Regional Workshop on the Review of the Compliance with and Implementation of International Legal Regime on International Cooperation within South Eastern European Countries in Sofia, Bulgaria
16 - 18 November 2009
1. Workshop Objective
The main aim of the workshop held in Sofia, Bulgaria from 16 - 18 November 2009 was to increase knowledge, expertise and institutional capacities of SEE countries in the field of international cooperation and mutual legal assistance in the frame of United Nations Convention against Transnational Organized Crime (UNTOC). During the course of the workshop, focus was put on some problematic areas that are common for all countries in the region, namely: liability of legal persons and mutual legal assistance in criminal matters concerning legal persons, international cooperation for purposes of confiscation, seizures and freezing of asset, and exchange of data from criminal records. The workshop also provided participants with the opportunity to discuss common problems for their countries in the field of international cooperation and mutual legal assistance, as well as make recommendations for further actions, projects, and interventions necessary at the regional level.
2. Workshop Participants
Participants of the workshop included representatives from Albania, Bosnia and Herzegovina, Bulgaria, Croatia, FYR of Macedonia, Montenegro and Serbia, including Kosovo under UNSCR 1244. A representative from the RCC also took part in the workshop, as well as one expert from the Federal Office of Justice in Germany.
3. Workshop Activities
a. Areas of Discussions
Legal Basis for International Cooperation
In South Eastern European countries/territories, the international cooperation is based on multilateral and bilateral treaties and on domestic laws. The countries/territories are parties to most multilateral treaties including the 1959 Council of Europe (CoE) Convention on Mutual Legal Assistance and the global UN Conventions (United Nations Convention against illicit traffic in drugs and psychotropic substances 1988, The United Nations Convention against Transnational Organized Crime of 2000 (UNTOC), United Nations Convention against Corruption of 2003, and have also bilateral agreements in place with neighbouring countries/territories.
In relations regarding legal matters, South Eastern European countries/territories use the 1959 CoE Convention as a basis for relations amongst themselves and other European countries. In addition, most cases demanding international cooperation are within the region or with other European countries.
The complementary nature of the CoE and UNTOC Conventions was highlighted: The CoE Convention is considered the predominant instrument for cooperation among countries/territories that are parties to that Convention. UNTOC is recognized as a useful global instrument to facilitate and promote cooperation with countries from other regions that are not connected by other legal instruments or agreements or to cover offences not included in other pre-existing instruments.
The comprehensive nature of UNTOC (prevention, criminalization, adjudication and international cooperation), the direct applicability of its international cooperation provisions and its global scope of application were recognized as added values. The possibility of using UNTOC as the legal basis for cooperation and the detailed provisions contained in it further facilitate international legal cooperation.
Although recognizing the importance of UNTOC to promote international cooperation in TOC cases, countries/territories in the South Eastern European region had generally a very limited practice of implementing UNTOC. Participants recognized however the need to increase their awareness and capacities to directly apply international legal instruments such as UNTOC. This could translate into providing training through the national judicial academies, as suggested by some of the participants, concrete case analysis and guidance in applying UNTOC among others.
International Cooperation Practice
The practice and the legal framework of South Eastern European countries indicate that many of the UNTOC provisions and best practices have already been included in national legislation. In that respect, UNTOC has contributed to setting higher standards in international cooperation (i.e. increasing use of video-links, investigative techniques, direct contacts among police, central authorities, prosecutors and to a lesser extent judges).
International Cooperation among countries/territories in the region is satisfactory. Similarities in legislation, language, legal tradition, case law contributed to enhanced cooperation at informal levels especially among law enforcement authorities and between prosecutors.
Cooperation among prosecutors and judges has been reported to be less effective than law enforcement cooperation. However, the activities carried out under PROSECO (EC funded initiative aimed at strengthening prosecutorial capacities and networking in the region) indicate a positive development. Further efforts need to be put in place to institutionalize this network because citizens in the region still tend to deal with agencies on a personal rather than on an institutional basis.
Judicial cooperation, in particular among judges, is considered to be more formal and subject to more restrictive requirements, due inter alia to restrictive domestic legislation on the admissibility of legal evidence, and insufficient knowledge and familiarity with the international instruments. It was also noted that while the international community had been very committed to improve capacities at the law enforcement level, less efforts had been made to improve the situation in the judiciary, leading to situations where complex investigations did not reach the final adjudication stage.
Central authorities have encountered practical implementation problems related mainly to capacity building needs and a lack of sufficient human and financial resources to deal in an appropriate manner with international cooperation cases. Language problems and time delays appeared to be the major impediments to effective cooperation. Joint efforts have to be put in place by both requesting and requested countries to overcome language problems and minimize time delays.
Extradition among nationals is not permitted by national laws. There is a recognized problem with multiple nationalities and cases have been reported where this has been abused in order to avoid prosecution. The transfer of proceeding is considered as an alternative to the extradition of nationals, but it has proven to be rather difficult to put in practice. Other options suggested by UNTOC, such as conditional surrender for the purpose of standing trial or serving sentences have also proven challenging. Differences in national legislation concerning sentencing and respect for fundamental rights have been identified as impediments to make full use of this alternative.
Liability of Legal Persons
Transnational organized crime is increasingly also involving legal entities. Examples of offences include human trafficking for the purpose of labour and sexual exploitation, forging of medicines, firearms trafficking, and bribery of foreign public officials inter alia. The increasing role played by legal entities in the commission, participation or facilitation of TOC is recognized in the region, but the legal practice is almost non-existent.
Most countries have newly adopted legislation covering the liability of legal persons. Some countries /territories have reported to have cases involving legal entities, some even an important number, but so far, there are almost no known cases of international cooperation regarding legal entities. Countries/territories with increased cases involving legal persons, such as Croatia, offered to share their experience and knowledge with countries/territories in the subregion.
The novelty of the law may require some additional assistance and capacity building/training to ensure the full implementation of the new provisions, especially as international cooperation is concerned.
Seizure, Confiscation and Disposal of Proceeds of Crime
Seizure and confiscation of proceeds of crime is mostly regulated by regional and international instruments, such as the 2005 Council of Europe Convention on ML, search, seizure and confiscation of proceeds of crime and financing of terrorism, UNTOC, UNCAC, the 1988 drug Convention and the global instruments against terrorism, as well as domestic law.
Most South Eastern European countries/territories reported to have enacted or to be about to adopt new confiscation laws, based on the common principle that nobody can keep proceeds of crime and property gained through criminal activities. These laws provide a broad definition of assets and of persons (natural and legal) whose properties can be seized and confiscated.
While conviction based confiscation is the general rule, most laws have introduced nonconviction based confiscation (extended confiscation). However, implementation of these laws has not yet been fully achieved, and little cases have been reported on its application. Participants indicated the need for technical assistance and training in this regard.
The experience at national level with locating, tracing and seizing of proceeds of crime has been positive, although some countries indicated to have encountered problems with regard to the limited time frame for temporary seizures as opposed to the sometimes lengthy criminal proceedings, leading in some cases to the release of seized or frozen assets before the end of the trail.
Problems have been identified with regard to cases of foreign requests for freezing and seizure that are not followed by final confiscation requests. In addition, the problems related to the management of seized properties and the involved financial burden still to be addressed.
A debated issue referred to the burden of proof and the presumption of innocence. In practice, some judges were reluctant in some countries to apply the new provisions on Narcotics Control Board (NCB) confiscation as they considered that the special proceeding could endanger the principle of presumption of innocence. Reference was made to the European Court of Human Rights decision which stated that the presumption of innocence was not violated, when the accused person was allowed to proof his innocence in the proceeding and his right to fair trial and legal defence was respected. The Court concluded that there is no inversion of the burden of proof as long as the shift in the proof still allowed for the rights to defence proofing the opposite.
Few countries/territories, such as Albania, Serbia and FYR of Macedonia have established a specific entity in charge of the management of confiscated assets and adopted specific laws for the management of such assets, while others are in the stage of considering such legislation. These countries with more advanced experience reported to have already a growing number of cases for asset seizure, and expressed their willingness to share it with other countries in the region.
However, some countries/territories in the region have limited experience with international cooperation in seizure and confiscation, and considered that this area would require further development.
South Eastern European countries/territories have different regimes for the disposal of assets. Confiscation is subsidiary to compensation of injured parties, |while other countries/territories assign the proceeds or its value to the national budget or to specific institutions. Although most laws allow for disposal as well as sharing of assets, most countries/territories reported not to have cases or specific agreements on the sharing of assets. There is also no experience in recovery and return of assets, both within the region and with third countries.
Legal Tools to Promote International Cooperation
Participants were introduced to the legal tools developed by UNODC to promote and facilitate international cooperation requests, in particular the Mutual Legal Assistance (MLA) Request Writing Tool and the on-line Directory of Competent National Authorities. The tools were considered of great relevance to the work of practitioners.
The MLA tools have been translated into Serbian, Montenegrin and Bosnian. A translation into Croatian is underway. The RCC delegate expressed the intention to provide support to South Eastern Europe from other partners in the region in particular the OSCE delegation, to financially support the translation of the tool into Albanian and Macedonian.
It was suggested to introduce the tool at central authority level and to provide support from UNODC through training and capacity building, on the use and application of the tool to concrete MLA cases in and outside the region, with the aim to disseminate the tool at all levels of practitioners by promoting also in-house cascade training.
Crime Data Records
All South Eastern European countries/territories have a legal framework for using criminal data records for the purpose of investigation, prosecution and adjudication. Different institutions are in charge of keeping the data, and the record-keeping system varies from manual records to more advanced digital records and databases.
Bosnia and Herzegovina reported about the establishment of an advanced case management system connected to a nationwide digital database on criminal records, which they offered to share with countries in the region.
The international legal framework for the exchange of such data is contained in the CoE MLA Convention requiring the regular exchange of crime data on nationals once a year (or less if stipulated in bilateral agreements), as well as UNTOC and other instruments encouraging the regular exchange of information, including of criminal records, to be used in foreign criminal proceedings (art. 22 UNTOC).
Gaps were identified with regard to the collection of data of non-nationals and to the different data gathering mechanisms. General concerns were raised with regard to the appropriateness and effectiveness of exchanged data and the need to balance effectiveness, with the protection of fundamental human rights (privacy). This applied especially with regard to international cooperation cases, where the quality and the completeness of the data were of particular importance, and where additional problems of translation were identified. The security of data transmission was also considered of importance. The need to establish clear criteria on how to exchange data, by whom and under which conditions was raised.
In practice, most countries/territories report to have a good experience in providing such data through MLA requests. Reference was made to the on-going EC funded project of UNODC on data monitoring and harmonization of the data collection system in the region, which greatly contributes to establishing a common knowledge on data collection systems and a compatible and shareable data gathering system. The projects include also relevant capacity building activities.
Further to this, participants supported the idea of a common decentralized database system of criminal records in the sub-region.
4. Workshop Outcomes and Recommendations
At the conclusion of the workshop, a report was published in which recommendations for further action were put forth based on needs common throughout the region. They include:
An increased awareness and knowledge on UNTOC and the capacity to fully utilize its international cooperation provisions, targeting both academia (universities, professional associations (bar associations) and relevant state institutions;
The provision of training to judges, prosecutors, police and central authorities through the national training academies, case work based practice, practical guidance and other forms of capacity building among others;
The provision of legal advice and assistance to further harmonize domestic legislation with UNTOC, in particular in the areas of criminalization and liability of legal persons;
The need to ensure continued education of practitioners through self-sustained training on international cooperation and related matters, by including specialized curricula on international cooperation and the application of international conventions in the national training institutions for judges, prosecutors, as well as .prosecutors, defence lawyers among others;
The promotion of regular contacts and exchanges among the national training academies in the region, with the aim of harmonizing these training curricula and promoting joint exchanges of training;
The promotion of curricula in existing training academies that includes issues related to international conventions and its application, in particular the practical knowledge on international cooperation;
The strengthening of the capacities of central and other competent authorities in dealing with regional and cross-regional cases of international cooperation, including investigation and prosecution of cases involving legal persons;
The dissemination of the MLA tool at central authority level and support through training and capacity building, its use and application to MLA cases in and outside the region;
The translation of the MLA tool in all the languages of the region, with the aim to disseminate the tool at all levels of practitioners and facilitate in-house cascade training;
The facilitation of contacts and links to third countries and to other networks through the establishment of a platform for regular meetings aimed at exchanging experience and expertise both at sub-regional and trans-regional level, and to improve mutual trust and enhance cooperation among them;
The promotion of the practice of accepting MLA requests in more languages, including at least one official UN language, and The South Eastern European support in facilitating the cooperation among requesting and requested countries to overcome language problems and minimize time delays;
The strengthening and further development of the PROSECO platform, including cooperation among judges, and contribute to the institutionalization and sustainability of the network, by facilitating contacts to other already established networks at regional and global levels (SEEPAG, EJN and others);
The provision of specialized training to all competent authorities (including police, FIU, judges and prosecutors) in financial investigation and in implementing the provisions on seizing, confiscating and recovering criminal assets both domestically and through international cooperation as an essential component in the fight against TOC;
The provision of legislative and technical assistance for the establishment of specialized bodies in charge of the administration and managing seized and confiscated property and instrumentalities, and ensure its effective disposal;
The continuation of support the region in the development of a harmonized crime data collection system, and explore the possibilities for developing a common decentralized database system of criminal records in the sub-region; and
The continued strengthening of partnerships and coordination with other relevant regional and international organizations (initiatives) involved in order to provide support to the region.