Assistance In Criminal Matters Research Articles

Evidentiary Aspects of an International Anti-Corruption Court

Combatting transnational economic crime, including bribery and money laundering, is a concern of the international community. Today, although a number of international treaties address the issue, enforcement of the laws against corruption still builds on individual states with national criminal laws, procedures, prosecutors and courts. International cooperation is based on mutual legal assistance in criminal matters. A future International Anti-Corruption Court (IACC) drawing at least in some respects from the experience of the International Criminal Court (ICC) might help to overcome impunity of powerful corrupt officials, and to hold companies responsible if they are involved in corruption. States Parties to an IACC Statute would be expected to fully cooperate with the Court. Such cooperation would include the service of documentary evidence that is particularly important in economic crime investigations. As the example of cooperation between Switzerland and the ICC shows, it would be a more effective way of international cooperation than traditional mutual legal assistance between states. This is possible because States Parties to the ICC (and a future IACC) in principle agree not to invoke sovereignty arguments towards the international institution that they co-carry. An IACC should be enabled to admit stolen financial and legal records as evidence, as they have emerged in the context of the Panama, Paradise and Pandora Papers leaks. However, the Court must ensure fairness of the proceedings and the right of parties to challenge the admissibility of evidence.

The Post-Brexit Need for a Data Adequacy Decision to Engage in Mutual Assistance in Criminal Matters with the EU

There is a need for the UK and EU to continue mutual assistance in criminal matters. As a Member State, Mutual assistance in criminal matters between was primarily governed by an EU convention. This convention builds on existing Council of Europe (CoE) conventions on mutual criminal assistance. The EU convention states that mutual assistance shall be afforded in proceedings brought by member states’ authorities, or in connection with proceedings where a person may be liable in the requesting member state. Title II provides a framework for specific forms of assistance including restitution, hearings via videoconference and covert investigations. Member states are free to conclude further bilateral arrangements. A key element of this mutual assistance is harmonised EU data protection laws. With the UK now outside the EU’s data protection architecture, this may pose a significant hurdle for future cooperation. This article critically analyses the need for a data adequacy decision from the EU for the UK to engage in mutual assistance in criminal matters post-Brexit. To reach a conclusion, the article is set out over three substantive areas considering: mutual assistance and data protection law as it applies to EU member states; the law underpinning adequacy decisions; and future legal developments post-Brexit. Specific examples of data transfers and the effect of the Trade and Cooperation Agreement (TCA) are compared and contrasted to adequacy decisions. While provisions of the TCA and EU Law Enforcement Directive (LED) provide some assurances, the article recommends that a data adequacy decision made under the LED is pursued.

Post-Brexit Recognition and Enforcement of Judgements: Problems and Solutions

There is a need for the UK and EU to continue mutual assistance in criminal matters. As a Member State, mutual assistance in criminal matters between the UK and EU was primarily governed by an EU convention. This convention builds on existing Council of Europe conventions on mutual criminal assistance. With the UK now outside the EU’s data protection architecture, this may pose a significant hurdle for future cooperation. This article critically analyses the need for a data adequacy decision from the EU for the UK to engage in mutual assistance in criminal matters post-Brexit. To reach a conclusion, the article is set out over three substantive areas considering: mutual assistance and data protection law as it applies to EU Member States; the law underpinning adequacy decisions; and future legal developments post-Brexit. Specific examples of data transfers and the effect of the Trade and Cooperation Agreement are compared and contrasted to adequacy decisions. While provisions of the Trade and Cooperation Agreement and EU Law Enforcement Directive provide some assurances, the article recommends that a data adequacy decision made under the Directive is pursued.

Juridical Review of the Mechanism of Asset Return in Corruption as an Effort to Recovery of State Losses

The criminal act of corruption is one part of a special crime, in addition to having certain specifications that are different from general crimes, namely with deviations from formal criminal law or procedural law. Corruption cases in this country still occur as if dominating crimes in Indonesia. This research is a descriptive analytical research, namely a study that presents phenomena or symptoms and actual circumstances about the mechanism of financial returns and / or state assets resulting from criminal acts of corruption. Law Number 20 of 2001 concerning the criminal act of corruption which in Article 18 is explained related to additional crimes as one of the efforts to recover State finances, Law Number 7 of 2006 concerning the Ratification of the United Nations Convention Against Corruption 2003 (United Nations Convention Against Corruption 2003) which explains that the seizure of assets of perpetrators of corruption crimes can be carried out through criminal and civil channels, Another regulation is Law Number 1 of 2006 concerning mutual assistance in criminal matters which is the legal basis for the Indonesian government in requesting and/or providing mutual assistance as well as a guideline for making agreements in criminal matters with Foreign Countries. In this case, the return of assets in corruption crimes can be carried out through several channels/instruments, including through criminal, civil and administrative channels.

The Implementation of Mutual Legal Assistance between Indonesia and Switzerland Regarding Asset Recovery

Mutual Legal Assistance in Criminal Matters (MLA) between Indonesia and Switzerland was ratified by the Indonesian government through the enactment of the Law Number 5 of 2020. It outlines the applicable legal framework for reciprocal legal assistance in criminal matters, including the trace of the proceeds of crimes. It is expected that this MLA may facilitate the process of returning assets from Switzerland to Indonesia. This article aims to discuss the implementation of the MLA between Indonesia and Switzerland in returning assets resulted from corruption which were especially stored in Swiss banks. This normative legal research employs both statutory and comparative approach. Analysis was made based on the study upon relevant legal materials, including national legislation, international regulations, and journal articles. It is found that the contribution of the MLA in regard to returning asset resulted from corruption is still minimum. The implementation of the MLA between Indonesia and Switzerland encountered obstacles and various resistance. More serious efforts are needed in order to achieve the main goal of the establishment of the MLA, namely asset recovery.

Admissibility of Hearsay Gathered Under MLAT: A Tempest in Canada

One of the most pervasive and longstanding problems in the practice of mutual legal assistance in criminal matters between states has been ‘form of evidence’ – specifically, can the requested state provide evidence in such form as will be useful and admissible under the criminal evidence laws of the requesting state? It tends to be common law states that have difficulties with admissibility of MLAT-sourced evidence, and these often develop ‘work-arounds’ in their laws which attempt to relax admissibility standards. Canada is one such state, but a series of recent prosecutions has revealed judicial resistance to the tools employed. This note examines these cases and suggests some lessons they contain for broader practice.

TOWARD EFFECTIVE OF ASEAN MUTUAL LEGAL ASSISTANCE IN COMBATING NON TRADITIONAL SECURITY THREAT IN SOUTHEAST ASIA REGION

The issue of non traditional security is currently one of the changes in studies in international security. One of the changes is from state security to human security. A form of real threat to human security is transnational crime. Therefore, in dealing with transnational crime, coordination between law enforcers in each country is needed by implementing international law. This article uses the approach of liberalism with a qualitative descriptive research approach (literature study) The research findings explain that the lack of domestic law enforcement in ASEAN countries causes transnational criminals to break away from domestic law and flee to other countries, causing fears of new threats in the country where the refugees are fleeing. In essence, there is no country that is able to stand on its own to resolve this transnational crime case. Therefore, multilateral cooperation between countries is needed. ASEAN, which in this case is a Southeast Asian multilateral institution must regulate strategies through MLA (Mutual Legal Assistance in criminal matters).

Cooperation of the European Public Prosecutor’s Office with third countries, in particular the Swiss Confederation

The 1959 European Convention on Mutual Assistance in Criminal Matters under the auspices of the Council of Europe is a treaty which has a significant impact on the cooperation in criminal matters of the European states. Judicial authorities are the most important channels ofsuch a cooperation. However, it is legally uncertain whether the European Public Prosecutor’s Office as an independent body of the European Union may enterinto a direct cooperation with third countries under the 1959 Convention. According to the legal interpretation by the Swiss Confederation, the recognition of the European Public Prosecutor’sOffice as a judicial authority,therefore its direct participation in the inter-state relations aiming criminal cooperation is unacceptable due to the fact that the contracting parties of the 1959 Convention are states, neither the European Union nor the European Public Prosecutor’s Office are contracting parties. This confirms the hypothesis that the re-opening of those agreements concluded on the basis of public international law may be unavoidable when third countries intend to establish a direct cooperation with the European Public Prosecutor’s Office in criminal matters.

Treaty between the Republic of Kazakhstan and the United States of America on mutual legal assistance in criminal matters: problems and perspectives

The formation of an international legal framework in the field of combating crime through the conclusion of bilateral agreements with the authorities of foreign states is a priority activity of law enforcement agencies of the Republic of Kazakhstan in the fight against crime. Signing of the Treaty between the Republic of Kazakhstan and the United States of America on mutual legal assistance is a logical continuation of the work of the Prosecutor General’s Office of the Republic of Kazakhstan to expand international cooperation in combating international crime. In this article, the authors tried to consider in detail the procedural and legal norms of the signed Treaty, because since almost six years have passed since its ratification, and the parties have not demonstrated any serious achievements of interaction based on this document. This article also highlights some historical and factual aspects of the formation and development of international legal cooperation of Kazakhstan and its strategy of interaction with the competent authorities of foreign states in the XXI century.

Implementation of Death Penalty Crime: Dilemma between the Nationality Principle and Human Rights

Extradition and prosecution are cornerstones of international law cooperation’s enforcement to prevent immunity from criminal responsibility, especially regarding the refusal to extradite nationals. The principle’s implementation in its development is influenced by the trend from abolitionist countries to refuse the requests for Mutual Legal Assistance in criminal matters (MLA) related to death penalty crimes. Guarantees from requesting the state not to impose death penalty sentences needs to implement nationality jurisdiction if the state refuses to extradite its citizens to another country. Countries that impose death penalty demonstrate that the nationality principle is very successful in investigating crimes committed abroad, whereas countries that have abolished the death penalty consider the nationality principle to be a violation of human rights. This paper focuses its discussion on the usefulness of Article 8 paragraph (5) of the Criminal Code Draft, which regulates the exceptional nature of the death penalty in the nationality principle’s implementation. This paper concludes that the exceptional nature of the death penalty in nationality principles' implementation is regulated in Article 8 paragraph (5) of the Criminal Code Draft. This Article elaborates that a country of hindered crime could prevent MLA requests from Indonesia related to death penalty crimes based on its international obligations and the perspective of human right. This research uses a normative approach and pragmatic-descriptive analysis.

THE CURRENT STAGE OF LEGAL REGULATION OF INTERNATIONAL COOPERATION IN THE INVESTIGATION OF TRANSNATIONAL ECONOMIC CRIMES

The article is devoted to the analysis of the current stage of legal regulation of international cooperation in the investigation of transnational economic crimes and the identification of shortcomings in international legal acts to determine the forms and directions of cooperation in the investigation of crimes of this category. On the example of international conventions in the field of international cooperation in criminal proceedings, bilateral agreements of Ukraine on international cooperation in the investigation of transnational economic crimes and multilateral regional conventions in the field of criminal procedure, it is shown that international cooperation of competent authorities of Ukraine and foreign countries. Transnational crimes are committed at three levels: universal, regional and bilateral. It is emphasized that bilateral agreements often contain significant gaps in legal regulation, especially in the area of certain types of mutual legal assistance in the investigation of transnational economic crimes, namely: they do not allow for the receipt and provision of comprehensive mutual legal assistance in criminal matters. economic crimes of a transnational nature; do not provide the prospect of expanding the range of forms of legal aid provided depending on the specific circumstances of the case and the state of criminal procedure legislation; do not contain norms on such areas of international cooperation in the investigation of transnational economic crimes as cooperation in the investigation of economic crimes committed with the use of modern computer technology, the use of video communications in proceedings, legal regulation of international search, arrest and confiscation assets obtained by criminal means, as well as proceeds from criminal activity (these areas are only mentioned in some bilateral agreements, without sufficient procedural details). Key words: legal regulation, international cooperation, economic crimes, transnational character, international conventions, bilateral agreements.

SOME ISSUES OF INTERNATIONAL LEGAL COOPERATION IN COMBAT AGAINST CORRUPTION

The article focuses on the issues of international cooperation of the Prosecutors’ Office on the provision of legal assistance in criminal matters, such as corruption. Besides that, the article is dedicated to the matters concerning the cooperation Prosecutors’ Office in terms of fighting against crime within the regional scope of international organizations. The author of this scientific article revealed the essence and main directions of international cooperation of the Prosecutors’ Office of the Republic of Uzbekistan to combat transnational crime and corruption in the context of digital globalization and the integration of the world community. Moreover, the relevance of the research topic is because the commission of such crimes is characterized by the use of modern technical means and high-tech facilities of air and land transport, a high transcontinental level of organization and real support of many, including illegal, financial sources. The predicted result of such activities was a significant increase in the number of serious crimes of a transnational nature.

Criminal Procedure and Forensic Aspects of Mutual Legal Assistance between States in Criminal Matters: Experience of Ukraine and the Republic of Azerbaijan

This article, through the description of real experiences, reveals some of the obstacles that arise when applying the international, national, and domestic laws of the Republic of Azerbaijan and Ukraine in the fight against crimes of an international character, and offers alternatives to address them. International legal assistance between States in criminal cases is provided in accordance with international agreements. The instruments of cooperation in the field of mutual legal assistance between States in criminal matters are well known to European judges and prosecutors. However, experience shows that post-Soviet countries have been reluctant to use mutual legal assistance in criminal matters because of the practical problems that often arise. The solutions to these problems are not only found in national or international legal texts and regulations, directives, or conventions. It is concluded that legal assistance among States in criminal cases is essential to extradite offenders facing criminal charges or to execute court sentences, to extradite persons, to transfer convicted persons to serve their sentences and to seize, search for and confiscate the proceeds of crime.

EncroChat i SKY ECC komunikacija kao dokaz u krivičnom postupku

Technological development and new forms of crime require redefinition of existing legal frameworks at domestic and international level. EncroChat and SkyEcc cases highlighted these problems, throwing the courts before the old Packer's dilemma, whether to give priority to crime control or due process model. While the protection of citizens' rights prevailed for many years, guided by the maxims that "the democracy of a society is measured by the provisions of its criminal procedure" and that "it is better 100 guilty persons to escape than that one innocent person suffer" it seems that in the era of information technologies, another model prevails, legitimizing almost unimaginable concepts such as mass surveillance of communications with derogation of the principle of territorial sovereignty. The "problem" escalated and came to the attention of many European countries after the "breaking" of the communication platforms EncroChat and SKY Ecc, which certainly contributed to the detection (and prevention) of numerous criminal acts by criminal groups, while at the same time opened many questions, starting from the method of discovering communication, delivering material to other countries and using it in criminal proceedings, the validity and admissibility of the so-called of "mass surveillance" that affects not only "criminals" but also "ordinary citizens", i.e. all users of certain communication platforms. The first part of the paper deals with the issues how these networks were break down, the legal basis for such actions, the legal basis for providing the obtained data to other countries, their evaluation and further use in criminal proceedings. As different countries have different procedural rules, the question is whether a domestic judge is authorized to evaluate the legality of evidence obtained abroad and according to what criteria? In this regard, a distinction is made between EU member states where European investigative orders and the principle of mutual recognition apply and other countries in the system of mutual legal assistance in criminal matters. In the second part, we deal with the legal nature of the obtained data through the dilemma of whether it was targeted surveillance in criminal proceedings, or mass surveillance carried out by the intelligence services, as well as the ECtHR's practice related to these issues. Bearing in mind that these investigations are still under the "veil of silence", the study was based on Europol/Eurojust data and few publicly available decisions of courts in Germany and the United Kingdom about the admissibility of these evidence.

International cooperation in the fight against cyberpression in the context of response to new challenges and threats

This article explores criminal procedure and other organizational and legal aspects of international cooperation between states in the fight against cybercrime in the face of new challenges and threats. The aim is to identify and consider formal and informal measures of international cooperation in response to transnational cybercrime. Through legal analysis, we demonstrate that such crimes, as a rule, have an international character, as they have negative consequences on the territory of other sovereign countries. The author analyzes various forms of international cooperation in the fight against crime, which include extradition (extradition), legal assistance in criminal matters, transfer of criminal prosecution (judicial proceedings), as well as informal cooperation between law enforcement agencies (international police cooperation), in particular within the framework of US law called “СLOUD Act”. As an empirical basis for the study, materials of Russian operational and investigative practice for 2018–2019, as well as decisions of courts of foreign states, were used. However, the majority of law enforcement agencies deliberately or without intent resort to the practice of obtaining evidence on cybercrimes that are physically located on the territory of another country, independently, without obtaining the consent of this state. This happens through a remote connection in real time to the subscriber device of a criminally prosecuted person or its withdrawal from a victim or witness located on the territory of the state by law enforcement agencies that conduct proceedings on a cybercrime case with subsequent inspection to find information relevant to the case, as well as through the use of other legal methods.

Mutual legal assistance in criminal asset recovery

Despite the efforts to combat illicit financial flows, money laundering and corruption, millions of lei are taken out of the country every year and hidden in other countries in the form of goods. The phenomenon of border crime is on the rise and legislation in this area remains stagnant. As the legislative provisions are partially present in various laws or conventions, some necessary provisions are missing at all. Thus, the need for a systematization and completion of legislation in the field of international legal assistance in criminal matters remains one of the priorities. The practice of other states has proven to be the most appropriate source of inspiration for improving and supplementing the legislation of the Republic of Moldova, the fact that is shown in this research. Transnational crime has shown the need for improving mechanisms to combat its impact, and facilitating the recovery of criminal assets has led the international community and the Republic of Moldova to adopt numerous conventions and treaties that still remain to be incomplete and insufficient for our country.

Primenimost mezhdunarodnyh dogovorov v ugolovnom processe: primer Belarusi

The article indicates that the norms of international treaties can be a legal basis for making decisions in the course of criminal procedural activities, serve as a message in the formation and formulation of a legal position by participants in criminal proceedings. The absence of general regulation of the rules of interaction between the criminal procedure law and international treaties of the Republic of Belarus was established. Attention is drawn to the fact that a self-executing international treaty, permitted for application on the territory of Belarus by an internal legal act, is included in the system of sources of criminal procedural law of the Republic of Belarus. The norms of such an international treaty can be applied in the course of criminal proceedings, acting practically as special in relation to the rules of the Belarusian legislation. The text of the Criminal Procedure Code of Belarus contains a number of norms referring to international treaties regulating certain specific issues. Several varieties of such partial references have been identified. The article reveals a range of international treaties, that should by mandatory applicable within criminal proceedings due to explicit reference in the Criminal Procedure Code of Belarus (defining human rights and freedoms; containing norms on the procedure for providing international legal assistance in criminal matters; regulating civil proceedings). Other international treaties have been identified, which in their essence can be applied within criminal proceedings in Belarus, and sometimes their norms can replace the corresponding national criminal procedural norms. The need to take into account the norms of consular conventions which contain criminal procedural norms (for example, on the right of a detainee to consular assistance) was especially noted. Due to the lack of a general reference to international treaties in the Criminal Procedure Code of Belarus, based on the principle of pacta sunt servanda, it is indicated that there is an unacceptable legislative encumbrance on the application of such treaties. In the course of the research, general conditions for the applicability of an international treaty within the criminal proceedings of the Republic of Belarus were formulated.

ОСОБЕННОСТИ РАЗВИТИЯ МЕЖДУНАРОДНОГО СОТРУДНИЧЕСТВА ОРГАНОВ ПРОКУРАТУРЫ РЕСПУБЛИКИ УЗБЕКИСТАН В РАМКАХ ЦИФРОВОЙ ИНТЕГРАЦИИ

The article focuses on the issues of international cooperation of the Prosecutors Office on provision of legal assistance in criminal matters. Besides that, the article is dedicated to the matters concerning the cooperation Prosecutors Office in terms of fighting against crime within the regional scope of international organizations. In particular, in this scientific research, proposals were made to improve the system of wanted persons, as well as the cancellation of biometric passports. The author’s comparative analysis on international conventions, declarations and legislation of foreign countries reflected the specifics of this article. Moreover, the relevance of the research topic is because the commission of such crimes is characterized by the use of modern technical means and high-tech facilities of air and land transport, a high transcontinental level of organization and real support of many, including illegal, financial sources. The predicted result of such activities was a significant increase in the number of serious crimes of a transnational nature. The lack of proper legal cooperation between states leads to the emergence and spread of dangerous practices when criminals, committing a crime in one state, illegally cross the borders of another in order to avoid the administration of justice and prosecution. The problem of disclosing, investigating and preventing such crimes within the framework of international cooperation in criminal matters is the most urgent today.

PROSECUTOR’S SUPERVISION OF THE IMPLEMENTATION OF LAW ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

This article focuses on the issues of international cooperation of prosecutors’ offices on provision of legal assistance in criminal matters. Besides, the article is dedicated to the matters concerning the cooperation of prosecutor offices in terms of fighting against crime within the regional scope of international organizations. In particular, in this scientific research, proposals were made to improve the withdrawal system of international fugitive biometric passports. The author’s comparative analysis on international conventions, declarations and legislation of foreign countries reflected the specifics of this article. Moreover, the relevance of the research topic lies in the fact that the commission of such crimes is characterized by the use of modern technical means and high-tech facilities of air and land transport, a high transcontinental level of organization and large financial support, including illegal financial sources. The negative outcome of such activities is due to a significant increase in the number of serious crimes of a transnational nature. The lack of adequate legal cooperation between states leads to the emergence and spread of negative situations when criminals, committing a crime in one state, illegally cross the borders of another in order to avoid the administration of justice and prosecution. The problem of detecting, investigating and preventing such crimes within the framework of international cooperation in criminal matters is the most pressing today.

Criminal procedural and forensic issues in the context of legal regulation of legal assistance in criminal matters

The article deals with the criminal procedure and criminalistics aspects of mutual legal assistance in criminal matters in the context of the legal regulation of the provision of such assistance by States. The article reveals the content of legal assistance in criminal cases as an important prerequisite to ensure the fight against crime in modern times, when crime transcends national borders. It is established that the observance of reasonable terms of rendering of legal assistance, stipulated by law, is one of the guarantees of efficiency of criminal proceedings. The comparative legal analysis of norms regulating such form of international cooperation in criminal proceedings as a request for legal assistance was performed; the legal norms determining the volume of legal assistance were studied; an opinion on the distinctions of this form of cooperation from other forms was given. The impact of forensic provision of legal assistance in criminal cases in terms of reliability and persuasiveness of evidence is evaluated.