The increasingly globalised and liberated world economy has created opportunities for economic growth as well as transnationalisation of crimes.
Economic liberalisation aided by technological advancements has contributed significantly to complex cross-border offences with actors and offences and its implications occurring in multiple jurisdictions as well as the offenders seeking refuge in foreign jurisdictions. Especially with increase in organised crime, trafficking of humans and drugs, smuggling, mutual legal assistance is an invaluable resource in investigating crimes and bringing criminals to justice.
As offences are no longer a mere domestic governance issue, it is imperative for governments to aid domestic law enforcement agencies through proper channels for ensuring inter-jurisdictional assistance among nation states by entering into agreements providing for legal assistance or a Mutual Legal Assistance Treaty “MLAT”. Mutual legal assistance may also be given informally through bilateral cooperation and sharing of information between policing or judicial officials in different states.
Most international and regional crime conventions incorporate provisions on mutual legal assistance relevant to their specific subject matter. The principal mutual legal assistance is based upon Article 18(1) of the United Nations Convention Against Transnational Organized Crime, which states that states will provide each other with the widest degree of assistance.
At present, India has MLA treaties with around 40 countries, including the United States of America, the United Kingdom, United Arab Emirates, Canada and France, for assistance in criminal matters and has entered into a Memorandum of Understanding in relation to seeking assistance in civil and commercial matters with 13 countries. The Ministry of External Affairs acts as the nodal ministry and central authority in terms of providing mutual legal assistance in criminal law matters.
Letters Rogatory
Letters rogatory or ‘letters of request’ are a customary means of obtaining judicial assistance from overseas in the absence of a treaty or other agreement. Letters rogatory are requests from courts in one country to the courts of another country, requesting the performance of an act which, if done without the sanction of the foreign court, could constitute a violation of that country’s sovereignty.
Letters rogatory may be used to effect service of process or to obtain evidence, where permitted by the laws of the foreign country in civil or commercial matters.[1] It is commonly used for serving summons, subpoena, legal notices, taking evidence, or enforcement of a civil judgement.
Previously, letters rogatory had to be transmitted via consular or diplomatic channels, thereby prolonging the process. Subsequent to the ratification of Hague Service Convention in 1965, designated authorities in the signatory states could transmit documents for service to each other, bypassing the diplomatic or consular channels. Furthermore, the ratification of Hague Evidence Convention in 1970 formalised the procedure of taking evidence between the member states.
Letters rogatory may be used regardless of whether multi-lateral or bilateral treaties on judicial assistance are in force. Where countries are not a party to a treaty, letters rogatory on the collection of evidence must be submitted and delivered through diplomatic channels.
Mutual Legal Assistance Treaty “MLAT”
MLAT is an agreement between two or more countries for the purpose of gathering and exchanging information, a mechanism for requesting and obtaining evidence and other forms of legal assistance for criminal investigations and prosecutions. There are bilateral agreements that effectively allow prosecutors to enlist the investigatory authority of another nation to secure evidence — physical, documentary and testimonial — for use in criminal proceedings by requesting mutual legal assistance. Under an MLA framework, law enforcement in one country (such as India) requests evidence held in another country (such as the United States) for criminal prosecution, frequently pursuant to an MLAT. In this example, the Indian law enforcement entity investigating the proceedings would file an MLAT request for review by the Indian Ministry of Home Affairs (MHA). The MHA would then relay the approved request to the Office of International Affairs in the US Department of Justice (DOJ). The US DOJ would then review the request and once approved, forward the request to a prosecuting attorney. After review, this prosecuting attorney would bring the request from the Indian law enforcement entity before a US federal judge. If the judge determined that the Indian request met the relevant US legal requirements, the judge would then issue an order, requiring the production of the documents by the US entity. The US entity would then produce the specified content, which would then be reviewed by the DOJ to ensure compliance with US laws. The DOJ would then release the permitted content to MHA in India.
Advantage of MLATs as a mechanism to provide Mutual Legal Assistance “MLA”
Corruption cases often – and increasingly – involve a transnational element as well; in the case of foreign bribery, for example, or when corrupt officials conceal evidence and embezzled funds abroad. For prosecutors, in a world that is increasingly connected across international boundaries, MLA requests are steadily becoming more and more important as the number of international criminal prosecutions increase. In this context, MLA is recognised as critical for effective prosecution and deterrence of corrupt practices and a variety of instruments have been developed in recent years to facilitate international cooperation in this area. MLAT creates an unambiguous and binding obligation to provide assistance at the international level, making the MLA process both reliable and predictable. As such, obligations are imposed on both parties, it gives the requested state a better guarantee of reciprocity.
Furthermore, MLAT’s create a privileged relation between two States. When the judicial capacity of the requested State is overloaded by MLA requests, priority is generally given to requests emanating from countries where there is a MLAT. Bilateral MLA treaties speed up the MLA process by authorising direct correspondence between judicial authorities instead of channelling the request through the intermediary of central offices or diplomatic channels.
Obstacles to Effective Mutual Legal Assistance “MLA” in Corruption and Money-Laundering Matters
Such an approach is, however, challenged by the various legal, practical and political obstacles that generally hamper the effective provision of legal assistance. The absence of uniform procedures for granting MLA results in lengthy and cumbersome procedures with no guarantee of timely and successful provision of the requested assistance. Perhaps because MLATs are unabashedly one-sided, offering no assistance to defendants involved in cross-border investigations, many attorneys are unfamiliar with the MLAT process. Execution of requests for legal assistance can also be hampered by a series of procedural impediments, such as the principle of reciprocity as a precondition for granting MLA or the principle of speciality, whereby the information obtained can only be used for the requested purpose.
The decision to grant MLA depends on the requested State’s legal framework as well as its willingness to cooperate. In principle, international standards establish that grounds upon which a request may be denied should be kept minimal and exercised sparingly. In practice, there are varying principles that provide grounds for refusal and make it difficult to obtain speedy assistance. Some States require dual criminality for all requests, meaning that they will only execute a request for assistance from another country when the crime under investigation is also an offence under domestic law. This can constitute a serious impediment in corruption cases. For example, all countries have not criminalised private-to-private corruption or even bribery of foreign public officials and use different definitions of corruption. Legislation on money laundering also remains deficient in many countries and differs across countries, which further challenges the provision of MLA.
Furthermore, other procedural impediments such as failure to identify or designate a responsible central authority to facilitate the implementation of MLA is likely to seriously hinder the effectiveness of the process. In many countries, the person targeted by the request for mutual assistance is allowed to appeal against the sharing of evidence with the requesting country, which may ultimately cause considerable delays in the provision of required evidence.
The need for MLAT Reforms
There is little doubt that MLATs have the potential to facilitate and ease the provision of legal assistance in corruption and money laundering-related offences, by creating binding obligations to cooperate. However, despite the potential of MLATs, successful execution of assistance requests remains a case-by-case matter, depending on a series of legal, political and practical factors. A standard format for MLAT request would prima facie make the process easier to initiate and comply with for law enforcement agencies.
One important aspect would be adequate training of law enforcement officials to understand and use the MLAT system more effectively. Often, many requests do not satisfy legal obligations, and as communication both locally and between foreign states is poor, development and implementation of an electronic system for sending and receiving MLAT would help with reducing the time involved. The 2015 Report commissioned by the Global Network Initiative, Data Beyond Borders: Mutual Legal Assistance in the Internet Age recommends that international organisations such as Interpol and the UN Office of Drugs and Crime should implement publicly available training codes. Companies will then have access to suggestions of international organisations when advising local law enforcement. Internet and communications companies produce transparency reports, outlining the frequency and management of data requests they receive. Governments responding to requests need to inform these companies, which country the request has come from.
Furthermore, Indian law enforcement has been facing challenges with regard to legitimate cross-border access to data for years. For example, under the existing law, Indian law enforcement places relies on a bilateral mechanism through the India-US Mutual Legal Assistance Treaty (MLAT) to transmit requests for user data. This process of MLA under MLAT has often been criticised for being outdated and time consuming, and by some estimates from Indian sources takes as long as three years and four months on an average to complete. For instance, the Law enforcement in India, when requesting user data from online intermediaries or social media companies, relies on the longstanding framework under the Code of Criminal Procedure, 1973 (CrPC), which does not mandate judicial authorisation for data requests. Several reforms are deeply necessary in law enforcement access to data to ease extant conflicts of laws, institute privacy-protecting safeguards, and discourage further fragmented policy approaches through data localisation.
Data and Law Enforcement
A substantial number of criminal investigations in the present century necessitate law enforcement agencies to access electronic evidence stored extra-territorially. The conventional routes of obtaining and compelling presentation of evidence often fails when the said electronic evidence is not stored within the territory of the state where the crime has occurred. Few countries, including the US, have explicit statutory provisions that do not permit disclosure of data to foreign jurisdiction. It becomes important to note that US headquarters a major share of technology companies such as Google, Apple, Microsoft and Facebook.
CLOUD Act
The recently passed US Cloud Act (Clarifying Lawful Overseas Use of Data Act) enables foreign law enforcement to request electronic content directly from US service providers, for the first time, under an Executive Agreement with the US government. As part of the Executive Agreement, the foreign country must ensure adequate levels of procedural protections for crimes covered under the Agreement.
The Cloud Act provides a much-needed framework to ease cross-border access to data, not only speeding up any future processes, but safeguarding user privacy and alleviating existing concerns around lacking capacity. Such a direct-data sharing regime, under an Executive Agreement, will, therefore, not only address law enforcement concerns, but also strengthen the overall case against mandatory data localisation. The Cloud Act presents an opportunity to not only resolve conflicts of law, but also harmonise enforcement regimes across jurisdictions, not limited to India and the United States alone. A data sharing agreement under the US Cloud Act will shift the locus to the domestic law of the requesting country, and compliance with the Executive Agreement, thereby ensuring that US companies respond to legally valid requests for content.
Finally, for any law enforcement request to be eligible under the Cloud Act Executive Agreement, they will need to adhere to privacy protecting safeguards – such as being specific about the information sought, being based on “articulatable and credible facts,” and being subject to independent oversight. This model will ensure that requests are bound by a higher threshold of privacy and due process than they currently are.
[1] Under the Sections 166 A and 166B of the Code of Criminal Procedure