

The great majority of extraditiontreaties require that the offence inqu est ion be c r imi na l i n b o th th erequesting and the requested State, andoften also that it is subject to a certainmin im um pun is hm ent , su c h a simprisonment for at least one year.5 Evenwhere a State allows extradition in theabsence of an extradition treaty, thispr in ci p le o f dou bl e c r i min al i ty i sgenerally applied.6

3 This has subsequently been replaced by the 1981

Inter-American Convention on Extradition.4 As amended in 1990. The Commonwealth scheme,

al th ough no t a fo rm al t rea ty , h as b een

unanimously approved by all members of the

Commonwealth.

5 The Palermo Convention does not directly

stipulate a certain minimum punishment as a

condition for extradition, since art. 16(1) provides

only that the article applies to extradition for the

offences covered by the Convention. However, the

entire Convention is drafted to cover serious

crime, which is defined by article 2 as “conduct

constituting a criminal offence punishable by a

maximum deprivation of liberty of at least four

years or a more serious penalty”.


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The double criminality principle maycause legal and practical difficulties.Legal di f f i cu lt ie s may ar is e if th erequested State expects more or lesssimilar wording of the provisions, whichis often an unrealistic expectation inparticular if the two States representdifferent legal traditions. Practicald i f f i c ul t i e s ma y ar is e wh en th erequesting State seeks to ascertain howthe offence in question is defined in therequested State.

Double criminality can be assessedboth in the abstract and in the concrete.In abstracto, what is required is that theo f f en c e i s deem ed t o c ons t i t u te apunishable offence in the requestedState. In concreto, only if the constituentelements of the offence in both Statescorrespond with each other will theoffence be deemed extraditable.

The United Nations Model Treaty onExtradition clearly favours the simplerapproach, an assessment in abstracto.A cc or d in g to ar t i c le 2 (2 ) ( a ) , “ Indetermining whether an offence is anoffence punishable under the laws of bothParties, it shall not matter whether ... thelaws of the Parties place the acts oromissions constituting the offence withint he s ame c at egor y o f o f f enc e o rdenominate the offence by the sameterminology.”

An example from Finland cited byKorhonen7 is that during the summer of2000, the Ministry of Justice of Finlandwas informed that a former high Kremlin

official who is wanted by the Swiss formoney laundering offences had beengranted a visa to Finland. The Finnishauthorities were prepared to take himinto custody pending a formal request forhis extradition. The suspected moneylaundering offence related to the takingo f br ib es in M osc ow f rom Sw is sconstruction companies in return forgranting them lucrative contracts in therenovation of the Kremlin, and to thedepositing of the money in Swiss banks.The problem faced in Finland is that hewas suspected of laundering the proceedsof his own crime, which is not separatelypunishable according to Finnish law. Onthe basis of the in concreto approach,Finland would have had to turn down apossible Swiss request for extradition.

On th e ot her ha nd , th e F i nn ishauthorities could take into account all ofthe facts that were provided in the Swisswarrant of arrest. Clearly, some offencewhich was punishable also according toF in ni sh la w ha d been (a l leg ed ly )committed in the Russian Federation.Since those facts were included in theSwiss warrant, which implied that theSwiss had considered them in issuing thewa rr an t , th e F in n is h au th ori t i e sconcluded that double criminality hadbeen sufficiently established in abstracto.(Ultimately, the Finnish authorities didnot have to take any more action, sincethe person in question never showed upin Finland.)

The question may also arise as towhether double criminality should beassessed at the time of the commission ofthe offence, or at the time of the requestfor extradition. This problem arose in arecent and notorious case in the UnitedKingdom, where the House of Lordsrejected most of the Spanish claim for thesurrender of the former head of Chile,Gener a l Au gusto P inochet , on the

6 See, for example, article 15(1) of the Palermo

Convention.7 Juhani Korhonen, Extradition in Europe, paper

prepared for the Phare Horizontal Project for

Developing Judicial Cooperation in Criminal

Matters in Estonia, Latvia and Lithuania,

November 2000.


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grounds that his alleged offences had notbeen criminalised in the United Kingdoma t t he t im e o f th e ir c ommi ss ion(Korhonen, p. 4). (Ultimately, JackStraw, the UK Home Secretary, decidedthat Pinochet was not fit to stand trialand therefore would not be extradited toSpain. Pinochet thereupon returned toChile.)

Yet another special problem in theapplication of the principle of doublecriminality is if the law of the requestingState allows extraterritorial jurisdictionfor the offence in question, but the law ofthe requested State does not.8 This isincluded as an optional ground for refusalin art. 4(e) of the UN Model Treaty onExtradition.

Finally, in practice it is possible thatextradition is sought for several separateoffences, and some of these do not fulfilthe conditions of double criminality. Thegeneral rule expressed in art. 2(4) of theUN Model Treaty on Extradition and art.2(2) of the Council of Europe ExtraditionConvent ion i s that the of fences inquest ion must be cr iminal in bothcountries; however, the condition of theminimum punishment can be waived forsome of the offences. Thus, for example, ifextradition is sought for a bank robberyas well as for several less serious offencesfor which the minimum punishmentwould not otherwise meet the conditionsfor ex tr ad i t ion , a l l o f th em c annonetheless be included in the request.

The corresponding provisions of thePalermo Convention are constructedsomewhat differently. Art. 16(1) laysdown the basic rule that extradition ispossib le only where the o ff ence inqu est ion i s pu ni sh abl e un der th edomestic laws of both States. Art. 16(2)states that as long as the request refers toat least one offence that is extraditableunder the Convention, the requestedState may grant extradition for all of theserious offences covered in the request.The purpose of art. 16(2) is two-fold. Itlimits extradition only to serious offences.At the same time, however, it allowsextradition also for additional offenceswhere these do not as such (necessarily)involve an organized criminal group.

Recent trends in extradition haveattempted to ease difficulties with doublecr i min al i ty b y in ser t i ng g en era lprovisions into agreements, either listingacts and requiring only that they bepunished as crimes or offences by thelaws of both States, or simply allowingextradition for any conduct criminalisedto a ce rt a in deg re e by eac h Sta te(Blakesley and Lagodny, pp. 87–88).

2. The Rule of SpecialityThe requesting State must not, without

the consent of the requested State, try orpunish the suspect for an offence notreferred to in the extradition request andco mmit ted b e for e he o r s h e wa sextradited.9

Th is r u le does n o t pr even t a namendment of the charges, if the facts ofthe case warrant a reassessment of thecharges. For example, even if a personhas been extradited for fraud, he or shemay be prosecuted for embezzlement as

8 Blakesley, Christopher and Otto Lagodny (1992),

Competing National Laws: Network or Jungle?,

in Eser, Albin and Otto Lagodny (eds.) (1992),

Pr inc ip l es an d Proced ures fo r a N ew

Transnational Criminal Law. Documentation of

an International Workshop 1991. Beitrage und

Materialien aus dem Max-Planck-Institut fur

auslandisches und internationales Strafrecht,

Freiburg im Breisgau, pp. 47–100, at 88–98.

9 See, for example, art. 14 of the UN Model Treaty

on Extradition.


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long as the facts of the case are the onesreferred to in the request for extradition.

The rule of speciality is universallyaccepted, but in practice it does notautomatically rule out all possibilities ofbringing an offender to justice even foroffences not referred to in the request.This, however, would require separateconsent from the authorities of therequested State (Korhonen, p. 8). Let usassu me that the sus pect has beenextradited, and in the course of theproceedings it is found that he or she hasapparently committed another offence notreferred to in the extradition request.Since the fugitive is already in custody inthe requesting State, the authoritiesusual ly have the t ime to submit asupplementary request to the State fromwhich the fugit ive was extrad ited,requesting permission to proceed also inrespect of these newly uncovered offences.Such supplementary requests mustusually be accompanied by a warrant ofarrest. It should be clear, on the otherhand, that the authorities should notdeliberately delay the initial proceedingsin anticipation of receiving consent to thebringing of the new charges.

If, following extradition, the person inquestion is released in the territory of therequesting State, he or she may not beprosecuted for an offence that had beencommitted before the extradition tookplace until after this person has had areasonable opportunity to depart fromthis State.10

3. The Non-Extradition of NationalsAs a rule, States have long been willing

to extradite nationals of the requestingState, or nationals of a third State. Whenit comes to extraditing their own citizens,

however, most States have traditionallybeen of the opinion that such extraditionis not possible. Some States have evenincorporated such a prohibition into theirConstitution. Furthermore, the principleof the non-extradition of nationals is oftenexpressly provided for in treaties. Therationale for such a view is a mixture ofthe obligation of a State to protect itscitizens, a lack of confidence in thefairness of foreign legal proceedings, themany disadvantages that defendants facewhen defending themselves in a foreignleg a l s ys tem, a nd t he ma nydisadvantages of being in custody in aforeign country.11

Th e Un it ed S ta tes , th e U nit edKingdom and most other common lawcountries, in turn, have been prepared toextradite their own nationals. This mayhave been due in part to the fact thatthese States have been less likely than forexample civil law countries to assertjurisdiction over offences committed bytheir citizens abroad—and thus, failingextradition, the offender could not havebeen brought to justi ce at al l . Thecommon law countries have also beenaware of the advantages of trying thesuspect in the place where the offencewas alleged to have been committed.There is, for example, the greater easewith which evidence and testimony canbe obtained in the forum delicti, and thediff i cul ties in submitting ev idenceobtained in one country to the courts ofanother country.

In cases where the requested Statedoes in fact refuse to extradite on thegrounds that the fugitive is its own

10 See, for example, art. 14(3) of the UN Model

Treaty on Extradition.

11 Ethan A. Nadelmann, Cops Across Borders. The

Internationalization of U.S. Criminal Law

Enforcement, The Pennsylvania State University

Press, University Park, Pennsylvania, 1993, p.

427.


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national, the State is generally seen tohave an obligation to bring the person totrial. This is an i l lustration of theprinciple of aut dedere aut judicare—“extradite or prosecute”, “extradite ora d ju d ic a te ” . 1 2 Su c h a d ju d ic a t ion ,however, would presuppose that therequested State app lies the activepersonality principle, i .e . exerc isesj uris dic t ion ov er o f f ences that i tsn at ion als h av e c ommi tted ab roa d(Korhonen, p. 5).

Such a provision is contained, forexample, in article 16(10) of the PalermoConvention.13 Jurisdiction for suchoffences is covered by article 15(3) of thePalermo Convention. Paragraph 16(12) ofthe Palermo Convention contains aparallel provision on enforcement of asentence imposed on a national of therequested State, by a court in a foreignState.

In practice, some States that haverefused to extradite their nationals havealso been reluctant to prosecute. Toaddress this issue, art. 16(10) of thePalermo Convention has a new feature incomparison with art. 6(9)(a) of the 1988Convention and art. 4(a) of the UN ModelTreaty on Extradition. It states that theauthorities of such a State “shall taket he i r dec is ion a nd c ondu c t th e irproceedings in the same manner as in thecase of any other offence of a grave natureunder the domestic law of that StateParty.” The emphasis here is that, sincethe offence is by definition a serious caseof transnational organized crime, the

State in question should make an earnesteffort to bring the suspect to justice. Theprovision goes on to enjoin the two StatesParties to cooperate in order to ensurethe efficiency of prosecution.

Especially in Europe, the distastetowards extradition of nationals appearsto be lessening. The Netherlands, forexample, has amended its Constitutionand drafted legislation to allow suchextradition, as long as the national willbe returned to the Netherlands for theenforcement of any sentence passed.14

The Palermo Convention incorporatesa pr ov is i on th at r e f l e ct s t hi sdevelopment.15 According to article16(11),

“W h e ne ver a S ta t e Pa rty i spermitted under its domestic law toextradite or otherwise surrender oneo f i ts na tiona ls only upon thecondition that the person will bereturned to that State Party to servethe sentence imposed as a result ofthe trial or proceedings for whichthe extradition or surrender of theperson was sought and that StateParty and the State Party seekingthe extradition of the person agreewith this option and other termsthat they may deem appropriate,such a conditional extradition or

12 The principle of aut dedere aut judicare can, of

course, be applied also to other cases where the

requested State refuses extradition. See, for

example, art. 4(f) of the UN Model Treaty on

Extradition.13 See also art. 6(9)(a) of the 1988 Convention and

art. 4(a) of the UN Model Treaty on Extradition.

14 Germany is currently in the process of making a

corresponding amendment to its Constitution.15 The 1988 Convention does not contain a similar

provision. Article 12 of the UN Model Treaty

speaks obliquely of the possibility that the

requested State may “temporarily surrender the

person sought to the requesti ng Sta te i n

accordance with conditions to be determined

between the Parties”; this, however, is in the

context of possible proceedings for offences other

than the one mentioned in the request for

extradition.


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surrender shall be sufficient todischarge the obligation set forth inparagraph 10 of this article.”

Thus, under the Palermo Convention anational can be extradited on conditionthat he or she be returned to serve outthe possible sentence. Such a guaranteethat the actual enforcement of anypunishment wi ll take place in th eperson’s home country can well be helpfulin overcoming any reluctance to extraditeone’s nationals.

4. The Political Offence ExceptionDuring the 1700s and the early 1800s,

extradition was used very much on an adhoc basis primarily in the case of politicalrevolutionaries who had sought refugeabroad (Third Restatement, p. 558).However, during the 1830s, the ideadeveloped in France and Belgium thatsuspects should not be extradited forpo l i t i ca l ly mot i vat ed o f f enc es(Nadelmann, p. 419).

There is no universally accepteddefinition of what constitutes a “politicaloffence”. In deciding whether an offencequalif ies as “political”, reference isgenerally made to the motive and purposeof the offence, the circumstances in whichit was committed, and the character ofthe offence as treason or sedition underdomestic law. One of the leading casesinternationally is In re Castione ([1891] 1Q.B. 149), where the refusal to extraditethe suspect was based on the view thatalleged offences that had been committedi n th e c our se o f , o r i nc iden t t o , arevolution or uprising are political (citedin Nadelmann, p. 420).16

G u l ly -H ar t a rg u es th at “Th eemergence of an international concept ofa p o l i t i c a l o f f enc e sh ou ld n ow b eaccepted”.17 He notes that the EuropeanConven t ion on the Suppress ion o f

Terrorism has barred a large number ofof fen ces f rom the pol it i ca l of fenceexception. He balances this by noting atendency to “enlarge” the definition of apolitical offence in cases where there is adanger of persecution or an unfair trial.On the other hand, it may be noted thatthe danger of persecution or unfair trial isnow emerging as a separate grounds forrefusal in its own right (see below).

Although it may well be that theexistence of such an international conceptof a political offence “should now beaccepted”, recent developments suggestthat attempts are being made to restrictits scope or even abolish it (Korhonen, p.4) . This is the case, for example, inextradition among the European Unioncou n tr ies . T h e r ec ent P a ler moConvent ion does not make speci f icreference to political offences as groundsfor refusal, even though the UN ModelTreaty on Extradition, adopted only tenyears earlier, had clearly included this asa mandatory ground for refusal.

The failure to specifically include thepolitical offence exception in the PalermoConvention is significant. One of thereasons that the scope of the politicaloffence exception has been lessening isthat States have tended to avoid enteringinto extradition treaties with those Stateswith whom such political problems mightarise in the first place. This is not the

16 In respect of the United States, Nadelmann (p.

426) sees two trends: one trend is towards a

narrower definition of the political offence

exception, and another, somewhat opposing,

trend is towards greater consideration of foreign

policy interests and its bilateral relationship with

the requesting Government.17 Gully-Hart, Paul (1992), Loss of Time Through

Form al an d Procedural Requ irem en ts in

International Co-operation, in Eser and Lagodny

(op.cit.), pp. 245–266, at pp. 257–258.


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case with the Palermo Convention, whichhas been signed by over 120 States. Withso many signatories, it is quite likely thata need for extradition may arise betweenStates that are on less than friendlyt erm s w it h on e an ot her . In th ediscussions on the Convention in Vienna,it was argued that the political offenceshould not be specifically mentioned,since the Convention itself was limited toserious transnational organized crime.

On the other hand, article 16(7) of thePalermo Convention provides StatesParties with a built-in escape clause. Itstates that

“Extradition shall be subject to thecondit ions provided for by thedomestic law of the requested StateParty or by applicable extraditiontreaties, including, inter alia, . . . thegrounds upon which the requestedState Party may refuse extradition.”

Thus, i f the domest ic law o f therequested State allows for the possibilityof the political offence exception (as wouldalmost inevitably be the case), this optionr ema in s , ev en i f n o t s pec i f i c a l lymentioned in the Palermo Convention.

One factor behind the restriction orabolition of the political offence exceptionis the growth of terrorism, a subject thatwas raised many times (both directly andobliquely) during the drafting of thePalermo Convention. A distinction iscommonly made between “pure” politicaloffences (such as unlawful speech andassembly), and politically motivatedviolence (Third Restatement, p. 558). Ifthe offence is serious—such as murder,political terrorism and genocide—courtsin different countries have (to varyingdegrees) tended not to apply the politicaloffence exception. Examples include theextradition from the United States of

several persons suspected of being Naziwa r c r imin al s o r I RA ter r or i s t s(Nadelmann, pp. 421 and 424). Violationof international convent ions is onecr i te r ion in de ter min in g su c hseriousness ; a case in po int is thereadiness of many countries to extraditepersons suspected of skyjacking.

An example in which the politicaloffence exception arose in Europeanpractice, cited by Korhonen (p. 5), is whenthe Kurdish leader Abdullah Öcalan wastaken into custody in Rome in November1999 on the basis of a German warrantfor his arrest. However, Germany, whichwas clearly concerned with the possibilityof domestic unrest if Öcalan would beextradited to Germany to stand trial,withdrew its warrant and did not proceedwith the request for extradition. At thesame time, Turkey had also issued awarrant for the arrest of Öcalan. In theextradition hearings, the local court inRome decided that since Germany hadwithdrawn its warrant and there was arisk that Öcalan would face the deathpenalty if he were to be extradited toTurkey, the court had no legal grounds toproceed in the matter. (Apparently theItalian court had not considered thepossibility of extraditing Öcalan underthe condit ion that he would not besentenced to death if found guilty. Uponaccepting such a condition, Turkey wouldhave been bound by it .) Öcalan wasconsequently expelled from Italy andmoved from one country to another inEurope, with no country willing to allowhim in. He finally ended up in Nairobi,Kenya, where he was kidnapped andtransported to Turkey to stand trial. Hewas eventually sentenced to death by aTurkish court, a sentence which on 25November 1999 was upheld by a court ofappeal.18


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5. The Refusal to Extradite on the Grounds of the Danger of Persecution or Unfair Trial, or of the Expected Punishment

O r ig ina l ly , ext ra d i t i on tr eat iesbetween States were seen to be just that,treaties between sovereign and equalStates as parties. According to thisapproach, other parties, in particular thefugitive in question, had no standing tointervene in the process, nor was thenature of the proceedings or expectedtreatment in the requesting State asignificant factor. Recently, however, alsothe individual has been increasinglyregarded as a subject of internationallaw. This has perhaps been most evidentin extradition proceedings. Democraticc ou nt r i es h ave b een in c rea s in g lyreluctant to extend full co-operation tocountries which do not share the samedemocratic values, for example on thegrounds that the political organization ofthe latter countries is undemocratic, orbecause their judicial system does notaf for d suf f i c ient pr otect ion to th eprosecuted or convicted individual (Gully-Hart, p. 249).

In line with this reassessment in thelight of the strengthening of internationalhuman rights law, many of the morerecently concluded treaties pay particularattention to the nature of the proceedingsor th e ex pec ted tr ea tmen t in th erequesting State. States will generallyrefuse to extradite if there are grounds tobelieve that the request has been madefor the purpose of persecution of theperson in question, or that the personwould not otherwise receive a fair trial(Gully-Hart, p. 249–251, 257).

Refusal on the grounds of expectedpersecution is dealt with in, for example,article 16(14) of the Palermo Convention:

“Nothing in this Convention shall bein t er pr et e d a s impos in g anob l i ga t ion to e x t r adi t e i f ther eq ue s t ed S ta t e P a rty hassubstantial grounds for believingthat the request has been made forthe pur pos e o f pros e cu t ing o rpunishing a person on account ofthat person’s sex, race, religion,nationality, ethnic origin or politicalopinions or that compliance with therequest would cause prejudice tothat person’s position for any one ofthese reasons.”19

The question of fair trial and treatmentis in principle distinct from the questionof persecution. Art. 3(f) of the UN ModelTrea ty on Ex tr ad i t ion g iv es as amandat or y gr oun d fo r r e fusa l t hepossibility that the person in questionwould be subjected to torture or cruel,inhuman or degrading treatment orpunishment, or the absenc e o f themin imu m gu ar an tees in c r imi na lproceedings, as contained in art. 14 of theInternational Covenant on Civil andPolitical Rights.20

The issue of fair trial and treatment isdealt with in article 16(13) of the PalermoConvention:

18 According to “The Economist” (11 January 2001),

the death sentence passed on Mr. Öcalan has

been stayed pending a review of his case by the

European Court of Human Rights, a process that

could take years.

19 This wording is taken from art. 3(b) of the UN

Model Treaty on Extradition (see also the United

Nations Convention Relating to the Status of

Refugees).

Within the European context, such refusal would

b e h igh l y u nu su al , s in ce th e Eu ropean

Convention on Extradition is based on mutual

trust in the administration of criminal justice of

one another’s State.


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“A ny pe r s on r e gar d in g w ho mproceedings are being carried out inconnection with any of the offencesto which this article applies shall beguaranteed fair treatment at allstages of the proceedings, includingenjoyment of all the rights andguarantees provided by the domesticlaw o f th e S ta t e Pa rty i n th eterritory of which that person ispresent.”

This provision is a new one in UNConventions. No similar provisions are tobe found in the 1988 Convention or in theUN Model Treaty on Extradition.

Perh aps th e mos t n o tab le an dinfluential case concerning fair treatmentis the transatlantic case of Soering v. theUnited Kingdom (ECHR 1/89/161/217).Soering had been charged with murder inVirginia, where murder was a capitalo f f enc e . Fo l low in g a r eq ues t f o rextradition from the United States, hewas arrested in the United Kingdom andh is ext ra d i t ion wa s pr epar ed . H eappealed the extradi tion decis ion ,however . Artic le 3 of the EuropeanConvention prohibits torture or inhumanand degrading treatment or punishment.E CH R u n an imou sl y f ou n d th atextradition would be a violation of this,since circumstances on death row—6–8years of isolat ion , stress, fruitlessappeals, separation from family and otherda mag in g ex per ien ce s— wou ld b einhuman and degrading. (The follow-up

to t hi s c as e i s th at Soer in g wa sextradited, after the Attorney Generalhad promised not to seek the deathpenalty.)

Another recent example is the case ofIra Einhorn, who was arrested in 1981 forthe 1979 murder of his lover in theUnited States. Before being brought totr ial , however, he jumped bail anddisappeared. He was convicted in the USin absentia. In 1997, he was finally foundliving under an alias in France. The UScalled for his extradition. The FrenchCourt of Appeals ruled in 1999 that hecould be extradited provided that hewould be allowed to have a new trial andwould not face the death penalty. Afterthe United States agreed to this, and hisappeal all the way to the European Courtof Human Rights was denied, he wasfinally extradited to the United States atthe end of July 2001.

Following the adoption in 1983 ofPro t oc o l No . 6 to t he E ur opea nConvention for the Protection of HumanRights and Fundamental Freedoms,which abolished the death penalty,European countries have been reluctantto extradite suspects to countries wherethe death penalty might be imposed.21

One common outcome is that, as in theSoering case, the requesting State agreesto waive the death penalty or, if this isimposed by the court, the requestingState agrees to ensure that it is notenforced. Another option is to agree thatthe suspect, if convicted, will be returnedto the requested State for enforcement ofthe sentence. This latter option has beenfollowed in art. 16(11) the PalermoConvention, already referred to above.

20 Furthermore, art. 3(g) of the UN Model Treaty on

Extradition cites as mandatory grounds for

refusal the rendering of the judgment of the

requesting State in absentia, the failure of the

convicted person to receive sufficient notice of the

trial or the opportunity to arrange for his or her

defence, and the failure to allow him or her the

opportunity to have the case retried in his or her

presence.

21 See also art. 4(d) of the UN Model Treaty on

Extradition.


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6. Other Grounds for Refusal to Extradite

Some extradition treaties specificallyrule out extradition for military offencesor fiscal offences, or extradition when theperson in question has already beenjudged for the offence.22

Art. 16(15) of the Palermo Conventionmakes specific reference to fiscal offences:“States Parties may not refuse a requestfor extradition on the sole ground that theoffence is also considered to involve fiscalmatters.”

O n e o f th e fu nd amen ta l leg a lprinciples of the rule of law is that no oneshould be subjected to double jeopardy(n on b i s i n id em ) . C ons equ en t ly ,extradition will generally be refused ifthe person requested has already beenprosecuted in the requested State for theacts on the basis of which extradition isrequested, regardless of whether theprosecution ended in conviction oracquittal (Third Restatement, p. 568).According to art. 3(d) of the UN ModelTreaty on Extradition, extradition shallnot be granted “if there has been a finaljudgment rendered against the person inthe requested State in respect of theoffence for which the person’s extraditionis requested.”

Some States may also deny extraditioni f the person in question has beenprosecuted in the requesting State or in athird State (ibid.). The UN Model Treatyon Extr adi t ion a lso inc lu des , as amandatory grounds for refusal, the factthat “the person whose extradition isrequested has, under the law of eitherParty, become immune from prosecution

or punishment for any reason, includinglapse of time or amnesty.”

A ground for refusal that is becomingincreasingly rare is that the proof of theguilt of the person in question supplied bythe requesting State does not meet theevidentiary standards of the requestedState. According to Korhonen (pp. 6–7), atleast within the European contextrequiring additional proof of the guilt ofthe person in question would be inviolation of the principle of mutual trustin one another ’s administrat ion ofcriminal justice.

C. The Extradition ProcedureProvisional arrest . The process of

extradition may be lengthy. In order toensure the continued presence of theperson in question, the requesting Statemay request that the fugitive be takeninto custody pending the outcome of theproceedings (see, for example, art. 9 of theUN Model Treaty on Extrad i t ion) .According to article 16(9) of the PalermoConvention,

“subject to the provisions of itsdomestic law and its extraditiontreaties, the requested State Partymay, upon being satisfied that thecircumstances so warrant and areurgent and at the request of therequesting S tate Party, take aperson whose extradition is soughtand who is present in its territoryin to c u stod y or tak e o th erappropriate measures to ensure hisor her pre sence at ext rad it i onproceedings.”

One issue that may arise in thisconnection is who determines the urgencyof the request: is it the requesting Stateor the requested State (Korhonen, p. 9)?Although the Palermo Convention isphrased so that it is the requested State

22 Art. 3(c) refers to military offences as a

mandatory grounds for refusal, and art. 3(d)

refers to double jeopardy.


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t ha t i s t o be “ sa t is f ied th at th ecircumstances ... are urgent”, it should infact be left to the requesting State todetermine the urgency of the matter.

The Palermo Convention and manyextradition treaties do not require thatprovisional arrest be used in suchc ir c um st an ces , as lon g as “o th erappr opr iate measur es are taken ” .Korhonen (p. 9) has argued that it can bereasonable to assume that there is apresumption that the fugitive is indeedplaced under provisional arrest, sinceotherwise there is the risk that thefugitive will attempt to flee from justice.This, of course, very much depends on theeffectiveness of the “other appropriatemeasures”.

“Disguised extradition” and abduction.A State generally has the right to expel aforeign national who is deemed to be“undesirable”, for example on the basis ofhis or her criminal activity. Occasionally,the authorities of the State in questionhave expelled the foreign national not tohis or her home State or to the State fromwhich he or she arrived, but to the Statewhich has requested extradition. The useof such “back-door” procedures instead ofthe normal extradition procedure hasrightfully been criticized as a violation ofinternational comity and internationallaw.

An example of how this can operate inpractice is provided by a case involvingthe return of a Chinese national fromCanada to China. The same person waswanted in the United States on chargesrelated to al leged organized cr imeactivity, but the extradition processappeared to be becoming quite complexand time-consuming. Ultimately, Canadaplaced the person on a flight back toChina—knowing that the flight toucheddown in San Francisco for refuelling. At

San Francisco , the US authori t ie sboarded the plane and took the personinto custody.

The case of United States v Alvarez-Machain ((91-712), 504 U.S. 655 (1992))ra is es a not her t ype o f imp roperextradition, that of abduction. A Mexicanphysician, Humberto Alvarez-Machain,was suspected of taking part in thetorture and murder of a US narcoticsagent in Guadalajara, Mexico in 1985.Alvarez-Machain was seized by Mexicanbounty hunters in Mexico and flown tothe United States. The defendant arguedthat the US court had no jurisdiction totry the case because he, a Mexican citizenaccused of a murder that had beenal leged to have been committed inMexico, had been improperly brought tothe United States by a US-sponsoredabduction. The defendant further arguedthat such an abduction was a violation ofthe extradition treaty between the UnitedStates and Mexico. The majority on theSupreme Court ruled, however, that theforcible abduction of the defendant doesnot prohibit his trial in a United Statescourt for violations of this country’scriminal laws. (This is an application ofthe doctr ine o f “male captus , benedetentus”, which essentially holds thatth e c ou rt n eed n o t look at h ow adefendant was brought before it.) TheSupreme Court also held that there wasno violation of the treaty, since this treatydid not expressly say that the two StatesParties were obliged to refrain fromforcible abductions of persons from oneanother’s territory.23

Suppleme ntary in formation an dconsultation. Many agreements providethat, if the information provided by there qu est i ng S ta te i s f ou nd to beinsufficient, the requested State may (oreven “shall”) request the necessarysupplementary information (for example


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a rt . 8 o f th e UN M ode l Trea ty onE xtr a d i t i on a nd ar t i c le 13 o f th eEuropean Convention on Extradition).

According to article 10(16) of theConvent ion against Transnat ionalOrganized Crime, “before refus ingextradition, the requested State Partyshall, where appropriate, consult with therequesting State Party to provide it withample opportunity to present its opinionsand to provide information relevant to itsallegation.” This is a new provision,wh ich has no par a l lel in the 1988Convention or in the 1990 UN ModelTreaty . Th e provis ion can thus beunderstood as a ref lection of “goodpractices” as they have evolved duringthe 1990s.

Si mpl i f i c a t i on o f e x tr ad i t i onproceedings. As noted, extradition can bea long, drawn-out and expensive process.During recent years, many efforts havebeen made to expedite and simplify theprocess, in particular by eliminatinggrounds for refusal.

Art. 16(8) of the Palermo Conventioncalls for the simplification of extradition:“States Parties shall, subject to theirdomestic law, endeavour to expedite

extradition procedures and to simplifyevidentiary requirements relating theretoin respect of any offence to which thisarticle applies.”

In 1995, the European Union adopted aConvention on simplified extraditionwi th in t he EU. E ss ent ia l ly , th eConvention focuses on the many caseswhere the person in question consents toextradition.24

In 1996, the EU adopted a conventionthat supplements the 1957 Council ofEurope Convention, and is designed tofacilitate and speed up extradition. The1996 Convention widened the scope ofextraditable offences, restricted refusalson certain grounds (the absence of doublecriminality, or the nationality of theoffender) and eliminated the politicaloffence exception as well as refusals onthe grounds that the prosecution orpunishment of the person in questionwould be statute-barred in the requestedState.25

The European Union is currentlyconsidering various options for “fast-trackextradition”. These discussions have beenheld within the context of the discussionon mutual recognition of decisions andjudgments in cr iminal matters . Inregards to extradition, the goal is to havea wa rr an t o f a rr est i ss ued b y th ecompetent authorities of one Staterecognized as such by the authorities ofanother EU State, establishing a basis forextradition.

23 New York Times, 15 and 16 June 1992. See also

Nadelmann, pp. 449–450 and Heymann, Philip B.

and Ian Heath Gershengorn (1992), Pursuing

Justice, Respecting the Law, in Eser and Lagodny

(op.cit.), pp. 101–147, at pp. 132–135.

In December 1992, the defendant was acquitted

by the U.S. District Court in Los Angeles of all

charges on the grounds that the Government had

not produced any credible evidence linking him to

the torture and murder of the narcotics agent.

In a somewhat Kafkian follow-up to the case, on

his release by the court, the defendant was

arrested by the US Immigration Service and held

for several hours on the grounds of “illegal entry

into the U.S.”

24 This 1995 Convention has been ratified by

Austria, Denmark, Finland, Germany, Greece,

the Netherlands, Portugal, Spain and Sweden.25 The 1996 Convention has been ratified by

Denmark, Finland, Germany, Greece, the

Netherlands, Portugal and Spain.


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III. Mutual Assistance in Criminal Matters

A. The Evolution of Instruments on Mutual Assistance in Criminal Matters

The purpose of extradition is to get aforeign State to send a fugitive to therequesting State so that he or she can beplaced on trial, or so that any punishmentimposed can be carried out. The purposeof mutual assistance, in turn, is to get aforeign State to assist in other ways inthe judicial process, for example bysecuring the test imony of poss iblevictims, witnesses or expert witnesses, bytaking other forms of evidence, or bychecking judicial or other official records.

Generally, mutual legal assistance isbased on b i la ter a l o r mu lt i la tera ltreaties. No global mutual assistancetreaties have been drafted that wouldapply to a broad range of offences. Effortsto smooth international cooperation byde ve lop in g s u ch a g l obal mu tu alassistance treaty had long been thwartedin particular by the United States andthe United Kingdom, which preferbilateral treaties that would take intoconsideration the idiosyncratic features oftheir common law systems.

Ins tea d , ov er t he y ear s , som einternational treaties have been draftedthat deal with specific offences. Theseinstruments generally include extensiveprovisions on mutual legal assistance aswel l as on extradi tion . The sets o fprovisions included in some of theseagreements are so extensive that theyhave been referred to as “mini-treaties”on mutual legal assistance.

Such is the case, for instance, with thefollowing conventions:

• the Convention for the Suppression ofUnlawful Seizure of Aircraft of 16December 1970 (article 10),

• the Convention for the Suppression ofUnlawful Acts against the Safety ofCiv i l Aviat ion o f 23 September1971(article 11),

• the Convention for the Suppression ofUnlawful Acts against the Safety ofMaritime Navigation and the Protocolfor the Suppression of Unlawful Actsagainst the Safety of Fixed PlatformsLocated on the Continental Shelf, of10 March 1988,

• the UN Convention against IllicitTra f f i c in Na rc o t i c D r ug s an dPsy ch otr op i c Su bs ta nc es o f 1 9December 1988 (article 7),

• the International Convention againstth e Tak i ng o f H os ta ges o f 1 7December 1979 (article 11), and

• the Palermo Convention, opened forsignature on 12 December 2000(article 18).

In addition, there are two influentialmultilateral arrangements that apply toa wide spectrum of offences, a Conventionprepared by the Council of Europe, andan instrument applied within the contextof the British Commonwealth (the so-called “Harare Scheme”).

The oldest, most widely applied andarguably most influential is the Councilo f Eu r ope C onv en t ion on M ut ua lAssistance in Criminal Matters. This wasopened for signature in 1959, and enteredinto force in 1962.26

The Council of Europe Conventionfocuses on assistance in judicial matters(as op posed to i nv est ig at i ve an dprosecutorial matters). Furthermore,since it has been in force for almost 40years, it has in some respects beenbypassed by practice. In order to improvethe effectiveness of the Convention, the


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fifteen European Union countries haveprepared their own Mutual AssistanceC onv ent ion o f 29 Ma y 200 0 . Th issupplements the 1959 Council of Europeconvention and its protocol in order toreflect the emergence of “good practices”over the past forty years.

Th e C ommon wea lt h S c hem e f o rMutual Assistance in Criminal Mattersdoes not create binding internationalobligations; instead, it represents morean agreed set of recommendations.27 Itdeals with identify ing and locatingpersons; serving documents; examiningwitnesses; search and seizure; obtainingevidence; fac il itat ing the personalappearance of witnesses; effecting atemporary transfer of persons in custodyt o appea r as a w itn ess ; obta ini ngproduction of judicial or official records;and tracing, seizing and confiscating theproceeds or instrumentalities of crime. Amodel Bill to assist countries in preparinglegislation has been developed by theCommonwealth Secretariat.

The Commonwealth scheme extends toboth “criminal proceedings that havebeen instituted in a court” and when

“there is reasonable cause to believe thatan of fence in respect of which suchproceedings could be instituted have beencommitted”. Thus, it effectively alsoallows mutual assistance when certainserious offences, such as terrorism, couldpotentially be prevented.

The United Nations, in turn, hasprepared a Model Treaty on MutualAssistance in Criminal Matters (GeneralAss emb ly r es o lu t ion 45 /1 17 o f 1 4December 1990). The purpose of theModel Treaty is to provide a suitablebasis for negotiations between states thatdo not have such a treaty. The ModelTrea ty i s by n o mean s a b i nd i ngtemplate. The States can freely decide onany changes, deletions and additions.H owev er , th e Mod e l Tr eat y do esrepr es ent a d ist i l l a t ion o f th einternational experience gained with theimplementation of such mutual legalassistance treaties, in particular betweenStates representing dif ferent lega lsystems.

Competing international treaties. Overthe years, several multilateral treatieshave been drafted that deal with mutuallegal assistance. In addition, many stateshave entered into bilateral treaties witho th er cou n tr ies . Thi s r a i ses th epossibility that two or more treaties maybe applicable to the same facts. Sincethere may be differences between thesetreaties (for example in relation to theconditions under which mutual legalass istance can be provided, or theprocedure used), the question arises ofwhich treaty should be applied.

General conflicts between treaties canbe decided on the basis of the ViennaConvention on the Law of Treaties, whichwas concluded on 23 May 1969. Amongthe principles applied are that, otherthings being equal, a later treaty replaces

26 At present, the following 40 States are parties to

the 1959 Convention: Albania, Austria, Belgium,

Bulgaria, Croatia, Cyprus, the Czech Republic,

Denmark, Estonia, Finland, France, Georgia,

Germany, Greece, Hungary, Iceland, Ireland,

Israel, Italy, Latvia, Liechtenstein, Lithuania,

Luxembourg, Malta, Moldova, the Netherlands,

Norway, Poland, Portugal, Romania, the Russian

Federation, Slovakia, Slovenia, Spain, Sweden,

Switzerland, the former Yugoslav Republic of

Macedonia, Turkey, Ukraine and the United

Kingdom. In addition, it has been signed by

Armenia and San Marino.27 David McClean, International Judicial

Assistance, Clarendon, Oxford, 1992, p. 151. The

Harare Scheme was originally adopted in 1983. It

has been amended most recently in 1999.


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an earlier one, and a treaty dealing witha specific issue replaces a treaty dealingonly with general issues.

In addition, some new treaties containspecific provisions on the resolution ofpossible conflicts between treaties. Forexample, article 18(6) of the PalermoC onv en t ion st i pu lat es th at “ th eprovisions of this article shall not affectthe obligations under any other treaty,bilateral or multilateral, that governs orwill govern, in whole or in part, mutuallegal assistance.” (Article 7(6) of the 1988Convention is similar.)

This provision means in practice thatobligations under other agreementsremain in force. The Palermo Convention(or the 1988 Convention) does not in anyway diminish these obligations. Thepr a ct i t i oner s hou ld ex am in e th eagreements side by side, and identifyw h ic h pr ovi s ion s o f th e d i f f e r entagreements would, in combination, resultin the highest possible level of mutualassistance.

Despite the network of internationalinstruments, cases will continue to arisebetween States that are not linked by amutual legal assistance treaty. If theStates in question are, nonetheless,Parties to the Palermo Convention, andthe case involves transnational organizedcrime, the Palermo Convention can formthe basis for mutual legal assistance.According to article 18(7) of the PalermoConvention, paragraphs 16(9)–(29) of theConvention apply to such requests.(Article 7(7) of the 1988 Conventioncontains a similar provision.) Even if theStates in question are bound by a treaty,they can decide to apply paragraphs16(9)–(29), and indeed the PalermoConvention strongly encourages them toapply the corresponding provisions of thisn ew Con ven t i on. As no t ed in th e

Commentary to the 1988 Convention(para. 7(23)), “this enables pairs of Statesto follow the procedures with which theyhave become familiar in the generalcontext of mutual legal assistance”.

B. The Scope of Mutual Legal Assistance

In ar t i c le 18 (1 ) , t he Pa ler moConvention calls for States Parties toafford one another the widest measure ofmutual legal assistance (see also art. 1(1)o f t h e 19 59 Cou n ci l o f E ur opeConvention). The scope of measures thatcan be requested under mutual legalassis tance is rather large, and thepractice appears to be moving towards aconstant expansion of this scope.

According to art.18(3) of the PalermoConvention, which in this respect is basedon the 1988 Convention, mutual legalassistance can be requested for any of thefollowing purposes:

a. taking evidence or statements frompersons;

b. effecting service of judicialdocuments;

c. executing searches and seizures, andfreezing;

d. examining objects and sites;e. providing information, evidentiary

items and expert evaluations;f. providing originals or certified copies

of relevant documents and records,in c l ud i ng gov er nme nt , ba nk ,f inancial , corporate or bus inessrecords;

g. identifying or tracing proceeds ofcrime, property, instrumentalities orother things for evidentiary purposes;

h. facilitating the voluntary appearanceof persons in the requesting StateParty; and

i. any other type of assistance that isnot contrary to the domestic law ofthe requested State Party.


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Most of the items on the above list arefami liar from art . 7(2) of the 1988Convention, art. 1(2) of the UN ModelTreaty and para. 1 of the CommonwealthScheme, as well as from many bilateralConventions. There are, however, fournew elements in the Palermo Conventionthat reflect the evolution of thinking onmutual assistance.

• point (c) also includes the freezing ofassets, and not just searches andseizures. The freezing of assets hasbee n f oun d t o b e pa rt i c ul ar lyim port an t in pr even t i ng a n dcontrolling organized crime. (Para.1(i) of the Commonwealth Schemeseparately refers to the trac ing,se iz ing an d c onf iscat ing o f th eproceeds of criminal activities.)

• point (e) includes the provision ofexpert ev a luat ions ; th e earl ie rmultilateral treaties had not specifiedthis form of assistance.

• point (f) specifies that originals orcertified copies can be obtained also ofgovernment records; again, this wasn ot c lea rl y n o ted i n t he 1 988Convention or the UN Model Treaty.The Commonwealth Scheme, on theo t her ha nd , does re fe r t o th e“production of judicial or officialrecords”. (See also below under“Provision of documents”.)

• point (i), which is a catch-all referenceto “any other type of assistance that isnot contrary to the domestic law ofthe requested State Party”, providesc ons ider a ble f lex ib i l i t y to th elisting.28

Requests related to offences for which acorporate body may be liable. One featureof (transnational) organized crime is thatcorporate bodies (legal persons) may be

involved, often as the front for theactivities of the actual offenders, and inparticular for the laundering of theproceeds of crime. The situation mayarise where State A, which recognizes thepossibility of corporate criminal liability,requests assistance from State B, whichdoes not recognize such a possibility.Since art. 10 of the Palermo Conventionrequires that corporate bodies be heldliable for serious crime in some manner(no matter whether criminal, civil oradministrative), art. 18(9) requires StatesParties to provide mutual legal assistanceto the fullest extent possible underrelevant laws, treaties, agreements andarrangements. Absence of corporatecriminal liability in the requested State isthus not a bar to providing mutual legalassistance.

Video conferences. Art. 18(18) of thePalermo Convention adds the possibilityof the hearing of witnesses or experts bymeans of video conference.29 This is acom ple te ly n ew prov is ion in UNcon v ent ion s ; no th in g s i mi l ar wa scontained in the 1988 Convention or inthe 1990 UN Model Treaty. Its newness,of course, is a reflection of the rapid

28 Mutual legal assistance is distinct from the

transfer of proceedings and the transfer of

persons in custody to serve sentences, which

would thus not be covered by point (i). The

Palermo Convention deals with these subjects

separately in articles 17 and 21.

Some commentators and even courts have held

that mutual legal assistance treaties are general,

and can apply to forms o f a ssistance no t

specifically mentioned in them. For example, in

the United States, the Re Sealed Case (1987; 832

F.2d 1268. US Court of Appeals for the District of

Columbia) determined that the existence of a

treaty does not limit evidence gathering to the

procedures stipulated in the treaty; indeed, this

point is generally explicitly stated in such

treaties.


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de ve lop ment o f c ommu ni ca t i onstechnology. Even though this possibilityrequires an initial investment in thenecessary equipment, video technologycan considerably facilitate the hearing ofwitnesses and experts, since they wouldno longer have to travel from one countryto another. It can also serve to protectwitnesses or experts, if they fear to revealtheir location or fear travelling to a courthearing in the requesting State.

Having a “direct” connection betweentwo countries, however, raises someinteresting issues. A normal situationwould be when an attorney or a judgelocated in the requesting State uses avideo link to hear a witness located in therequested State. In order to forestallconcerns that the requested State mayhave about possible violations of itssovereignty , or concerns about dueprocess, art. 18(18) specifies that theStates may agree that a judicial authorityof the requested State may attend thehearing.

The spontaneous transmission ofinformation. In the investigation and

prosecution of offences, now and then thelaw enforcement authorities of a countryreceive information that may be ofinterest to the authorities of anothercountry . Art. 18 (4 ) of the PalermoConvention allows the authorities, evenwithout a pr ior request, to pass oninformation to the competent authoritiesof another State.30 Again, this is a newe lemen t i n U N co nv ent ion s . I t susefulness has been demonstrated inpractice in, for example, Europe.

Provision of documents. Art. 18(3)(f) ofthe Palermo Convention states in generalthat mutual legal assistance can berequested in the provision of originals orcertified copies of relevant documents andrecords. A practical question that was notaddressed in the 1988 Convention wasthe scope of application of this provision.Does i t , in pa rt i c u lar , ex ten d todocuments that are considered secret inthe requested State? The matter wasconsidered in art. 16 of the UN ModelTreaty, which served as the basis in thedrafting of art. 18(29) of the PalermoConvention. This provision requires thatthe requested State provides copies ofgovernment records , documents orinformation in its possession that underits domestic law are available to thegeneral public, but leaves the requestedState with discretion over whether or notto provide any other government records,doc um ent s o r in for mat ion i n i t spossession.

Transfer of persons in custody. In thein ves t i ga t ion a nd pros ec ut ion o ftransnational organized crime cases, asituation may well arise where a person

29 According to article 18(18) of the Palermo

Convention, wherever possible and consistent

with fundamental principles of domestic law,

when an individual is in the territory of a State

Party and has to be heard as a witness or expert

by the judicial authorities of another State Party,

the first State Party may, at the request of the

other, permit the hearing to take place by video

conference if it is not possible or desirable for the

individual in question to appear in person in the

territory of the requesting State Party. States

Parties may agree that the hearing shall be

con du ct ed by a judi c ia l a uth or i ty o f th e

requesting State Party and attended by a judicial

authority of the requested State Party.

See also article 10 of the 2000 European Union

Convention. Art. 11 of the 2000 European Union

Convention also permits teleconferences.

30 This spontaneous exchange of data is provided

under article 10 of the 1990 European Convention

on Laundering, Search, Seizure and Confiscation

of the Proceeds from Crime. See also art. 7 of the

2000 European Union Convention.


383

held in custody in one State can providekey testimony in a case in another State.

Art. 7(4) of the 1988 Convention statesquite generally that States Parties shallfacilitate “to the extent consistent withtheir domestic law and practice, thepresence or availability of persons, whoconsent to assist in investigations orparticipate in proceedings”. Art. 18(10)–(12) of the Palermo Convention providemore detail on the transfer of persons incustody for this purpose.31 Transfer ispossible only if the person in questionconsents, and the competent authoritiesof the two States agree (subject topossible conditions). The person is to bekept in custody in the State to which heor sh e is t ransferr ed , and is to bereturned without delay as agreed by thetwo States. In addition , the persontransferred is to receive credit for serviceof the sentence being served in the Statefrom which he or she was transferred fortime spent in the custody of the State towhich he or she was transferred.

W hen per s ons in c u st ody ar etransferred from one State to anotheru n der a r t . 18 (11) o f th e Pal erm oConvention, a form of the principle ofspeciality applies (art. 18(12)). Thus,unless the requested State agrees, theycannot be prosecuted, detained, punishedor subjected to any other restriction ofliberty in the territory of the State towhich such persons are transferred inr esp ect o f o f f enc es c ommi tted orconvict ions imposed prior to theirtransfer.

T h e c onc e p t o f “ in t er n at iona lsubpoenas”. One, albeit rare, feature ofsome mutual legal assistance treaties ist hat th ey a l low f o r th e i ss ui ng o f

subpoenas “backed up” by compulsion,such as penalties for failure to obey. Thisconcept is applied for example in theUnited States-Italian Mutual AssistanceTreaty, which provides for compulsoryappearance of a witness in the requestingState (McClean 1992, p. 158). Also,Australia has such an arrangement withNew Zealand and Fiji, and Malaysia hassuch an arrangement with Singapore andBrunei (ibid.).

As noted above, art . 18 (7) o f thePalermo Convention refers only tofacilitating the presence of persons whoconsent to assist in investigations orparticipate in proceedings. Witnesses andexperts are thus completely free not to goto the requesting country. The PalermoConvention thus does not allow the use ofcompulsion against witnesses or expertsin another State. This same approach isused in, for example, art. 8 of the 1959European Convention, paras. 15(5), 23(4)and 24(3) of the Commonwealth Scheme,and art. 7(4) of the 1988 Convention.

C. Grounds for RefusalThere are severa l bas ic common

grounds for refusal for granting a requestfor mutual legal assistance:

• the absence of double criminality;• the offence is regarded as a political

offence;• the offence is regarded as a fiscal

offence; and• the granting of mutual legal

assistance would be counter to thevital interests (ordre public) of therequested State.32

Ab se n c e o f d ou ble cr imin al i t y .According to art. 18(9) of the PalermoConvention, a State may decline mutuallegal assistance if the offence in questionis not an offence under its laws. However,the Palermo Convention specifies that

31 Parallel detailed provisions can be found in para.

24 of the Commonwealth Scheme.


384

this is not a mandatory ground. Thus, theState may decide at its discretion toprovide mutual legal assistance even ifthe condition of double criminality isabsent.

Also the Commonwealth Schemei nc lu des a “d is c re t ion ar y dou bl ecriminality rule” (art. 7(1)). According tothe author of the scheme (McClean 1992,pp. 155–156), this was to prevent as i t ua t ion ar is in g w he re mu tu alassistance is requested in respect ofcertain acts that are heavily punished insome Islamic law jurisdictions are notseen as appropr iate fo r any penalsanctions in other jurisdictions.

Pol i t i ca l o f f e n ce s . In res pec t o fextradition, the political nature of theoffence is generally a mandatory cause forrefusal. In the field of mutual legalassistance in criminal matters, in turn,this is generally only an optional reasonfor refusing cooperation. Moreover, overthe years the possibility or obligation torefuse assistance in such considerationsh as in g en era l been cu r ta i led , inparticular with a view towards the needto combat terrorism. See, for example,art. 2 of the 1959 Council of EuropeConvention, when read together with art.8 of the European Convention on the

Suppression of Terrorism of 27 January1977.

Fiscal offences. Under the 1959 Councilof Europe Convention, legal assistancemay be refused where the requestedparty considers the offence to be a fiscaloffence. In order to restrict the scope ofthese grounds of refusal, an additionalprotocol to the European Convention wasdrawn up at the same time, in 1959.Signatories to this additional protocolundertake not to refuse assistance on thegrounds that the offence in question is afiscal offence

According to article 18(22) of thePalermo Convention, States Parties maynot refuse a request for mutual legalassistance on the sole ground that theoffence is also considered to involve fiscalmatters.

Violation of the vital interests of therequested State (ordre public). Generallyspeaking, conventions on mutual legalassistance on criminal matters providethat the requested State can refuseas s is ta nc e w h ic h i t deems mi gh tendanger its sovereignty, security, lawand order or other vital interests. Thissame “escape clause” is maintained evenby the 2000 European Union instrumenton mutual legal assistance.

The same principle is embodied in art.18(21)(b) of the Palermo Convention,according to which the requested StateParty may refuse to grant mutual legalassistance if it considers that execution ofthe request is likely to prejudice itssovereignty, security, ordre public orother essential interests.

Conflict with the laws of the requestedstate . According to art. 18(21) of thePalermo Convent ion, mutual lega lassistance may be refused:

32 Art. 4(c)–(d) of the UN Model Treaty on Mutual

Assistance in Criminal Matters and para. 7(1)(d)

and 7(2)(b) of the Commonwealth Scheme provide

as additional optional grounds for the refusal of

assistance the presence of substantial grounds for

believing that the request for assistance may lead

to prosecution or punishment, or cause prejudice,

on account of ( for example) race, religion,

nationality or political opinions, or that the

prosecution in the requesting State would lead to

double jeopardy. The UN Model Treaty adds as a

further optional ground the fact that the offence is

already under investigation or prosecution in the

requested State.


385

• if the request is not made inconformity with the provisions of thisarticle;

• if the authorities of the requestedState Party would be prohibited by itsdomestic law from carrying out theaction requested with regard to anysimilar offence, had it been subject toinvestigation, prosecution or judicialpr oc eed in gs un der t h e ir ow njurisdiction; and

• if it would be contrary to the legalsystem of the requested State Partyrelating to mutual legal assistance forthe request to be granted.

Bank secrecy. One relatively commonground for refusal is that granting therequest would be contrary to banksecrecy. The scope of this ground forrefusal has been restricted during recentyears. In line with this development, art.7(5) of the 1988 Convention and article18(8) of the Palermo Convention stipulatethat States Parties shall not decline torender mutual legal assistance on theground of bank secrecy.

The need to indicate the ground forrefusals. Good practice in mutual legalassistance requires that the requestedState, if it refuses to grant assistance,should indicate the grounds for suchrefusal. Art. 18(23) of the PalermoConvention requires that reasons begiven for any refusal of mutual legalassistance. Art. 19 of the 1959 Council ofEurope Convention and para. 6(3) of theCommonwealth Scheme are similar.

Reciprocity. As noted above, art. 18(1)of the Palermo Convention requires thatStates Parties afford one another thew ides t meas u re o f mu tu al leg a lassistance in investigations, prosecutionsand judicial proceedings in relation to thet ype o f o f f enc es c ov ered by th eConvention. States are not allowed to

refuse assistance unless they have a clearground to do so.

H owev er , i n t he dr a f t in g o f th ePaler mo Con ven t i on, t he re wa sconsiderable discussion over at whatstage it should be evident that the offencein question is covered by this Convention.After all, the requested State can simplysay that, in its view, the requesting Statehas not shown that the offence is in facttransnational; this may well be difficultto prove especially at the earlier stage ofthe investigation.

The solution adopted was innovative. IfState A has met with refusals from StateB to provide ass is tanc e un der thePalermo Convention even when State Ahas reasonable grounds to suspect thatthe offence in question falls under theCon ven t i on, th en Sta te A c anlegitimately refuse, in turn, to help StateB should it happen to come forward witha corresponding request.

D. The Mutual Legal Assistance Procedure

Letters rogatory. The traditional tool ofmutual legal assistance has been lettersrogatory, a formal mandate from thejudic ial authority of one State to ajudicial authority of another State toperform one or more specified actions inthe place of the first judicial authority(see, for example, chapter II of the 1959Council of Europe Convention). Theconcept of letters rogatory had been takenfrom civil procedure, and focuses onjudicial action in the taking of evidence.More recent international instrumentssimply refer to “requests”.

In international practice, lettersrogatory have typically been transmittedthrough diplomatic channels. The requestfor evidence, almost always originatingfrom the prosecutor, is authenticated by


386

the competent national court in therequesting State, and then passed on bythat State’s Foreign Ministry to theembassy of the requested State. Theembassy sends it on to the competentjudicial authorities of the requestedState, generally through the ForeignMinistry in the capital. Once the requesthas been fulfilled, the chain is reversed.

Central authorities or direct contacts?Increasingly, treaties require that StatesParties designate a central authority(generally the Ministry of Justice) towhom the requests can be sent. Thejudicial authorities of the requestingState can then contact the centrala ut hor i t y d ir ect ly . Tod ay , t o anincreasing degree even more directchannels are being used, in that anofficial in the requesting State sends therequest directly to the appropriate officialin the other State.33

In th e dr a f t in g o f th e Pal erm oConvention, there was considerablediscussion regarding whether or notdirect channels could be used. Somestates, which were not familiar with thispractice, had a clear preference for theuse of central authorities. The basic rulelaid out by art. 18(13) of the PalermoConvention (see also art. 7(8) of the 1988C onv en t ion an d par a . 4 o f th eCommonwealth Scheme) is that eachState Party designate a central authority.Such a central authority has in effect

three roles: (1) to receive requests formutual legal assistance; (2) to executesuch requests; and (3) to transmit suchrequests to the competent authorities forexecution.

Where a State Party has a specialregion or territory with a separate systemof mutual legal assistance (as is the case,for example, with Hong Kong in China), itmay des ig n ate a d is t i nc t c ent ra lauthority that shall have the samefunction for that region or territory. Thisis a n ew feat ur e o f th e Pa ler moCon ven t i on; ar t . 7 (8 ) o f t he 198 8Convention and art. 3 of the Model Treatyonly contain a general reference to thedesignation of “an authority or whennecessary authorities”.

Direct requests may be possible alsounder some treaties in case of emergency.For example, art. 15(1) of the 1959Council of Europe Convention allows thejudicial authority of the requesting Stateto send the letter of request directly to thecompetent judic ial authority of therequested State. Art. 18(13) of thePaler mo Con v ent ion a l low s th epossibility that, in urgent cases and whenthe States in question agree, the requestcan be made through the InternationalCriminal Police Organization, if possible.

The form and contents of the request.The Palermo Convention contains severalprovisions on the procedure to be followedin sending a request for mutual legalassistance.

According to article 18(14) of thePalermo Convention (cf. art. 7(9) of the1988 Convention), “requests shall bemade in writing or, where possible, byany means capable of producing a writtenrecord ... under conditions allowing thatState Party to establish authenticity. ...In urgent circumstances and where

33 One of the earliest bilateral treaties to allow for

this was the additional protocol to the 1959

Council of Europe Convention drawn up by

France and Germany on 24 October 1974.

The 1990 Schengen agreement in the framework

of the European Union specifically allows the use

of direct contacts between judicial authorities

(art. 53). The same concept is embodied in the

even more recen t Eu ropea n Uni on 2 00 0

Convention on Mutual Legal Assistance.


387

agreed by the States Parties, requestsma y be m ade ora l ly , bu t sh al l b econfirmed in writing forthwith.”

The Palermo Convention, by referringto requests made “where possible, by anymeans capable of producing a writtenrecord ... under conditions allowing thatState Party to establish authenticity”,opens up the possibility of for exampletransmission by fax or electronic mail.This was not possible under, for example,the 1988 Convention.34

The minimum contents of a request formutual legal assistance are listed inarticle 18(15):35

a. the identity of the authority makingthe request;

b. the subject matter and nature of theinvestigation, prosecution or judicialproceeding to which the requestrelates and the name and functions oft he au th ori ty c on duc t ing th einvestigation, prosecution or judicialproceeding;

c. a summary of the relevant facts,except in relation to requests for thepu r pose o f s e r v ic e o f j ud ic ia ldocuments;

d. a description of the assistance soughtan d deta i l s o f an y par t i c ul arprocedure that the requesting StateParty wishes to be followed;

e. where possible, the identity, locationan d n at ion al i ty o f an y pers onconcerned; and

f. the purpose for which the evidence,information or action is sought.

Article 18(16) notes that the requestedState Party may request additionalinformation when it appears necessaryfor the execut ion of the request inaccordance with its domestic law or whenit can facilitate such execution.

The formulation used in the PalermoCon ven t i on re fe rs t o “ a lan gu ag eacceptable to the requested State Party”.This is a deliberately wide formulation. Itincludes the national language of therequested State Party, but the specialcircumstances of the relations betweenthe two countries may suggest the use ofother languages. For example, manycountries around the world are preparedto accept requests in English and/orFrench.

E. Execution of the Request for Mutual Legal Assistance

Law governing the execution . Theprocedural laws of countr ies dif ferconsiderably. The requesting State mayrequire special procedures (such asnota ri zed a f f idav i ts ) t hat are n o trecognized under the law of the requestedSt ate . Tra d i t ion al l y , th e a lmos timmutable principle has been that therequested State should follow its ownprocedural law.

This principle has led to difficulties, inparticular when the requesting and therequested State represent different legalfamilies. For example, the evidencetransmitted from the requested Statemay be in the form prescribed by the lawsof this State, but such evidence may beunacceptable under the procedural law ofthe requesting State.

Th e 1 959 Cou nc i l o f E ur opeCon ven t i on i s one in ter n at i ona l

34 Recommendation R(85)10 of the Council of

Europe (which is non-binding) in principle

en courages th e ac cep tance o f th e u se o f

telephones, teleprinters, fax and similar means of

communication in the transmission of letters

rog atory in the appl ica t i on o f the 1959

Convention.35 The list is word for word the same as in article

7(10) of the 1988 Convention.


388

in str ument that app l ies t o Stat esrepresenting two quite different legalfami l ies , the common law and th econtinental law systems. Although art.3 (1) of this Convention follows thetraditional principle referred to above,t he Com ment ar y n o tes t ha t th erequesting State can ask that witnessesand experts be examined under oath, aslong as this is not prohibited in therequested State.36

According to art. 7(12) of the 1988Convention, a request shall be executedin accordance with the domestic law ofthe requested State Party and, to theextent not contrary to the domestic law ofthe requested State Party and wherepo ss i b le , in a cc or dan c e w ith th eprocedures specified in the request. Thus,although the 1988 Convention does not goso far as to require that the requestedState comply with the procedural formrequired by the requesting State, it doesclearly exhort the requested State to doso. This same provision was takenverbatim into art. 18(17) of the PalermoConvention.

Promptness in fulfilling the request.One of the major problems in mutuallegal assistance world-wide is that therequested State is often slow in replying,and suspects must be f reed due toabsence of evidence. There are manyunderstandable reasons for the slowness:a shortage of trained staff, linguisticdifficulties, differences in procedure thatc omplicate r espond ing, and so on .Nonetheless, it can be frustrating to findthat a case must be abandoned becauseeven a simple request is not fulfilled intime.

The 1988 Convention does not makeany explicit reference to an obligation onthe part of the requested State to beprompt in its reply. The 1990 UN ModelTreaty (art. 6) does require that requestsfor assistance “shall be carr ied outpr omptl y” . Par a . 6 (1 ) o f th eCommonwealth Scheme calls for therequested country to grant the assistancerequested as expeditiously as practicable.

The Palermo Convention is even moreemphat ic about the importan ce o fpromptness, and makes the point in twoseparate provisions. Art. 8(13) of thePalermo Convention provides that, if thecentral authority itself responds to therequest, it should ensure its speedy andprompt execution. If the central authoritytransmits the request on to, for example,th e com peten t c our t , t he c ent ra lauthority is required to encourage thespeedy and proper execution of therequest. Art. 18(24) provides that therequest is to be executed “as soon aspossible” and that the requested State isto take “as full account as possible of anydeadlines suggested by the requestingState Party and for which reasons aregiven”.

Good practice in execution . Otherelements of “good practice” in mutuallegal assistance also worked their wayinto the Palermo Convention, making thelife of the practitioner easier than under,for example, the 1988 Convent ion.According to art. 18(24) of the PalermoConvention,37

• the requested State should not onlyexecu te the requ est as s oon aspossible but also “take as full accountas possible of any deadlines suggestedby the requesting State Party”;

36 Explanatory Report to the 1959 Convention, p.

14.

37 Cf. Art. 4 of the 2000 European Union

Convention.


389

• the requested State should respond toreasonable requests by the requestingState for information on progress ofits handling of the request; and

• the requesting State should promptlyinform the requested State when theas s i st an ce s oug ht is n o l ong errequired.

Art. 18(25) of the Palermo Conventionstates that mutual legal assistance maybe postponed by the requested StateParty on the ground that it interferesw it h an on g o in g in ves t ig at ion ,prosecution or judicial proceeding. Art.7(17) of the 1988 Convention is in thisrespect similar.

Art. 18(26) of the Palermo Conventionstates that, before refusing a request formutual legal assistance, or postponing itsexecution, the requested State shouldconsult with the requesting State toconsider whether assistance may begranted sub ject to such terms andconditions as it deems necessary. The1988 Convention (art. 7(18) called forc on su l ta t i ons on ly in t he ca se o fpostponements, not refusals. The modelfor the wider formulation used in thePalermo Convention was taken from art.4(4) of the 1990 UN Model Treaty.

Confidentiality of information and therule of speciality. Once the informationhas been sent by the requested State tothe requesting State, how can it be used?

The requested State may ask that anyinformation provided be kept confidentialexcept to the extent necessary to executethe request (art. 18(5) and 18(20) of thePalermo Convention). However, thesituation may arise that the informationreceived in respect of one offence orsuspect at the same time exculpatesanother suspect in a completely separateprocedure. To address this potential

problem, art. 18(20) goes on to providethat the State receiving the informationis not prevented from disclosing it in itsproceed ings i f th is in format i on i sexculpatory to an accused person. (Theprovision also deals with the necessity toinform and, if requested, consult with theother State prior to such disclosure.)

Art. 18(19) of the Palermo Conventionembodies the rule of speciality: the Statereceiving information may not transmitor use it for investigations, prosecutionsor judicial proceedings other than thosestated in the request without the priorconsent of the requested State Party.Again, however, exculpatory informationmay be disclosed.

Costs. According to article 18(28) of thePalermo Convention, the ordinary costs ofexecuting a request shall be borne by therequested State Party, unless otherwiseagreed by the States Parties concerned. Ifexpen s es o f a s u bst an t i a l o rextraordinary nature are or will berequired to fulfil the request, the StatesParties shall consult to determine theterms and conditions under which therequest will be executed, as well as themanner in which the costs shall be borne.This latter provision has been modelledon, for example, art. VIII(3) of theCanadian-US treaty and para. 12(3) ofthe Commonwealth Scheme.38

IV. SUMMARY: THE GENERAL EVOLUTION OF EXTRADITION

AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

With the increase in internationaltravel, the improvement in technology

38 In 1999, the Law Ministers of the Commonwealth

adopted guidelines on the apportionment of costs

incurred in providing mutual assistance in

criminal matters.


390

a nd c ommu n ic at i ons , t he g rea terlikelihood that a crime can have animpact beyond national borders, and theincreased profits that can be made fromorganized crime, the need to obtainassistance from other states in bringingoffenders to justice has expanded rapidly.The bas ic too ls that can be used—extradition and mutual legal assistancein criminal matters—have regrettablyn ot evo l ved t o keep pa c e wi thdevelopments in crime.

Much of the everyday pract ice ofextrad it ion and mutual ass is tancecontinues to be reliant on bilateral andmultilateral treaties that have beendrafted many years ago. Moreover, manyStates which are parties to such treatiesstill do not have the necessary legislationor resources to respond to requests forextradition or mutual assistance.

• Requests are often transmittedthrough diplomatic channels or fromGovernment to Government, and theresulting delays may cause a carefullyassembled case to collapse in thehands of the prosecutor.

• The requesting State maymis un der st an d t he f o rma lrequirements in the requested Stateas to the presentation and contents ofth e r eq ues t . For ex ampl e , th erequesting State may not realize that,under some treaties, it must presentdocu men tat ion that the doublecriminality requirement is met, thatthe offence is extraditable, and thatexecution is consistent with the law ofthe requested party.

• The requested State, in turn, may notalways demonstrate flexibility indemanding more details about theoffence and the offender. Often, veryspecific information may be difficultto provide if the investigation is stillunderway.

Nonetheless, as shown in this paper,some developments have taken place inboth extr ad i tion and mutual lega lassistance, in particular over the past tenyears.

So me o f th e ma in tr en ds in th eevolution of extradition are summarizedin the following table.

The traditional extradition regimeThe “new, improved” extradition

regime

bilateral multilateral

limited scope of offences; lists of offences broad scope of offences; no offence lists

need to present prima facie evidence an arrest warrant suffices

extradition of nationals not possiblenationals can be extradited, although conditions may be imposed

broad grounds for refusal few grounds for refusal

no reference to the expected treatment or punishment of the suspect

human rights standards applied

slowtrend towards mutual recognition and the “backing of warrants”

bureaucratic“good practice” standards followed; e.g. the possibility of consultation before possible refusal


391

• bilateral treaties are beingincreasingly replaced by multilateraltreaties. Although bilateral treatieshave been preferred for example byth e c ommon law c ou ntr ies , th esimultaneous ex istence of manyin te rn at ion al in str u men tsc ompl i c ates t he wor k o f th epract itioner. For this and otherr eas ons , a lso t he c ommon l awcountries are seeing the advantages ofmultilateral treaties with a widescope of application

• the earliest treaties were based onlists of offences. If an offence was notincluded in the list, extradition couldnot be granted. More recent treatiesare generic, in that they apply to abroad scope of offences.

• because courts have traditionallybeen cautious in applying coercivemeasures, the courts in particular incommon law countries have requiredprima facie evidence that the suspecthad indeed committed the offence inquestion. Because of the differences inthe law of evidence and in criminalprocedure in different countries, suchprima fac ie ev idence w as o ftendiff icult to provide. More recentinstruments have generally regardedit as sufficient that the requestingState (at least if it belongs to a selectgroup of states) produce a valid arrestwarrant

• one of the most cherished principlesin extradition law has been thatStates will not extradite their ownnationals and will, at most, undertaketo bring them to trial in their owncourts. Today, more and more Statesare allowing extradition of their ownnationals, although some conditionsmay be placed, such as that thenational, i f convicted, should be

returned to his or her own country toserve the sentence

• there is currently a clear trendtowards elimination of the manygrounds for refusal to extradite, suchas the political offence exception

• there is a trend towards grantinggreater r igh ts to the per son inquestion as an object (as opposed tosubject) of the process, and to greaterconsideration of how he or she wouldbe t rea ted or p un is hed in th erequesting State. Consideration canbe g iv en , f o r ex ampl e , to th epossibility of persecution on thegr oun ds o f s ex , r a ce , r e l i g i on ,nationality, ethnic origin or politicalopinions, the possibility of unfairtr ia l , an d th e pos s ib i l i ty o fpunishment which, in the requestedState, is deemed inhumane

• another trend is toward less rigidprocedural requirements, includingdirect communications and simplifiedprocedure

There has also been a clear dynamic inthe development of mutual assistance.New international instruments open upthe possibility of mutual assistancebetw een an ex pan di ng nu mber o fcountries, the scope of offences has beenenlarged, conditions and grounds ofrefusal have been tightened or entirelyeliminated, and the process has beenexpedited. Some of the main trends aresummarized in the following table.


392

• as with extradition treaties, bilateralmutual legal assistance treaties arebe in g in cr eas in gly r ep laced bymultilateral treaties

• the earliest mutual legal assistancetreaties covered only a limited scopeof offences. More recent treaties covera broad scope of offences.

• the measures offered under mutuall ega l as s is ta nc e tr eat ies (an ddomestic laws in many States) hasexpanded. At first, the focus was onservice of summons. Today, a widerange of measures are offered.

• traditional mutual legal assistancetreaties required that requests besent through diplomatic channels orthrough a central authority. Morerecent treaties allow the use of directcontacts

• more recent treaties have restrictedor even eliminated the many groundsfor refusal to provide assistance

• requested State applies solely its ownlaw s i n g ra nt in g as s i s t an ce ;proc edu r es r equ es ted by th erequesting State can be applied ifthese are not contrary to the laws ofthe requested State

• as with extradition treaties, anothertrend in mutual legal assistancetr eat ies i s t owa r d les s r ig idprocedural requirements, includingtow ar ds t he us e o f d ir ec tcommu nicat ions and s impl if iedprocedure.

The Palermo Convention, which wasnegotiated between 1998 and 2000,reflects in many ways the “state of theart” of extradition and mutual legalassistance. In particular, it includesman y pr ovi s ion s t hat ar e n ew f orpractitioners in many countries, and maywell improve the day-to-day practice ofinternational cooperation.

Neg ot i at i on o f th e Pa ler moConvention, however, is only the first

The traditional mutual assistance regime

The “new, improved” mutual assistance regime

bilateral multilateral

limited scope of offences broad scope of offences

assistance limited to the service of summons

many possible forms of assistance

use of central authoritypossibility of direct contacts between lower level authorities requesting and granting assistance

broad grounds for refusal few grounds for refusal

requested State applies solely its own laws in granting assistance

procedures requested by the requesting State can be applied if these are not contrary to the laws of the requested State

bureaucratic“good practice” standards followed; e.g. the possibility of consultation before possible refusal


393

stage. The Convention must be ratifiedand the investigators, the prosecutorsand the judges must be given the toolsthey need to complete the job.

international cooperation against transnational organized

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