INTERNATIONAL COOPERATION AGAINSTTRANSNATIONAL ORGANIZED CRIME: EXTRADITION AND
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
Matti Joutsen*
I. EXTRADITION AND MUTUALLEGAL ASSISTANCE: THE BASIC
TOOLS OF INTERNATIONAL
COOPERATION IN CRIMINAL
MATTERS
Investigating and prosecuting cases
against p ersons susp ected ofparticipation in organized crime is often
notoriously difficult. It is all the moredifficult to try to bring a case together
w hen the su spect, the v ictim, key
evidence, key witnesses, key expertise or
the profits of crime are located outside
one’s jurisdiction. D ealing with suchcases can be so daunting that the file may
be placed aside and “forgotten”, perhaps
with the fervent hope that the authorities
i n o th e r c o un tr ie s w ill t a k e u p th ematter.
This, of course, is w ha t organiz ed
criminals acting across international
borders very much hope will happen. By
fleeing to another country and inparticular by sending the profits from
crime beyond the reach of the domestic
authorities, offenders seek to frustrate
the purposes of law enforcement. If law
enforcement remains passive in the faceof transnational crime, this will only
e n c o ur a ge o f f e n d e r s t o c o nt in ue t ocommit crime. For the investigator andp r ose cu to r co nf ro nte d w ith m od e rnorganized crime, relying on international
cooperation has become a necessity, andextradition and mutual legal assistancein criminal matters have become two key
tools.1
Extradition and mutual legal
assistance, however, are not tools thatcan simply be taken down from the shelf.
T h e l e g a l b a s is ( w h e t he r tr e a ty o rlegislation) must exist, the practitioners
must know how (and if) this basis can beapplied to the case at hand, and above all
the practitioners in both the requesting
and requested country must be able towork together to achieve the desired
result.
Furthermore, as tools, extradition andmutual legal assistance can take manydifferent forms. The possibilities depend
n o t o n ly o n th e e x is te n ce , a g e a n d
co ntents of a valid international
agreement, but also, for example, on thetype of offence and on the legislation andpractice in a country. The new United
Nations
Convention
againstTransnational O rganized Crime (the“Palermo Convention”) is a case in point.
It does, indeed, set out detailed provisions
on how extradition and mutual legal
assistance should be provided. In many
ways, it has expanded the possibilities
available. However, these possibilities
must first be implemented in domestic
law and practice.
This presentation looks at the extent towhich the new Palermo Convention can
1* Director, International Affairs
Ministry of Justice, Finland364

The terms mutual assistance, mutual legal
assistance and mutual assistance in criminal
matters are often used interchangeably.

119TH INTERNATIONAL TRAINING COURSE
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improve the basic tools available to thepractitioner. Even though the focus is on
extradition and mutual legal assistance,
the Palermo Convention also requires
S ta tes Pa rtie s to m a ke oth er ma jo rchanges that can facilitate international
cooperation. Examples of this are thecriminalisation of four specific offences,provisions on joint investigations, special
investigative techniques, protection of
victims and witnesses, improving thereadiness of suspects to cooperate withlaw enforcement authorities, cooperationa m ong law enf or cem ent a uth orities
themselves, confiscation and seizure, thetransfer of proceedings and the transfer
of sentenced persons, the collection,exchange and analysis of information ono r g a n iz e d cr i m e , a nd t r a i n in g a ndtechnical assistance. As noted by Mr. Kofi
Annan, the Secretary-General of theUnited Nations, the Palermo Convention
i s a m il e s to ne in t h e f i g h t a g a i n st
Transna tiona l O rganized Crim e. He
emphasised that “we can only thwart
international criminals throughinternational coope ration.” I t is thePalermo Convention that provides astrong framework for this cooperation.

courtesy or subservience, applied in therare cases where not only did a case haveinternational dimensions, but also therequesting and the requested states wereprep ared to coope rate. I n short,
extradition was rarely required, evenmore rarely requested, and even more
rarely still granted.
In the absence of effective treaties on
extradition and on mutual legal
assistance, some States have engaged inunilateral actions. This, however, is aviolation of international law. According
to universally accepted and wellest a b li s he d pr inc ip les, s t a te s e njoy
sov ereign equality and territorial
integrity. States should not intervene in
the domestic affairs of other states. In
particular,“a party has no right to undertake
law enforcement action in the
territory of another party without
the prior consent of that party. The
principle of no n-intervention
excludes a ll kinds of territorial
encroachment, including temporary
or limited operations (so-called “inand-out operations”). I t also
prohibits the exertion of pressure ina manner i nconsistent wi thinternational law in order to obtainfrom a party “the subordination of
the exercise of its sovereign rights”(Com mentary to the 1988
Convention, para. 2.17).2

II. EXTRADITION
A. The Evolution of the Extraditionof Offenders
Extradition is the process by which aperson charged with an offence is forciblytransferred to a state for trial, or a person
c on victed of an offence is for cibly
returned for the enforcement ofpunishment (see, for example, Third
Restatement, pp. 556–557).
F o r a lo ng tim e , n o p r ov isio ns o rinternational treaties existed on theco nd ition s fo r e xtradition or on th eprocedure which should be followed.
Extradition was largely a matter of either

2

The

Commentary

cites

as

authoritytheDeclaration 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 thedomestic jurisdiction of any State, contained inpara. 2 of the Charter.

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RESOURCE MATERIAL SERIES No. 59
The principles of sovereign equality,
territorial equality and non-intervention
in the domestic affairs of other States are
explicitly noted in art. 4(1) of the Palermo
Convention. To further clarify the point,art. 4(2) of the Palermo Convention states
specifically that “Nothing in thisConvention entitles a Sta te Party toundertake in the territory of anotherState the exercise of jurisdiction andperformance of fun ctions that arereserved exclusively for the authorities ofthat other State by its domestic law.”

In addition to these general treaties on
extradition, provisions on extradition
ha ve a ls o b e e n i nc lu d e d i n s e v e ra linternational conventions that deal withspecific subjects. Perhaps the best-known
exa mple is the 19 88 United Nations
Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances; the twelve paragraphs ofarticle 6 deal with extradition. Article 16of the Palermo Convention was largely
drafted on the basis of this 1988
Convention.

Bilateral extradition treaties did not
b e gin to e me rge until t he 1 8 00 s . In
particular the common law countries andthe (former) USSR have made wide use ofbilateral treaties. The first multilateralco nvention w a s the Or ga niza tion o f
American States Convention on
Extradition in 1933. 3 It was followed
twenty years later by the Arab
Extradition Agreement in 1952, and thenby the influential European Convention
on Extradition in 1957 a nd the 1966
Commonwealth scheme for the renditionof fugitives.4 The most recent multilateraltreaties have been the 1995 European
U nio n Convention on simp lified
extradition within the European Union,
and the 1996 European Union
Convention on the substantive
requirements for extradition within theEuropean Union.

B. The Conditions for Extradition
Am ong the comm on conditions
included in agreements are the double
cr im inalit y re qui re m e nt ( ge ne ral ly
accompanied by the definition of the levelof seriousness required of the offence
before a State will extradite), a refusal toextradite nationals, and the politicaloffence exception.

In order to promote new extradition
treaties and to provide guidance in theirdrafting, the United Nations prepared aModel Treaty on Extradition (GAresolution 45/116 of 14 December 1990).

1. The Principle of Double Criminality(Dual Criminality)
Th e grea t m a jo rity of e xtra ditio n
tre a tie s r eq u ire th a t th e o ff e nce inquestion be criminal in both therequesting and the requested State, andoften also that it is subject to a certain
minim um punishm ent, such as
imprisonment for at least one year.5 Even
where a State allows extradition in theabsence of an extradition treaty, thisprinciple of double criminality is
generally applied.6
5The

PalermoConvention

does

not

directly

stipulate a certain minimum punishment as acondition for extradition, since art. 16(1) provides
only that the article applies to extradition for the3

4This has subsequently been replaced by the 1981

offences covered by the Convention. However, theInter-American Convention on Extradition.

entire Convention is drafted to cover serious

As amended in 1990. The Commonwealth scheme,

crime, which is defined by article 2 as “conduct

al th ough not a form al trea ty, h as b een

constituting a criminal offence punishable by aunanimously approved by all members of the

maximum deprivation of liberty of at least four

Commonwealth.

years or a more serious penalty”.

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119TH INTERNATIONAL TRAINING COURSE
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The double criminality principle may
cause legal and practical difficulties.
L e g a l d i f f i c u lt i e s m a y a r is e if t h erequested State expects more or lesssimilar wording of the provisions, which
is often an unrealistic expectation inparticular if the two States represent
d iff ere nt le gal traditions. Pr ac tica ldifficulties may arise when therequesting State seeks to ascertain how
the 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 theoffence is deem ed to constitute ap unisha ble of fence in the req ueste dState. In concreto, only if the constituent
elements of the offence in both Statescorre sp ond with ea ch other w ill theoffence be deemed extraditable.
The United Nations Model Treaty on
Extradition clearly favours the simpler
approach, an assessment in abstracto.
A ccording to article 2(2)( a), “Indetermining whether an offence is anoffence punishable under the laws of both
Parties, it shall not matter whether ... thela ws of the Parties pla ce the acts oromissions constituting the offence within
the same category of offence ordenom inate the offence by the sam eterminology.”
A n exa mple from Finland cited by
Korhonen7 is that during the summer of
2000, the Ministry of Justice of Finland
was informed that a former high Kremlin
6See, for example, article 15(1) of the Palermo
Convention.

7

Juhani Korhonen, Extradition in Europe, paper
prepared for the Phare Horizontal Project forDeveloping Judicial Cooperation in Criminal
Matter s i n Estoni a, La tvia and Li thuani a,
November 2000.

official who is wanted by the Swiss formoney laundering offences had been
granted a visa to Finland. The Finnish
authorities were prepared to take him
into custody pending a formal request for
his extradition. The suspected money
laundering offence related to the takingof bribes in M oscow from Swiss
construction companies in return for
granting 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 separately
punishable according to Finnish law. On
the 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 Fi nn ish
authorities could take into account all of
the facts that were provided in the Swisswarrant of arrest. Clearly, some offence
which was punishable also according to
Finnish law had been (allegedly)
committed in the Russian Federation.
Since those facts were included in the
Swiss warrant, which implied that the
Swiss had considered them in issuing thewarrant, the Finnish authorities
concluded that double criminality had
been sufficiently established in abstracto.
(Ultimately, the Finnish authorities did
not have to take any more action, since
the person in question never showed up
in Finland.)The q uest io n may a ls o a rise a s t owhether double criminality should beassessed at the time of the commission of
the offence, or at the time of the request
for extradition. This problem arose in a
recent and notorious case in the United
Kingd om, w he re the House of Lo rd s
rejected most of the Spanish claim for thesurrender of the former head of Chile,
General Au gusto Pinochet, on the367

RESOURCE MATERIAL SERIES No. 59
grounds that his alleged offences had notbeen criminalised in the United Kingdom
at the tim e of their commission( K o rho ne n, p . 4 ). ( Ul t i m a t e ly, J a ck
Straw, the UK Home Secretary, decided
that Pinochet was not fit to stand trial
and therefore would not be extradited toSpain. Pinochet thereupon returned to
Chile.)
Yet another special problem in theapplication of the principle of double
criminality is if the law of the requesting
State allows extraterritorial jurisdiction
for the offence in question, but the law of
the requested State does not. 8 This isincluded as an optional ground for refusal
in art. 4(e) of the UN Model Treaty on
Extradition.
Finally, in practice it is possible thatextradition is sought for several separate
offences, and some of these do not fulfil
the conditions of double criminality. The
general rule expressed in art. 2(4) of the
UN Model Treaty on Extradition and art.
2(2) of the Council of Europe Extradition
C o n v e n t io n i s t h a t th e o f f e n c e s i n
q u e st i o n m u s t b e c r i m i n a l i n b o t hcountries; however, the condition of theminimum punishment can be waived forsome of the offences. Thus, for example, if
extradition is sought for a bank robbery
as well as for several less serious offences
fo r which the minimum punishm ent
would not otherwise meet the conditions
for extradition, all of them cannonetheless be included in the request.
8

Blakesley, Christopher and Otto Lagodny (1992),
Competing National Laws: Network or Jungle?,in Eser, Albin and Otto Lagodny (eds.) (1992),
Principl es an d Proced ures for a N ew
Transnational Criminal Law. Documentation of

The corresponding provisions of thePalermo Convention are constructed
somewhat differently. Art. 16(1) lays
down the basic rule that extradition isp o s si b l e o n ly w h e r e t h e o f f e n c e i nquestion is punishable under thedomestic laws of both States. Art. 16(2)states that as long as the request refers to
at least one offence that is extraditable
under the Convention, the requested
State may grant extradition for all of theserious offences covered in the request.
The purpose of art. 16(2) is two-fold. It
limits extradition only to serious offences.
At the same time, however, it allows
extradition also for additional offenceswhere these do not as such (necessarily)
involve an organized criminal group.
Recent trends in extraditio n haveattempted to ease difficulties with double
criminality by inserting generalprovisions into agreements, either listing
acts and requiring only that they bepunished as crimes or offences by thelaws of both States, or simply allowing
extradition for any conduct criminalised
to a ce rtain degre e by each State(Blakesley and Lagodny, pp. 87–88).
2. The Rule of Speciality
The requesting State must not, without
the consent of the requested State, try or
punish the suspect for an offence notreferred to in the extradition request andco mmitted before he or she was
extradited.9
This rule does not prevent anamendment of the charges, if the facts ofthe case warrant a reassessment of thecharges. For example, even if a person
has been extradited for fraud, he or she
may be prosecuted for embezzlement as

an International Workshop 1991. Beitrage undMaterialien aus dem Max-Planck-Institut fur
auslandisches und internationales Strafrecht,
Freiburg im Breisgau, pp. 47–100, at 88–98.

368

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

119TH INTERNATIONAL TRAINING COURSE
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long as the facts of the case are the ones
referred to in the request for extradition.
The rule of speciality is universallya ccepted, but in pra ctice it does not
automatically rule out all possibilities ofbringing an offender to justice even foroffences not referred to in the request.
This, however, would require separate
c on sen t f ro m the a ut hor itie s o f th erequested State (Korhonen, p. 8). Let us
assu me that the sus pect has been
e xtradite d, 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 authoritiesu s u a l l y h a v e t h e t im e t o s u b m i t a
supplementary request to the State fromw h ic h th e f u g it iv e w a s e x tr a d ite d ,requesting permission to proceed also inrespect of these newly uncovered offences.
S u ch sup ple m en ta ry req u ests m ust
usually be accompanied by a warrant ofarrest. It should be clear, on the other
hand, that the authorities should notdeliberately delay the initial proceedings
in 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 be
prosecuted for an offence that had beencommitted before the extradition took
place until after this person has had areasonable opportunity to depart fromthis State.10
3. The Non-Extradition of Nationals
As a rule, States have long been willingto extradite nationals of the requesting
State, or nationals of a third State. Whenit comes to extraditing their own citizens,

however, most States have traditionallybeen of the opinion that such extradition
is not possible. Some States have evenincorporated such a prohibition into theirConstitution. Furthermore, the principleof the non-extradition of nationals is often
expressly provided for in treaties. The
rationale for such a view is a mixture of
the obligation of a State to protect its
citiz ens, a la ck of conf id ence in thefairness of foreign legal proceedings, themany disadvantages that defendants facewhen defending themselves in a foreign
legal system, and the many
disadvantages of being in custody in aforeign country.11
The United States, the U nited
Kingdom and most other common law
countries, in turn, have been prepared to
extradite their own nationals. This may
have been due in part to the fact thatthese States have been less likely than for
example civil law countries to assert
jurisdiction over offences committed bytheir citizens abroad—and thus, failingextradition, the offender could not haveb e e n b r o u gh t to j u s ti ce a t a l l. T h ecommon law countries have also beenaware of the advantages of trying thesuspect in the place where the offence
was alleged to have been committed.
There is, for example, the greater easewith which evidence and testimony canbe obtained in the forum delicti, and thed if f i c ul ti e s i n s ub m i tti n g e v id e nc e
obtained in one country to the courts ofanother country.
In cases where the requested State
does in fact refuse to extradite on the
gro und s tha t the fugitive is its o wn
11 Ethan A. Nadelmann, Cops Across Borders. The

I nter nati ona liza tio n of U. S. Cr i min al L aw
Enforcement, The Pennsylvania State University

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

Treaty on Extradition.

Press, University Park, Pennsylvania, 1993, p.
427.

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national, the State is generally seen tohave an obligation to bring the person tot ri a l. T hi s is an i llu st ra tio n o f th e
principle of aut dedere aut judicare—“extradite or prosecute”, “extradite or
adjudicate”.12 Such adjudication,
however, w ould presuppose tha t ther e q u e s t e d S t a t e a p p li e s t h e a c t i v ep e rso na lity p rincip le, i.e . ex erc ises
j uris dic tion ov er offences that its
nationals have committed abroad(Korhonen, p. 5).
Such a provision is conta ined , forexample, in article 16(10) of the Palermo
C o nve ntion . 1 3 Jur isdictio n fo r suchoffences is covered by article 15(3) of thePalermo Convention. Paragraph 16(12) ofth e P a le rm o Co nv en tion co nta in s aparallel provision on enforcement of asentence imposed on a national of therequested State, by a court in a foreign
State.
In practice, some States that haverefused to extradite their nationals havea lso been relucta nt to prosecute. To
address this issue, art. 16(10) of thePalermo Convention has a new feature incomparison with art. 6(9)(a) of the 1988
Convention and art. 4(a) of the UN Model
Treaty on Extradition. It states that theauthorities of such a State “shall taketheir decision and conduct theirproceedings in the same manner as in thecase of any other offence of a grave nature
under the domestic law of that State
Party.” The emphasis here is that, since
the offence is by definition a serious caseof transnational organized crime, theState in question should make an earnest
effort to bring the suspect to justice. The
provision goes on to enjoin the two States
Parties to cooperate in order to ensure
the efficiency of prosecution.
Especially in E urope, the distaste
towards extradition of nationals appears
to be lessening. The Netherlands, forexample, has amended its Constitution
and drafted legislation to allow such
extradition, as long as the national will
be returned to the Netherlands for theenforcement of any sentence passed.14
The Palermo Convention incorporates
a provision that reflects thisde velo pm ent. 1 5 Acc ord in g to ar ticle
16(11),“Whenever a State Pa rty ispermitted under its domestic law to
extradite or otherwise surrender oneof its nationals only upon thecondition that the person will be
returned to that State Party to serve
the sentence imposed as a result of
the trial or proceedings for which
the extradition or surrender of theperson was sought and that State
Party and the State Party seeking
the extradition of the person agreewith this option and other terms
that they may deem appropriate,such a conditional extradition or
14 Germany is currently in the process of making acorresponding amendment to its Constitution.
15 The 1988 Convention does not contain a similar

provision. Article 12 of the UN Model Treaty
speak s o bliquely of the po ssibility tha t the

12 The principle of aut dedere aut judicare can, ofrequested State may “temporarily surrender thecourse, be applied also to other cases where thep e r s o n s o u gh t to th e r e q u e s ti n g S ta te i nrequested State refuses extradition. See, foraccordance with conditions to be determinedexample, art. 4(f) of the UN Model Treaty on

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

Extradition.

context of possible proceedings for offences other13 See also art. 6(9)(a) of the 1988 Convention andart. 4(a) of the UN Model Treaty on Extradition.

370

tha n th e one m e ntio ne d i n the r e que st f or
extradition.

119TH INTERNATIONAL TRAINING COURSE
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surrender shal l b e suf fi cient t odischarge the obligation set forth inparagraph 10 of this article.”Thus, under the Palermo Convention anational can be extradited on condition
that he or she be returned to serve out
the possible sentence. Such a guarantee
th at th e ac tu al e nf o rc e m en t o f a ny
p u n i s h m e n t w i ll t a k e p l a c e i n th e
person’s home country can well be helpful
in overcoming any reluctance to extradite
one’s nationals.
4. The Political Offence Exception
During the 1700s and the early 1800s,
extradition was used very much on an ad
hoc basis primarily in the case of politicalrevolutionaries who had sought refuge
a broad (Third Restatement, p. 558 ).
However, during the 1830s, the idea
developed in France and Belgium thatsuspects should not be extradited forpoliticallymotivated
offences(Nadelmann, p. 419).
T h e r e is no u n ive r s a ll y a cc e p te ddefinition of what constitutes a “politicaloffence”. In deciding whether an offence
qualif ies as “po litical”, re fe rence isgenerally made to the motive and purposeof the offence, the circumstances in which
it was committed, and the character ofthe offence as treason or sedition underdomestic law. One of the leading casesinternationally is In re Castione ([1891] 1
Q.B. 149), where the refusal to extradite
the suspect was based on the view that
alleged offences that had been committed
in the course of, or incident to, arevolution or uprising are political (citedin Nadelmann, p. 420).16

Terrorism has barred a large number ofo f f e n c e s f r o m t h e p o l it i c a l o f f e n c e
exception. 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 is
now emerging as a separate grounds forrefusal in its own right (see below).
A ltho u gh it m a y we ll be th at theexistence of such an international conceptof a politica l offence “should now be
accepted”, recent developments suggestthat attempts are being made to restrict
its scope or even abolish it (Korhonen, p.
4) . This is the ca se, f or e xam ple, in
extradition among the European Union
countries. The recent Palermo
C o n v e nt io n d o e s n o t m a k e sp e ci f ic
reference to political offences as grounds
for refusal, even though the UN Model
Treaty on Extradition, adopted only ten
years earlier, had clearly included this asa mandatory ground for refusal.
The failure to specifically include thepolitical offence exception in the Palermo
Convention is significant. One of thereasons that the scope of the politicaloffence exception has been lessening isthat States have tended to avoid entering
into extradition treaties with those Stateswith whom such political problems mightarise in the first place. This is not the
16 In respectof the United States, Nadelmann (p.

426) sees two trends: one trend is towards a
nar ro we r defini ti on of the poli tic al o ffe nce
exception, and another, somewhat opposing,trend is towards greater consideration of foreign
policy interests and its bilateral relationship with

Gully-Hart argues that “Theemergence of an international concept ofa political offence should now be
accepted”.17 He notes that the European
Conven tion on the Suppression of

the requesting Government.
17 Gully-Hart,

Paul (1992), Loss of Time ThroughFo rm al an d Proce dural Re qu irem en ts inInternational Co-operation, in Eser and Lagodny(op.cit.), pp. 245–266, at pp. 257–258.

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case with the Palermo Convention, which
has been signed by over 120 States. Withso many signatories, it is quite likely thata need for extradition may arise between
States that are on less than friendly
term s with one another. In thediscussions on the Convention in Vienna,
it was argued that the political offence
should 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 States
Parties with a built-in escape clause. It
states that
“Extradition shall be subject to theco nd i t i o n s p r o v i d e d f o r b y t h edomestic law of the requested State
Party or by applicable extradition
treaties, including, inter alia, . . . thegrounds upon which the requested
State Party may refuse extradition.”
Thus, if the domestic law of therequested State allows for the possibilityof the political offence exception (as would
almost inevitably be the case), this option
remains, even if not specificallymentioned in the Palermo Convention.
One factor behind the restriction or
abolition of the political offence exception
is 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 anda ssembly), and politically motiva ted
violence (Third Restatement, p. 558). If
the offence is serious—such as murder,
political terrorism and genocide—courts
in different countries have (to varying
degrees) tended not to apply the politicaloffence exception. Examples include theextradition from the United States of372

several persons suspected of being Nazi
war criminals or I RA terrorists(Nadelmann, pp. 421 and 424). Violationo f in te rn atio nal c on ve nt ion s is o ne
criterion in determining suchs e r i o u s n e s s ; a c a s e i n p o in t is t h ereadiness of many countries to extradite
persons suspected of skyjacking.
An exam ple in w hich the politica loffence exception arose in Europea npractice, cited by Korhonen (p. 5), is when
the Kurdish leader Abdullah Öcalan was
taken into custody in Rome in November
1999 on the basis of a German warrant
for his arrest. However, Germany, which
was clearly concerned with the possibilityof domestic unrest if Öcalan would be
extradited 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 had
withdrawn its warrant and there was arisk that Öcalan would face the death
penalty if he were to be extradited toTurkey, the court had no legal grounds toproceed in the matter. (Apparently the
Italian court had not considered thepossibility of extraditing Öcalan underth e co n d it io n t ha t h e w o u ld n o t b e
sentenced to death if found guilty. Upon
accepting such a condition, Turkey would
have be en b ound by i t .) Ö ca la n w a sconsequently expelled from Italy andmoved from one country to another inEurope, with no country willing to allow
him in. He finally ended up in Nairobi,
Kenya, where he was kidnapped andtransported to Turkey to stand trial. He
was eventually sentenced to death by aTurkish court, a sentence which on 25
November 1999 was upheld by a court ofappeal.18

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
5. The Refusal to Extradite on the
Grounds of the Danger of Persecution
or Unfair Trial, or of the Expected
Punishment
Originally, extradition treaties
between States were seen to be just that,treaties between sovereign and equalState s as p ar ties. A ccord ing to thisapproach, other parties, in particular the
fugitive in question, had no standing tointervene in the process, nor was thenature of the proceedings or expected
treatment in the req uesting Sta te asignificant factor. Recently, however, also
the individual has been increasingly
regarded as a subject of internationallaw. This has perhaps been most evident
in extradition proceedings. Democratic
countries have been increasingly
reluctant to extend full co-operation tocountries which do not share the same
democratic values, for example on the
grounds that the political organization of
the latter countries is undemocratic, or
because their judicial system does notaffor d sufficient pr otection to th eprosecuted or convicted individual (GullyHart, p. 249).
In line with this reassessment in thelight of the strengthening of international
human rights law, many of the more
recently concluded treaties pay particularattention to the nature of the proceedingsor the expected treatment in therequesting State. States will generally
refuse to extradite if there are grounds tobelieve that the request has been madefor the purpose of persecution of theperson in question, or that the person
would not otherwise receive a fair trial(Gully-Hart, p. 249–251, 257).

Refusal on the grounds of expected
persecution is dealt with in, for example,
article 16(14) of the Palermo Convention:“Nothing in this Convention shall beinterpreted a s imposing an
obli gation to extradite if therequested State Pa rty has
substantial grounds for believingthat the request has been made forthe purpose of prosecuting or
punishing 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 treatment
is in principle distinct from the questionof persecution. Art. 3(f) of the UN Model
Treaty on Extradition gives as amandat ory groun d for refusal t hepossibility that the person in question
would be subjected to torture or cruel,inhuma n or degra ding trea tment or
p u n i s h m e n t, o r t h e a b s e n c e o f t h eminimum guarantees in criminal
proceedings, as contained in art. 14 of theInterna tional Covenant on Civil andPolitical Rights.20
The issue of fair trial and treatment isdealt with in article 16(13) of the Palermo
Convention:

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

Model Treaty on Extradition (see also the United
Nations Convention Relating to the Status of
Refugees).

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

Within the European context, such refusal would

the death sentence passed on Mr. Ö calan has

be h igh ly u nu su al, s in ce th e Eu ropean

been stayed pending a review of his case by theConvention on Extradition is based on mutual

European Court of Human Rights, a process thattrust in the administration of criminal justice ofcould take years.

one another’s State.

373

RESOURCE MATERIAL SERIES No. 59“Any person regarding who mproceedings are being carried out in
connection with any of the offences
to which this article applies shall be
guaranteed fair treatment at allstages of the proceedings, including
enjo ym ent of al l t he rights andguarantees provided by the domestic
law of th e State Pa rty i n th eterritory of which that person ispresent.”
This provision is a new one in UN
Conventions. No similar provisions are to
be found in the 1988 Convention or in the
UN Model Treaty on Extradition.
Perhaps the most notable andinfluential case concerning fair treatment
is the transatlantic case of Soering v. theUnited Kingdom (ECHR 1/89/161/217).
Soering had been charged with murder in
Virginia, where murder was a capitaloffence. Following a request for
extradition from the United States, he
was arrested in the United Kingdom andhis extradition was prepared. He
a p p e a l e d th e e x t r a d i ti o n d e c is i o n ,h ow ev er . A rtic le 3 o f the E u ro pe a n
Convention prohibits torture or inhumanand degrading treatment or punishment.
ECHR unanimously found thatextradition would be a violation of this,since circumstances on death row—6–8
y e a r s o f is o la t io n , st re s s, f r u itl e ss
appeals, separation from family and otherdamaging experience s—would beinhuman and degrading. (The follow-up
20 Furthermore, art. 3(g) of the UN Model Treaty on

Extradition cites as mandatory gr ounds forrefusal the rendering of the judgment of therequesting State in absentia, the failure of theto this case is that Soering was
extradited, after the Attorney General
had pro mised no t to see k the de ath
penalty.)
Another recent example is the case of
Ira Einhorn, who was arrested in 1981 fort he 1 97 9 mur de r o f his l o ver i n t heUnited States. Before being brought totr ial , h o we v e r, he j um p e d b a il an ddisappeared. He was convicted in the US
in absentia. In 1997, he was finally foundliving under an alias in France. The US
called for his extradition. The French
Court 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 his
appeal all the way to the European Courtof Human Rights was denied, he was
finally extradited to the United States atthe end of July 2001.
Follow ing the a doption in 19 83 ofProtocol No. 6 to the E uropean
Convention for the Protection of Human
Rights a nd Funda mental Freedom s,
whic h a b o lishe d the de a th pe na lty,
European countries have been reluctant
to extradite suspects to countries where
the death penalty might be imposed. 21
One common outcome is that, as in the
Soering case, the requesting State agrees
to waive the death penalty or, if this is
imposed by the court, the requesting
State agrees to ensure tha t it is notenforced. Another option is to agree thatthe suspect, if convicted, will be returnedto the requested State for enforcement of
the sentence. This latter option has been
fo l l ow ed i n a rt . 1 6 ( 1 1 ) t he P a le rm oConvention, already referred to above.

convicted person to receive sufficient notice of thetrial or the opportunity to arrange for his or her
defence, and the failure to allow him or her theopportunity to have the case retried in his or her
presence.

374

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

Extradition.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
6. Other Grounds for Refusal toExtraditeSome extradition treaties specificallyrule out extradition for military offences
or fiscal offences, or extradition when the
person in question has alrea dy been
judged for the offence.22
Art. 16(15) of the Palermo Convention
makes specific reference to fiscal offences:“States Parties may not refuse a request
for extradition on the sole ground that theoffence is also considered to involve fiscal
matters.”
One of the fund amental legal
principles of the rule of law is that no one
should be subjected to double jeopardy(non bis i n idem ). C onsequently,
extradition will generally be refused if
the person requested has already beenprosecuted in the requested State for theacts on the basis of which extradition isrequested, regardless of whether thep r o s e c u ti o n e nd e d in c o n v ic ti o n o racquittal (Third Restatement, p. 568).
According to art. 3(d) of the UN Model
Treaty on Extradition, extradition shallnot be granted “if there has been a final
judgment rendered against the person in
the requested State in respect of theoffence for which the person’s extradition
is requested.”
Some States may also deny extraditioni f t h e p e r s o n i n q u e s ti o n h a s b e e nprosecuted in the requesting State or in athird State (ibid.). The UN Model Treaty
o n E x t r a d i t i o n a l s o i n c lu d e s , a s amandatory grounds for refusal, the factthat “the person whose extradition isrequested has, under the law of either
Party, become immune from prosecution

22 Art.

3(c)referstomilitary

offencesasamandatory grounds for refusal, and art. 3(d)refers to double jeopardy.

or punishment for any reason, including
lapse of time or amnesty.”
A ground for refusal that is becoming
increasingly rare is that the proof of theguilt of the person in question supplied by
the requesting State does not meet theevidentiary standards of the requested
State. According to Korhonen (pp. 6–7), at
le a s t w it h in th e E u r o p e a n c o n t e x t
requiring additional proof of the guilt of
the p e r so n in q ue s tio n w o uld b e inviolation of the principle of mutual trustin o n e a n o t h e r ’ s a d m in i st r a t i o n o fcriminal justice.
C. The Extradition Procedure
Provisi onal a rrest. T he process of
extradition may be lengthy. In order toensure the continued presence of theperson in question, the requesting State
may request that the fugitive be taken
into custody pending the outcome of theproceedings (see, for example, art. 9 of the
U N M o d e l T r e a t y o n E x t r a d i t io n ) .
According to article 16(9) of the Palermo
Convention,“subject to the p rovi sions of its
domestic law and its extradition
treaties, the requested State Party
may, upon being satisfied that thecircumstances so warrant and areurgent and at the request of therequesting S tate Party, take aperson whose extradition is sought
and who is present in its territory
into custody or take otherappropriate measures to ensure hisor her pre sence at extrad ition
proceedings.”
O ne i ss ue t h a t m a y a r i s e i n t h i sconnection 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

375

RESOURCE MATERIAL SERIES No. 59that is to be “satisfied that thecircumstances ... are urgent”, it should infact be left to the requesting State todetermine the urgency of the matter.
The Palermo Convention and many
extradition treaties do not require thatp r o v i si o n a l a r r e s t b e u s e d in s u c hcircum stances, as long as “otherappropriate measures are taken ”.
Korhonen (p. 9) has argued that it can bereasonable to assume that there is apresumption that the fugitive is indeed
placed under provisional arrest, sinceo the rw ise there is the risk tha t the
fugitive will attempt to flee from justice.
This, of course, very much depends on theeffectiveness of the “other appropriate
measures”.
“Disguised extradition” and abduction.
A State generally has the right to expel a
foreign national who is deemed to be“undesirable”, for example on the basis of
his or her criminal activity. Occasionally,
the authorities of the State in question
have expelled the foreign national not tohis or her home State or to the State fromwhich he or she arrived, but to the State
which has requested extradition. The useof such “back-door” procedures instead of
the normal extradition procedure has
rightfully been criticized as a violation ofinternational comity and internationallaw.
An example of how this can operate inpractice is provided by a case involving
the return of a Chinese national from
Canada to China. The same person was
wanted in the United States on charges
r e l a te d to a l le ge d o r g a ni z e d c r im ea ctivity, b ut the extradition p rocess
appeared to be becoming quite complex
and time-consuming. Ultimately, Canada
placed the person on a flight back to
China—knowing that the flight toucheddown in San Francisco for refuelling. At

376

S a n F r a n c is c o , t h e U S a u t h o r i t ie sboarded the plane and took the person
into custody.
The case of United States v AlvarezMachain ((91-712), 504 U.S. 655 (1992))
raises another type of imp roper
extradition, that of abduction. A Mexican
physician, Humberto Alvarez-Machain,
was susp ected o f taking p art in the
torture and murder of a US narcotics
agent in Guadalajara, Mexico in 1985.
Alvarez-Machain was seized by Mexican
bounty hunters in Mexico and flown to
the United States. The defendant argued
that the US court had no jurisdiction to
try the case because he, a Mexican citizena c cu se d o f a m ur d e r t ha t ha d b e e n
a l l e ge d t o h a v e b e e n co m m i t t e d i n
Mexico, had been improperly brought to
the United States by a US-sponsoredabduction. The defendant further argued
that such an abduction was a violation of
the extradition treaty between the UnitedStates and Mexico. The majority on theSupreme Court ruled, however, that theforcible abduction of the defendant does
not prohibit his trial in a United States
court for violations of this country’s
criminal laws. (This is an application of
the doctrine of “male captus, bene
detentus”, which essentially holds thatthe court need not look at how adefendant was brought before it.) The
Supreme Court also held that there wasno violation of the treaty, since this treaty
did not expressly say that the two States
Parties were obliged to refra in fromforcible abductions of persons from one
another’s territory.23
Suppleme ntary in formation an dconsultation. Many agreements provide
that, if the information provided by there questing State is found to be
insufficient, the requested State may (oreve n “shall”) requ est the ne cessar y
supplementary information (for example

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
art. 8 of the UN M odel Treaty on
Extradition and article 13 of theEuropean Convention on Extradition).
A cc ord i ng t o a rt i cle 1 0( 1 6 ) of t h e
C o n v e n t i o n a g a i n s t T r a n sn a t io n a l
O r g a n i z e d C r i m e , “b e f o r e r e f u s in g
extradition, the requested State Party
shall, where appropriate, consult with therequesting State Party to provide it with
ample opportunity to present its opinions
and to provide information relevant to its
allega tion.” This is a new provision,
wh ich has no par allel in the 1988
Convention or in the 1990 UN ModelT r e a t y . T h e p r o v i s io n c a n t h u s b e
u nd e r sto o d a s a r e f le c tio n o f “g o o dpractices” as they have evolved during
the 1990s.
Si mplification of extrad ition
proceedings. 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 eliminating
grounds for refusal.
Art. 16(8) of the Palermo Convention
calls for the simplification of extradition:“States Parties shall, subject to theirdomestic law, endeavour to expedite
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

extradition procedures and to simplify
evidentiary requirements relating thereto
in respect of any offence to which thisarticle applies.”
In 1995, the European Union adopted a
Convention on simplified extradition
within the EU. Essentially, theConvention focuses on the many cases
where the person in question consents to
extradition.24
In 1996, the EU adopted a convention
that supplements the 1957 Council ofEurope Convention, and is designed tofacilitate and speed up extradition. The
1996 Convention widened the scope of
extraditable offences, restricted refusals
on certain grounds (the absence of double
criminality, or the nationality of theoffender) and eliminated the politicaloffence exception as well as refusals on
the grounds that the prosecution orpunishment of the person in question
would be statute-barred in the requested
State.25
Th e E uro pe an U nio n is cur ren tly
considering various options for “fast-track
extradition”. These discussions have been
held within the context of the discussion
on mutual recognition of decisions andju d g m e n t s i n c r im i n a l m a t t e r s . I n
regards to extradition, the goal is to havea warrant of arrest issued by theco m p e t e nt a uth o r itie s o f o n e S ta terecognized as such by the authorities ofanother EU State, establishing a basis for
extradition.

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 wasarrested by the US Immigration Service and held

24 This1995 Convention has been ratified byAustria, Denmark, Finland, Germany, Greece,
the Netherlands, Portugal, Spain and Sweden.
25 The1996 Convention has been ratified byfor several hours on the grounds of “illegal entry

D e n m a r k , F i nl a n d, G e r m an y, G r e e c e , th e

into the U.S.”

Netherlands, Portugal and Spain.

377

RESOURCE MATERIAL SERIES No. 59
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 punishment
imposed can be carried out. The purposeof mutual assistance, in turn, is to get aforeign State to assist in other ways inthe jud icial p rocess, fo r exa mple bys e c u r i n g th e te st im o n y o f p o ss i b l e
victims, witnesses or expert witnesses, by
taking other forms of evidence, or bychecking judicial or other official records.

•

Generally, mutual legal assistance isb a s e d o n b i l a t e r a l o r m u l t i la t e r a ltreaties. No global mutual assistancetreaties have been drafted that would
apply to a broad range of offences. Efforts
to smooth international cooperation byde velop ing such a global mutual
assistance treaty had long been thwarted
in particular by the United States andt h e U n it e d K in g d o m , w h i c h p r e f e rbilateral treaties that would take into
consideration the idiosyncratic features of
their common law systems.
Instead, over the years, som einternational treaties have been draftedthat deal with specific offences. These
instruments generally include extensive
provisions on mutual legal assistance as
w e l l a s o n e x tr a d i ti o n . T h e s e t s o fprovisions included in some of these
agreements are so extensive that they
have been referred to as “mini-treaties”
on mutual legal assistance.
Such is the case, for instance, with thefollowing conventions:

378

•

•

•
•

the Convention for the Suppression of
Unlawful Seizure of Aircraft of 16
December 1970 (article 10),
the Convention for the Suppression of
Unlawful Acts against the Safety of
Civil Aviation o f 23 Septem ber
1971(article 11),
the Convention for the Suppression of
Unlawful Acts against the Safety of
Maritime Navigation and the Protocol
for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms
Located on the Continental Shelf, of
10 March 1988,
the UN Convention against Illicit
Traffic in Narcotic Drugs andPsychotropic Substances of 19
December 1988 (article 7),
the International Convention against
the Taking of Hostages of 17
December 1979 (article 11), and
the Palermo Convention, opened forsi gn a t u re o n 1 2 D e c e m b e r 2 0 0 0(article 18).

In addition, there are two influential
multilateral arrangements that apply toa wide spectrum of offences, a Convention
prepared by the Council of Europe, andan instrument applied within the context
of the British Commonwealth (the socalled “Harare Scheme”).
The oldest, most widely applied andarguably most influential is the Councilof Europe Convention on Mutual
Assistance in Criminal Matters. This was
opened for signature in 1959, and enteredinto force in 1962.26
The Council of Europe Convention
focuses on assistance in judicial matters(as op posed to investigative andprosecutorial matters). Furthermore,since it has been in force for almost 40
ye ars, it h a s in so m e re sp ec ts be e n
bypassed by practice. In order to improvethe effectiveness of the Convention, the119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
fifteen European Union countries have
prepared their own Mutual Assistance
Convention of 29 May 2000. This
supplements the 1959 Council of Europe
convention and its protocol in order toreflect the emergence of “good practices”
over the past forty years.

“there is reasonable cause to believe thata n o f fe nc e in r esp e ct of w hich suchproceedings could be instituted have beencommitted”. Thus, it effectively a lso
allows mutual assistance when certain
serious offences, such as terrorism, could
potentially be prevented.

The Commonwealth Schem e for
Mutual Assistance in Criminal Matters
does not create binding international
obligations; instead, it represents morean agreed set of recommendations. 27 It
d e als with id en tify in g an d lo ca tingpersons; serving documents; examining
witnesses; search and seizure; obtaininge v i d e n c e ; f a c il it a t in g t he p e r s o n a la ppeara nce of witnesses; effecting atemporary transfer of persons in custody
to appear as a witness; obtaining
production of judicial or official records;
and tracing, seizing and confiscating theproceeds or instrumentalities of crime. A
model Bill to assist countries in preparing
legislation has been developed by the
Commonwealth Secretariat.

Th e U nited Na tio ns, in turn, h a s
prepa red a Mod el T re at y o n M utua lAssistance in Criminal Matters (General
Ass emb ly res olution 45 /1 17 of 1 4
Decemb er 1 990 ). The purpo se of theModel Treaty is to provide a suitablebasis for negotiations between states that
do not have such a treaty. The Model
Treaty is by no means a binding
template. The States can freely decide on
any changes, deletions and additions.
However, the Model Treaty does
represent a d istillation of theinternational experience gained with theimplementation of such mutual legal
assistance treaties, in particular between
S ta t e s re p r e se n tin g d if f e re n t le ga lsystems.

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

Competing international treaties. Overthe years, several multilateral treaties
have been drafted that deal with mutual
legal assistance. In addition, many states
have entered into bilateral treaties withother countries. This raises thepossibility that two or more treaties may
be applicable to the same facts. Since
there may be differences between thesetreaties (for example in relation to theconditions under which mutual legala s s i st a n c e c a n b e p r o vi d e d , o r t h eprocedure used), the question arises ofwhich treaty should be applied.

26 At present, the following 40 States are parties tothe 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 RussianFederation, Slovakia, Slovenia, Spain, Sweden,
Switzerland, the former Yugoslav Republic ofMacedonia, 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.

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

379

RESOURCE MATERIAL SERIES No. 59
an earlier one, and a treaty dealing witha specific issue replaces a treaty dealing
only with general issues.
In addition, some new treaties containspecific provisions on the resolution of
possible conflicts between treaties. For
example, article 18(6) of the Palermo
Convention stipulates that “theprovisions of this article shall not affectthe obligations under any other treaty,bilateral or multilateral, that governs orwill govern, in whole or in part, mutual
legal assistance.” (Article 7(6) of the 1988
Convention is similar.)This provision means in practice thato bliga tions unde r other a gre eme nts
remain in force. The Palermo Convention(or the 1988 Convention) does not in any
w ay diminish these obligations. The
practitioner should exam ine theagreements side by side, and identify
which provisions of the different
agreements would, in combination, resultin the highest possible level of mutual
assistance.
Despite the network of international
instruments, cases will continue to arise
between States that are not linked by amutual legal assistance treaty. If the
S ta tes in question a re, nonetheless,Parties to the Palermo Convention, andthe case involves transnational organizedcrime, the Palermo Convention can form
the basis for mutual legal assistance.
According to article 18(7) of the Palermo
Convention, paragraphs 16(9)–(29) of the
C o nve ntion ap ply to suc h r eque sts.
(A rticle 7(7) of the 1 988 C onvention
contains a similar provision.) Even if theStates in question are bound by a treaty,
they ca n decide to apply paragraphs
1 6 ( 9) – (2 9 ) , a nd i nd e ed t he P al e rm oConvention strongly encourages them toapply the corresponding provisions of thisnew Convention. As noted in the380

Commentary to the 1988 Convention(para. 7(23)), “this enables pairs of States
to follow the procedures with which theyha ve become familiar in the generalcontext of mutual legal assistance”.
B. The Scope of Mutual Legal
AssistanceIn arti cle 18 (1), the Pa lermo
Convention calls for States Parties toafford one another the widest measure ofmutual legal assistance (see also art. 1(1)of the 1959 Council of E urope
Convention). The scope of measures thatcan be requested under mutual legala s sis ta n c e is r a t he r la r g e , a nd t hepractice appears to be moving towards aconstant expansion of this scope.
According to art.18(3) of the Palermo
Convention, which in this respect is basedon the 1988 Convention, mutual legal
assistance can be requested for any of thefollowing purposes:
a. taking evidence or statements frompersons;b. effecting
serviceofjudicial
documents;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,
including governme nt, bank,f ina nc ia l , c o rp o r a te o r b us ine s srecords;
g. identifying or tracing proceeds ofcrime, property, instrumentalities orother things for evidentiary purposes;
h. facilitating the voluntary appearanceof persons in the requesting State
Party; andi. any other type of assistance that is
not contrary to the domestic law of
the requested State Party.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Most of the items on the above list aref a m i l i a r f r o m a rt . 7 ( 2 ) o f t he 1 9 8 8Convention, art. 1(2) of the UN Model
Treaty and para. 1 of the Commonwealth
Scheme, as well as from many bilateral
Conventions. There are, however, four
new elements in the Palermo Convention
that reflect the evolution of thinking on
mutual assistance.
•

point (c) also includes the freezing ofassets, and not just sea rches andseizures. The freezing of assets has
bee n found to be particularly
im portant in preventing andcontrolling organized crime. (Para.
1(i) of the Commonwealth Schemese pa ra te ly r ef er s to the tr ac ing,
seizing and confiscating of theproceeds of criminal activities.)•

point (e) includes the provision ofexpert ev aluations; th e earlier
multilateral treaties had not specified
this form of assistance.

•

point (f) specifies that originals or
certified copies can be obtained also ofgovernment records; again, this was
not clearly noted in the 1988
Convention or the UN Model Treaty.
The Commonwealth Scheme, on theother hand , does re fer to the“productio n of judicial or official
r e c o r d s ”. ( S e e a l so b e l o w u nd e r“Provision of documents”.)

inv ol ve d , o f te n a s t he f ro nt f o r t heactivities of the actual offenders, and inpa rticular f or the laund ering of theproceeds of crime. The situation may
arise where State A, which recognizes thepossibility of corporate criminal liability,
requests assistance from State B, which
does not recognize such a possibility.
Since art. 10 of the Palermo Convention
requires that corporate bodies be held
liable for serious crime in some manner(no matter whether criminal, civil oradministrative), art. 18(9) requires States
Parties to provide mutual legal assistanceto the f ullest e xtent po ssible und er
relevant laws, treaties, agreements andarrangements. Ab sence of corpora tecriminal liability in the requested State isthus not a bar to providing mutual legal
assistance.
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 plete ly new provision in UN
conventions; no thing similar wascontained in the 1988 Convention or in
the 1990 UN Model Treaty. Its newness,of course, is a reflection of the rapid
28 Mutuallegal assistance is distinct from thetransfe r of proc eedings and the tr ansfer o f
persons in custody to serve sentences, which
w ould thus not be covered by point (i). The
Palermo Convention deals with these subjects
separately in articles 17 and 21.

•

point (i), which is a catch-all reference
to “any other type of assistance that is
not contrary to the domestic law of
the requested State Party”, provides
considerable flexibility to thelisting.28

Some commentators and even courts have heldthat mutual legal assistance treaties are general,and can apply to forms of a ssistance notspecifically 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 ofColumbia) determined that the existence of a

Requests related to offences for which a
corporate body may be liable. One featureof (transnational) organized crime is that
corporate bodies (legal persons) may betreaty does not limit evidence gathering to theprocedures stipulated in the treaty; indeed, thispoi nt i s ge ner all y e xpl ici tl y stated i n suchtreaties.

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RESOURCE MATERIAL SERIES No. 59
de velop ment of communications
technology. Even though this possibility
requires an initial investment in thenecessary equipment, video technology
can considerably facilitate the hearing of
witnesses and experts, since they would
no longer have to travel from one country
to another. It can also serve to protect
witnesses or experts, if they fear to reveal
their location or fear travelling to a court
hearing in the requesting State.
Having a “direct” connection between
two countries, how ever, raises so meinteresting issues. A normal situation
would be when an attorney or a judge
located in the requesting State uses avideo link to hear a witness located in therequested State. In order to forestallconcerns that the requested State may
have about p ossible violations of its
s o ve re ig nty , o r c o nc e rn s a b o ut d u eprocess, art. 18(18) specifies that theStates may agree that a judicial authorityof the requested State may attend thehearing.
Th e sp o n t a n eo u s t r a n sm i ss i o n o f
information. In the investigation and
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 theprosecution of offences, now and then thelaw enforcement authorities of a country
re c e ive in f o rm a tio n t hat m a y be o finterest to the authorities of anotherc o u n t r y . A r t. 1 8 ( 4 ) o f t h e P a le r m oConvention allows the authorities, evenwith o ut a pr io r re qu es t, to pa ss o n
information to the competent authorities
of another State. 30 Again, this is a newelement in U N co nventions. Its
usefulness has been demonstrated inpractice in, for example, Europe.
Provision of documents. Art. 18(3)(f) of
the Palermo Convention states in generaltha t mut ua l lega l a s sis ta nce ca n be
requested in the provision of originals or
certified copies of relevant documents andrecords. A practical question that was notaddressed in the 1988 Convention was
the scope of application of this provision.
Does it, in particular, extend to
documents that are considered secret in
the requested State? The matter wasconsidered in art. 16 of the UN Model
Treaty, which served as the basis in thedrafting of art. 18(29) of the Palermo
Convention. This provision requires thatthe requested State provides copies ofg o v e r n m e n t r e c o r d s , d o cu m e n ts o r
information in its possession that under
its domestic law are available to thegeneral public, but leaves the requested
State with discretion over whether or not
to provide any other government records,
docum ents or information in its
possession.

other, permit the hearing to take place by videoconference if it is not possible or desirable for theindividual in question to appear in person in the
territory of the requesting State Party. States
Parties may agree that the hearing shall be

Transfer of persons in custody. In theinvestigation and prosecution oftransnational organized crime cases, asituation may well arise where a person

con du ct ed by a judi cia l a uth ori ty o f th erequesting State Party and attended by a judicial

30 Thisspontaneous exchange of data is provided

authority of the requested State Party.

under article 10 of the 1990 European Convention

See also article 10 of the 2000 European Union

on Laundering, Search, Seizure and Confiscation

Convention. Art. 11 of the 2000 European Unionof the Proceeds from Crime. See also art. 7 of theConvention also permits teleconferences.

2000 European Union Convention.

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held in custody in one State can provide
key testimony in a case in another State.
Art. 7(4) of the 1988 Convention statesquite generally that States Parties shall
facilitate “to the extent consistent with
their dom estic law a nd practice, thepresence or availability of persons, who
consent to assist in investigations orparticipate in proceedings”. Art. 18(10)–(12) of the Palermo Convention provide
more detail on the transfer of persons incustody for this purpose. 31 Transfer ispossible only if the person in question
consents, and the competent authoritieso f th e tw o S ta te s a g r e e ( s u b j e c t t opossible conditions). The person is to be
kept in custody in the State to which heo r s h e is t r a n s f e r r e d , a n d is t o b e
returned without delay as agreed by thetw o S ta te s. I n a d ditio n , the p e rso ntransferred is to receive credit for serviceof the sentence being served in the State
from which he or she was transferred fortime spent in the custody of the State towhich he or she was transferred.
W hen persons in custody aretransferred from one State to another
under art. 18(11) of the Palerm 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 inresp ect of offences committed orc o n v i c t i o n s im p o s e d p r i o r t o t h e i rtransfer.
The concept of “internationa l
subpoenas”. One, albeit rare, feature ofsome mutual legal assistance treaties isthat they allow for the issuing of
31 Parallel detailed provisions can be found in para.

24 of the Commonwealth Scheme.

subpoenas “backed up” by compulsion,
such as penalties for failure to obey. This
concept is applied for example in the
United States-Italian Mutual Assistance
Treaty, which provides for compulsory
appearance of a witness in the requesting
S ta t e (M cC l ea n 1 9 9 2, p . 1 5 8) . A l s o,Australia has such an arrangement withNew Zealand and Fiji, and Malaysia hassuch an arrangement with Singapore andBrunei (ibid.).
A s n o t e d a b o ve , a rt . 1 8 ( 7 ) o f t h e
P a l e r m o C o n v e n ti o n r e f e r s o n l y t ofacilitating the presence of persons who
consent to assist in investigations orparticipate in proceedings. Witnesses andexperts are thus completely free not to go
to the requesting country. The Palermo
Convention thus does not allow the use ofcompulsion against witnesses or experts
in another State. This same approach isused in, for example, art. 8 of the 1959
European Convention, paras. 15(5), 23(4)and 24(3) of the Commonwealth Scheme,
and art. 7(4) of the 1988 Convention.
C. Grounds for Refusal
T h e r e a r e se v e r a l b a s i c c o m m o ngrounds for refusal for granting a request
for mutual legal assistance:••••

the absence of double criminality;
the offence is regarded as a politicaloffence;the offence is regarded as a fiscal
offence; andthe granting of mutual legal
assistance would be counter to thevital interests (ordre public) of therequested State.32

Absence of double criminality.
According to art. 18(9) of the Palermo
Convention, a State may decline mutual
legal assistance if the offence in question
is not an offence under its laws. However,the Palermo Convention specifies that383

RESOURCE MATERIAL SERIES No. 59
this is not a mandatory ground. Thus, theS tate may decide at its discretion toprovide mutual legal assistance even if
the condition of double criminality isabsent.
A l so t h e C o m m o n w e a l th S c h e m eincludes a “discretionary double
criminality rule” (art. 7(1)). According to
the author of the scheme (McClean 1992,
p p. 1 55 – 1 5 6) , t hi s w a s t o pre vent asituation arising whe re mutuala ssistance is requested in respect ofcertain acts that are heavily punished insome Islamic law jurisdictions are nots e e n a s a p p r o p r ia t e f o r a n y p e n a lsanctions in other jurisdictions.
Politica l offences. In respect of
extradition, the political nature of theoffence is generally a mandatory cause forre fusa l. In the field o f m utual legal
assistance in criminal matters, in turn,this is generally only an optional reason
for refusing cooperation. Moreover, over
the years the possibility or obligation torefuse assistance in such considerations
has in general been curtailed, inparticular with a view towards the needto combat terrorism. See, for example,
a rt . 2 of the 1 959 Council of Europe
Convention, when read together with art.
8 of the European Convention on the

Suppression of Terrorism of 27 January
1977.
Fiscal offences. Under the 1959 Councilof Europe Convention, legal assistance
may b e refused where the requested
party considers the offence to be a fiscal
offence. In order to restrict the scope ofthese grounds of refusal, an additional
protocol to the European Convention was
drawn up at the same time, in 1959.
Signatories to this additional protocol
undertake not to refuse assistance on the
grounds that the offence in question is a
fiscal offence
A cco rd ing to a rticle 1 8 ( 22 ) o f thePalermo Convention, States Parties may
not refuse a request for mutual legal
assistance on the sole ground that theoffence is also considered to involve fiscal
matters.
Violation of the vital interests of therequested State (ordre public). Generally
speaking, conventions on mutual legal
assistance on criminal matters provide
tha t t he req uest ed Sta te ca n refus e
assistance which it deems might
endanger its sovereignty, security, law
and order or other vital interests. Thissame “escape clause” is maintained evenby the 2000 European Union instrument
on mutual legal assistance.

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 ofassistance the presence of substantial grounds forbelieving that the request for assistance may leadto prosecution or punishment, or cause prejudice,o n a c co u nt o f ( for exa mp le ) r a c e, r e li gio n,nationality or political opinions, or that the

The same principle is embodied in art.
18(21)(b) of the Palermo Convention,according to which the requested State
Party may refuse to grant mutual legal
assistance if it considers that execution of
the req uest is likely to prejudice its
sovereignty, security, ordre public orother essential interests.

prosecution in the requesting State would lead to
double jeopardy. The UN Model Treaty adds as afurther optional ground the fact that the offence isalready under investigation or prosecution in therequested State.

384

Conflict with the laws of the requested
state. According to art. 18 (2 1) of the
P a le r m o C o n v e n t i o n , m ut u a l l e g a l
assistance may be refused:119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS•••

if the request is not made inconformity with the provisions of thisarticle;if the authorities of the requested
State Party would be prohibited by its
domestic law from carrying out theaction requested with regard to any
similar offence, had it been subject toinvestigation, prosecution or judicial
proceedings under their own
jurisdiction; andif it would be contrary to the legal
system of the requested State Party
relating to mutual legal assistance forthe request to be granted.

Bank secrecy. One relatively common
ground for refusal is that granting ther e q ue st w o u ld b e c o n tr a ry t o b a n k
secrecy. The scope of this ground forrefusal has been restricted during recent
years. In line with this development, art.
7(5) of the 1988 Convention and article
18(8) of the Palermo Convention stipulatethat States Parties shall not decline torender mutual legal assistance on the
ground of bank secrecy.
The need to indicate the ground forrefusals. Good practice in mutual legal
assistance requires that the requested
State, if it refuses to grant assistance,
should indicate the grounds for suchr e f us a l. A rt. 1 8 ( 2 3 ) of th e P a le rm oConvention requires that reasons b egiven for any refusal of mutual legal
assistance. 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 that
States Parties afford one another thewidest measure of mutual legal
assistance in investigations, prosecutions
and judicial proceedings in relation to thetype of offences covered by theConvention. States are not allowed torefuse assistance unless they have a clear
ground to do so.
However, in the drafting of thePalermo Convention, the re wasconsiderable discussion over at whatstage it should be evident that the offencein question is covered by this Convention.
After all, the requested State can simply
say that, in its view, the requesting State
has not shown that the offence is in facttransnational; this may well be difficult
to prove especially at the earlier stage ofthe investigation.
The solution adopted was innovative. If
State A has met with refusals from State
B to provide assistanc e un der thePalermo Convention even when State A
has reasonable grounds to suspect thatthe offence in question falls under theConvention, then State A canlegitimately refuse, in turn, to help State
B 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 the
jud ic ia l a ut h or i t y o f o n e S t a t e t o ajudicial authority of another State toperform one or more specified actions in
the place of the first judicial authority(see, for example, chapter II of the 1959
Council of E urope C onvention). The
concept of letters rogatory had been takenfrom civil procedure, and focuses on
judicial action in the taking of evidence.
More recent international instruments
simply refer to “requests”.
I n in te rna tio nal p ra ctic e , le tte r s
rogatory have typically been transmitted
through diplomatic channels. The request
for evidence, almost always originatingfrom the prosecutor, is authenticated by

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RESOURCE MATERIAL SERIES No. 59
the com petent national court in therequesting State, and then passed on by
tha t S tate’s Foreign M inistry to theembassy of the requested State. The
embassy sends it on to the competentjudicia l authorities of the req uested
State, generally through the Foreign
Ministry in the capital. Once the request
has been fulfilled, the chain is reversed.
Central authorities or direct contacts?
Increasingly, treaties require that States
Parties designate a central authority(generally the Ministry of Justice) to
w hom the requests ca n b e sent. The
judicial authorities of the requestingS t a t e c a n t h e n c o n t a c t th e c e nt r a lauthority d irectly. Tod ay, to anin cre a sin g d e gre e e ve n m o re d ire ct
cha nnel s are b ei ng use d, i n t ha t a n
official in the requesting State sends therequest directly to the appropriate official
in the other State.33
In the drafting of the Palerm o
C onvention, there w as co nside rab lediscussion regarding whether or notdirect channels could be used. S ome
states, 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 Palermo
Convention (see also art. 7(8) of the 1988
Convention and para. 4 of theCommonwealth Scheme) is that eachState Party designate a central authority.
Such a central authority has in effect
33 One of the earliest bilateral treaties to allow for

three roles: (1) to receive requests formutual legal assistance; (2) to executesuch requests; and (3) to transmit such
requests to the competent authorities for
execution.
Where a State Pa rty has a special
region or territory with a separate system
of mutual legal assistance (as is the case,for example, with Hong Kong in China), it
may designate a distinct central
auth or ity that sha ll h a ve th e sam efunction for that region or territory. Thisis a new feature of the Pa lermo
Convention; art. 7(8) of the 1988
Convention and art. 3 of the Model Treaty
only contain a general reference to thedesignation of “an authority or whennecessary authorities”.
Direct requests may be possible also
under some treaties in case of emergency.
Fo r e xa m ple , a rt . 1 5 ( 1 ) o f t h e 1 9 5 9Council of Europe Convention allows the
judicial authority of the requesting Stateto send the letter of request directly to theco m pe te nt jud ic ia l a ut ho rity of there q ue s te d S ta te . A r t. 1 8 ( 1 3 ) o f t hePalermo Convention allows thepossibility that, in urgent cases and when
the States in question agree, the request
can be made through the International
Criminal Police Organization, if possible.
The form and contents of the request.
The Palermo Convention contains several
provisions on the procedure to be followed
in sending a request for mutual legal
assistance.

this was the additional protocol to the 1959
Co unc il o f Europe Conventio n draw n up by
France and Germany on 24 October 1974.
The 1990 Schengen agreement in the frameworkof the European Union specifically allows the useof direct contacts between judicial authorities(art. 53). The same concept is embodied in theeven more recen t Eu ropea n Uni on 2 00 0
Convention on Mutual Legal Assistance.

386

A cco rd ing to a rticle 1 8 ( 14 ) o f thePalermo Convention (cf. art. 7(9) of the1988 Convention), “requests shall bemade in writing or, where possible, by
any means capable of producing a written
record ... under conditions allowing that
State Party to establish authenticity. ...
In urge nt circum stan ces and w h ere

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
agreed by the States Parties, requests
may be m ade orally, but shall be
confirmed in writing forthwith.”
The Palermo Convention, by referring
to requests made “where possible, by anymeans capable of producing a written
record ... under conditions allowing that
State Party to establish authenticity”,
opens up the possibility of for example
transmission 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 making
the request;b. the subject matter and nature of theinvestigation, prosecution or judicial
p ro ce ed ing to w h ich the r eq ue st
relates and the name and functions of
the authority conducting theinvestigation, prosecution or judicial
proceeding;c. a summary of the relevant facts,
except in relation to requests for the
purpose of service of jud icial
documents;
d. a description of the assistance soughtand details of any particular
procedure that the requesting State
Party wishes to be followed;
e. where possible, the identity, locationand nationality of any person
concerned; and34 Recommendation

R(85)10 of the Council of

Eu rope (w hic h is no n-bindin g) in pr inci pleen courages th e accep tance of th e u se of
telephones, teleprinters, fax and similar means ofcommunication in the transmission of lettersrog atory in the a ppl ica ti o n o f the 1 95 9f.

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

Article 18(16) notes that the requested
Sta t e Pa rty m ay req uest a d dit io na linformation when it appears necessary
f o r th e e xe cu t io n o f th e r e q u e st inaccordance with its domestic law or when
it can facilitate such execution.
The formulation used in the Palermo
Convention re fers to “a language
acceptable to the requested State Party”.
This is a deliberately wide formulation. It
includes the national language of therequested State Party, but the special
circumstances of the relations between
the two countries may suggest the use ofother languages. For exa mple, many
countries around the world are preparedto accept requests in English and/or
French.
E. Execution of the Request for
Mutual Legal Assistance
La w gov erning the ex ecuti on. The
p ro c e d u ra l la w s o f co u n tr ie s d if f e r
considerably. The requesting State may
require sp ecial p roce dur es ( such as
notarized affidavits) that are notrecognized under the law of the requested
State. Traditionally, the almost
immutable principle has been that therequested State should follow its own
procedural law.
This principle has led to difficulties, inparticular when the requesting and therequested State represent different legal
fa milies. F or e xa m ple, the evid encetransmitted from the requested Statemay be in the form prescribed by the lawsof this State, but such evidence may beunacceptable under the procedural law of
the requesting State.

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

7(10) of the 1988 Convention.

The 1959 Council of Europe
Convention is one international

387

RESOURCE MATERIAL SERIES No. 59
in strument that applies t o Stat es
representing two quite different legal
families, the common law and th econtinental law systems. Although art.
3 ( 1 ) o f thi s C o n ve n tio n f o llo w s th e
traditional principle referred to above,
the Com mentary notes that therequesting State can ask that witnesses
and experts be examined under oath, aslong as this is no t p ro hibite d in therequested State.36
According to art. 7(12) of the 1988
Convention, a request shall be executedin accordance with the domestic law of
the requested State Party and, to theextent not contrary to the domestic law of
the requested State Party and wherepo ssible , in accordance with theprocedures specified in the request. Thus,
although the 1988 Convention does not go
so far as to require that the requested
State comply with the procedural form
required by the requesting State, it does
clearly exhort the requested State to dos o . T h i s s a m e p r o v i si o n w a s ta k e nverbatim into art. 18(17) of the Palermo
Convention.
Promptness in fulfilling the request.
One of the major problems in mutual
legal assistance world-wide is that therequested State is often slow in replying,a n d su s p e c t s m u s t b e f r e e d d u e t oabsence of evidence. There are many
understandable reasons for the slowness:a shortage of trained staff, linguistic
difficulties, differences in procedure thatc o m p li c a t e r e s p o n d i n g , a n d s o o n .
Nonetheless, it can be frustrating to findthat a case must be abandoned becauseeven a simple request is not fulfilled intime.

36 Explanatory

14.

388

Report to the 1959 Convention, p.

The 1988 Convention does not makeany explicit reference to an obligation on
the part of the requested State to beprompt in its reply. The 1990 UN Model
Treaty (art. 6) does require that requests
f or a ssist a nce “ sha ll b e ca rr ied ou t
promptly”. Para. 6(1) of theCommonw ealth Scheme ca lls for therequested country to grant the assistancerequested as expeditiously as practicable.
The Palermo Convention is even moreemphatic about the importan ce ofpromptness, and makes the point in two
separate 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,
the com petent court, the central
authority is required to encourage thesp ee d y a nd p ro p er e xe cu tio n of therequest. Art. 18(24) provides that therequest is to be executed “as soon as
possible” and that the requested State is
to take “as full account as possible of any
deadlines suggested by the requesting
State Party and for which reasons are
given”.
G oo d p racti ce i n ex ecutio n. O therelements of “good practice” in mutual
legal assistance also worked their way
into the Palermo Convention, making thelife of the practitioner easier than under,f o r e x a m p l e , th e 1 9 8 8 C o n ve nt io n.
According to art. 18(24) of the Palermo
Convention,37•

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

37 Cf.

Art.

4

Convention.

of

the

2000

European

Union

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the requested State should respond toreasonable requests by the requesting
State for information on progress of
its handling of the request; andthe requesting State should promptly
inform the requested State when theassistance sought is no longer
required.

problem, art. 18(20) goes on to providethat the State receiving the information
is not prevented from disclosing it in its
proceedings i f th is informati on i s
exculpatory to an accused person. (Theprovision also deals with the necessity to
inform and, if requested, consult with theother State prior to such disclosure.)

Art. 18(25) of the Palermo Convention
states that mutual legal assistance may
be postponed by the requested State
Party on the ground that it interfereswith an ongoing investigation,prosecution or judicial proceeding. Art.
7(17) of the 1988 Convention is in thisrespect similar.

Art. 18(19) of the Palermo Convention
embodies the rule of speciality: the State
receiving information may not transmit
or use it for investigations, prosecutions
or judicial proceedings other than thosestated in the request without the priorconsent of the requested State Party.
Again, however, exculpatory information
may be disclosed.

••

Art. 18(26) of the Palermo Convention
states that, before refusing a request formutual legal assistance, or postponing its
execution, the requested State should
consult with the requesting State toconsider whether assistance ma y b e
g r a n te d s u b je c t t o su c h te r m s a n dconditions as it deems necessary. The
1988 Convention (art. 7(18) called for
consultations only in the case of
postponements, 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 information
has been sent by the requested State to
the requesting State, how can it be used?
The requested State may ask that any
information provided be kept confidential
except to the extent necessary to executethe request (art. 18(5) and 18(20) of theP alerm o C onve ntion) . Ho w ever, thesituation may arise that the information
received in respect of o ne offence orsuspect at the same time exculpates
another suspect in a completely separate
procedure. To address this potential

Costs. According to article 18(28) of thePalermo Convention, the ordinary costs ofexecuting a request shall be borne by therequested State Party, unless otherwise
agreed by the States Parties concerned. If
expenses of a substantial or
ext ra o rdi n a ry n a t u re a re o r w i l l b e
required to fulfil the request, the States
Parties 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 modelled
o n, f o r e x a m p le , a r t. V I I I ( 3 ) o f th e
Canadian-US treaty and para. 12(3) ofthe Commonwealth Scheme.38
IV. SUMMARY: THE GENERALEVOLUTION OF EXTRADITION
AND MUTUAL LEGAL ASSISTANCE
IN CRIMINAL MATTERS
With the increase in international
travel, the improvement in technology
38 In 1999, the Law Ministers of the Commonwealthadopted guidelines on the apportionment of costs
incur red in pr oviding mutual assistance incriminal matters.

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RESOURCE MATERIAL SERIES No. 59
and communications, the greaterl i kelihoo d t ha t a crime can ha ve a n
impact beyond national borders, and theincreased profits that can be made fromo rganize d crim e, the ne ed to ob tain
assistance from other states in bringing
offenders to justice has expanded rapidly.
T he b a s ic t o o ls t h a t c a n b e u se d —extradition and mutual legal assistancein criminal matters—have regrettably
not evolved to keep pace with
developments in crime.

••
M uc h o f the e ve r yd a y p r a ct ice o f
e xt r a d i t i o n a n d m u t u a l a s s is ta n c econtinues to be reliant on bilateral andmultilateral treaties that have beendrafted many years ago. Moreover, many
States which are parties to such treaties
still do not have the necessary legislation
or resources to respond to requests for
extradition or mutual assistance.
•

Requests are often transmitted
through diplomatic channels or from
Government to Government, and theresulting delays may cause a carefully
assembled case to collapse in thehands of the prosecutor.
The traditional extradition regimeTherequesting
State
may
misunderstandthef ormalrequirements in the requested Stateas to the presentation and contents of
the request. For example, therequesting State may not realize that,
under some treaties, it must present
docu men tation that the double
criminality requirement is met, thatthe offence is extraditable, and that
execution is consistent with the law of
the requested party.
The requested State, in turn, may notalways demonstrate flexibility indemanding more details about theoffence and the offender. Often, very
specific information may be difficult
to provide if the investigation is still
underway.

Nonetheless, as shown in this paper,
some developments have taken place inb o t h e x tr a d i ti o n a n d m u t u a l l e g a l
assistance, in particular over the past ten
years.
Some of the main trends in theevolution of extradition are summarized
in the following table.
The “new, improved” extradition
regimebilateral

multilaterallimited 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 possible

nationals can be extradited, althoughconditions may be imposed

broad grounds for refusal

few grounds for refusal

no reference to the expected treatment
or punishment of the suspecthuman rights standards appliedslow

trend towards mutual recognition andthe “backing of warrants”

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

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bilateraltreatiesare
being
increasingly replaced by multilateraltreaties. Although bilateral treaties
have been preferred for example byth e common law cou ntries, th e
sim u lta n eo u s e x iste nc e o f m a ny
inte rnational
instrumentscomplicates the work of thep r a ct itio n e r. Fo r thi s a n d o t he r
reasons, also the common law
countries are seeing the advantages ofmultilateral treaties w ith a wide
scope of application•

the earliest treaties were based onlists of offences. If an offence was notincluded in the list, extradition could
not be granted. More recent treaties
are generic, in that they apply to abroad scope of offences.

•because courts have traditionallybeen cautious in applying coercive
measures, the courts in particular incommon law countries have required
prima facie evidence that the suspect
had indeed committed the offence inquestion. Because of the differences in
the law of evidence and in criminal
procedure in different countries, suchprima facie evidence w as often
d iff ic ult to pr ovid e. M or e rec ent
instruments have generally regarded
it as sufficient that the requesting
State (at least if it belongs to a selectgroup of states) produce a valid arrest
warrant•

one of the most cherished principles
in extrad ition law has bee n that
States will not extradite their own
nationals and will, at most, undertaketo bring them to trial in their own
courts. Today, more and more States
are allowing extradition of their own
nationals, although some conditions
m a y b e p la c e d, s uc h a s t h a t t h enation al, if co nvicte d, sho uld be

returned to his or her own country toserve the sentence•

there is currently a clear trend
tow a rd s e lim ina tion of the ma ny
grounds for refusal to extradite, suchas the political offence exception•

there is a trend towards granting
greater righ ts to the per son inquestion as an object (as opposed tosubject) of the process, and to greater
consideration of how he or she would
be treated or p unished in therequesting State. Consideration canbe given, for example, to thepo ssibility of p er se cution on the
grounds of sex, race, religion,
nationality, ethnic origin or politicalopinions, the possibility of unfair
trial, and the possibility ofpunishment which, in the requested
State, is deemed inhumane•another trend is toward less rigid
procedural requirements, including
direct communications and simplified
procedure

There has also been a clear dynamic in
the development of mutual assistance.
New international instruments open up
the p ossibility o f m utual assistance
between an expanding number ofcountries, the scope of offences has beenenlarged, conditions a nd grounds ofrefusal have been tightened or entirely
eliminated, and the process has been
expedited. Some of the main trends are
summarized in the following table.

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The traditional mutual assistance
regimeThe “new, improved” mutual
assistance regime

bilateral

multilaterallimited scope of offences

broad scope of offences

assistance limited to the service ofsummons

many possible forms of assistanceuse of central authority

possibility of direct contacts between
lower level authorities requesting andgranting assistancebroad grounds for refusal

few grounds for refusal

requested State applies solely its own
laws in granting assistanceprocedures requested by the requesting
State can be applied if these are notcontrary to the laws of the requested
Statebureaucratic“good practice” standards followed; e.g.
the possibility of consultation before
possible refusal•

as with extradition treaties, bilateralmutual legal assistance treaties arebeing increasingly replaced 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 mutual
legal assistance treaties (anddomestic laws in many States) has
expanded. At first, the focus was onservice of summons. Today, a wide
range of measures are offered.

•

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

more recent treaties have restricted
or even eliminated the many grounds
for refusal to provide assistance392•

requested State applies solely its own
laws in granting assistance;
procedures requested by therequesting State can be applied if
these are not contrary to the laws of
the requested State

•as with extradition treaties, another
trend in mutual le ga l assistancetreaties is toward less rigid
procedural requirements, including
towards the use of directc o m m u n ic a t i o n s a n d s i m p l if i e dprocedure.

The Palermo Convention, which was
ne got i a t e d b et w e e n 1 9 9 8 a n d 2 0 00 ,reflects in many ways the “state of theart” of extrad ition a nd mutual legal
assistance. In particular, it includes
man y provi sion s t hat are n ew f orpractitioners in many countries, and may
well improve the day-to-day practice ofinternational cooperation.
Negoti ati on of the Pa lermo
Convention, however, is only the first

119TH INTERNATIONAL TRAINING COURSE
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stage. The Convention must be ratified
and the investigators, the prosecutors
and the judges must be given the tools
they need to complete the job.

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