Thursday, 24 May 2012
Guidelines for the Preparation of Outgoing Requests by East Timor for International Judicial Assistance – Extradition Requests and Letters Rogatory
Dr Anton Girginov Ph D 
C O N T E N T S
I.Requests for extradition to East Timor (active extradition)
II. Letters rogatory to another country (obtaining evidence abroad)
III. New European developments in mutual legal assistance
I.Requests for extradition to East Timor (active extradition)
A. The Essence of Active Extradition
Active extradition to East Timor involves a request by the competent East Timorese authorities [see further in the present text] to the appropriate authorities of another country to surrender to East Timor a fugitive found in that country, whom is either a suspect (defendant) or has been convicted (sentenced) of a criminal offence in East Timor. If the other country does not reject the request of East Timor for extradition but grants the requested extradition, that country, by executing the extradition, gets rid of the wanted person who, usually a foreigner (generally, own nationals are not subject to extradition), is also more or less related to criminal activities being a possible or actual criminal offender.
In this regard, extradition resembles expulsion of foreigner. However, in contrast to expulsion, extradition is for the benefit of the requesting country. Generally, the requesting country wants the person for trial or for execution of an imposed punishment. It follows that extradition of the person is not usually for the benefit of the surrendering country (where the person has been found) since that country has often nothing specific against him/her.
For that reason no one in East Timor shall expect and/or plan to obtain the surrender of the wanted fugitive through his/her expulsion by another country. Such a final result may be achieved only if the other country carries out disguised extradition in favor of East Timor. But this sort of “extradition” shall not be encouraged or/and expected. It is in gross violation of human rights standards because it deprives the wanted person of normal extradition proceedings within which s/he might exercise his/her procedural rights to get a decision for refusal of his/her extradition.
B. Extradition and Transfer compared
Extradition, in particular of a sentenced (or convicted) person, resembles transfer of sentenced person (prisoner). These two methods of international judicial co-operation in criminal matters both involve the surrender of a sentenced offender to another country where his/her punishment will be executed.
However, there are some important differences between “extradition” of such a person and his/her “transfer”. Transfer involves the repatriation of a convicted criminal to the country of his/her nationality (citizenship), which will execute the punishment on that person. Thus, the receiving country is effectively taking care of its own national (citizen). It follows that the transfer is generally for the benefit of the person and usually requires his/her consent. Hence, whenever a wanted person agrees on his/her transfer to his/her own country, it would never be necessary for this country to seek his/her extradition and be restricted by the Rule of Speciality [the surrendered person may be prosecuted, tried and/or punished in the requesting country only with respect to the subject matter for which s/he has been extradited for by the requested country].
In contrast, in case of extradition the country, which receives the person, is the one that has imposed the punishment on him/her. Extradition is for the benefit of that country and the consent of the person is never required. Wherever extradition is granted, the requesting (receiving) country is restricted by the Rule of Speciality with respect to the prosecution, trial and/or punishment of the extraditee.
It follows that if an East Timorese punished in another country agrees to be transfered to East Timor and his/her transfer could really take place, it, though theoretically possible, does not make any sense from practical point of view to parallelly request his/her extradition for another criminal offence. By agreeing to serve his/here sentence in East Timor, the East Timorese national punished abroad has accepted all the risks of being prosecuted, tried and/or punished in East Timor for other offences without (free of) any legal restrictions in respect of them. Such situations might usually occur where the person mistakenly believes that his/her crime(s), to which East Timorese criminal law is applicable, are not and will not be discovered.
C. Active extradition in East Timor
Active extradition in East Timor (namely, preparation and proceeding with outgoing extradition requests) is governed by Articles 44 – 46 of the Indonesian Law on Extradition (ILE) in conjunction with S. 3.1 of UNTAET Regulation No. 1999/1 and Section 165 of the East Timorese Constitution. These rules, whilst necessary, are never sufficient. The efficient and successful implementation of any law on active extradition is not only a legal issue but a tactical and strategic issue as well. That is why, unlike domestic criminal proceedings, which are governed exclusively by the principle of legality, extradition proceedings (because of the involvement of another country) are governed also by the principle of opportunity.
D. Prerequisites to obtain extradition from another country
The prerequisites for extradition from another country form two groups: conditions for extradition (which must be met) and impediments to extradition or grounds for refusal (which must not occur).
1. There are three general conditions for extradition.
• The first one concerns the relations of the requested country with the requesting country. Is is well known that the requested country would never extradite to East Timor regardless of its relations with it. Normally, the two countries must have an extradition treaty (bi- or multilateral). If not, there might be three other alternative (extratreaty) conditions for consideration of East Timorese requests and eventually granting extradition to East Timor. [a] The first such condition is Reciprocity with East Timor as requesting country (this is the case with the Civil Law countries when requested for extradition). [b] The second alternative extratreaty condition is normative and does not require any specific behavior or statement from East Timor. It occurs where the requested country maintains a list of so-called “Designated Countries” (e.g. New Zealand) and East Timor is in it. [c] The third alternative extratreaty condition also does not require any specific behavior or statement from East Timor but is individual. It occurs where the requested country’s Head of State or another senior official is authorized by law to allow for institution of extradition proceedings in favour of countries with which they have no extradition treaty (e.g. South Africa), and this official has issued such an order (ruling) in favour of East Timor.
Because East Timor has no extradition treaty with any other country and very few and far away countries allow for extra-treaty extradition proceedings on the grounds of designated countries list or individual order, RECOPRICITY appears the basic condition for extradition. Reciprocity may be invoked in two ways – by words or by actions.
Reciprocity is invoked by words only when the interested country declares it will do so, that is, proceed in good faith with extradition requests from the requested country.
Obviously, however, it is much better to rely on invocation of reciprocity by action, namely to have already considered an extradition request from the country which is now being requested. This means, in the first instance, East Timorese authorities must actively search for fugitives in East Timor or who are crossing its territory. These same authorities must review the international search list of “Interpol” and put these persons in a national search list, which is to be then used for computerised passport control at all border check points. They should apprehend as many persons sought internationally as possible and consider extradition requests from as many different countries as possible.
• The second general condition for extradition is the so-called Dual Criminality. It means that the offence for with extradition is being requested shall be a crime both under the law of the requesting country and the requested country. This condition reflects the basic idea of extradition, namely that countries unite their efforts in the fight against crime where, because and to the extent they face same (common) criminal offences. This condition is considered by the time of the decision on the extradition request. Hence, even if by the time of its commission the offence constitutes a crime only under the law of East Timor and not under the law of the other country, extradition may though be granted, provided that meanwhile the requested country criminalizes the same conduct (act or omission).
In determining whether an offence is an offence punishable under the laws of the two countries, it shall not matter whether the laws of both the requesting country and the requested country place the acts or omissions constituting the offence within the same category of offences or denominate the offence by the same terminology or define or characterize it in the same way. Besides, the constituent elements of the offence may be different under the laws of both countries, the totality of the acts or omissions as presented by the requesting country shall be taken into account (dual criminality in the abstract sense).
• The third general condition for extradition is related to the jurisdictions of the two countries. This condition is two-fold. It requires, on the one hand, that the criminal law of East Timor as requesting country is applicable to the offence for which the extradition is requested. Otherwise, the extradition shall be rejected because East Timor can not do anything legal to the wanted person. On the other hand, the condition in that the criminal law of the requested country is applicable to the offence for which the extradition is requested. Otherwise, the extradition is: either mandatorily rejected if the other country’s judiciary has already resolved the case by rendering a final judgement (mandatory ground for refusal), or expectedly rejected as by necessarily applying its own law the other country’s judiciary would take the responsibility for the resolution of the case and prosecute and try on its own, and/or punish on its own the wanted person (optional ground for refusal).
2. There are also some other grounds to refuse extradition:
a/ The other mandatory grounds for refusal are:
• Related to the nature of the offence for which the extradition is requested; if the requested country considers this offence political, military or fiscal, it shall refuse extradition (Its worth remembering that terrorist acts though committed with political purpose and considered political crimes under domestic criminal law are never considered such offences under extradition law; likewise, the war crimes are never considered military offences under extradition law).
• Related to the legal consequences of the offence for which the extradition is requested; if by the time of the decision they have been terminated under the law of any of the two countries due to lapse of time, amnesty or pardon, the requested country shall refuse extradition.
• Related to the the possible treatment of the wanted person in the requested country; if the requested country establishes that (a) the person may be denied fair trial or (b) may be subject to inhuman punishment or treatment outside the criminal proceedings there, it shall also refuse extradition.
b/ The non-mentioned so far optional grounds for refusal are:
• Related to the place of commission of the offence for which the extradition is requested; if it is committed in the territory of a third country, the requested country may refuse extradition where it finds that the extraterritorial application of East Timorese law to the offence is substantiated by such a principle which is contrary to its legal concepts.
• Related to the nationality of the wanted person: if that person is a national (citizen) of the requested country by the time of the decision on the extradition request, it may refuse extradition regardless of whether s/he possesses any other nationality and in particular, of the requesting country. Civil Law countries, in particular, are obliged under their domestic law to refuse extradition of their nationals. This actually is a matter of legal tradition there rather then a matter of lack of democracy, solidarity, understanding or whatsoever. In contrast, Common Law countries generally extradite their nationals out of necessity. Because these countries normally do not provide for extraterritorial application of their criminal laws, they can not prosecute, try and punish even their nationals for criminal offences committed in another country. Hence, Common Law countries have no other option in such cases but to extradite even their nationals to the country where they have committed the offence, if that county, of course, requests their surrender. [See below]
E. Procedure for Active Extradition
1. When to consider active extradition?
Active extradition shall be considered whenever a suspect, an accused or convicted person is at large: s/he has been on national search in East Timor and within a reasonable period of time (e.g. one year) was not located.
2. What to do if you decide to look for him/her abroad and try to obtain his/her extradition from another country?
If the public prosecutor in charge of the case is sure that the wanted person is in the territory of a specific country and s/he will be there for a comparatively long period of time, at least, two months, then the public prosecutor in charge of the case can consider directly the preparation and sending of the official request for his/her extradition to the other country.
However, such a situation is very exceptional. Generally, the public prosecutor in charge of the case has to start with a petition for the international search and provisional arrest of the person by filling out the so-called “Red Notice” for him/her. This petition, generally called the INTERNATIONAL ARREST WARRANT, is immediately circulated worldwide through the channels of Interpol. (Interpol is a highly specialized and very skilful international police organization but designed for communications only; it can’t make any decisions on behalf of the public prosecutor in charge of the case, either on legal or on tactical issues.) It must be borne in mind that not all countries recognize arrest warrants on the basis of Interpol’s Red Notice as a valid request (petition) for provisional arrest of the wanted person. That is why such countries need to be approached by forwarding to each of them (or at least, to those countries where the person is likely to be found) an explicit petition for the provisional arrest of the wanted person in accordance with their laws.
The petition for international search and provisional arrest is not just a step towards the extradition of a wanted person. This petition necessarily contains a promise of the petitioning country that once the wanted person is arrested in another country within the Interpol’s network, the petitioning country will send on time to it an official request for the extradition of the person. Otherwise, no country would respond to the petition and would never arrest the person. That is why the petitioning country is likely to discredit itself if it does not send its extradition request on time.
Two common mistakes should be foreseen and avoided.
a. The first mistake is to assign Interpol to only find the location of the wanted person (as if s/he is a missing person). Where the whereabouts of a person sought for prosecution, trial or execution of punishment are unknown, the police are usually eager to locate him/her abroad and request an international report of his/her location. However, the public prosecutor in charge of the criminal case must not allow the police to do this until the extradition file is completely ready and all supporting documents for the future request are prepared [SEE BELOW NEXT ITEM 3]. If this is done, a request for international location will not be necessary at all. Once the extradition file is ready with everything, which might serve as supporting documents to the future official request for extradition, the next step is usually the preparation of a petition for an international search and arrest of the fugitive.
Requests for international location are not only unnecessary but are also risky for two reasons.
Police in other countries are not always careful with foreign cases. When checking the identity of the person sought, they may alert him/her that East Timor is interested in his/her extradition. This may cause the person to flee to another foreign country where his/her extradition to East Timor is less possible or impossible.
Additionally, the request for international location only may be mistakenly understood as a petition for a provisional arrest. Such mistakes are not uncommon and may be made not only by the police but also a foreign court. If the person is put under provisional arrest pending the extradition request all supporting documentation must be compiled in a very limited period of time, almost never exceeding 40 days. East Timorese authorities will most likely be unable to meet this deadline. Consequently, the term of detention will expire before the extradition request is received and the person will be released.
The released fugitive obviously has no interest in waiting patiently for East Timorese authorities to prepare and send the fully documented request for extradition. Instead, it is more likely s/he will flee to a jurisdiction more hostile to extradition. Besides, if this happens several times, with different persons sought, other countries are likely to reach the conclusion that East Timorese authorities do not respect the right to liberty and human rights, in general, which constitutes a sufficient ground for rejecting any future East Timorese request for extradition.
b. The second mistake consists of avoiding the petition for the international search and provisional arrest of the person and instead sending official extradition request directly. As East Timorese authorities must first work to ensure the apprehension of the fugitive, they should bear in mind that there are two methods to ensure the arrest of a fugitive. Firstly, the arrest may be ensured by way of a petition for his/her international search and provisional arrest (the so-called “emergency procedure”). Alternatively, the East Timorese authorities may choose to make a formal request for extradition. The latter approach involves the full arrest of the wanted person (the so-called “normal procedure”).
As previously mentioned, the extradition process usually begins with the issuance of a petition for the international search and provisional arrest of the fugitive. An international search is undertaken even where the country of his/her residence is known. Due to practical time constraints, this petition, unlike the formal extradition request, need not be in hard copy and through official channels (a formal written petition might otherwise take at least a week to reach the other country). Instead, the petition in question reaches the country where the fugitive resides in no more than 24 hours. This helps prevent his/her escape to a third country. When making such a petition it is important to clearly indicate that the East Timorese authorities are also to consider extradition requests of the country where the fugitive is found.
3. What shall the completed extradition file contain so that the international search may be triggered?
This file must contain 3 identical sets of documents, which go to the following parties: the first, or “main set” will be sent to the other country, the second, “reserve set” will remain in East Timor (with the Prosecutor General’s Office or The Ministry of Justice), and the third, “own set” must remain with the public prosecutor in charge of the case. Each set must contain the following documents:
a. The fullest possible description of the person sought by which s/he may be identified and later, his/her nationality established too. This includes name, age, date and place of birth, gender (sex), passport, profession, main habits, physical description, photographs, fingerprints, etc.
b. The warrant of his/her arrest as suspect or accused person (for which pending criminal proceedings are needed), or the judgement of the East Timorese court with the punishment imposed on him/her. If the person is only a suspect or accused and the warrant of his/her arrest has been issued in his/her absence (which is often the case), that warrant must be clearly indicated that it is subject to undelayed (re-) consideration and approval by East Timorese judge in the presence of the person once s/he appears in the territory of East Timor for any reason (including his/her surrender). For that purpose it is worth attaching a copy of S. 6.2 (e) of the UNTAET Regulation No. 2000/30 and Section 165 of the East Timorese Constitution.
c. Full, very clear and detailed description of all facts, which constitute the criminal offence (-s) of the person, including: (i) the time and place the offence was committed, (ii) the victims with their nationalities, (iii) possible accomplices with their nationalities. The aim of this description is twofold: firstly, to enable the country receiving the request to determine that its own criminal law is not applicable to the offence (while East Timorese law is), and secondly, to establish the dual criminality of the offence [Under this principle the conduct of the wanted person must constitute a crime under the laws of both the country requesting and the country receiving the extradition request.]
d. The description of facts must also include any other relevant facts, which would allow the other country to determine the existence of the dual punishability of the wanted person. Namely: that there is no lapse of time and there are no other legal grounds under the law of neither of the two countries (specific forms of withdrawal from criminal activity, amnesty, pardon) which exempt from criminal liability and grant him/her immunity from prosecution and/or punishment.
e. The applicable criminal law provision, which envisages the offence and provides for its punishment, and also all other relevant legal provisions (e. g. on lapse of time). If the applicable provision is from the Criminal Code of Indonesia and it prescribes capital punishment, is essential to include the text of Article 3.3 of the UNTAET Regulation No. 1999/1 (and Section 165 of the East Timorese Constitution), under which capital punishment is abolished. It is important to establish that the death penalty will not be applied in East Timor to the wanted person; certain countries will not extradite an individual to a country where that individual will face death penalty.
f. Sufficient evidence of the offence [prima facie or lesser quantum evidence of the wanted person’s factual guilt]. Not all countries require it. However, all countries, even those, which do not require any evidence, examine the reliability of the judicial system of the requesting country, first of all, with respect of its capacity to conduct fair trials. Accordingly, by presenting the above evidence to the country receiving the request, this country is more likely to conclude that East Timor can conduct fair trials or, at least that the trial of the potential extraditee is and will be fair. It should be borne in mind that the possibility of unfair trial constitutes a sufficient ground for rejecting any future East Timorese request for extradition.
Once the extradition file has been completed, the right time to trigger the international search of the wanted person shall be determined. This search shall not necessarily start immediately.
4. When should you request Interpol to circulate the petition for international search and provisional arrest of a person?
It will be very important and helpful if the Public Prosecution Service can know or predict the country where the wanted person might be found and apprehended so that the public prosecutor in charge of the case can decide whether to trigger his/her international search or not. Since East Timor has no extradition treaty with any other country, the sending of a petition for international search and provisional arrest should be avoided, if the person is likely in a foreign country which extradites only under extradition treaty or for the so-called “designated countries” (e. g. in New Zealand) and East Timor is not among them. Otherwise, it is highly probable that the fugitive will not be arrested, but instead warned that East Timor as the requesting country is seeking his/her return.
The situation would be similar if the wanted person is likely to be found in a territory of a country which extradites also under the conditions of reciprocity (both foreigners and nationals) but the person is its national. Even if this country extradites its nationals, it will probably require that East Timorese authorities promise to consider any extradition of their own nationals to that country if requested, before it makes any provisional arrest of the person. Obviously, it is advisable that East Timorese authorities do not make such a promise since in any event it cannot be kept. Pursuant to Section 35.4 of the Constitution of East Timor, East Timor’s own nationals are not subject to extradition to another country. If the situation arises where a country requires that East Timor make such a promise, the public prosecutor in charge of the case should not try to inspire such a step, and instead wait for the person to appear in another country where his/her extradition is possible.
However, if your objective is not necessarily to bring an accused person to East Timor but simply to bring this person to trial regardless of the location (even in his/her country of origin) then you can send the petition or even the formal request for his/her extradition to the accused person’s country of origin. In most cases a country which refuses extradition on the grounds that the person is its national (citizen), will also indicate that it is prepared to institute criminal proceedings against its own national at the request of East Timor. In this way the other country will follow the basic extradition principle of “Either You Punish or You Surrender” (“Aut punire aut dedere”).
This would mean that East Timorese authorities have to hand over the case to the other country with all the evidence and give up the idea of trying him/her. If East Timorese authorities do not do this, the risk is they will need to answer sensitive questions from the other country, such as: why East Timor do not want justice for the wanted person (?); does East Timor not want justice for the wanted person (?); do the East Timor authorities actually have any evidence against him/her (?), do they act in good faith (?) and so on. Therefore, if the public prosecutor in charge of the case is too eager in his/her efforts to secure the arrest abroad and the extradition of the person whose location is customarily in the territory of its country, then his/her actions might be even counterproductive. Not only might such efforts work in favour of the specific fugitive offender, but they might also encourage other individuals to commit offences as they would see that is possible to escape from justice.
5. What aspects of other’s country law and practice are worth being learned before making an extradition request?
In all cases, additional information from the country of interest must also be obtained unless extradition is not possible.
Such information includes:
a. Whether the other country extradites its own nationals and under what conditions? In particular, does it extradite its own nationals under the conditions of reciprocity?
b. Under which system does the other country define extraditable offences? There are two main systems:
(i) Where extradition is permitted in relation to all offences, provided that the principle of reciprocity applies (the eliminative or minimum imprisonment system). If so, one must determine what is the minimum term of imprisonment required; or
(ii) Where extradition is restricted to an exhaustive list of offences (enumerative or listing system). If so, one must determine whether there is an additional dual criminality requirement.
c. Is there a criminal law provision in the other country’s legislation that criminalizes the same conduct which constitutes the offence under East Timorese law (for which conduct extradition might be sought)? If there is such a provision, what is the exact text?
d. Is evidence of factual guilt of the fugitive necessary (the common law system) or not (the civil law system)? If it is, when? Is it for accused persons only or for convicted ones as well? What evidence is required so that relevant materials about factual guilt of the person are admissible in required evidence?
e. What are the non-extraditable offences (political, military, tax) and who are the non-extraditable persons (nationals, residents, refugees for whom asylum has been granted)? Which of these defenses to extradition are mandatory grounds for refusal and which are optional? What are the exceptions to them? Is reciprocity necessary to benefit from these exceptions?
f. If the extradition sought is for execution of punishment and the person has been convicted in absentia, is the refusal to extradite mandatory? If not and it has no exceptions, but constitutes a ground for optional refusal only, is it possible to avoid it by reciprocity? If exceptions exist, what are they, e.g., the existence of the right to re-trial?
g. What are the specific human right requirements under the law of the other country and will the legislation, judiciary and prisons in East Timor meet all of them? Is it possible to produce sufficient proof of that?
h. What are the precise provisions on the Rule of Speciality under the law of the other country?
i. Whether the other (rendering) country will review the extradition request or the final judgment against the extraditee to determine if it is manifestly unfounded?
j. Is there a possibility that the other country might refuse extradition as unreasonable based on humanitarian reasons such as the age, health or other circumstances of the wanted person, or in view of other special conditions?
k. What are the necessary supporting documents to the formal request for extradition (a full, explicit and exhaustive list) and how must they and the extradition request be authenticated?
l. Is it possible that the extraditee, while under provisional or full arrest, might be released, and what can be done to avoid his release?
m. Is accessory extradition possible for a non-extraditable offence, along with the main and extraditable offence, and, if so, under what conditions?
n. Who decides on admissibility of extradition cases, the central authority or the court?
6. What might be expected after the petition for international search and provisional arrest of the wanted person has been circulated worldwide through the Interpol channels?
After the circulation of the petition worldwide, The “National Central Bureau” of Interpol in any foreign country is expected to take the information concerning the identity of the person and the criminal offence (s) for which s/he is being sought, from the international search list and by including this information, put him/her on the national search list of its country.
Once the law enforcement authorities in such a country within the Interpol’s network find the wanted person as anyone declared for search and arrest, if caught, they immediately put him/her under police arrest (usually, for up to 24 hours) and inform their Interpol of the apprehension of that person who has been sought through them. If the country in question extradites only under international treaties, and therefore, no extradition proceedings at the request of East Timor can take place, the person will be released. Otherwise, if the other country extradites under the conditions of reciprocity the Interpol Bureau in that country is likely to ask the East Timorese Interpol for: (i) confirmation of the petition for international search and provisional arrest of the person and (ii) a promise for reciprocity on behalf of the authorities of East Timor. If the other country’s Interpol receives, within the time period of the police arrest there, positive answers to both of these two questions, it will forward the case (usually through the prosecution office) to its court for warrant of provisional arrest of the person. Subsequently, if the court does not find any obstacle (e. g. that country does not extradite its nationals and the apprehended person is such a national), it will issue warrant of arrest pending the arrival from East Timor of the official request for the extradition of the person. The provisional arrest is most often up to 40 days. However, if its period and thus, the deadline for the submission of the request have not been understandably indicated in the decision of the court, the East Timorese Interpol shall ask its counterparts in the other country for clarification on the issue.
In any case, it is much better and safer to directly obtain information from the other country and avoid using the Interpol channel. For the purpose of efficient exchange of information about international judicial co-operation, a lot of countries have designated contact points. Most often they are public prosecutors or judges. Thus, whenever the public prosecutor in East Timor is in need of any specific current information or has any question about the law of the other country, s/he shall not hesitate to identify its contact point for international judicial co-operation by searching in Internet, contact him/her and simply ask him/her.
7. What to do after the provisional arrest?
Once the provisional arrest of the wanted person has been granted in another country, the public prosecutor in charge of the case has to receive and study, as quickly as possible, the decision of the arrest. The decision determines the deadline for the submission of the official request for extradition with the supporting documents (which coincides with the time period of the arrest), the possibility and conditions of its extension (which is very rare), and also the specific requirements with respect to documentation which will be sent (what specifically, in what language, whether and how to authenticate it, etc) and the channels of communication (which is never Interpol). For this purpose it is also advisable to find (for example, on Internet) the domestic extradition law of the other country. The extradition request in particular shall, inter alia, contain: a statement when lapse of time would occur, at the earliest, and a promise of reciprocity that is to say, readiness to consider, in turn, extradition requests which would come from the requested country regardless of the absence of any extradition treaty between East Timor and that country. A reference to Article 2.2 of the Indonesian Law on Extradition in conjunction with S. 3.1 of UNTAET Regulation No. 1999/1 and Section 165 of the East Timorese Constitution shall be made. Besides (since the Rule of Speciality is not explicitly provided for in ILE), the extradition request shall also contain a declaration that once surrendered to East Timor, the extraditee shall be prosecuted, tried and/or punished only to the extent (within the limits) of what s/he has been extradited for, and not for any other act or omission which has been committed by him/her prior to his/her surrender. The East Timorese arrest warrant of the person sought, a full and reliable information for his/her identification, a good description of the criminal offence (s) s/he is wanted for, a summary and certified copies in support of the description, and also a copy of all applicable East Timorese substantive criminal law provisions relevant to the case [namely, in relation to (i) the offence itself, and (ii) other relevant facts which might affect the criminal responsibility and/or punishment of the person], shall be attached to the extradition request. Lastly, there should be a request for the delivery to East Timor of the items (property) found in the possession of the wanted person, even if s/he dies or escapes in the meantime.
Pursuant to Article 44 of ILE in conjunction with S. 3.1 of UNTAET Regulation No. 1999/1 and Section 165 of the East Timorese Constitution [see also S. 4. 1 (b) of the Decree of the East Timorese Government No. 3/2003], the Minister of Justice must sign the extradition request, at the request of the General Prosecutor (it shall be attached too) on behalf of the President of East Timor, the extradition request. The request must be addressed to the Minister of Justice of the other country and dispatched through the diplomatic channel (from the Foreign Minister of East Timor to the Foreign Minister of the other country).
After the official request for extradition with all supporting documents has been delivered to the other country and in case of positive development, the full arrest of the wanted person is ordered there, the competent judicial authorities will probably require additional information from East Timor. If that country is not very experienced in extradition relations, it may invite the East Timorese prosecutor to assist it in this, especially in court for the extradition proceedings there.
8. How active extradition ends?
Once the final decision on the requested extradition is rendered, the authorities of the other country will notify their counterparts in East Timor of the decision, usually through Interpol. If extradition has been refused, the wanted person is released immediately unless there are other grounds for his detention.
If the granted extradition is not postponed, the Central Authority for international judicial co-operation in the requested country will inform East Timor (through diplomatic channels and also via Interpol) of the positive decision and about the surrender scheme (including the time, place and manner of surrender of the extraditee). Interpol is given a copy of the court decision and a document reflecting the terms of the handover of the extraditee. These must be delivered to the police officers of East Timor who are to assume custody of the extraditee. If the extradition granted is postponed, the other country organizes the handover in the same manner as soon as the obstacle for it is over, i. e. the person has been tried for another offence or has served his/her effective (not suspended) punishment for it.
Customarily, the foreign police take the extraditee to an international airport for a flight to the receiving country. Transfer of custody occurs at the door of the airplane transporting the extraditee out of the country. Occasionally, the rendering police may at the expense of the receiving country handle all aspects of the transportation to the requesting country. The person must taken no later than 30 days after the appointed date. Otherwise, if the fugitive is not taken within a month after the appointed date, he must be released and cannot be surrendered later for the same offence.
If within that one month the fugitive dies or acquires nationality of the requested country, or the requesting country revokes his arrest or judgment or withdraws its request for extradition or declares that it will not take custody of him (for another reason or without giving any reason), the competent agency of the other country will issue a ruling for termination of the procedure and immediate release of the person, if there are no other grounds for his detention. In the exceptional case where the fugitive succeeds in acquiring nationality of the rendering country, it will not be a solution to send to that country a file of the materials against him for institution of criminal proceedings for the same offence, unless it is established that the other country can apply its criminal law to it. This will hardly be possible. Thus, it is generally much better to keep the criminal case and try to extradite the person from a third state.
After the escort and arrival of the extraditee in East Timor, s/he is subject to the Rule of Speciality as the Minister of Justice of this country has promised. Thus, if prior to his/her surrender the extraditee had committed other criminal offences, for which extradition was not granted, s/he cannot be prosecuted, tried and/or punished. In short, the extraditee obtains procedural immunity for all such offenses. However, s/he may be prosecuted, tried and punished for his/her offences committed after his/her escort and arrival in East Timor.
Extradition – Basic Concepts
Common Law –vs– Civil Law countries
II. Letters rogatory to another country (obtaining evidence abroad)
A. The Idea of Letters Rogatory
Any national judicial official who has the powers to undertake investigative actions and thus obtain valid evidence admissible in court is confined in his/her work to the territory of his/her country. S/he cannot obtain any evidence in another country. His/her work in another country could produce only information, which lacks any judicial significance and effect. That is why, if some evidence from another country is needed, it would be necessary to request its appropriate judicial authorities to undertake those specific investigative actions, by means (through) which the evidence may be gathered.
Thus, if an investigator or judge in East Timor needs to interrogate someone, s/he must summon that person to appear before him/her in his/her office or in court respectively, regardless of whether the person is in the country or abroad. If the witness lives in another country, it is likely s/he will not come to East Timor. This reluctance may be based on some generalized fear or misapprehension. Moreover, persons summoned to appear in East Timor in particular may also be reluctant because there is no clear provision in East Timorese law, which grants them the normal immunity as witnesses or expert witnesses summoned from another country. The existing law in East Timor does not recognize the principle of salvus conductus (free passage), which grants such persons immunity from prosecution for previously committed criminal offences or serving previously imposed sentences. Hence, the only reliable way to ensure the interrogation of the person and performance of other necessary investigative actions abroad in this atmosphere of distrust is to prepare and dispatch a letter rogatory. There is no other, alternative way to produce valid proof, which is admissible into evidence in court. Interpol, law enforcement authorities and agents of the Foreign Ministry can only produce information, which lacks any judicial significance, and shall never be directly used for the purpose of obtaining evidence from another country.
The outgoing letter rogatory and active extradition are the most important methods of active mutual legal assistance in criminal matters. However, when compared to active extradition, the requesting country is “active” in a different way. In extradition, the requesting country is active in its attempt to physically obtain the person sought. After this has been accomplished, there are usually no problems with the validity of the proceedings against him. The situation presented by outgoing letters rogatory is just the opposite. Usually, the requesting country easily gets the materials it wants. However, if those items have not been gathered properly as evidence, these materials, regardless of their necessity, might not be admissible in any event. Such items, if inadvertently admitted, may compromise the validity of the proceedings for which they were obtained.
B. The Peculiarities of Letters Rogatory
Other countries have strict rules about the prerequisites for obtaining international legal assistance generally, and foreign letters rogatory, in particular. Thus, if the country of interest to East Timor does not grant any mutual legal assistance without a treaty, nothing can be done until there is one. However, most countries proceed with foreign letters rogatory under conditions of reciprocity. Wherever this is the case, reciprocity should be invoked and declared in the letter rogatory as suggested for active extradition.
Where international legal assistance from the other country is generally possible, the next question becomes whether there are any obstacles in its law to granting such assistance to another nation. Most countries provide some grounds for the refusal of assistance in their domestic law. Customarily, these are because of the possibility of prejudice to the sovereign, security, public order or other essential interests of the requested country. It must be emphasised that the phrase "essential interests", sometimes called “vital interests” refers to the interests of the requested country, not the interests of individuals. Economic interests may, however, be covered by the concept of “essential interests”. It is possible that any assistance to investigate political, military or fiscal offences, or offences that carry the death penalty might be considered endangering essential interests not only of the accused individual but the requested country as well.
If there are no other obstacles to obtaining international legal assistance from the other country, then the specific requirements for foreign letters rogatory under its law must be ascertained. A letter rogatory must meet the following criteria.
a. A letter rogatory must enclose: (i) the full name of the person to be involved in the execution of the letter rogatory as witness, accused or in another capacity together with all the information available for his/her identification, and his/her present address (other countries do not search for witnesses or even for accused which are not to be extradited); (ii) a questionnaire for the interrogation of the person or/and an exhaustive list of items sought for search and seizure, tasks for their expert evaluation; (iii) a recital of pending criminal proceedings: (iv) the name of the investigated criminal offence and a short description of all those alleged facts (not more than two pages) which correspond to the elements of the offence in accordance with its legal description, and (v) the text of the specific legal provision which envisages the offence.
If no criminal proceedings have been instituted, only police information, which cannot be admitted in evidence in court, may be requested. If there is no description of the facts related to the offence, the request will most probably be rejected. This description (together with the applicable provision) is necessary so that the other country can determine whether there is dual criminality, that is, the investigated offence is a crime both under the law of the requesting and requested country.
Under the law of some countries (e.g. Austria, Nigeria) dual criminality is a general requirement for all incoming letters rogatory. This means that the facts that form the basis of any request for legal assistance must also be punishable as a criminal offence in that country. Thus, these countries approach letters rogatory in the same manner as extradition. Most countries no longer use this approach and, as such, passive mutual assistance is not subject to the rules of extradition. Thus, dual criminality is a general requirement for extradition only and not for letters rogatory. Usually dual criminality is required only for search and seizure of property, lifting bank secrecy and opening bank accounts.
b. A letter rogatory should request the performance of certain investigative actions. It should not simply seek clarification of certain facts, which are relevant to the criminal case in East Timor. No one should send a request to “carry out all action necessary to get at the truth.” Such a request relinquishes control over the investigation. The organisation should remain in the hands of competent East Timorese judicial authorities.
- When, for example, interrogation (questioning) is requested, it should be stated in what capacity the individual is to be interrogated, i. e. as an accused, witness or/and expert-witness). A list of questions or written interrogatory (questionnaire) should be prepared. This list might be viewed in some countries as restrictive and not indicative only. This issue should be determined in advance.
- It is noteworthy that the common expression "executing searches and seizures" might be used in the sense of searching places, premises, vehicles etc. and compulsorily acquiring evidential material or information found there. It also must be interpreted now to cover search and seizure in a technological context e.g the search of computers and computer systems. However, this expression alone should not be used in requests for assistance, particularly in cases where the requesting and requested States have different legal systems. The expression "search and seizure", can have different meanings in different jurisdictions. It is much better to describe also the result sought to be achieved rather than a legal methodology only, such as "search and seizure", by which the result is to be achieved.
- If interception of telecommunications is requested the letter rogatory should also contain the following specific information: (i) a description, as precise as possible, of the telecommunication to be intercepted; (ii) an indication why the purpose of the request cannot be adequately achieved by other means of investigation; (iii) an indication that the interception has been authorized by the competent authority of the requesting country; (iv) an indication of the period of time during which the interception is to be effected.
Since there is no international treaty between East Timor and any requested country, all actions are done under conditions of reciprocity. Crossover authorities should consult the national law of the other country and determine the permissible investigative actions under it before making a request.
In most cases, East Timorese magistrates (investigators, prosecutors, judges), defence lawyers, and other interested persons may be present at the execution of the letter rogatory and attend the requested investigative actions. Usually, none of them are allowed under the law of the requested country to take part in the investigative actions. They may not ask questions or obtain evidence. Pursuant to local procedural law (which is the only applicable one), this is the duty of a commissioned magistrate of the requested country. The East Timorese magistrate is not allowed to act in place of the commissioned magistrate of the requested country in charge of the execution of the letter rogatory. If s/he does, this will be in violation of the applicable law and the selected materials will not be admissible in evidence in East Timor. The letter rogatory is executed under the criminal procedure law of the requested country. East Timorese magistrates should be prepared for the general objection, often used, that the procedure there is incompatible with criminal procedure in East Timor. The simple response is that it does not matter, because it is a separate proceeding and not part of the domestic criminal proceedings in East Timor.
c. There are certain requests East Timorese authorities should not make. They should not ask that the other country hand over possession of items in favour of individuals or entities in East Timor. Any item received may be used for physical evidence only, and when it is no longer needed as evidence for the criminal case in East Timor, it must be returned to the requested country without delay, unless that country has declared expressly that it is not interested in the return of the item.
There are no grounds that justify the interruption of possession by an individual over an item. This means that authorities cannot deprive the possessor of his property rights while granting international assistance (legal or police) especially when executing letters rogatory. International assistance between countries must be in compliance with civil law and above all, property law. While granting letters rogatory, no action should be taken to settle a possible civil law dispute or predetermine its result.
Lastly, unlike domestic criminal procedure, the defendant has only the opportunity but not the right (privilege) to be represented by defence counsel at the execution of the letter rogatory in the requested country. The judicial authorities of the requested country have no correlative obligation to ensure the presence of defence counsel at the execution of the letter rogatory and East Timorese authorities may not insist on that presence. At most, the requested country will only state the date and the place of execution of the letters rogatory. Officials and interested persons may be present if the requested party consents. Thus, the magistrate who executes the letter rogatory will not adjourn the requested investigative actions if these persons do not attend the execution and in spite of their absence, the court in East Timor is expected to consider the selected proof valid.
d. Finally, the channels of communication with the other country must be identified. Like most other requirements for letters rogatory, the requirements related to their possible channels of communication are more flexible than those for extradition requests. Thus, in cases of urgency, it is widely accepted that letters rogatory may be addressed directly by the judicial authorities of the requesting country to the judicial authorities of the requested country, avoiding their Ministries of Justice.
There are also some other recommendations about the letter rogatory itself. Simple and clear language should be used. Use as many standard words and phrases as possible. Avoid technical language and unnecessary information that may cause confusion. In general, the letter rogatory is formally addressed to the Ministry of Justice of the requested country, but its “Appropriate Judicial Authorities” are likely to be mentioned as they are asked to perform certain investigative actions. The essential elements of a letter rogatory are:
• A declaration that the request is made in the interests of justice;
• The type of pending case for which assistance is necessary (criminal);
• A brief synopsis of the case, including a description of the specific offence(s) under investigation;
• The nature of the assistance required (e. g. compel testimony or production of material evidence under the law of the requested country);
• Name, address and other identifiers of the person(s) in the requested country from whom evidence is to be compelled;
• List of questions to be asked. A warning relating to perjury under East Timorese Law should not be inserted since the interrogation is under the law of the requested country and before questioning starts, the interrogated person will be warned about perjury under the law of that country;
• List of documents or other material evidence to be produced; and
• A statement expressing a willingness to provide, in turn, similar assistance to the judicial authorities to the requested country.
It is the general international practice to execute letters rogatory as quickly as possible. However, postponed execution is not ruled out. The requested country may postpone action on a request if such action would prejudice investigations, prosecutions or related proceedings by its authorities. For example, where the requesting country has sought to obtain evidence or witness testimony for purposes of investigation or trial, and the same evidence or testimony is needed for use at a trial that is about to commence in the requested country, the latter would be justified in postponing providing assistance. Where the assistance sought would otherwise be refused or postponed, the requested country may instead provide assistance subject to conditions. If the conditions are not agreeable to the requesting country, the requested country may modify them, or it may exercise its right to refuse or postpone assistance. In any event, the requested country usually attempts to act in a fair and open manner when such issues arise.
Finally, under the generally accepted Rule of Speciality, East Timorese authorities must promise to use the information transferred to them by the other country solely for the purpose for which it was originally given. In particular, this means that the requesting authority in East Timor is not allowed to transfer materials or information obtained in the course of a mutual assistance proceeding to a different authority. In addition, the East Timorese judiciary is, in most instances barred from using the materials or information obtained by the request in a criminal case not named in the letter rogatory without the prior consent of the requested country.
Extradition and Letters Rogatory - Basic Differences
[from the Requesting Country's Point of View]
III. New European developments in mutual legal assistance
1. The latest European developments in mutual legal assistance are reflected mainly in the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 8/11/2001). This Protocol allows the application the criminal procedure law of the requesting country to the execution of its letter rogatory (Article 8) and regulates trans-border executed letters rogatory, namely, it allows execution by video conference (Article 9) and telephone conference (Art. 10). It also authorizes cross-border observations (Article 17). The Protocol envisages also controlled deliveries (Article 18), covert investigations (Article 19), which often involve trans-border execution, and the formation of the so-called Joint Investigation Teams (Article 20).
a. Video and Telephone Conferences (or bridges) are an effective and necessary device when a person is in one country and must appear as an accused, witness or expert witness before the judicial authorities of another country, but it is not desirable or possible for the person to appear in person. "Not desirable" could apply, for example, to cases where the witness is very young, very old or in bad health; while "not possible"could apply, for example, to cases where the witness would be exposed to serious danger if he appeared in the requesting country. The requested country has the duty to:
- summon/notify the accused, witness or expert concerned of the time and the venue of the hearing;
- provide an interpreter;
- ensure the identification of the accused, witness or expert.
It is expected that the national law of the country where the witness is actually present and testifies will apply in the same way as if the hearing had occurred in a procedure in the country. This will abort any ungrounded refusals to testify and protect against any false testimony.
When the impossibility to personally appear in the territory of another country to testify is due to the fact that the witness is detained in the territory of the requested country, Article 3 of the Second Additional Protocol provides for a solution. It envisages the case where a prisoner whose personal appearance for evidentiary purposes (including confrontation), other than for standing trial, is wanted by the requesting country. In that case the person shall be temporarily transferred to the requesting territory, provided that s/he will be sent back within the period stipulated by the requested country. Transfer may be refused if:
• the person in custody does not consent;
• his presence is necessary at criminal proceedings pending in the territory of the requested country; or
• transfer is liable to prolong his detention.
Like all other such witnesses, this person is granted salvus conductus (free passage) under Article 12 of the European Convention on Mutual Legal Assistance in Criminal Matters.
b. Cross-border Observations, Controlled Delivery (of goods or money) and Covert Investigations do not to include police or other forms of non-judicial co-operation under the aforementioned Protocol, all of these are forms of mutual legal assistance. They are designed to produce valid proof for the court of the requesting country. A “cross-border observation” involves a judicial officer who is conducting a criminal investigation and has the powers to gather admissible evidence. During his/her criminal investigation, he keeps a suspect under observation in his/her country who is presumed to have taken part in a criminal offence to which extradition may apply, or a person who it is strongly believed will lead to the identification or location of such a person. Under these conditions, the judicial officer is authorized to continue his/her observation in the territory of another country where that nation has authorised cross-border observation in response to a previously submitted request. The observation is conducted under the law of the requested country.
Under Article 1 (g) of the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna, 1988), "controlled delivery" means the technique of allowing illicit or suspect consignments of goods or money, or items substituted for them, to pass out of, through or into the territory of one or more states, with the knowledge and under the supervision of their competent authorities, with a view to identifying persons involved in the commission of offences. This definition, while providing a general guideline, does not entirely address the concept used in the discussed protocol. In particular, it does not necessarily cover offences such as smuggling of aliens or trafficking in human beings. These offences are also involve a controlled delivery and would likewise be carried out under the law of the requested country.
“Covert investigations” under the Protocol are conducted as the result of an agreement between two countries. They agree to assist one another in the conduct of the investigation into crime by judicial officers acting under a covert or false identity. The parties co-operate to ensure that the covert investigation is planned and supervised. They will also make arrangements for the security of the officers acting under covert or false identity. Covert investigations are conducted according to the national law and procedures of the country where the covert investigation occur.
As far as applicable law is concerned, the Protocol lacks flexibility. No doubt, the behavior of any officer in another country must be in compliance with the administrative regulations of that nation. The procedural regulations cause problems because they govern the essential work of the officer. This officer sometimes is required to act on his/her own in a foreign territory and take secret photographs, perform bugging and other covert actions for which he has to prepare protocols. Obviously, the officer may encounter great difficulty accomplishing this work and complying with the procedural regulations of the other country. The validity of any proof he produces will be highly contentious and in almost all cases inadmissible.
Thus, the only effective solution is to stipulate that, generally, secret actions within the framework of Cross-border Observations, Controlled Delivery and Covert Investigations are to be performed under the law of the requesting country. These forms of mutual legal assistance should not have their own special regime, which excludes them from the general principle set forth in Article 8 of the same Protocol which allows the application of the criminal procedure law of the requesting country for execution of its letter rogatory.
c. It must be mentioned that Art. 4 of the Protocol provides for direct communications between judicial authorities of different countries, not only in cases of urgency but generally, in all cases. Urgent cases only invoke the possibility of use of the Interpol channel.
Article 4, Para 1 and 7 of the Protocol state:
“Requests for mutual assistance … shall be addressed in writing by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party and shall be returned through the same channels. However, they may be forwarded directly by the judicial authorities of the requesting Party to the judicial authorities of the requested Party and returned through the same channels. In urgent cases … it may take place through the International Criminal Police Organisation (Interpol).”
Finally, this Article opens the way for the use of telecommunications in the transmission of requests and other communications.
Thus far, the practice of direct communications between judicial authorities of different countries shows that some countries have instituted additional requirements to use that channel. For example, France and Spain require, under Article 15 of the European Convention on Mutual Legal Assistance in Criminal Matters, that when the letters rogatory are addressed directly by the judicial authorities of the requesting party to the judicial authorities of the requested party, a copy thereof shall at the same time be communicated to the Ministry of Justice of the requested party. This covers not only cases of urgency, but also requests for investigation preliminary to prosecution. It might be expected that these countries will preserve that requirement until direct communications between judicial authorities of different countries become a general rule.
d. Lastly, under Article 20 of the Second Additional Protocol by mutual agreement, the competent authorities of two or more Parties may set up a joint investigation team for a specific purpose and a limited period, which may be extended by mutual consent, to carry out criminal investigations in one or more of the Parties setting up the team. The composition of the team shall be set out in the agreement. A joint investigation team may, in particular, be set up where:
a Party’s investigations into criminal offences require difficult and demanding investigations having links with other Parties;
a number of Parties are conducting investigations into criminal offences in which the circumstances of the case necessitate coordinated, concerted action in the Parties involved.
Such teams have inherent procedural powers to directly obtain evidence form any participating country, which then is valid in the court of any team Party. Thus, Parties avoid exchange of letters rogatory.
2. There are two concepts of International Criminal Law defined as “the legal discipline that deals with the relationship between the right to punish and the sovereignty of states” [Claude Lombois]. According to the first notion, namely protecting states’ interests (under the principle of “every man for himself”), the foundation for criminal law and its implementation is primarily to protect the interests of the state. Creating offences, then defining the limits of criminal law in a particular case, is part and parcel of the same approach, notably to describe the behavior, which, according to the circumstances of time and place, violate the state’s vital interests and shall be as such punishable under criminal law. From this emerges the need for International Judicial Co-operation (assistance) in criminal matters, to enable each state to exercise in practical terms the authority it has given itself in relation to action occurring outside its border or by persons not in its custody.
According to the second conception of International Criminal Law, namely the universality of the right to punish, the offence is a violation of universal values and states are united in punishing it. The basis for their criminal jurisdiction is an international obligation to collaborate in the necessary punishment of offences. Criminal law thus first appears as an obligation and only later as an exercise of power. International Judicial Co-operation in criminal matters (assistance) is an act of solidarity toward a common goal. Generally speaking, it is the first concept that prevails. It is important to note that the second concept is gaining acceptance in Europe, particularly within the European Union.
 Ph D [Criminal Law]. Former United Nations Prosecutor with the Serious Crimes Unit, Office of the Prosecutor-General, Democratic Republic of East Timor; Present Head International Trainer, United Nations Mission in Kosovo (UNMIK) Department of Justice, Kosovo Special Prosecutor’s Office, Pristina.
1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992