Mutual legal assistance mechanisms are gradually being replaced by mutual recognition instruments. However, an agreement between EU countries still exists: the Convention on Mutual Assistance in Criminal Matters strengthens cooperation between judicial, police and customs authorities. The harmonization of the legal framework at the national and international levels is crucial. Similar procedures and legislation facilitate and accelerate cooperation. Multilateral and regional treaties serve this purpose. In the Organized Crime Convention, article 18 is devoted to mutual legal assistance and the text consists of 30 paragraphs, the longest article in the entire Convention. This level of attention shows the importance of harmonizing legal procedures. Requests for assistance and accompanying documents must be translated into an official language of the requested State. The traditional instrument of mutual legal assistance was a request for mutual legal assistance – a formal request from the judicial authority of one State to a judicial authority of another State, in which the requested judicial authority is invited to perform one or more specific acts on behalf of the requesting judicial authority, usually by gathering evidence and hearing witnesses. These requests are usually transmitted through diplomatic channels. Once the prosecutor has prepared an application, it is certified by the competent national court of the requesting State and then handed over by the Ministry of Foreign Affairs of that State to the embassy of the requested State (Funk, 2014; Efrat and Newman, 2017). The Embassy shall transmit the application to the competent judicial authorities of the requested State. Once the application is complete, the order is cancelled.
Many leaflets on legal aid are also available on the Internet via the home page of the Bureau of Consular Affairs of the Ministry of Foreign Affairs at the following URL: travel.state.gov under “Legal assistance” or on the main home page of the Ministry of Foreign Affairs under www.state.gov/ under “Travel”. See also Department of State, Office of the Legal Adviser on Private International Law (L/PIL) for information on the work of the Hague Conference on Private International Law and OAS in the area of unification of private international law. See also the home pages of several of our embassies, which are linked to the home page for consular affairs. Mutual legal assistance agreements increasingly require States parties to designate a central authority (usually the Ministry of Justice) to which requests can be addressed, thus providing an alternative to diplomatic channels. The judicial authorities of the requesting State may then communicate directly with the central authority. Today, even more direct channels are increasingly used, as an official of the requesting State may address the request directly to the competent official of the other State. This trend shows the importance of a national central authority as a prerequisite for more effective mutual legal assistance. The Organized Crime Convention makes its designation a mandatory condition for the prompt and orderly execution or transmission of requests, without, however, affecting the right of States parties to use traditional diplomatic channels (Article 18, paragraph 13). In addition, it is equally important to provide central authorities with practitioners who have received legal training and have developed institutional expertise and continuity in relevant practice, as well as to ensure the dissemination of up-to-date information for them.
This Convention shall apply exclusively to mutual legal assistance between States Parties. Its provisions do not confer on an individual the right to obtain or exclude evidence or to obstruct the execution of a request for assistance. The EU-Japan Agreement on Mutual Assistance in Criminal Matters introduces modern cooperation tools such as video statements and the exchange of bank information. A person against whom criminal proceedings have been instituted in the requested State and whose presence in the requesting State is necessary for the purposes of mutual legal assistance under this Convention shall be temporarily transferred to the requesting State for that purpose if he or she and the requested State consent to the transfer. Legal assistance is a form of cooperation between different countries for the purpose of collecting and exchanging information. Authorities in one country may also request and present evidence located in one country in support of criminal investigations or proceedings in another country. Where assistance is provided under this Convention, the requested State shall, upon request and in accordance with its domestic procedure, provide copies of any documents, records or public information held by the departments or ministries of the requested State. Treaties on mutual legal assistance in criminal matters are relatively recent. They aim to improve the effectiveness of mutual legal assistance and to regularize and facilitate its procedures. Each country designates a central authority, usually the two ministries of justice, for direct communication. The treaties provide for the power to summon witnesses, compel the production of documents and other authentic evidence, issue search warrants and execute the trial. As a general rule, the remedies provided for in the Treaties are available only to prosecutors.
As a general rule, the defence must use methods of obtaining evidence in criminal cases under the laws of the host country, which generally include letters rogatory. See “Questions” below. In addition to mutual legal assistance treaties, the United States has concluded a mutual legal assistance agreement with China, as well as a mutual legal assistance agreement between the American Institute in Taiwan and the Taipei Office of Economic and Cultural Representative in the United States. The United States has also concluded a number of executive agreements on cooperation on confiscation, including: an agreement with the United Kingdom that provides for assistance in confiscation and asset sharing in narcotics cases; an agreement on cooperation on confiscation and asset sharing with the Kingdom of the Netherlands; and a drug expiration agreement with Singapore. The United States has asset-sharing agreements with Canada, the Cayman Islands (which have expanded into Anguilla, the British Virgin Islands, Montserrat and the Turks and Caicos Islands), Colombia, Ecuador, Jamaica, Mexico and Monaco. The relationship between bilateral and multilateral treaties on mutual legal assistance is dealt with in the Organized Crime Convention. The main points are summarized below: (d) A description of the assistance requested and details of each particular procedure that the requesting State Party wishes to be followed; 15.