WORKING GROUP OF EXPERTS ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS AND EXTRADITION
OCTOBER 26th & 27th 2006, BUENOS AIRESARGENTINA
PALACIO SAN MARTIN
THURSDAY, OCTOBER 26th
Introductory remarks from the OAS REMJA Mutual Legal Assistance Working Group Coordinator, Dr. Pierre-Gilles Bélanger
1. Welcome statements by Dr. Gustavo de Paoli, Sub-Director General of Legal Matters of the Department of Foreign Affairs of the Republic of Argentina
2. Presentation of the agenda by the host of the meeting (Argentina)
3. Report on the recommendations and implications of REMJA VI for the members of the Working Group
The Working Group discussed the importance of the REMJA VImandate. In the first instance, the following paragraph was read and discussed:
“To accept Canada’s offer to convene a Special Meeting of the OAS/REMJA Working Group on Mutual Assistance in Criminal Matters and Extradition to consider how to order the work of REMJA related to the strengthening of mutual legal assistance and extradition in the Americas, recognizing as a source for the discussion, the recommendations of the Second Meeting of Central Authorities and Other Experts on Criminal Matters and Extradition and to report thereon to the technical meeting referred to in paragraph 2, or to REMJA-VII, whichever takes place earlier.”[1]
The Working Group of experts agreed that the relations among the member countries of the OAS must continue to be strengthened and the methods of operation must be improved.
4. Presentation of the draft and mandate by the coordinator, the meeting of the authorities and the Working Group concerning the structure for the Mutual Legal Assistance in criminal matters in the Americas – The mandate of the Working Group and of the Meeting of Central Authorities
After three months of consultations betweenthe countries (on Groove), it was clearly stated and identified that there is a need for the creation of a structure that establishes the functions of the Mutual Legal Assistance and criminal matters and extradition within the OAS(i.e. its coordinator, its meetings, sub-working groups,secretariat support and other functions including the fusion of the said “Central Authorities and the Working Group meetings”). A structure with the product of those consultations was submitted by the coordinator and is called “Draft Mandate”.
5. Discussion of the draft and mandate– Conclusions regarding the Working Group
It was statedthat Mutual Legal Assistance in Criminal Matters evolves quickly and requires a specialized secretariat that deals and allows dealing with the changes according to the reality that experts and committees are confronted so that efficacy conditions within MLA can be met. The Mutual Legal Assistance in criminal matters and Extradition is the most powerful weapon to combat cross border crime in the hemisphere. It is seen very advantageous to have a clear mandate as do several groupswithin the OAS. This calls us to look at obtaining a feasible and clear mandate for the experts in MLA and Extradition. The functions of the MLA and Extradition within the OAS experts must therefore be institutionalized.
The following points were discussed:
- All the experts agreedon the proposal of a new structure in a reviewed and commented document by the Working Group of experts (see annexed) that will be presented at the REMJA VII. This document was updated with several comments and taped at the special meeting.
- Everyone agreed on the creation of a support unit for the Working Group. The only point to be determined is the title: whether it would be called Unit of Support to the Working Group or Support to the Working Group;
- All the members of the Working Group expressed the necessity to hold joint meetings between Central Authorities and Mutual Legal Assistance in criminal matters and Extradition and blend it in only one entity.
As previously stated, the Working Group for Mutual Legal Assistance in Criminal Matters and Extradition needs well-structured functions in order to reach its goals and establish its permanency and hopefully be adopted by the REMJA VII.
6. Communication tools for the Working Group of experts in Mutual Legal Assistance in Criminal Matters and Extradition
•Secure e-mail Groove
The organization of the contacts must be modified in order to clearly identify who works for extradition and who works for mutual legal assistance in criminal matters. Also, the contact information for the points of contact must be updated in order to be readily available.
Members need to see all the pertinent experts among the MLA and Extradition on groove, including the countries in the process of obtaining licences and the ones that will soon be connected. It is important that each country continue updating the web pages in order to provide their legislation and jurisprudence requirements.
•Web page
The Working Group for Mutual Legal Assistance in Criminal Matters and Extradition shouldhave control over the information posted on the web page. It is also respectfully asked that the Departamento de Asuntos Juridicos Internacionales de la OEAwould recover the information of the Working Group which was onthe website.
•Protocol for users
The Working Group needs an unofficialprotocol regarding the classified and unclassified information according to the law of the requiring country so that this information can be treated correctly by the required country. This has to do with the way that the requiring country wants its information to be treated. The requiring country must therefore give a classification to the information that will be sent to the required country in order for it to be delt in the way and manner that the laws of the requiring country needs it to be treated, manipulated and in if necessary destroyed. As the coordinating country, Canada, withUruguay and other delegation, will prepare a small survey to:
a)Upload this information on the website;
b)Draft a non official protocol.
Also, the Working Group in Mutual Legal Assistance in Criminal Maters and Extradition has decided that the practices associated with sending and receiving information through the conventional manner (fax or other safe communication channels) must be followed in the secure e-mail Groove in order to respect the laws and regulations of the requiring country.
•Training for users
The users shall be trained and kept up to date in a diligent manner so that communication among the countries can be efficient.
7. Presentations of the Colombian document
The Colombian delegation has stated that an institutionalization of the Mutual Legal Assistance in Criminal Matters and Extradition with clear structure and functions is fundamental.There cannot be an institutionalization without structure.
The Colombian delegation stated that in their experience, using Groove is the fastest method in the context of extradition and fighting against organized crime.
We have to optimize all the resources that offer the Working Groupa clear structure so that it can be permanent. We also need to optimize the secure e-mail Groove and give all the necessary training and support for it to all the countries within the OAS.
8. Strategy for the special meeting between the OAS and the Secretary General of the Working Group in February 2007 with the purpose of setting out the needs of the Working Group
The outcome of Buenos AiresArgentina will be reviewed the next weeks for approval and after that, it will be presented to the special meeting (see Annexed)
9. Reception with the Ambassador of Canada in Argentina Yves Gagnon
The reception was held at the Canadian Embassy
FRIDAY, OCTOBER 27TH
10. Results from the first workshop in Extradition – Comments and Conclusions presented by Mexico and Argentina
The extradition evolves slowly but surely as presented by Azucena Hernandez, representative of the PGR of Mexico. As in the 1st OAS Workshop on Extradition(the workshop):
- Don’t forget that workshops are a key tool and we must work at federal and provincial levels and also, very importantly, at local levels;
- To define which authorities of each country have jurisdiction in extradition and make a distinction between mutual legal assistance in criminal matters and extradition;
- Each country is responsible for updating the names, addresses and telephone numbers of the contacts on the secure e-mail Groove and confidential Webpage of Mutual Legal Assistance in criminal matters and Extradition within the OAS;
- Each country must upload on the secure e-mail Groove a complete guideline in English and Spanish concerning its legislation on Extradition and MLA and its jurisprudence applicable in the matter;
- The Working Group must create a model Law in extradition including all its aspects and also facilitate the exchange of information in America.
Azucena Hernadez presented the following conclusions as targets to be reached:
a)To identify central authorities (Who is a central authority and what’s its role in its country);
b)To optimize the structures of extradition with clear structure and functions;
c)To use secure e-mail (Groove);
d)Legislations (to identify the similarities and differences among the countries).
At the workshop there were many presentations of practical examples and doubts that occur in the practice of extradition among the OAS countries. The workshop was based on practical experiences and continuous issues and how to deal with these.
Note: The Woking Group agreed on the necessity for the creation of a project to make a division on the secure e-mail Groove between Extradition and Mutual Legal Assistance in criminal matters. This project should also clearly define who is in charge of the points of contact among the countries as well as the assistants. One of the important points stressed at the meeting waskeeping information up to date and the duty of care that each country has in regards to this.
11. Periodic news bulletin project (Canada)
Every three months, a bulletin will be presented by the coordinator in order to keep the WorkingGroup informed. The experts of the WorkingGroup unanimously encouraged this forum and a follow-up of information among the members of the Mutual Assistance in Criminal Matters and Extradition. Theypointed out the importance of sharing valuable information in the hemisphere and they considered the bulletin as the perfect channel to make it happen. The members also confirmed the compatibility of the mandate of the REMJA VI and the bulletin. The experts declared the need to strengthen their interaction among the Working Group and agreed that this is the best way to encourage it.
Each country will use their discretionary judgment and will send their information to the coordinator. The information will then be canalized and merged by the coordinator into a bulletin. Beforesending the bulletinand the list, itwill be commented by the experts.
12. Website Information
Presently, the website on Mutual Legal Assistance and Extradition of the OAS is incomplete. Each country must make efforts to update the information related to their jurisprudences, their laws, other tools, and the elements needed in a request for Mutual Legal Assistance and Extradition. Each country is therefore responsible to keep their information up to date so that the requesting country can present a request of quality and avoid rework for the same request. The information of each country must be available to all the members of the OAS on the private website and/or in the secure e-mail Groove.
13. Model Law – Comments and Conclusions – The REMJA mandate presented by Diego Solernó (Argentina)
This project of law is the product of a detailed analysis on the specific legislations of Mutual Legal Assistance in the Republic of Argentina and the experiences of its central authority in the matter.
It is clear that from one country to another certain asymmetries exist regarding the internal laws among the OAS countries. Nevertheless, the unification of criteria and general guidelines, which were stipulated in the project of law and its respective observations, will allow the improvement of the cooperation among the countries making it advantageous, faster and safer.
This project of law was reviewed and commented by the majority of the countries of the OAS. As a result, this project represents a model law that may be approved in the next meeting of central authorities and other experts.
14. Best practices – Comments and conclusions, presented by Claude LeFrançois (Canada)
The project regarding Mutual Legal Assistance in Criminal Matters and Extradition has to be running within the next few months. The project contains the matters of tracing, freezing and confiscation of possessions, as a product of crime, offences and of illegitimate sources.
The project includes three simple points:
I) Internal judicial, administrative and enforcement infrastructure in order to freeze, trace and confiscate possessions within the OAS
Each member state of the OAS must have the essential structures to trace, freeze or confiscate goods and properties in order to do their own investigations and judicial procedures. Unless it is able to do so, it won’t be possible to take these measures on behalf of another country as an answer to a request.
II) International Cooperation
-Follow-up of the formal requirements of the required country in order to fulfill a diligent request
-To write and send a request to the required country demanding tracing, freezing and confiscation of possessions, as a product of crime and illegitimate sources.
III) At this phase of the process, the requiring country must establish a clear connection out of reasonable doubt between:
a)The assets; and
b)The offences.
15. Briefing on the Mutual Legal Assistance in Criminal Matters and Extradition (Presentation by Ecuador and United States of America)
A new vision and perspective is emerging with the ratification of the majority of the American countries in Mutual Legal Assistance in Criminal Matters and Extradition.
The central structures that used to guide and define the Mutual Legal Assistance in Criminal Matters and Extradition suffered a radical change. In the Americas, the authorities that presently intervene in a criminal process are becoming more numerous.
The Vienna, Nassau and Palermo conventions establish important criteria giving each country the freedom of interpretation that their own structures allow.
The juridical community including fiscals, general prosecutors, foreign affairs, lawyers and even the enforcement bodies lives a new reality within MLA in criminal mattes and Extradition. The new reality implies a review the traditional roles of actors and practices that faces the daily practice in those areas turning it in a new and different system.
In this new role, the fiscal or the general prosecutor plays the role that the judge used to play in the old times in the instruction by creating the inquisitor written system of rogatory letters and exhorts and avoiding the requests of MLA in criminal Matters and Extradition.
The training therefore plays a fundamental role in this new vision and it must be the base of the development that will allow becoming the center of management for the institutions in the Mutual Legal Assistance in Criminal Matters and Extradition.
16. Presentation of a program to help acquire technical knowledge to efficiently fight organized crime and terrorism in the context of Mutual Legal Assistance in criminal matters and Extradition (Representative of the United Nations)
This program allows judicial authorities to assist the points of contact in the hemisphere working in MLA in criminal matters and Extradition.
- One of the tools is a software program that has different styles of drafts regarding MLA in criminal matters and Extradition and allows to draft requestsin an efficient and timely manner;
- This software is available in English, French, Spanish and Portuguese and gives access to relevant laws of the requested country;
This project allows providing support among the experts of the Working Group in the hemisphere.
The representative of the United Nations pointed out that the Andean countries require training as well as the Working Group members.
17. Update on the project of the bill to adopt measures to confirm and execute warrants in Member Countries of the OAS (Backing of Warrants) with the purpose of returning extradited persons to OAS countries.
Sunita Harrikissoon of Trinidad and Tobago presented a summary of the Working Group Meeting that had been held in Trinidad and Tobago on the 5th and 6th April, 2006. The substantive presentation from Trinidad and Tobago was a survey of draft model legislation relating to the "Backing of Warrants". The country representatives at the table requested time to again consider this proposal and to decide on whether such a system could be implemented within the countries of the OAS. A questionnaire on the Backing of Warrants seeking specific country information was distributed and participants were asked to send comments to the Trinidad and Tobago delegate.
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[1]OEA/Ser.K/XXXIV.6,Chapter X 3)