COUNTER-TERRORISM COMMITTEE CTED PRESENTATION ON MUTUAL LEGAL ASSISTANCE TO MEMBER STATES presentation by CTED GENERAL LEGAL ISSUES GROUP, INCLUDING LEGISLATION, EXTRADITION, AND MUTUAL LEGAL ASSISTANCE

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COUNTER-TERRORISM COMMITTEECTED PRESENTATION ON
MUTUAL LEGAL ASSISTANCETO MEMBER STATES
presentation byCTED GENERAL LEGAL ISSUES GROUP,
INCLUDING LEGISLATION, EXTRADITION, AND MUTUAL
LEGAL ASSISTANCE

• New York, 17 February 2010

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Introduction

• In the Committees interim review of the work of
  CTED
• Thematic aspects of the implementation of
  Security Council resolution 1373 (2001)
• Ways and means to enhance international legal and
  judicial cooperation.

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Presentation on Mutual Legal Assistance

• Framework for International Mutual Legal
  Assistance
• Practical challenges for effective international
  judicial cooperation
• Human rights and international judicial
  cooperation

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Framework for International Mutual Legal
Assistance

• United Nations Security Council resolutions,
  including resolution 1373 (2001)
• United Nations Global Counter-Terrorism Strategy
• International counter-terrorism conventions and
  protocols
• UN Conventions against transnational organized
  crime
• Bilateral treaties on mutual legal assistance
• Relevant regional, sub-regional treaties
• Domestic law

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Security Council resolution 1373 (2001)

• 2. Decides also that all States shall
• (f) Afford one another the greatest measure of
  assistance in connection with criminal
  investigations.
• 3. Calls upon all States to
• (a) Find ways of intensifying and accelerating
  the exchange of operational
• information,
• (b) Exchange information.and cooperate on
  administrative and judicial matters to prevent
  the commission of terrorist acts
• (c) Cooperate, through bilateral and
  multilateral arrangements
• (d) Become parties as soon as possible to the
  relevant international conventions and protocols
  relating to terrorism..
• (e) Increase cooperation and fully implement the
  relevant international
• conventions and protocols relating to terrorism
  and Security Council resolutions

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United Nations Global Counter-Terrorism Strategy

• II. Measures to prevent and combat terrorism
• To cooperate fully in the fight against terrorism
  
• Endeavour to conclude and implement mutual
  judicial assistance and extradition agreements
• To strengthen coordination and cooperation among
  States in combating crimes that might be
  connected with terrorism

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International Conventions

• Convention for the Suppression of Unlawful
  Seizure of Aircraft, 1970
• ..States shall afford one another the greatest
  measure of assistance in connection with criminal
  proceedings brought in respect of the offence
• (article 10)

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International Conventions

• Convention on the Prevention and Punishment of
  Crimes Against Internationally Protected Persons,
  Including diplomatic Agents, 1973
• Increased requirements
• States Parties shall afford one another the
  greatest measure of assistance in connection with
  criminal proceedings , including the supply of
  all evidence at their disposal necessary for the
  proceedings..

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International Conventions

• International Convention for the Suppression of
  the Financing of Terrorism, 1999
• States Parties may not refuse a request for
  mutual legal assistance on the ground of bank
  secrecy (article 12)
• May give consideration to sharing information or
  evidence needed to establish criminal, civil or
  administrative liability (article 12)
• Fiscal offence (article 13).

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Bilateral arrangements

• Bilateral arrangements may include the
  requirements of the various conventions to which
  they are a party.
• Certain issues (e.g. cross-border investigations,
  controlled delivery, covert investigations and
  joint investigations teams between States) may be
  more easily achieved through a bilateral
  arrangement.

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Domestic law  

• Does the State have a domestic legal framework
  covering mutual legal assistance (Acts of
  Parliament)?
• Is the legislative framework broad enough to
  cover the obligations under resolution 1373 (in
  particular refer to codification of offences,
  international instruments)
• Member States may make requests for assistance to
  foreign States with which they do not have
  treaties
• These requests for assistance are treated on a
  case-by-case basis and the receiving State will
  respond at its discretion, depending on its
  domestic law
• Non-treaty requests may also be used where the
  State has a treaty with another State, but the
  type of offences or assistance may not be covered
  by the treaty.

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 Domestic law

• A State may rely on a combination of domestic
  legislation, bilateral agreements, multilateral
  agreements, and regional or sub regional
  agreements
• Domestic legislation may also include practices
  and procedures for the effective implementation
  of bilateral and multilateral agreements.

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Dialogue with Member States 

• Codification
• The State should have adequate measures on
  international legal cooperation obligations
• Cooperate internationally (formally and
  informally)
• Execute correctly mutual legal assistance
  requests
• Legislation criminalizing the provision of safe
  haven to terrorists and their supporters by
  individuals or organizations.
• Requests for extradition or mutual legal
  assistance based on a terrorist offence cannot be
  refused on the grounds that the offence is of a
  political nature.

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Focus Areas international legal framework

• Implementation of Security Council resolutions,
  including resolution 1373 (2001)
• Encouraging ratification of international
  instruments
• Full implementation of the international
  instruments
• Encouraging the use of the international
  instruments as a basis for mutual legal
  assistance
• Encouraging the implementation of regional and
  sub regional instruments
• Reviewing, modernizing and updating domestic law.

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Focus areas international legal framework

• Promote best practices and facilitate
  capacity-building and training for members of the
  judiciary and law enforcement agencies in
  procedures for requesting and offering assistance
  in mutual legal assistance
• Work with international, regional and sub
  regional organizations on effectively
  implementing modern tools, best practices,
  instruments and mechanisms for cooperation.

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Sample References

• United Nations Model Treaty on Mutual Legal
  Assistance (A/RES/45/116)
• United Nations Office on Drugs and Crime,
  Revised Manuals on the Model Treaty on
  Extradition and on the Model Treaty on Mutual
  Legal Assistance in Criminal Matters
• United Nations Office on Drugs and Crime, Guide
  For the Legislative Incorporation and
  Implementation of the Universal Anti-Terrorism
  Instruments, United Nations, New York, 2006
• Implementation Kits for the International
  Counter-Terrorism Conventions, Commonwealth
  Secretariat
• Conference of the Parties to the United Nations
  Convention Against Transnational Organized Crime
  (CTOC/COP/2008/L.5/Rev.1
• Report Informal Expert Working Group on Mutual
  Legal Assistance Casework Best Practice, UNODC,
  Vienna 2001
• Rabat Declaration, Annex Convention on
  Extradition and Mutual Legal Assistance in
  Counter-terrorism (A/62/939, S/2008/567)
• ASEAN Treaty on Mutual Legal Assistance in
  Criminal Matters
• Inter-American Convention on Mutual Assistance in
  Criminal Matters
• Additional references see CTED presentation on
  The Challenge of Effective Judicial Cooperation.

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