RESOURCE MATERIAL SERIES No. 57

TOPIC 3
THE SCOPE OF ASSISTANCE TO BE RENDERED
TO THE REQUESTING STATE WITHIN THE FRAMEWORK OF
MUTUAL LEGAL ASSISTANCE
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporterurs
Advisers

Mr. Abdul Jalal
Mr. Rajnarayan Pathak
Mr. Yoshimatsu
Mr. Sotonye L. Wakama
Mr. Datinguinoo
Mr. SazukiProf. Hiroshi Iitsuka
Prof. Chikara Satou

I. INTRODUCTION
In recent times, the rapid developmentof technology particularly in the fields ofcommunication and transportation has
successfully reduced the world to a “global
village”. These technological advanceswere intended to benefit the entire world
by bringing different cultures together, andfostering a better understanding between
the diverse religious, ethnic and culturalgroupings the world over. Unfortunately,
they have also been exploited by acriminally minded few, who have dedicatedthemselves to the usage of this equipment
for the purpose of individual gain, and in
the process circumventing and trampling
upon all laws, ethics and regulations thatstand in their way.
This unfortunate development is no
better reflected than in theinternationalisation of crimes, which by
virtue of their cross-bordercharacterisation have led to the coining of
the term “trans-national crime”. These
crimes which are perpetrated by organizedcriminal gangs include, but are not limited
to drug trafficking, illicit arms dealing,
human trafficking, international fraud andterrorism to mention a few. In the process,196(Malaysia)(Nepal)(Japan)(Nigeria)(Philippines)(Japan)(UNAFEI)(UNAFEI)

these criminal fraternities accumulate
stupendous wealth, which is used tofurther their nefarious ends and isintermingled with legitimate monies
through the process of laundering andinvestments in legal enterprises.
The fight against organized transnational crime has thus become the concernof law enforcement agencies in every partof the world. In consideration of thesovereignty of nations, it has become
necessary to evolve new approaches tocombat these crimes. As was said by the
Attorney General of the United States ofAmerica, Janet Reno, “....we cannot
continue to use 19 th century methods tofight 21st century crimes”. This statement
is not limited to the technology required tosuccessfully combat organized crime, butalso, if not moreso refers to the everincreasing need for co-operation between
nations to successfully achieve this end.
This 114 th Crime Prevention Seminar
examines two forums of co-operation
between nations viz. Extradition and
Mutual Legal Assistance Treaties (MLATs).
It is with respect to these two types oftreaties as a means of combating organizedtrans-national crime that problems were114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
highlighted, discussed and in some cases
recommendations proffered. The subject
matters and discussions under topic 3 areas reflected below in the following order:●●●

The structure and function of theCentral Authority for the purpose of
Mutual Legal Assistance.
The confiscation of the proceeds ofcrime and the modalities for sharing.
The feasibility of granting mutual
legal assistance through newinvestigative methods andtechnologies.

II. STRUCTURE AND FUNCTION
OF THE CENTRAL AUTHORITY
FOR THE PURPOSE OF MUTUALLEGAL ASSISTANCE AND
EXTRADITION
A. Problem
Participants agreed that most central
authorities presently appeared to causedelay in the response to, and execution ofrequests. It was with this in mind
therefore, that discussion centred on the
expectations of a central authority in termsof its function rather than its structure.
Additionally, the question as to whether adifferent central authority was necessary
to address requests on mutual legal
assistance as opposed to extradition was
raised as mutual legal assistance andextradition represented different
intentions and to a certain extent different
procedures.
B. Response
1. The seminar observed that mostcountries present the Department ofJustice or the Office of the Attorney
General as the central authority. It
noted however, that a few countries
have more than one central authority,

which varied dependant on the content
of the request. The purpose andfunction of the central authority was
reduced to three essential duties:i.

It is to be accessible and visible as acontact point. This means it shouldhave a clear unambiguous reference(name), which should also include anaddress(es), telephone and facsimile
numbers, e-mail address(es) and anyother information that will enableeasy access by communication to theauthority in normal or urgent times.
ii. It is to oversee the administrativeand executive processing of all
requests referred to it. It is thus not
to exist merely as a mail box, but is
expected to actively follow up on all
requests giving directives andinformation as is necessary.
iii. It should thus be staffed withcompetent hands versed andexperienced in this field, and withthe requisite logistics to accomplish
its duties with the minimum ofinconvenience.
2. The seminar also sought to make aclear distinction between the “central
authority” on the one hand, and the“competent authority” on the other.
While the former refers to theindividual or institution through which
requests are made and received anddirectives given with respect to their
execution, the latter refers to theagencies or departments assigned thelegal authority to carryout, enforce andimplement the execution.
3. On the question of the number ofcentral authorities appropriate in agiven state, the seminar felt it best to
leave this to the discretion of the stateas this was an issue of domestic policy
upon which international consensus
would be difficult to achieve. It was

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RESOURCE MATERIAL SERIES No. 57
rather advocated that treaties should
concentrate on ensuring theavailability as quickly as practicable of
all information on the chosen central
authority to facilitate expeditious
communication. The seminar alsostressed that in as much as the
structure of a central authority could
not be dictated that each state should
nonetheless endeavour to ensure its
functionality by staffing it withadequate personnel and equipment andensuring the same for all competentauthorities. The seminar thus
concerned itself more with thefunctionality of the central authority,
than with its number or structure.

B. Response

III. CONFISCATION OF THE
PROCEEDS OF CRIME AND
MODALITIES FOR SHARING

3. Participants were of the opinion thatthe sharing of assets between
participatory states to an investigation
particularly of organized transnational
crime, recognised and acknowledged
the co-operation necessary to fightorganized crime, and the efforts of otherstates and their respective law
enforcement agencies. In this respect
therefore, the seminar recommended
that the most appropriate avenue forasset sharing are bilateral treaties,
since this problem is insufficiently
addressed in the domestic legislationof most states. These bilateral treaties
would thus provide the legal basis forsharing the proceeds of crime between
the participating states.

A. Problem
The illegitimate proceeds of criminal
activity in many states are subject toconfiscation on the orders of a competentcourt after due process. However, manyof these legal provisions are silent on thedisposal of these confiscated assets, andthus do not consider the possibility ofsharing the assets with another state. This
unfortunate situation exists, despite thefact that in many cases involving transnational criminal activity, the confiscatedassets in question were illegally acquired
through criminal activity in one state, butnecessitated the involvement through legal
assistance of law enforcement agencies
within another state. The issue becomes
further complicated when these assets areinvested in legitimate enterprises, as the
tracing of these assets requires expert
knowledge and experience. In addition, if
an agreement on sharing is arrived at whatyardstick, criteria or modality is to be
adopted in respect thereto.

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1. The seminar unanimously agreed thatcriminal proceeds should be subject toconfiscation by order of court, and thatin states where this legal provision did
not exist (if any), the state or statesconcerned should be encouraged to solegislate.
2. The seminar also sought to make aclear distinction between confiscationand disposal, as confiscation referredto the legal process of permanently
depriving a person of his assets infavour of the government; disposal
refers to a decision on its subsequentuse.

4. As opposed to bilateral treaties, themultilateral conventions are not well
suited to regulate all the substantive andprocedural problems associated withasset sharing. The most negotiators ofthese conventions are able to agree on isa clause that encourages the stateparties to conclude bilateral agreements
and arrangements to this effect.

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
5. Before the issue of the modalities forsharing was broached, the seminarcautioned that the legitimate third
party interests in confiscated assets
should be acknowledged, and that partof the confiscated assets excluded fromsharing.

one state, and use it for prosecution inanother certain problems become apparent.
This is all the more so when the legal
systems and procedures of the countries
involved are different. The two principle
problems were discussed under theheadings of “legal” and “practical”.

6. The actual modalities or criteria for the
sharing would have to be agreed uponby the states on a case by case basis as
the variables involved make the issue
too complicated for the presentation ofa single formula. Where illegitimately
acquired assets have been intermingled with legitimate investments,
the proportion that can be traced andidentified to the satisfaction of thecourts should be subject to confiscationand disposal.

B. Response

7. Finally, not all confiscated assets
should be subjected to disposal without
careful evaluation of the other states’interests as some may have a cultural,
national or even a spiritual significanceand cannot be subjected to evaluation.
In these instances, it would beappropriate to return the asset inquestion in the greater interest of
mutual co-operation andunderstanding.
IV. FEASIBILITY OF GRANTING
MUTUAL LEGAL ASSISTANCE
THROUGH NEW INVESTIGATIVEMETHODS AND TECHNOLOGIES
A. Problem
The seminar recognised andacknowledged that with the passage oftime, new methods, techniques andtechnology were being applied to theinvestigation and prosecution of cases.
However, that though these techniques andmethods had their advantages, in an era
when it is necessary to obtain evidence in

1. The seminar identified the following
technologies that have been employed
to some degree or other in modern law
enforcement and criminal justiceprocesses:
i. Audio Tape Recordings
ii. Video Tape Recordingsiii. Telephone Conferencing
iv. Still and Movie Photography
v. Video Conferencing (Satellite Link)
vi. Close Circuit Televisionvii. Electronic Surveillanceviii.Satellite Surveillanceix. Electronic Bugging
x. Fingerprint Analysis
xi. DNA Analysis
xii. Controlled Delivery
The list was considered not exhaustive
however, each of these methods ortechniques of investigation had at one timeor other, particularly in developed
countries, been applied in granting or
obtaining mutual legal assistance in:i.

Recording of evidence - oral andphysicalii. Searches, seizures and confiscations
iii. Examination of objects and sites
iv. Provision of informationv. Locating and identifying persons
and objects, andvi. Other types of assistance.
2. Having acknowledged the problems,
the advantages of these modern
investigative techniques are as many

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as the techniques are varied. Firstly,
these techniques can (under certain
conditions), and have been, successfully
employed in investigations and court
proceedings. Secondly, being purely
scientific methods they are verifiablethrough other scientific methods ofanalysis and therefore the authenticityof the evidence is ascertainable. Thismeans thirdly, that their utility is both
effective and pro-active. In the case of
court proceedings, and in certain
instances investigations, some of thesetechniques have the capability to
reduce the risk, time and expense
associated with travel, andconsequently limit the time and cost of
the entire judicial process. They also
and particularly where organized crime
is concerned, can where necessary
afford protection to witnesses who may
be in danger when testifying. Finally,
modern scientific technology supports
and protects the rights of the individual
by ensuring through indisputablemeans that right person is committed
to prison, where older more overbearing methods of investigation left amargin of doubt. In this respect science
furthers the interests of democracy.
3. The legal problems associated withthese new techniques were best
illustrated in the use of controlled
delivery and video link technology.
Controlled Delivery it was noted was
one of the major outcomes of the 1978
United Nations Convention on Drug
Trafficking held in Vienna, Austria. It
is the process of allowing prohibited
narcotic substances to be transported
through various territories, under thecovert surveillance and “supervision” oflaw enforcement agents. The objective
is to identify trafficking routes, volumeof traffic, the means employed and thetraffickers themselves, with theultimate aim of devising strategies to200

prevent further trafficking of thesesubstances. This technique has over
the years proven an extremely effective
way of combating the drug trade, andas a result the technique has been
applied to other crimes with equal
success. However, the technique has
not been without its birth pangs.
Because of the differences hitherto
mentioned in legal systems, policies
and approaches to crime resolution
reflected by nations the world over;controlled delivery has met with some
“opposition”. This perhaps principally
extends from a legal notion that “...hewho comes for justice must come withclean hands”. The point often made isthat since the law enforcement agents
knew of the trafficking of drugs, but did
nothing about it, they have by theiromission committed a crime. Therefore
perhaps, the value of their testimony
and indeed the evidence (drugs) isquestionable.
4. A further example of the legal problems
that have to be resolved with newinvestigative techniques was
illustrated by the increasing use ofvideo link (via satellite) technology inobtaining testimony and information.
The question here is one ofadmissibility in the courts as in mostcountries there exist no legislation inthis respect, and the courts have not
adopted it as part of their “Judicial
Practice”. Furthermore, most courts forthe preservation of justice demand thephysical appearance of witnesses andnot matrix imagery no matter how
impressive it may seem. In addition to
the above, some of these techniques
constitute an infringement of the rightsof the individual particularly where
electronic surveillance is deployed ininvestigations. As opposed to the four
fundamental human rights recognised
as non-dirigible (the right to life; the114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
prohibition on torture and other formsof cruel, inhuman and degrading
treatment and punishment; theprohibition on slavery; and freedom
from ex post facto or retroactive
criminal laws), governments may
impose some restrictions as necessary
in a democratic society on other rights;
such as the right to privacy.

and techniques, methods used incombating transnational organizedcrimes committed through the use ofcomputers, telecommunications
networks or other forms of modern
technology, detecting and monitoring of
the methods used for the safe transfer,concealment or disguise of proceeds
derived from such offences.

5. One of the practical issues raised by the
new investigative techniques borderedon the technical and financial
problems. Some of these techniques
involve infrastructure and equipment
the cost of which cannot reasonably be
expected to be met by some law
enforcement agencies or theirgovernments as resources are limited,
and their priorities different. This ofcourse could be over come ifgovernments are willing to dedicate apercentage of confiscated criminal
proceeds to the fight against crime.

7. The feasibility of their use must
therefore depend on the respective lawsof the states involved, which if notcompatible may necessitate provisions
governing the acquisition of evidenceby these means in the respective
mutual legal assistance treaties. As arecommendation, consideration could
be given to the organising of a forum
or seminar, where technologists,
judicial officers, law enforcement
personnel and others could meet anddiscuss the problems associated withnew technologies in investigation andprosecution, with a view to increasing
the “comfort level” of the moreconservative minded professions.
Ultimately, the fight against organizedcrime will require sacrifices - academic
and physical.

6. Another practical problem discussed
bordered on the training and technicalcompetence of personnel to handle thesort of equipment used in theseinvestigations. It is obvious thattraining would have to be provided in
the spirit of international co-operationby countries whose understanding ofthese new methods factored its
implementation. Again, the issue of
cost would have to be addressed, but
could be overcome if nations co-operate
in the interest of a crime free world.
This desire has been expressed in thedraft Convention against
Transnational Crime (TOC), which
provides that States Parties shall assist
one another in planning andimplementing research and training
programmes designed to shareexpertise in various areas. These areas
include the collection of evidence,
modern law enforcement equipment

V. ADVANTAGES ANDDISADVANTAGES OF BILATERALMUTUAL LEGAL ASSISTANCE
TREATIES
A. Problem
Because of the possibility of the numberof countries that could become signatories
to a multilateral treaty (there are 186 in
the United Nations), it was considered an
exercise in futility to examine theadvantages and disadvantages of amultilateral treaty. There are simply too
many variables involved in the equation.
It is however, a lot simpler to examine themerits and demerits of these treaties from201

RESOURCE MATERIAL SERIES No. 57
a bilateral perspective, which is theapproach adopted.
B. Response
1. One of the advantages of Mutual Legal
Assistance Treaties (MLATs) lies in thefact that it places international cooperation on a firm footing by providing
predictable areas of co-operation
between countries.
2. MLATs acts as a vehicle of co-operation
between consenting countries
regardless of their individual legal
systems.
3. Mutual legal assistance treaties assist
individual states cope more effectively
with criminal cases that have transnational criminal characteristics.
4. Such treaties facilitate the receiving
and rendering of assistance by way of“compulsory orders”. This would meanthat by signing and ratifying a treaty,
the parties to it undertake an express
obligation to render each other anassistance as defined in the treaty,
unless the requested state invokes aground for refusal.
5. They also provide a mechanism forevaluating the application of thesetreaties in relation to crime resolution.
6. These treaties also allow for methods
and procedures, which ordinarily may
not have been acceptable to the judicial
systems involved. In addition, manyof these treaties allow for direct contact,
thus avoiding the formal diplomaticand cumbersome channels ofcommunication. This speeds theprocess of criminal justice and theultimate effectiveness of crime
management.

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7. Finally, in an era when almost each law
enforcement agency (police, customs,
immigrations, drug law enforcement
agency etc.) has some form ofagreement or other with a counterpart
agency in another country, MLATs
reduce the legal basis for co-operation
to one document, which inevitably
simplifies the process, and opens therequesting agency to the benefits andco-operation of all the other agencies.
It must be stated however, that MLATs
are not the only basis for co-operationin mutual legal assistance as domestic
laws of some states, reciprocity and thenotion of comity have served similar,
though slightly more constrained rolesin this respect.
8. On the other hand, it is noticed that
there are some defaults with mutual
legal assistance treaties. The first ofthese is that ratification can take years
after the actual treaty has been signed,
and for as long as the ratification is heldin abeyance, so long shall the treaty beineffectual. It must be mentioned
however, that usually there exists someform of co-operation between countries
prior to their entering into formal
agreements, which reflect to a large
degree the pre-existing levels of cooperation. Such formal agreements
are usually accompanied with
“Executive Agreements” on cooperation, which forms the basis ofcontinued interaction before thetreaties are formally ratified.
9. They can lead to an inequality in termsof benefits and obligations. One of thestates is more likely to make morerequests than the other, which means
the requested state seemingly does
more work. However, the more bilateraltreaties entered and signed the greater
the probable general benefit from theirusage.

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
10. The opening of borders through thesetreaties itself can lead to security
implications, which themselves may
ultimately be more problematic thanthose of the criminals which lead to thetreaty in the first place.
The question of the utility of mutual
legal assistance and extradition treaties inrelation to the problems discussed above
are in the final analysis to be dealt with byindividual states. It perhaps may be useful
to mention that with the growth oforganized transnational crime it has
become imperative that government focus
their attention in these areas.

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