Technological advances have provided great opportunities for people to connect. Unfortunately, those same opportunities are available to criminals who abuse global infrastructure for unlawful benefit and seek to take advantage of complications involved in cross-border investigations and prosecutions in the hope of getting away with the fruits of their crimes.
The fight against the willingness of criminals to evade detection and capture, by hiding their assets and themselves from the authorities where the crime was committed, requires governments to co-operate. One example of such co-operation is the process of Mutual Legal Assistance (MLA).
Co-operation between governments
MLA is the formal process by which one state provides assistance to another with legal processes such as: 1) serving documents; 2) taking testimonies or statements from persons; 3) providing documents and evidence; 4) locating persons; 5) conducting inquiries; 6) executing requests for searches and seizures; 7) freezing and forfeiting the proceeds of criminal activities and instruments used to commit crimes; and 8) extradition. Extradition is a specific form of MLA, being the process by which a person is transferred by the requested state to the requesting state for prosecution or punishment for criminal activity within the jurisdiction of the requesting state.
There are a number of ways in which states might recognize the basis for MLA, including via multilateral and bilateral treaties. In the absence of a treaty, most states have domestic provisions that deal with the law and procedure of MLA. Even in the absence of such a law, MLA may be granted between states on the basis of reciprocity, which is an understanding that co-operation on one occasion will be repaid on a different occasion by the beneficiary state.
The United Arab Emirates (UAE) and China have both ratified relevant multilateral treaties, including the UN Convention Against Corruption, 2003 (UNCAC). Article 43 of UNCAC obliges state parties to co-operate in criminal matters in accordance with the convention. The convention includes the authority to extradite for offences covered by UNCAC. Although most of these offences relate to public sector corruption, they also include unjust enrichment, embezzlement in the private sector, and concealment.
In addition to their membership of UNCAC, the governments of the UAE and China entered into an agreement on MLA on 13 May 2002, which includes a treaty on the extradition of persons between the two states. However, while a part of the MLA agreement was ratified by the UAE on 29 September 2008, this was a treaty in respect of MLA in criminal matters only; the extradition aspect of the MLA agreement has not yet been ratified.
As a result, requests between China and the UAE for MLA in respect of, for example, the processes listed above, with the exception of extradition, may be made between the ministries of justice of each state in accordance with the MLA treaty. Requests for extradition must be made on a different basis.
UAE law on MLA, extradition
Although it is possible for UNCAC to be used as the legal basis for extradition, where the offence in question is any of those listed, and provided that the offence is punishable under the laws of both China and the UAE, article 44(8) of UNCAC provides that extradition on the basis of UNCAC shall be subject to conditions provided for by the domestic law of the requested state.
The UAE domestic law that deals with MLA and extradition is Federal Law No. 39 of 2006 (International Co-operation Law). This is a comprehensive law that sets out international-standard criteria for extradition and bases for the denial of extradition, including the following common provisions.
- Conditions for extradition: dual criminality; minimum penalty of one year’s imprisonment; minimum remaining term of a prison sentence of six months.
- Bases for denial of extradition:
• Person to be extradited is a UAE citizen;
• UAE law provides jurisdiction over the offence for which extradition is sought;
• The offence is a political offence, or an offence connected with a political offence (this does not include terrorism, war crimes, genocide, crimes against the person of the head of state and other statesmen or their families, and crimes against state utilities and essential interests);
• There are substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on the grounds of race, religion, nationality or political opinion, or that the person’s position would be prejudiced for any of those reasons;
• The person sought is under investigation or prosecution in the UAE for the offence for which extradition is requested;
• The person has been convicted and completed his or her sentence, or acquitted of the offence for which extradition is sought;
• Final judgment has been passed by UAE courts in respect of the offence for which the person is sought;
• Prosecution or execution of the sentence for the offence identified in the request would be time-barred;
• The person has been or would be subject to torture or inhumane or degrading treatment, or a harsh penalty incompatible with the offence, or if the person has not received the minimum guarantees in criminal proceedings.
The International Co-operation Law also allows extradition for any offence, not just those listed in UNCAC, as long as the requirement of dual criminality is met. It is, therefore, wider in application than UNCAC and more useful to private parties.
Involvement of private parties
The processes involved in MLA and extradition requests are typically bureaucratic. Requests are sometimes refused because they do not meet the requirements set out in the relevant treaty or law, or because the complete file – which is requested by the requested state following the initial notification by the requesting state – is not received within the time limit set by the requested state, even after a number of extensions.
Although MLA is a matter between governments so that private parties do not have official capacity in such matters, it is these parties who are often the victims of cross-border crimes such as fraud, embezzlement and cyber crimes. Subject to the level of involvement that such private parties have in the process in their own jurisdiction, it is often useful to engage local counsel in the UAE to review applications for compliance with the local provisions and to liaise directly with the concerned authorities so that the request has the greatest chances of success.
Andrew Hudson is a senior associate of the financial crime department at Al Tamimi & Company
Dubai International Financial Centre
6th Floor, Building 4 East
Sheikh Zayed Road, PO Box 9275
电话 Tel: +971 (0)4 364 1641
传真 Fax: +971 (0)4 364 1777