EFFECTIVE INTERNATIONAL COOPERATION IN PRACTICE • Department of Asset Recovery and International Legal Cooperation – DRCI Ministry of Justice Brazil
Enquanto vivemos num mundo onde uma filosofia de soberania do século XVII é reforçada por um modelo judiciário do século XVIII, defendido por um conceito de combate ao crime do século XIX, que ainda está tentando chegar a um acordo com a tecnologia do século XX, o século XXI pertencerá aos criminosos transnacionais”Jeffrey Robinson, A Globalização do Crime As long as we live in a world where a sovereignty philosophy from the XVII century is reinforced by a legal system conceived in the XVIII century, based upon a conception of the fight against crime from the XIX century, which is still trying to come to terms with XX century technology, century XI will belong to international criminals. Jeffrey Robinson, The globalization of crime.
It sometimes seems that national borders are losing their significance. In some parts of the world, the once familiar border rituals of exchanging money and having one’s passport examined (perhaps even stamped) are but a memory. The executives of multinational corporations may identify markets by continents rather than countries. The reach of television programmes and text messages depends on satellite footprint, not state frontiers. The effect of financial fraud, terrorist violence, and drug addiction are felt around the world.Against that, there is a reality about the nation state which cannot be ignored. It may reflect differences in language, religion, or culture, or merely that sense of identity that brings tears to the eyes of an Olympic gold medalist as the flag rises and the anthem is played. And it is reflected in the continuing territoriality of law and jurisdiction.McClean, David. International Co-operation in Civil and Criminal Matters. Oxford: Oxford University Press, 2002.
Context • Awareness that money coming from crimes is a risk to the safety and integrity of the entire international financial system (the IMF estimates that it is about 5% of the gross international product). • Need to change focus: get the money to stop the criminals. • International cooperation is an essential tool: international crime knows no borders, and usually profits from competence and jurisdictional distinctions that bind the countries.
Crime: the new frontier Organized crime is more transnational every day. • Money laundering is its contemporary face: • Directly connected to globalization, because it uses the same instruments used in legal commercial and financial transactions. • Technology is a widespread tool helping to legitimate illegal assets. • An offense connected to all sorts of crimes, like smuggling, drug trafficking and terrorism.
International legal cooperation • It is a principle in international law that no State can have jurisdiction over another State’s territory. • So we need specific rules that can ensure the effectiveness in a short period of time of requests for legal assistance, including provisional measures.There are international and internal rules disciplining legal assistance. • The obligation of the States to render assistance sought by another derives from reciprocity and from a duty of mutual assistance to ensure that justice is done, within a framework of due process and the rule of law.
International Legal Cooperation • Definition: • International interchange for the extraterritorial execution of provisional measures or judicial determinations from another State´s Judicial authorities. • Aim • To foster cooperation between states therefore softening the principle of territoriality. • Legal basis • Recognition of the extraterritorial jurisdiction of legal actions of another State, when there are elements that go beyond actual borders.
Types of international cooperation • Rogatory Letters • Usually for serving summons and notifications; getting documents or depositions (for evidence) and also for direct execution, like restraining orders. Brazilian courts have a restrictive view on execution orders. • Enforcement of foreign judgements. • Extraditions • Direct assistance • Internal proceedings, that begins with a request from a foreign authority, but is presented before the local courts by a national legal enforcement authority or prosecutor so that they can decide whether they accept or not the request as if it was an internal proceeding.
Treaties • Help international legal cooperation, especially in criminal matters. • Multilateral treaties, like Palermo, Mérida and Viena, are very useful, because all signatories can use them. • Bilateral treaties have the advantage of considering local legal systems, and of having more specific provisions.
Central Authorities • More expertise in dealing with different legal systems • Can explain their legal system and make sure that evidence is not tainted and that requests are as effective as possible. • Ensure that the principles and conditions of cooperation are enforced, because they are supposed to make sure the State answer its international obligations. • Central point of contact.
Specialty clauses in international legal cooperation • Information obtained through international legal assistance can only be used for the ends and proceedings mentioned in the request, and therefore analysed by the requested country. Example: Restrictions are placed for the use of information in military courts, or for the investigation of capital flight and tax evasion.
Dual criminality in international legal cooperation... • The facts upon which international cooperation was requested must constitute a crime both in the asking and the receiving State. In some cases the requirement of dual criminality is not so strict: for example, in the Brazilian and American MLAT dual criminality is mandatory for confiscation purposes, not for the lifting of bank secrecy.
Strategic aims of our Departmentinclude • Stimulate international cooperation • Develop a culture of fighting money laundering through asset recovery, as well as the use of international cooperation to that end. • Reinforce legal instruments to prevent and fight Money Laundering. • Show the effectiveness of this new approach through growing numbers of investigations and convictions.
Obstacles in international cooperation are frequently a consequence of a lack of understanding of the differences among the legal systems of the countries involved, and also of a lack of information about international requests for legal cooperation, especially in criminal matters.
International Legal Cooperation means: • Keeping an open-mind, and understanding without judging the differences between cultures and legal systems • Working together to find solutions and, as a result, getting more effective results.
Importance of getting assets restrained and ultimately forfeited a) Recover assets originating from criminal activities or which may have been used in criminal activities b) Prevent criminals and their associates from benefiting from laundering money and profitting from their illicit activities c) Use recovered assets for the benefit of the community.
Example: Differences between civil and common law systems • A international legal cooperation request made by Brazil both to the USA and Switzerland, about a corruption case (bid-rigging, bribery of public agents etc – contracts about insulin for the public health system). The request aimed specifically at obtaining provisional measures, regarding the lifting of bank secrecy and the restraint of assets. • The request was made to the USA by end of September, beginning of October 2004 – partial response sent to judge in December 2004. • Bank documents sent. No restraining order. • Brazil has a mutual legal assistance treaty with the USA. • Civil forfeiture and its evidentiary demands.
Continuation • A international legal cooperation request made by Brazil both to the USA and Switzerland, about a corruption case (bid-rigging, bribery of public agents etc – contracts about insulin for the public health system). The request aimed specifically at obtaining provisional measures, regarding the lifting of bank secrecy and the restraint of assets. • The request was made to Switzerland also at the beginning of October 2004 or November 2004. • Bank documents not sent yet. But assets restrained by Swiss authorities on their on investigation before or at the time of our request. • Brazil does not have a bilateral treaty with Switzerland.
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