Transcript 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 New York, 17

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
New York, 17 February 2010
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Introduction
In the Committee’s 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
I.
II.
III.
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
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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
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Domestic law
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
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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
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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
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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-bycase 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
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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
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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
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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
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Promote best practices and facilitate capacitybuilding 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
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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
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Judicial Cooperation.”