scholarly journals Mutual Legal Assistance & Other Mechanisms for Accessing Extraterritorially Located Data

2015 ◽  
Vol 9 (1) ◽  
pp. 43-64 ◽  
Author(s):  
Anna-Maria Osula
Keyword(s):  
International Cooperation ◽  
Data Access ◽  
The Other ◽  
Digital Evidence ◽  
Legal Assistance ◽  
Cyber Crime ◽  
Prior Authorisation ◽  
Mutual Legal Assistance ◽  
Realistic Assessment

This article discusses the role of Mutual Legal Assistance (MLA) and other established mechanisms of international cooperation in the fight against cyber crime. The analysis is limited to mechanisms facilitating access to extraterritorially located data. After a brief account on the legal prerequisites of successful fight against cyber crime, the article proceeds to exploring both traditional as well as alternative cooperation mechanisms for transborder data access. Given the realistic assessment that the amount of digital evidence to be accessed extraterritorially will only increase with time, the article focuses on the difficulties in accessing data under the current MLA procedures. The article reiterates that States are in need for more time-effective measures for transborder data access. Unless the identified inefficiencies pertaining to MLA are addressed, the traditional focus on territoriality, and assuming the other State being the primary counterpart for carrying out investigative measures requiring transborder access to evidence, will continue to gradually shift to more operational mechanisms that do not necessarily require the prior authorisation of the State where the data is located.

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 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 Optimalisasi Peran Bantuan Hukum Timbal Balik dalam Pengembalian Aset Hasil Tindak Pidana Korupsi

2020 ◽  
Vol 3 (1) ◽  
pp. 33-57
Author(s):  
Khoirur Rizal Lutfi ◽  
Retno Anggoro Putri
Keyword(s):  
Law Enforcement ◽  
United Nations ◽  
Legal Assistance ◽  
Mutual Legal Assistance ◽  
Library Research ◽  
Comparison Approach ◽  
United Nations Convention ◽  
Asset Forfeiture ◽  
Criminal Matters

One of the unresolved legal issues in Indonesia is corruption. The problem of law enforcement is not yet optimal so that the assets resulting from criminal acts of corruption which are often in excess of national territory make it difficult to return. Mutual Legal Assistance in Criminal Matters, abbreviated as MLA, which is expected to help law enforcement is not yet optimal. Indonesia, as a participant country of the United Nations Convention Againts Corruption (UNCAC), does not yet have a regulatory framework that comprehensively regulates the aspects recommended by the convention. This study aims to find out about efforts and mechanisms to optimize the role of MLA in the recovery of assets resulting from criminal acts of corruption in Indonesia, especially those abroad. This research is a normative juridical research conducted by library research and interviews with informants related to the legislation and comparison approach. This article concludes that optimizing the role of MLA requires several steps such as implementing MLA in a more detailed technical format, optimizing the role of law enforcement as the implementer and adopting the concept of Non-Conviction Based Asset Forfeiture (NCB). Abstrak Salah satu persoalan hukum yang belum terselesaikan di Indonesia adalah korupsi. Masalah belum optimalnya penegakan hukum hingga aset hasil tindak pidana korupsi yang seringkali berada melampaui batas wilayah negara sehingga menyulitkan pengembalianya acapkali menjadi persoalan tersendiri. Pelaksanaan kerjasama Bantuan Hukum Timbal Balik (Mutual Legal Assistance) disingkat MLA yang diharapkan membantu penegak hukum pun dirasa belum optimal. Sebagai negara peserta United Nations Convention Againts Corruption (UNCAC), Indonesia belum memiliki kerangka regulasi yang mengatur secara komprehensif aspek-aspek yang direkomendasikan konvensi tersebut. Penelitian ini bertujuan untuk mengetahui tentang upaya dan mekanisme optimalisasi peran MLA dalam pengembalian aset hasil tindak pidana korupsi di Indonesia terutama yang berada di luar negeri. Artikel ini merupakan hasil penelitian yuridis normatif yang dilakukan dengan cara studi kepustakaan dan wawancara terhadap narasumber terkait, dengan pendekatan perundang-undangan dan perbandingan. Artikel ini menyimpulkan bahwa untuk optimalisasi peran MLA diperlukan beberapa langkah seperti menerapkan MLA dalam format teknis yang lebih detail, optimalisasi peran penegak hukum sebagai pelaksananya, dan adopsi konsep Non-Conviction Based Asset Forfeiture (NCB) sebagai muatan substansi MLA.

scholarly journals International Cooperation and Negotiated Settlements for Transnational Bribery: A Study of the Odebrecht Case

2021 ◽  
Vol 17 (2) ◽  
Author(s):  
Raquel de Mattos Pimenta ◽  
Otavio Venturini
Keyword(s):  
United States ◽  
Dominican Republic ◽  
Case Studies ◽  
International Cooperation ◽  
The United States ◽  
Legal Assistance ◽  
Negotiated Settlements ◽  
Complex Forms ◽  
Joint Resolution

Abstract Transnational regulation of bribery involves several increasingly complex forms of cooperation among enforcement authorities. International investigative cooperation allows a foreign authority to assist another on criminal and/or civil investigations, through requests of mutual legal assistance, rogatory letters, as well as joint investigative teams. Sanction-based cooperation helps different authorities to transfer or extradite persons and recover proceeds of corruption to the victims. More recently, there has been a rise in cooperation in negotiated settlements with the accused. Settlement cooperation may entail joint resolutions or the coordination of settlement clauses. This paper focuses on how these three modes of cooperation intersect in cases with successive negotiated settlements. We use the Odebrecht case settlements to unpack the relation between investigative, sanction-based, and settlement cooperation in three case studies: the joint resolutions between the company and Brazil, Switzerland, and the United States, as well as two local agreements with the Dominican Republic and with Peru. We evidence how these modes of cooperation can reinforce or undermine one another. Beyond illustrating different cooperation dynamics, we also explore the role of sequencing. The existence of a previous joint resolution affects the developments of the subsequent agreements, but in different ways from those previously mapped by the literature.

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.

The Context and Background

2014 ◽  
pp. 1-34
Keyword(s):  
Crucial Role ◽  
Software Piracy ◽  
Digital Evidence ◽  
Cyber Crime ◽  
Digital Revolution ◽  
Evolution And Development ◽  
Software Copyright ◽  
Software Forensics ◽  
Forensic Implications

This chapter introduces the nature, evolution, and development of cyber (digital) crimes in the context of the modern digital revolution with particular stress on software piracy and copyright infringement. Firstly, it overviews the various forensic implications of cyber criminality in its various forms and goes on to talk about the detection, preservation, and forensic utilisation of digital evidence, as well as its relationship to global cyber legislation. Next, it concentrates on exploring the fields of digital and software forensics and then software piracy as a cyber crime. The chapter then discusses the forensics of the infringement of software copyright, especially in terms of its legal and judicial complexity. Finally, it concludes by explaining how all the various complex issues bear on the crucial role of the cyber forensic consultant experts in the collection, interpretation and presentation of the digital evidence in a manner that is both judicially efficient and convincing.

Mutual Legal Assistance in Criminal Matters in the Western Balkan

2016 ◽  
Vol 24 (4) ◽  
pp. 322-339
Author(s):  
André Klip
Keyword(s):  
European Union ◽  
International Cooperation ◽  
Legal Assistance ◽  
The European Union ◽  
Mutual Legal Assistance ◽  
Central Focus ◽  
Joint Investigation ◽  
European Standards ◽  
Criminal Matters ◽  
Balkan States

The central focus of the study is what obstacles might exist in national legislation and practice of the Western Balkan states that might hinder or complicate the efficiency of international cooperation, according to European standards. The states that are included in the study are all states that have expressed their wish to accede to the European Union (Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro, Serbia) and Croatia that already has become a Member State. The question “What could amount to impediments to international cooperation?” has been leading throughout the study. The study is therefore to be considered as problem-focused. The study analyses various forms of international cooperation, such as exchange of information, mutual legal assistance, extradition, transfer of proceedings, joint investigation teams, confiscation, as well as the transfer of judgements and prisoners.

scholarly journals International cooperation and mutual legal assistance in criminal matters in handling with transnational wildlife trafficking crimes in Vietnam

2020 ◽  
Vol 164 ◽  
pp. 11006
Author(s):  
Duc Hanh Nguyen
Keyword(s):  
International Cooperation ◽  
Species Conservation ◽  
Legal Assistance ◽  
Mutual Legal Assistance ◽  
Legal Response ◽  
Criminal Organizations ◽  
The World ◽  
Asean Countries ◽  
Criminal Matters ◽  
International Conventions

Wildlife crimes have been continuously increasing all over the world but particularly in ASEAN countries, and the criminals have employed more and more sophisticated tatics and strategies. Though many countries have introduced their own solutions to enhance the legal response and capacity to investigate, prosecute and adjudicate wildlife-related crimes, the results so far are under expectation. Vietnam has various types of wild, precious and rare flora and fauna; however, these numbers have rapidly decreased due to uncontrolled exploitation and illegal trade. Aiming to conserve and develop the nation’s biodiversity, the Penal Code 2015 (amended in 2017) and the Criminal Procedure Code 2015 have new regulations that incorporate international conventions that Vietnam has acceded to. At the same time, Vietnam has become a transit nation employed by transnational criminal organizations, so that in order to tackle wildlife crimes effectively, it is significant to develop and sustain active international cooperation and mutual legal assistance in criminal matters among Vietnam and other countries in the region, as well as from all over the world. In that spirit, this article will concentrate on analyzing the current situation of wildlife crimes that has international elements; identifying roots of difficulties, challenges in dealing with this type of crimes in Vietnam as well as in the region; then proposing recommendations and solutions to improve the quality of handling transnational wildlife crimes for the sake of species conservation, environment and biodiveristy protection for humankind.

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