scholarly journals EU-US Digital Data Exchange to Combat Financial Crime: Fast is the New Slow

2018 ◽  
Vol 19 (5) ◽  
pp. 1251-1267 ◽  
Author(s):  
Els De Busser
Keyword(s):  
Data Exchange ◽  
Legal Framework ◽  
Company Law ◽  
Digital Data ◽  
Digital Evidence ◽  
Criminal Prosecution ◽  
Legal Assistance ◽  
Mutual Legal Assistance ◽  
Cross Border ◽  
Digital Nature

AbstractCriminal offenses with the most different modi operandi and levels of complexity can generate digital evidence, whether or not the actual crime is committed by using information and communication technology (ICT). The digital data that could be used as evidence in a later criminal prosecution is mostly in the hands of private companies who provide services on the Internet. These companies often store their customers’ data on cloud servers that are not necessarily located in the same jurisdiction as the company. Law enforcement and prosecution authorities then need to take two steps that are not exclusive for evidence of a digital nature. First, they need to discover where the data is located—with which company and in which jurisdiction. Second, they need to obtain the data. In considering digital evidence, the last step, however, is complicated by new issues that form the focus of this paper. The first concern is the practice by companies to dynamically distribute data over globally spread data centers in the blink of an eye. This is a practical concern as well as a legal concern. The second issue is the slowness of the currently applicable international legal framework that has not yet been updated to a fast-paced society where increasingly more evidence is of a digital nature. The slowness of traditional mutual legal assistance may be no news. The lack of a suitable legal framework for competent authorities that need to obtain digital evidence in a cross-border manner, nonetheless, creates a landscape of diverse initiatives by individual states that try to remedy this situation. A third issue is the position that companies are put in by the new EU proposal to build a legal framework governing production orders for digital evidence. With companies in the driver's seat of a cross-border evidence gathering operation, guarantees of the traditional mutual legal assistance framework seem to be dropped. A fourth issue is the position of data protection safeguards. US based companies make for significant data suppliers for criminal investigations conducted by EU based authorities. Conflicting legal regimes affect the efficiency of data transfers as well as the protection of personal data to citizens.

Transnationale Sanktionsverfahren gegen Verbände

2021 ◽  
Author(s):  
Kilian Wegner
Keyword(s):  
Criminal Prosecution ◽  
Legal Assistance ◽  
Double Jeopardy ◽  
Criminal Proceedings ◽  
Mutual Legal Assistance ◽  
Cross Border ◽  
The Cross ◽  
Legal Entities

The trend that criminal prosecution is increasingly taking place across borders has been thoroughly investigated by legal scholars in recent years. Most of these studies, however, have focused on criminal proceedings against individuals, while the growing prosecution of legal entities has been treated only marginally. Yet the perspective on legal persons is particularly challenging, since the rules and concepts developed so far with regard to the cross-border prosecution of individuals can only be applied to legal persons (if at all) with modifications. The present study addresses this task by focusing on three problems that are particularly important from a practical perspective (jurisdiction, double jeopardy, mutual legal assistance).

The Request for Mutual Assistance and the European Investigation Order – Is the Modern Legal Assistance Instrument Better than its Predecessor

2020 ◽  
Vol 26 (2) ◽  
pp. 211-216
Author(s):  
Georgia Papucharova
Keyword(s):  
European Convention ◽  
Legal Assistance ◽  
Judicial Cooperation ◽  
Mutual Legal Assistance ◽  
Mutual Assistance ◽  
Goods And Services ◽  
Advantages And Disadvantages ◽  
Cross Border ◽  
International Response ◽  
Criminal Matters

AbstractEuropean evidence law is a quite sensitive topic and has always been the cause of much debate by practitioners and academics. Theoretical and physical borders do not matter for transnational crime. The intensive mobility of people and the evolution of world trade with goods and services create favorable conditions for the cross-border crime to develop. Therefore, it is of a great importance to take far-reaching steps to an upgraded mechanism for obtaining evidence in and from the Member States. This article examines the application of two mutual legal assistance instruments – the request for mutual assistance, which was established by the European Convention on Mutual Assistance in Criminal Matters of 1959, the EU Mutual Legal Assistance Convention of2000 with its 2001 Protocol, and Arts. 48 to 53 of the Schengen Agreement, and the European Investigation Order introduced by the Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. The main objective of this research is to emphasize the advantages and disadvantages of both judicial cooperation mechanisms. A comparative analysis of both operational tools is an appropriate way to assess which one is related to more procedural savings and how both of them deal with the protection of human rights. Thus, the modern instruments for judicial cooperation in the area of transnational evidence-gathering as an international response to crimes with cross-border dimensions can be adequately valued.

scholarly journals Features of video conferencing as forms of mutual legal assistance in criminal matters

2020 ◽  
Vol 1 (2) ◽  
pp. 291-299
Author(s):  
Dildora Umarkhanova
Keyword(s):  
Video Conferencing ◽  
Real Life ◽  
Legal Framework ◽  
Legal Assistance ◽  
Criminal Cases ◽  
Mutual Legal Assistance ◽  
Advantages And Disadvantages ◽  
Foreign Countries ◽  
Current Article ◽  
Criminal Matters

The article analyzes the features of videoconferencing as a form of mutual legal assistance in criminal cases and the need for its The article analyzes the features of videoconferencing as a form of mutual legal assistance in criminal cases and the need for its use. The author explores the international and national legal framework for using video conferencing tools as innovative technologies. As a result of the study, gaps in the legislation on the use of videoconferences in matters of international cooperation in criminal matters were identified. In addition, the experience, advantages and disadvantages of foreign countries in using this form of mutual legal assistance are considered, and the relevant practice is studied in detail. Current article is enriched with real life examples. As a result, the features of the use of videoconferencing in mutual legal assistance in criminal cases, as well as the consequences and conveniences of using these tools in pandemic situation were identified, and proposals were developed to amend the relevant legislationuse. The author explores the international and national legal framework for using video conferencing tools as innovative technologies. As a result of the study, gaps in the legislation on the use of videoconferences in matters of international cooperation in criminal matters were identified. In addition, the experience, advantages and disadvantages of foreign countries in using this form of mutual legal assistance are considered, and the relevant practice is studied in detail. Current article is enriched with real life examples. As a result, the features of the use of videoconferencing in mutual legal assistance in criminal cases, as well as the consequences and conveniences of using these tools in pandemic situation were identified, and proposals were developed to amend the relevant legislation

scholarly journals Submissão de Documentos e Informações Comerciais a Autoridades Estrangeiras: o Regime Jurídico do art. 181 da CRFB/88 e as Leis de Bloqueio

2015 ◽  
Vol 10 (1) ◽  
Author(s):  
Bruno Fernandes Dias
Keyword(s):  
Rio De Janeiro ◽  
Legal Framework ◽  
Economic Order ◽  
Legal Assistance ◽  
Mutual Legal Assistance ◽  
Current Trends ◽  
Theoretical Issues

SUBMISSÃO DE DOCUMENTOS E INFORMAÇÕES COMERCIAIS A AUTORIDADES ESTRANGEIRAS: O REGIME JURÍDICO DO ART. 181 DA CRFB/88 E AS LEIS DE BLOQUEIO SUBMISSION OF COMMERCIAL DOCUMENTS AND DATA TO FOREIGN AUTHORITIES: THE LEGAL FRAMEWORK OF ARTICLE 181 OF CFRB/88 AND THE BLOCKING STATUTES Bruno Fernandes Dias* RESUMO: Este estudo objetiva examinar as questões práticas e teóricas relacionadas ao art. 181 da Constituição da República Federativa do Brasil de 1988 – CRFB/88. Inicialmente, são registradas algumas tendências atuais sobre o armazenamento de informações comerciais por parte de empresas e o panorama geral em que diferentes jurisdições podem interagir nessa matéria. Posteriormente, as circunstâncias de aplicação do art. 181 da CRFB/88 são examinadas, com destaque para os principais desdobramentos do procedimento de origem de requisição de dados por parte de autoridades estrangeiras. Na sequência, o art. 181 é cotejado com os institutos tradicionais da cooperação jurídica internacional, a saber: a homologação de sentenças estrangeiras, as cartas rogatórias e o auxílio direto. Os capítulos seguintes são dedicados, respectivamente, ao exame do art. 181 à luz dos princípios constitucionais da ordem econômica e financeira; e ao estudo dos núcleos conceituais existentes no dispositivo. Em seguida, são examinadas algumas leis de bloqueio no cenário internacional, para, ao final, serem apresentadas as colocações conclusivas. PALAVRAS-CHAVE: Cooperação Jurídica Internacional. Leis de bloqueio. Dados comerciais. ABSTRACT: This paper aims at examining the practical and theoretical issues related to article 181 of the Constitution of the Federative Republic of Brazil, of 1988 – CFRB/88. Initially, one comments current trends on the storing of commercial data by companies and the general landscape whereby different jurisdictions interact in this regard. Thereupon, the circumstances of application of article 181 of CFRB/88 are examined and one delves into the main developments of the procedure by which data is requested by a foreign authority. Additionally, article 181 is compared to the traditional tools of international legal cooperation, to wit: recognition of foreign judgments, letters rogatory and mutual legal assistance. The following chapters concern, respectively, the analysis of article 181 in light of the constitutional principles of the financial and economic order, and the study of the conceptual cores of the article. International blocking statutes are then assessed and, finally, the concluding remarks are presented. KEYWORDS: International Legal Cooperation. Blocking Statutes.; Commercial Data. SUMÁRIO: Introdução. 1. Circunstâncias de aplicação do art. 181 da CRFB/88. 2. A cooperação jurídica internacional e o art. 181 da CRFB/88. 3. A ordem econômica e financeira e o art. 181 da CRFB/88. 4. Núcleos conceituais do art. 181 da CRFB/88. 5. Breves notas sobre o cenário internacional. Considerações finais. Referências.* Mestre em Direito Internacional pela Universidade do Estado do Rio de Janeiro e Procurador do Estado do Rio de Janeiro.

International Law and Treaty Obligations, Mutual Legal Assistance, and EU Instruments

2019 ◽  
pp. 608-630
Author(s):  
Martin Böse
Keyword(s):  
International Law ◽  
International Cooperation ◽  
Mutual Recognition ◽  
Legal Framework ◽  
Legal Assistance ◽  
European Union Law ◽  
Mutual Legal Assistance ◽  
Asset Recovery ◽  
Criminal Matters ◽  
New Instruments

This chapter deals with international and European Union law that provides a legal framework for international cooperation in crime-related matters. The relevant provisions of international law form part of treaties combating transnational crime and of bilateral and multilateral agreements establishing a general framework for international cooperation in criminal matters as well as the new instruments under EU law that are based upon the principle of mutual legal assistance. The chapter first outlines the scope and elements of international cooperation in criminal matters before discussing international cooperation in criminal matters and human rights. It then considers the principle of mutual recognition, new international cooperation instruments such as extradition, and enforcement of criminal sentences and measures. In particular, it examines the transfer of convicted persons and enforcement of prison sentences, along with enforcement of pecuniary sanctions and asset recovery.

scholarly journals The Digital Unfitness of Mutual Legal Assistance

2018 ◽  
Vol 28 (1-4) ◽  
pp. 161-179
Author(s):  
Els De Busser
Keyword(s):  
Law Enforcement ◽  
International Cooperation ◽  
Digital Evidence ◽  
Legal Assistance ◽  
Mutual Legal Assistance ◽  
Cooperation Mechanism ◽  
The World ◽  
Evidence Gathering ◽  
Criminal Matters

Any crime could generate digital evidence. That is a reality law enforcement authorities across the world need to face. The volatile and “unterritorial” nature of the evidence means that international cooperation in criminal matters is confronted with new questions. One of these questions is whether the traditional cooperation mechanism, mutual legal assistance, is a viable way of working. Due to its time-consuming and cumbersome functioning combined with the lack of a faster alternative, countries have developed unilateral and extraterritorial methods of evidence gathering. This paper zooms in on this development and the risks it entails.

scholarly journals GATHERING E-EVIDENCE IN CROSS-BORDER CASES: RECENT DEVELOPMENTS IN EU LAW

2019 ◽  
Vol 32 (1) ◽  
pp. 155-162
Author(s):  
Aleksandar Chavleski ◽  
Goce Galev
Keyword(s):  
International Law ◽  
Digital Data ◽  
Digital Evidence ◽  
Criminal Cases ◽  
Cross Border ◽  
Foreign Countries ◽  
Recent Developments ◽  
Fast Development ◽  
Draft Regulation ◽  
Critical Overview

With the fast development of the digital technology, the need for efficient gathering of digital evidence in criminal cases has risen exponentially. Often, the digital data is stored on servers located abroad, so national authorities cannot obtain them without seeking legal aid from their counterparts in foreign country/territory. This cooperation often doesn’t work seamlessly not only from legal, but from factual reasons as well. Here series of questions regarding national sovereignty, jurisdiction and international law are intertwined. In order to achieve sufficient speed in processing such requests, national authorities tried to bypass their counterparts in foreign countries and communicated directly with the service provider. These investigations are time-sensitive in order both to secure the evidence and its integrity. In order to adequately address these concerns, in June 2016 the Council of EU called the Commission to prepare an e-evidence package, which was eventually presented in April 2018. The aim of this article will be to give a critical overview of the proposed package mainly via its key component – the draft Regulation.

scholarly journals U.S. Arrest of Former Mexican Defense Minister on Drug Charges Poses Challenges for Future Counter-Narcotics Cooperation

2021 ◽  
Vol 115 (2) ◽  
pp. 334-340
Keyword(s):  
United States ◽  
Law Enforcement ◽  
Drug Trafficking ◽  
The United States ◽  
Secretary General ◽  
Legal Assistance ◽  
Mutual Legal Assistance ◽  
Cross Border ◽  
The U.S

In October 2020, the United States arrested former Mexican Defense Secretary General Salvador Cienfuegos Zepeda on drug conspiracy charges, accusing him of accepting bribes to aid a Mexican cartel in evading law enforcement and transporting drugs into the United States. Cienfuegos's arrest sparked diplomatic protests from Mexico, which negotiated to gain Cienfuegos's release before exonerating him and publicizing the U.S. investigation file in what the United States called a breach of the countries’ mutual legal assistance treaty. The incident also prompted Mexico to pass a new law curtailing cooperation with foreign agents and potentially imperiling the long-standing U.S.-Mexico alliance in the fight against cross-border drug trafficking.

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