Mutual Assistance In Criminal Matters Research Articles

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.

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.

The Request for Mutual Assistance and the European Investigation Order – Is the Modern Legal Assistance Instrument Better than its Predecessor

Abstract European evidence law is a quite sensitive topic and has always been the cause of much debate by practitioners and academics. Theoretical and physical borders do not matter for transnational crime. The intensive mobility of people and the evolution of world trade with goods and services create favorable conditions for the cross-border crime to develop. Therefore, it is of a great importance to take far-reaching steps to an upgraded mechanism for obtaining evidence in and from the Member States. This article examines the application of two mutual legal assistance instruments – the request for mutual assistance, which was established by the European Convention on Mutual Assistance in Criminal Matters of 1959, the EU Mutual Legal Assistance Convention of2000 with its 2001 Protocol, and Arts. 48 to 53 of the Schengen Agreement, and the European Investigation Order introduced by the Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. The main objective of this research is to emphasize the advantages and disadvantages of both judicial cooperation mechanisms. A comparative analysis of both operational tools is an appropriate way to assess which one is related to more procedural savings and how both of them deal with the protection of human rights. Thus, the modern instruments for judicial cooperation in the area of transnational evidence-gathering as an international response to crimes with cross-border dimensions can be adequately valued.

Reexaminando la definición de trata de seres humanos del Protocolo de Palermo: la trata como forma de explotación

Tras el transcurso de casi dos décadas desde la aprobación del Protocolo de Palermo, estamos en condiciones evaluar críticamente si se ha consolidado un régimen transnacional eficaz que permita la asistencia mutua eficaz en materia penal o si, por el contrario, continúa tratándose de un régimen fragmentado. A pesar de la armonización del concepto de trata, una defectuosa comprensión de su naturaleza abusiva ha dado lugar a lecturas muy singulares del fenómeno reflejadas en las normativas domésticas, por ejemplo, estableciendo un delito de trata donde no se exige el empleo de ciertos medios comisivos. El objetivo de este trabajo consiste en ofrecer una reformulación del paradigma de la trata, poniendo el foco en lo que convierte la trata en una práctica abusiva o «de explotación» per se: la utilización de ciertos medios y no únicamente las finalidades de explotación. Este cambio de paradigma, además de ser útil para acometer los desafíos que plantea la cooperación interestatal, nos ayuda a identificar las conductas relevantes en términos de explotación y permite abordar las críticas de los que –en ocasiones, acertadamente– ven en el régimen contra la trata una herramienta de control migratorio más.Recibido: 30.09.2019 Aceptado: 21.11.2019 Publicación en línea: 31.12.2019

Mutual Legal Assistance Pada pemberantasan Cyber Crime Lintas Yurisdiksi di Indonesia

The development of global information and transportation technology is accompanied by the development of criminal acts that no longer recognize jurisdictional boundaries, so that the response requires joint handling of world countries. Mutual assistance in criminal matters is one way to stop fraudulent acts of criminals who want to hide assets. The implementation of the Mutual Legal Assistance System was realized in the implementation of Law Number 1 of 2006 concerning Reciprocal Assistance in Criminal Issues, namely by establishing cooperation with countries that have the potential to be used as hiding places or to save income from the crime. This has become one of the efforts to prevent cross-jurisdictional cyber crime by implementing a Mutual Legal Assistance System

The Mutual Assistance in Criminal Matters in Tanzania

Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws, treaties, agreements and arrangements of the requested State Party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with article 26 of this Convention in the requesting State Party. The United Nations Convention against Corruption. This paper is concern about the Mutual Assistance in Criminal Matters Act No. 24 of 1991 [Cap 254 R.E 2008] on the mutual assistance in criminal matters between Tanzania and Commonwealth countries and other foreign countries, and also to facilitate the provision and obtaining by Tanzania of such assistance, and to provide for matters connected thereto. The mutual assistance in criminal matters, criminal proceeds and extradition in Tanzania are related matters, as they are depending on each other. For example, in correlation with the bombing of the US Embassy in Tanzania in 1998, a Tanzanian citizen was extradited to the United States. Also in 2017 the Court approved the extradition of a leader of a global drug trafficking ring to the United States of America. This means such person can be returned to our country (or foreign country) where crime has been committed in order to give the chance for the particular court proceedings to prevail. This act is normal known as Extradition, and the power given to the parties to an agreement on mutual assistance on extradition processes is known as Extradition Authority. The extradition processes cannot be carried out without having a common understanding between the two states on the matter at hand, which is mostly created by a number of treaties between states. These treaties or any other form of agreements are the one which procures jurisdiction. The question of jurisdiction in Extradition lies at the root of judicial functions, being the creatures of statutes, court of law cannot exercise any powers other than those conferred on them by statute. They may not exercise powers which the law does not expressly or impliedly permit or prohibits. Hence, first there must be a mutual agreement on the assistance of such criminal act(s) between the states in order for every order, rules, regulations, procedures to be carried out by either state in relating for such occurred criminal act. This is where mutual assistance in criminal matter emerged.

Brexit and European Criminal Law

The Brexit vote of 23 June 2016 entails a lot of uncertainty with regard to the future relationship of the UK with the EU, not least in the field of criminal justice cooperation. With the adoption of the (Notification of Withdrawal) Bill and Prime Minister May’s actual triggering of Art. 50 Treaty of the European Union (‘TEU’) on 29 March 2017 formal withdrawal negotiations could start and have in the meantime actually started. This little essay will first describe the area concerned, i.e., European Criminal Law in the narrow sense (1), then we will look at the current relationship of the UK with the EU in the criminal justice area (2), and, last but not least, sketch out possible options of the UK’s post-Brexit relationship with the EU in the criminal justice area (3). The piece is dedicated to Wolfgang Schomburg who did not only have a formative influence of the case law of the ICTY where he served as the first German judge from November 2001 to November 2008 but also edited the perhaps most important German commentary on mutual assistance in criminal matters. In this commentary, European Criminal Law plays a prominent role. In addition, Schomburg was appointed honorary professor in Durham Law School, UK, in March 2009. For both reasons I am confident that this paper will find his interest.

Case Translation: Belgium - Hof van Cassatie van België

Case citation: Nr. P.13.2082.N, Hof van Cassatie van België (Court of Cassation of Belgium), translated by Johan Vandendriessche Belgium; Yahoo!; web based e-mail; the judicial authority of a Belgian Public Prosecutor; restricted to within the territory of Belgium; article 46bis, §2 of the Code of Criminal Procedure; Charter of the United Nations; United States of America; mutual assistance in criminal matters

Preventing intangible technology transfer (ITT) on the Internet and telecommunications for bioterrorism through Malaysia's Strategic Trade Act 2010 (STA 2010)

Malaysia's Strategic Trade Act 2010 (STA 2010) was drafted to address export controls and associated trade controls such as transit, transhipment and brokering in the fulfilment of the Biological and Toxin Weapons Convention (BTWC), Chemical Weapons Convention (CWC), Non-Proliferation Treaty (NPT) and the United Nations Security Council (UNSC) Resolution 1540, which broadly address the proliferation of nuclear, biological and chemical weapons. Terrorists have been known to utilise websites and emails to place manuals, instructions, blueprints and other documents, known as Intangible Technology Transfer (ITT), to incite and encourage their peers to create biological weapons; subsequently, to launch an attack of bioterrorism. Simultaneously, terrorists may camouflage their identity and attend oral and visual exchanges such as teleconferences, virtual meetings and skills training sessions that disseminate relevant information on biological weapons. This makes it possible for terrorists who already possess some background knowledge of biological weapons to further their interests in creating these weapons. The objective of this study is to analyse Malaysia's STA 2010 concerning relevant provisions that are able to address the threat of ITT over the internet and telecommunications by terrorists in the context of disseminating knowledge of biological weapons to perpetuate bioterrorism. The results show that the provisions of Sections 2, 4, 9 and 10 of STA 2010 are relevant in addressing the ITT of individuals using the internet to encourage creating biological weapons abroad by involving extraterritorial jurisdiction, extradition and mutual assistance in criminal matters. This study concludes that Malaysia's Ministry of International Trade and Industry (MITI) and the Malaysian Communications and Multimedia Commission (MCMC), implementers of the STA 2010, must deliberate on these unclear matters and draft detailed guidelines to direct Malaysian researchers and academics, learning from the examples of other countries.

A Notion and Forms of International Criminal Justice Assistance with Special Emphasis on Rights of Suspects and the Accused in an Extradition Proceeding

Abstract: One of the forms of international cooperation among States in fighting against criminality is to provide for mutual legal assistance in criminal matters. International criminal justice assistance includes a set of different actions and measures undertaken by judicial and other state bodies in order to achieve the cooperation among States to exercise criminal justice system. This cooperation takes place on the basis of international and national legislation. Due to the increasing number of these regulations, the phrase “Law on International Criminal Justice Assistance” could be increasingly used today which is therefore becoming completely formed and recognizable legal field. Fundamental international documents on providing for international criminal justice assistance are: the European Convention on Extradition with additional protocols (1957), the European Convention on Mutual Assistance in Criminal Matters with additional protocols (1959), the European Convention on the International Validity of Criminal Judgments (1970) and the European Convention on the Transfer of Proceedings in Criminal Matters (1972). The main domestic legal act in Bosnia and Herzegovina is the Act on International Legal Assistance in Criminal Matters (ZMPPKS). In addition to these already mentioned legal acts, basic principles of international criminal justice cooperation are also very significant: identity of norm, reciprocity, ability of extradition, the principle locus regit actum and the principle ne bis in idem.

THE COUNCIL OF EUROPE AS A NORMATIVE BACKDROP TO POTENTIAL EUROPEAN INTEGRATION IN THE SPHERE OF CRIMINAL LAW

At a European inter-state level, both the Council of Europe and the European Union (EU) have developed cooperation in criminal matters between European jurisdictions. Although the EU represents a deeper form of integration and cooperation in legal terms than does the Council of Europe, the EU also has to date preferred a looser ‘intergovernmental’ means of cooperation in police and criminal matters, as compared to the degree of integration of the common market. This reluctance to integrate, to a greater degree, national systems of criminal law is reflected in the relatively limited nature of the pre-existing Council of Europe framework of instruments in the field. This article seeks to illustrate this point through an assessment of three of the most relevant Council of Europe instruments – the European Convention of Human Rights, the Convention on Mutual Assistance in Criminal Matters, and the Convention on Extradition – in the light of recent EU developments.

Towards the Creation of a European Criminal Record

The internationalization of crime has given rise to a movement towards inter-State mutual assistance in criminal matters. Prompted by a common aim to fight the criminal phenomenon, police authorities have quickly, and quite naturally, cooperated with each other, in turn encouraging judicial authorities to reinforce their own cooperation. To favor this type of cooperation, one idea to set up a criminal record common to different countries has been the subject of repeated and thorough thought since the 19th Century. More acute attention has been given to the project regionally within Europe. Though it may appear simple, the successful implementation of this proposal is relatively difficult. This explains why it was necessary to wait until 2003 for a draft criminal record to be drawn up, based on Franco-German relations. Several dramatic events favored the adaptation of the system within the framework of the European Union, with the implementation of the “ ECRIS” system. This article reveals the many steps taken to bring about the realization of a European criminal record.

Die Formierung transnationaler Strafrechtsregime

The paper observes the emergence of an international order of criminal prosecution in Europe from the late 18th century, which was characterised by two ambiguous developments: nation-based criminal law systems on the one hand and an increasing demand for international, transborder co-operation in matters of criminal law and criminal justice on the other. For with increasing migration, economic transactions and political dissidents, new crimes and threats of order and security, which could not only be handled within the national criminal systems, evolved. Thus the main fields in which a new international order in criminal matters was developed over the course of the 19th century were extradition, asylum and mutual assistance, as shaped by international treaties, domestic national laws and by international legal discourses. Based on different national legal orders and traditions, nearly every country established slightly different legal regulations and instruments, though in the long run it was inevitably the establishment of rules and instruments of transborder co-operation and mutual assistance in criminal matters which would at last lead to an international – and fragile – order of criminal prosecution. In this regard the project that will be presented in the conference makes a wide-ranging topic for comparative legal history in the field of criminal as well as international law.

Declaratory Judgments and Official Apologies as Forms of Reparation for the Non-Material Damage Suffered by the State: the Djibouti-France Case

AbstractThe present article deals with the different manifestations of the non-material damage in inter-State legal relations. The recent decision rendered by the International Court of Justice on 4 June 2008 regarding certain questions of mutual assistance in criminal matters between Djibouti and France provides an opportunity to examine the intricate distinction between legal and moral damage and the consequences deriving therefrom, in terms of reparation. The judgment confirms a tendency emerging from legal literature as well as by international practice, that different types of non-material damage require different forms of reparation. Official apologies or public acknowledgment of the wrongful act – although also theoretically applicable as reparation for legal damage – are considered the most appropriate forms of reparation for the moral damage caused to a State. On the other hand, the judicial declaration of the unlawful character of an act appears an important reparatory result for the legal damage implicit in the breach of any international obligation.

La répression nationale face au juge international ; à propos de l’affaire de l’Entraide judiciaire en matière pénale (Djibouti c. France)

The ICJ decision of 4 June 2008 in a dispute between Djibouti and France is not solely of symbolic value in that it marks France’s return to the principal judicial organ of the United Nations after a long absence. It also contributes, at the end of a complex process, to enlightening both the position of forum prorogatum in the ICJ’s domain of jurisdiction and the international limits on states’exercise of their powers to prevent and punish crime, particularly as regards mutual assistance in criminal matters and immunities of the organs of a foreign state.

EU influence on law enforcement and international cooperation in the field of insider dealing

The relationship between financial supervision and criminal law investigations is complex. How it is given shape exactly, differs from one country to another. National differences may have an impact on transnational cooperation. Whereas in transnational cases requests for mutual administrative assistance are necessary for administrative law purposes, for criminal law enforcement purposes requests for mutual assistance in criminal matters are needed. Do these different regimes for transnational cooperation pay due respect to national differences in law enforcement? To answer this question, the legal systems of Germany and the Netherlands are explored against the background of the EC Market Abuse Directive. Some alternatives for the current interstate practice are subsequently explored.

Policy and Legal Obstacles in Recovering Dictator’s Plunder

This paper examines the effectiveness of the Swiss system of mutual assistance in criminal matters in recovering dictator’s plunder. It deals with policy obstacles, such as the question of the legitimacy of the new government which has taken power from the deposed dictator, and legal obstacles such as Head of State immunity, and the freezing, confiscation, and repatriation of illicit assets. It argues that the Swiss system of mutual assistance has been too demanding and too slow in providing effective and efficient asset tracing and recovery.

European Judicial Cooperation in Criminal Matters

Abstract: European judicial cooperation in criminal matters has its origins under Title VI as part of the Third Pillar (JHA) of the Treaty on European Union, signed on 7 February 1992 in Maastricht. Nevertheless, there have been important amendments to this Treaty and to the contents of the Justice and Home Affairs policy through the Treaty of Amsterdam and the Treaty of Nice (the latter in force since last February), such as, for example, the introduction of the European Prosecutors Cooperation Unit (‘Eurojust’). This brief study is concerned with these innovations as well as some legal instruments in the field of criminal judicial cooperation, in particular extradition, mutual recognition of judicial decisions, mutual assistance in criminal matters and the European arrest warrant which are considered as the most relevant.