- Mutual legal assistance (MLA)
- Transfer of criminal proceedings
- Transfer of sentenced persons
Published in May 2018
Regional Perspective: Pacific Islands Region - added in November 2019
This module is a resource for lecturers
Case studies and exercises
Case Study 1 (Mutual legal assistance in a child pornography case)
Please note that the text below involves disturbing subject matter. A disclosure of the content of this case study may cause uncomfortable feeling or emotional distress.
The defendant is an Israeli citizen who met the complainants, a woman and her 10 years old daughter who lived in Georgia, through the internet. The defendant persisted in on-line relations with the mother, as well as later upon his arrival to Georgia, where he met her and the daughter, bought the child gifts, went out with them and wired money for them from Israel. Later, according to the indictment, the defendant arrived to a hotel in Tbilisi and asked the mother and daughter to join him. The defendant and the mother reached an agreement according to which he will pay her USD 100 per month for allowing him to use her daughter's body for the production of pornographic material and conducting sexual acts.
According to this agreement, in two cases, the defendant arrived to the hotel in Tbilisi and the mother brought the daughter there. In the hotel room, the defendant took obscene photos of the minor and sexually assaulted her, including partial penetration while visually recording the acts with several cameras belonging to him and the mother.
The defendant gave the mother a camera and a laptop so she could produce paedophilic photos of the minor at his will. The mother emailed the photos to the defendant and he paid her. Later on, the defendant published and sold the photos and films. Additionally, the defendant held in his possession many other obscene materials of other minors, which he also published.
The submission of the indictment was in cooperation with the Georgian authorities. The Georgian authorities arrested the mother and indicted her on charges of trafficking in persons. The evidence in the case against the defendant was based on materials that were collected in Israel as well as in Georgia. Both the mother and the daughter were interviewed and gave written statements. The indictment was submitted in Israel with the approval of the Deputy State Attorney (Criminal Matters) since some of the offenses, for example the sex offenses, are considered foreign offenses conducted in Georgia.
The Court ruled that according to the strong evidence in this case, it was proven that the minor was passed from hand to hand, from her mother to the defendant, as if she was an object, and therefore the element of "a transaction in a person," as required by the offense of trafficking in persons according to Israeli law, was met. The daughter was objectified. According to the Court, the objectification, and making use of a person, need not to be permanent and does not even require a long period of time but rather can occur for a short period of time.
Also, the transaction in a person, and the objectification of a person, do not need to involve the displacement of the victim from their place of residence, as long as they are done for one of the purposes mentioned in the offense, in this case "causing him/her to participate in an obscene publication or in an obscene performance and or subjecting him/her to a sex offense."
Additionally, the Court decided that the linkage between the money transferred to the mother by the defendant and the "usage" of the minor was proven beyond reasonable doubt, even though this is not an element of the offense that needed to be proven.
As for the consent, which is also not an element of the crime, it was proven that the minor protested several times, which only reinforced the element of objectification of her body by her mother and the defendant.
Finally, the Court accepted the State Attorney's Office' argument, according to which the crime of trafficking in persons involves a wide range of situations that are not necessarily contingent upon a place, consent nor a compensation, and that clearly the circumstances of the case shows that a transaction was made between the mother of the victim and the defendant, a transaction whose purpose was to make use of the minor's body as an object, both for the defendant's sexual desires and for trading in the minor's photos
- The Georgian authorities arrested the mother and indicted her on trafficking in persons charges, the indictment was submitted in Israel and the defendants were tried by a Tel Aviv-Jaffa District Court. The evidence in the case against the defendant was based on materials that were collected both in Israel and Georgia.
- What are the legal foundations for mutual legal assistance between Georgia and Israel?
- What kind of international cooperation did the case require?
- How did they facilitate the prosecution of this case?
Case Study 2 (Mutual legal assistance in a drug trafficking case)
In 2004, the defendant José, together with BB, CC and DD, decided to start introducing narcotic drugs, notably cocaine, in Spain. According to this criminal plan, BB, CC and DD, residing in Brazil, provided for the transportation of cocaine to Portugal, where the defendant José would collect and transport drugs and, subsequently, sell them in Spain.
In accordance with this plan, on 7 July 2004, the ship North Express moored in the Port of Leixões, Matosinhos, and unloaded the containers CMCU 210514.0 and GLDU 223878-7, which had been shipped in the port of Santos, Brazil, on 1 June 2004. The container CMCU 210514-0 contained 8 packages, each of them with the approximate weight of one kilogram and the container, GLDU 223878-7, contained 2,231.615 kilograms of cocaine, which were hidden inside boxes of ceramic floor tiles.
The defendant, in cooperation with BB, CC and DD, bought several companies and opened in his name, and on behalf of those companies, different bank accounts, notably in Madeira's offshore.
The defendant José, one of the partners of Company-D, with an office in Rua Estela in São Paulo, Brazil, transferred to an account held by Company-C a large sum of USA dollars. Company-C, which has never engaged in any activities, made several bank transfers of large sums of USA dollars. The defendant José had the sole and exclusive power to operate bank accounts and was ready to hold and keep available the amounts in cash held therein.
The investigation into the case was carried out by Portugal's Criminal Investigation Police (Polícia Judiciária). They made use of phone interceptions, surveillance, searches and seizures, and cooperated with the Brazilian homologues. A summary financial investigation was also carried out. During the inquiry, several phone interceptions took place according to arts. 187 et seq. of the Code of Criminal Procedure of Portugal. Searches were also carried out according to art. 174 et seq. of the same Code. These were aimed not only at collecting evidence on the perpetration of the offence but also on the seizure of instrumentalities, proceeds and advantages deriving from them.
The competent Spanish and Brazilian authorities collaborated with the investigation in Portugal. They made available all the information needed for the investigation carried out in Portugal. Police information was also requested from Italian, Swedish, Chinese, American, Swiss and British authorities, notably on the commercial activities developed in those countries by the defendant, as well as by companies directly or indirectly run by him.
During the investigation, after the seizure of the narcotic drugs, a European Arrest Warrant was issued in relation to the defendant. Such warrant eventually was executed in Spain on 9 July 2004 and the defendant was surrendered to national authorities on the 23rd of the same month.
The warrant was issued on the basis of articles 21, n.1 and 24 (b), (c) and (j) (aggravated drug trafficking of Portugal's Decree-Law 15/93, of 22 January; article 23, n.1 (conversion, transfer or concealment of property or proceeds) and article 28, n.1 (criminal organizations), from the same legal text. In fact, although at the beginning of the inquiry the Public Prosecutor had directed the investigation towards the criminal organization offence as well, he did not use that offence because he did not find evidence of its perpetration.
Several letters of request were also sent to the Spanish, Brazilian and American authorities asking them to carry out several steps of the inquiry, notably house searches, searches in offices, collection of bank information, interrogation of suspects and witness hearing, inventory of movable and immovable property directly or indirectly held by the defendant in those countries, and seizure of bank account deposits.
The main difficulty was in making mutual legal assistance compatible with procedural deadlines, in particular the deadline for filing charges (accusation). In fact, the letters of request sent to Spain, Brazil and the USA were returned after the maximum time-limit for remand in custody during the prosecutorial phase had expired; thus, the charges were brought even before the letters of request were received back, without reflecting the information resulting therefrom.
In the first instance Court of Portugal ruled that the defendant was sentenced to imprisonment for 14 years and the objects and amounts seized were confiscated to the State for the perpetration of an offence of aggravated drug trafficking, provided for and punished by articles 21, n. 1 and 24 (b) and (c) of Decree-Law 15/93, of 22 January. As mentioned before, seizure and subsequent confiscation of instrumentalities, as well as of the amounts deposited in accounts held either by the defendant or by companies, of which he was the main beneficiary, have been carried out. The link between these amounts and the criminal offence of drug trafficking was not proven, but the Supreme Court of Justice considered that under Act. No. 5/2002 (Establishing Measures for the Combat against Organised Crime and Economic and Financial Crime) of 11 January, 2002, such amounts should be deemed to derive from the criminal activity.
Application of the European Arrest Warrant
Usage of letters of request
Case Study 3 (Extradition refusal on grounds of inhuman treatment)
In 2016, the Guardian reported a case in which British magistrates refused to extradite to France a man allegedly involved in cocaine smuggling and firearms offences on the grounds that conditions in France's overseas prisons, namely in Guadeloupe and Martinique, are inhumane and degrading. The judgement led to the release on bail of Kurtis Richards, 54, who had been in Wandsworth prison for almost a year after being arrested at Gatwick airport. Richards, a citizen of Dominica in the West Indies, was accused by France in the arrest warrant of smuggling approximately 80 kg of cocaine, shotgun, and two hunting guns into Guadeloupe.
Richard's legal representative argued that prisons of the French West Indies fail to meet the minimum requirements for detention facilities for reasons of poor sanitation and hygiene as well as prison overcrowding and unacceptable disciplinary measures used by guards against inmates.
Both Guadeloupe and Martinique have the status of overseas administrative territories of France. As argued by the defence and supported by the district judge Quentin Purdy, the application of the European Arrest Warrant (EAW) is not to be automatically applied. France, including its overseas territories, must demonstrate commitment to human rights and fully comply with art. 3 of the European Convention on Human Rights, which prohibits torture or inhuman and degrading treatment.
- Bowcott, Owen. (2014). UK court rejects extradition request due to French West Indies jail conditions. The Guardian, May 7, 2014.
Limits to the application of the European Arrest Warrant (EAW)
In making legislative changes and in carrying out extradition, the intention of the Organized Crime Convention is to ensure the fair treatment of those whose extradition is sought and the application to them of all existing rights and guarantees applicable in the State party from whom extradition is requested.
- What are the minimum human rights standards and guarantees in international law relevant for extradition cases?
- How does the Organized Crime Convention ensure human rights protection and guarantees?
Case Study 4 (Hacker "Kolypto" extradited from Norway)
Mark Vartanyan, also known as "Kolypto", a Russian national, was charged with developing and maintaining the "Citadel" malware toolkit. He was extradited to the USA from Norway and charged with computer fraud in March 2016. According to information presented in court, Citadel was a malware toolkit designed to infect computer systems and steal financial account credentials and personally identifiable information from victim computer networks. Citadel was offered for sale on invite-only through Russian-language internet forums frequented by cybercriminals. Users of Citadel targeted and exploited the computer networks of major financial and government institutions around the world. According to estimates, Citadel infected approximately 11 million computers worldwide and is responsible for over USD 500 million in losses.
Vartanyan lived first in Ukraine and then Norway. He allegedly engaged in the development and distribution of Citadel and uploaded numerous electronic files that consisted of Citadel malware, components, updates and patches, as well as customer information, all with the intent of improving Citadel's illicit functionality. The case led to Vartanyan's guilty sentence and a punishment of five years in prison.
- U.S. Department of Justice. (2017). Press Release: Russian Hacker "Kolypto" Extradited from Norway. March 14.
- U.S. Department of Justice. (2017). Press Release: Russian Citizen who Helped Develop the "Citadel" Malware Toolkit is Sentenced. July 19.
- On what grounds did the United States made an extradition request of Mark Vartanyan from Norway?
- What other countries might have reasons to make extradition requests for this suspect?
- What kind of evidence needed to be collected from outside the United States? Is seizure and sharing of computer hardware and data included in mutual legal assistance agreements between the United States and Norway?
Case Study 5 (Dotcom et al. v. the United States)
In 2005, Kim Dotcom developed a business under the name "Megaupload." This business enabled users to upload files for storage in the cloud on one of the many servers leased by Megaupload. By January 2012, Megaupload claimed to have over 60 million registered users. It was said to be the thirteenth most frequently visited site on the Internet attracting an average of 50 million visits daily and more than one billion visitors in total.
Users could upload videos to Megaupload and obtain a link which would provide access to it. A user could repeatedly upload the same video and obtain multiple links. The user could then choose to share these links with others, including through third party websites, enabling them to access the video using Megavideo. Megaupload was not responsible for these linking sites and only the user could determine whether to make a link available to others. However, the United States contends that Megaupload encouraged this file sharing practice by offering financial rewards and incentives to users who uploaded files that attracted high numbers of views or downloads. Anyone gaining access to a file stored on Megaupload through a link would be limited to viewing approximately 72 minutes of content, which is less than the length of most motion pictures. The viewer was then prompted to subscribe to Megaupload as a "premium user" in order to continue watching. Premium users were also able to view Mega-hosted videos embedded on third party linking websites. Subscriptions from premium users provided the main source of revenue to the Mega group, estimated by the United States to be approximately USD 150 million. The other principal source of revenue was from online advertising shown prior to the commencement of each video. The United States contends that total advertising revenue exceeded USD 25 million.
In March 2010, the Motion Picture Association of America made a complaint of criminal copyright infringement arising out of the operations of Megaupload, leading to a lengthy investigation by the Federal Bureau of Investigation.
On 5 January 2012, the Grand Jury returned an initial indictment against the appellants. The United States Court immediately issued arrest warrants and made restraining orders in respect of all of the appellants' assets worldwide, including real and personal property in Hong Kong, New Zealand, Germany, the Netherlands and Australia. Prosecutors sought to seize an extensive list of assets, including millions of dollars in various seized bank accounts in Hong Kong and New Zealand, multiple cars, four jet skis, the Dotcom mansion, several luxury cars, two 108-inch TVs, three 82-inch TVs, a USD 10,000 watch, and a photograph by Olaf Mueller worth over USD 100,000. On 20 January 2012, the United States took control of the website domain name and database service of Megaupload and its associated websites, effectively terminating the entire operation. The websites were replaced with an anti-piracy warning issued by the United States Department of Justice in conjunction with the Federal Bureau of Investigation and the National Intellectual Property Rights Coordination Centre.
At a hearing in the High Court on 28 August 2012, Justice Judith Potter allowed Dotcom to withdraw approximately NZD 6 million (USD 4.8 million) from his seized funds. He was also allowed to sell nine of his cars. The amount released was to cover USD 2.6 million in existing legal bills, USD 1 million in future costs, and another USD 1 million in rent on his New Zealand mansion. In April 2014, Megaupload launched legal action against the Hong Kong government, applying for the restraining order to be set aside while accusing the Secretary of Justice of procedural failings when the application for seizure was made.
After several years of legal wrangling, involving Supreme Court cases and multiple delays in the proceedings, extradition proceedings finally got underway in an Auckland court, New Zealand, on 21 September 2015. In February 2017, the New Zealand High Court rejected earlier defence appeals and endorsed the extradition to the United States. Justice Murray Gilbert of the High Court of New Zealand ruled that while he agreed with one of Dotcom's defence attorney's primary argument that "online communication of copyright protected works to the public was not a criminal offense in New Zealand," Dotcom and his co-defendants were still eligible for extradition based on their conduct which can be interpreted as the offense of conspiracy to defraud in terms of art II.16, referring to a particular section of the extradition treaty between New Zealand and the United States.
- UNODC SHERLOC Case Law Database.No.: NZLx006
- United States v. Batato et al. United States Court of Appeals.
- Interview with Dotcom's Layer Rothken.
- Kim Dotcom Exclusive Interview "I will fight this and win" (2012).
- Russia Today. (2014). Kim Dotcom: The Man Behind Megaupload.
- Farivar, Cyrus. (2017). New Zealand appeals court upholds Kim Dotcom extradition ruling. Ars Technica, February 20.
- Extraterritorial jurisdiction
- Application of the double (dual) criminality principle
- Elements of an "extraditable offense"
- What principles of extradition apply to the extradition of Kim Dotcom to the United States?
- Kim Dotcom's extradition defence team argued that none of the alleged charges against the Megaupload founder were enough to extradite him to the United States. "I'm no longer getting extradited for Copyright. We won on that," Dotcom tweeted after the ruling against him. " I'm now getting extradited for a law that doesn't even apply." What were the grounds of the defence position? On what grounds did the court in New Zealand reject the defence team's appeal?
Case Study 6 (Extradition of Ze'ev Rosenstein)
On 27 December 2004, the United States Government relayed a request to the Government of the State of Israel for the extradition of appellant Ze'ev Rosenstein to the US. The request included a detailed account of Rosenstein's alleged crime, in which-according to the prosecution authorities in the USA-he conspired in Israel to import ecstasy pills (methylenedioxymethamphetamine) into the USA and to distribute it there.
The essence of the allegations in the extradition request was that in the late 1990s Rosenstein together with Baruch Dadush and Zvi Fogel began trafficking in drugs. The extradition request claims that Rosenstein was involved in three drug deals of wide scope. The first took place in 1999, when 135,000 MDMA pills were bought in Holland and brought to their destination in the United States via Germany, hidden in motor vehicles. According to the USA prosecution authorities, Rosenstein funded the purchase of 32,000 of these pills. After Dadush and Fogel sold the drugs in the USA on Rosenstein's behalf, Fogel transferred part of the profits to Dadush, USD 90,000 of which Dadush gave Rosenstein, keeping the same amount for himself.
In the same year another drug deal was carried out. That deal led to the distribution of 305,000 pills of the drug in the US, 50,000 of which Rosenstein purchased for a total of USD 50,000, which he paid Fogel via Dadush. This time the drug was transported while hidden in copper scrap and computer parts. Dadush intended to travel to the US, accompanied by his brother Alain, in order to coordinate the distribution of the drug, but he was refused entry and returned to Israel. As for Alain, he entered the USA, and followed Dadush's instructions in order to distribute the pills in New York City. When the job was finished, the profits were transferred to Fogel in Israel. The latter transferred the relevant part of the profits to Dadush, out of which Rosenstein's share was paid to him. According to the prosecution authorities, an additional shipment of drugs was arranged in 2001.
In November 2004, as a result of an extended covert investigation efforts on the part of American law enforcement agencies the Miami police and the Drug Enforcement Agency (DEA) seized about 700,000 ecstasy pills in a Manhattan apartment. Further investigation on the Israeli side led to Rosenstein's arrest. The USA wanted Rosenstein for the crime of conspiracy to import large shipments of ecstasy pills with the aim to distribute them in the country (an offense pursuant to 21 USC § 841(a)(1), 841(b)(1)(c) and 846, and conspiracy to import a controlled substance into the United States, an offense pursuant to sections 952(a), 960(b)(3) and 963 of that law). The State of Israel, in which Rosenstein was detained and in which the conspiracy was made, was being asked, on the basis of the extradition treaty between the two countries, to extradite him.
The District Court of Israel emphasized that in crimes involving a prominent international dimension, including drug offenses, the centre of gravity of the offense should not be identified as the physical place in which it was committed, since that place is likely to be random and unimportant. Instead, weight should be given to the place in which the offense was consummated. The court further stressed that in such offenses, the territorial principle should be given little weight, and the interests regarding the reciprocity of extradition between States, and the need for international cooperation to rout organized crime, should be preferred. The court concluded that Rosenstein's extradition raised no concern of violation of public policy or due process, and did not impair his ability to defend himself against the charges against him.
Rosenstein's defence appealed the decision. As evidence in his case was cantered in Israel and not in the United States, Rosenstein stated that he would be willing to waive cross examination of USA law enforcement personnel and would not object to the presentation of any of the evidence which was to be presented before the USA court. He also referred to the State's witness agreements signed with Baruch Dadush, in which the latter promised to give testimony in Israel if necessary.
Rosenstein further argued that the dominant link of the offenses with which he was charged was to Israel and not to the United States. Considering, further, that the offender was an Israeli citizen and resident, who was not a fugitive from justice in another country and who could be tried in Israel, Rosenstein claimed that extradition served no worthy purpose and was not proportional. He further contended that the target of the conspiracy to import and distribute controlled substances and the personal link of the victims of the crime could not outweigh the principle of territorial jurisdiction.
Rosenstein's final argument was that his extradition would violate his procedural and substantive rights as a defendant in a criminal case. He would not have the benefit of being judged in his natural environment, and language difficulty and the difference between the Israeli and American legal systems could compromise his defence and his rights to due process. The argument referred mainly to the jury system, which was a different decision-making system than the one in Israeli law.
The Supreme Court of Israel denied the Rosenstein's appeal in 2006, reaffirming his extradition to stand trial in the United States-a precedent-setting decision that made Rosenstein one of very few Israelis to ever be extradited for prosecution in another country. In accordance with the extradition treaty between Israel and the US, he was nevertheless returned to Israel to serve his US-imposed sentence in an Israeli prison.
- Extradition and return to the country of citizenship to serve a sentence
- What are the key features of the transnational conspiracy and its operations in the black market for ecstasy in which Rosenstein was involved? What role did Rosenstein play in ecstasy trafficking and distribution?
- How many crimes were involved in the case? How many countries could make an extradition claim to prosecute Rosenstein (and his associates)?
- What principles of extradition discussed in the Module can you identify?
- What grounds did the Rosenstein defence team present to claim against his extradition to the United States?
- What are the benefits and disadvantages of prosecuting Rosenstein in the US? What are the reasons for the arrangement between Israel and the United States to return Rosenstein to serve his sentence in Israel?