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.

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.

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

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 Reflections on legal deficiences and discordances affecting mutual legal assistance in criminal asset recovery

2021 ◽  
pp. 136-142
Author(s):  
Alesea Scorpan ◽  
Keyword(s):  
Legal Framework ◽  
The State ◽  
Legal Assistance ◽  
International Level ◽  
Case Scenario ◽  
Worst Case ◽  
Mutual Legal Assistance ◽  
Low Level ◽  
Banking Secrecy ◽  
Asset Recovery

Most of the legal impediments that appears in front of the criminal assets recovery at the international level are the requirements for mutual legal assistance (MLA); excessive banking secrecy; lack of procedures for non-conviction-based confiscation; and excessively difficult procedural and evidentiary laws. Removing legal impediments is obviously essential. Absent a clear and sound legal framework, asset recovery becomes, in a best-case scenario, arduous and, in a worst-case scenario, impossible. Thus, the analysis of the reports of the practitioners in the field at international level, can offer us solutions, which will raise the state to another level. The long process of asset recovery and the low level of cooperation is the best evidence of the shortcomings that stagnate the process of recovering criminal assets.

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.

Socio-economic analysis of cybercrime

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 145-157
Keyword(s):  
Economic Analysis ◽  
Economic Damage ◽  
Legal Assistance ◽  
International Policy ◽  
Mutual Legal Assistance ◽  
Interstate Cooperation ◽  
Proper Functioning ◽  
Digital Era ◽  
Internet Resources ◽  
Proceeds Of Crime

In the presented article, the author analyzes socio-economic damage caused and expected as a result of cybercrime, a global and transnational threat. In parallel, with the development of technology and the growing dependence of the population on internet resources in the digital era, there are discussed dangers of blooming opportunities for cybercriminals and harm imposed by their actions. Taking into account the scale of the proceeds of crime, the author of the article presumes that cybercrime has formed into organized criminal business and has become a threat not only to the security of states and proper functioning of their institutions but also to the property and assets of citizens and enterprises, banks and fund institutions. According to the author, even the rules implemented by countries with a strong economy and developed technologies, and the refinement/ development of methods to combat this crime, will not bring results and will not be effective, since cybercrime is global and transnational by its nature. To accomplish the goals effectively, response to this challenge should be comprehensive, based on unified, well-established international policy. This only can be achieved through close interstate cooperation and instant (bypassing bureaucratic formalism) mutual legal assistance.

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