MUTUAL LEGAL ASSISTANCE TREATY (MLAT) : LEGAL ASSISTANCE ACROSS BORDERS

 MUTUAL LEGAL ASSISTANCE TREATY (MLAT) : LEGAL ASSISTANCE ACROSS BORDERS

-          Ayushi Jaryal*

In 2019, India signed the most recent Mutual Legal Assistance Treaty (MLAT) with Maldives for the first time. “During the meeting, the two ministers discussed ongoing cooperation in various avenues and expanding cooperation in new areas," said a statement issued by the Maldives Foreign Ministry.[1]

 

INTRODUCTION

As the world benefits from globalisation and economic liberalisation creating a multitude of opportunities. Technological advancements aided this and made growth even faster, but a dark underbelly of this phenomenon was discovered as it gave rise to trans nationalisation of crime. There are over 7 million internet user in India as of October 2020[2] and increasingly more and more transactions are taking place online which also widens the scope of crimes happening across borders.

More detailed information about these sort of transactions and interactions might help a country combat such crimes. Therefore, to equip a State to discharge its law enforcement functions more effectively, countries form Mutual Legal Assistance Treaty.

 

MUTUAL LEGAL ASSISTANCE TREATY

Mutual legal assistance treaty is a tool of international law which basically ensures that countries that are its signatory provide legal assistance to one another when it is required. It is used in order to obtain, procure any evidence in the form of documents, witness, data, suspects located in a foreign country. This mechanism also ensures that the information travels through proper channels as prescribed by the central authority.

Between 1989 with Switzerland and 2019 with Maldives, India has signed MLATs with 42 countries including USA, UK, France, Canada, etc.

 

DIFFERENCE BETWEEN LETTER ROGATORY & MUTUAL LEGAL ASSISTANCE

Just like MLAT, a Letter Rogatory  is also a tool of international law and used for mutual assistance between countries. Before the ratification of Hague Service Convention in 1965 , letters rogatory had to be transmitted via consular or diplomatic channels, thereby prolonging the process. Thereafter, designated authorities in the signatory states could transmit documents for service to each other, bypassing the diplomatic or consular channels. Furthermore, the ratification of Hague Evidence Convention in 1970 formalised the procedure of taking evidence between the member states on the basis of reciprocity.

 The term literally translates to ‘letter of borrowing’. Therefore, it is issued sent by a country which in need of assistance to a foreign country. Essentially LR and MLAT are very similar in nature, the differences are subtle and as follows:-

 

	MLAT	LR
Nature	MLA request can only be made to and by the Central Authority of one country to and from the Central Authority of another country on the  request of the investigating authority/ officer.	LR is issued by an Indian court on the request of the Investigating authority/ Officer under Section 166A and Chapter VIIA of the CrPC
Scope	MLA request can only be made with countries with whom India already has an MLA treaty/ agreement/ convention.	Lr can be issued to any country with which India does not have a mutual assistance treaty in place. LR is issued on basis of assurance of reciprocity.[3]

 

GROUNDS TO EXAMINE BEFORE ISSUING AN MLAT REQUEST

Before a request is issued or approved from a foreign country there are a few grounds that established by the Central Authority (IS-II Division, MHA), they are as follows:-

·         Provisions of the agreement/treaty/ convention of which and the other country are signatories to;

·         Domestic laws that govern the particular matter;

·         Laws of the foreign country that requested or the where the request has been sent.[4]

 

USES OF MLAT

MLAT IN CRIMINAL MATTERS:-

International and regional crime conventions incorporate provisions on mutual legal assistance relevant to their specific subject matter. The principal mutual legal assistance is taken from Article 18(1) of the United Nations Convention Against Transnational Organized Crime[5], which professes that states will provide each other with the widest degree of assistance. With the increase in crimes like human trafficking and drugs, smuggling along with other organised crimes mutual legal assistance is of great importance in criminal matters. It is governed by Section 166A[6] and 105K[7] of the CrPC. All criminal matters are handled by  Internal Security-II Divisions, Ministry of Home Affairs. In the matter of Union of India v. Mubarak[8], the Hon'ble Supreme Court of India relies on the report of the Public Prosecutor concerning the criminal investigation of the accused in the matter. The concerned paragraph of the report forming part of the aforesaid judgment is as follows:

' It is further submitted that the NIA is conducting investigation on the social media and email communication used by the Accused and associates and the process of sending requests to the United States of America (USA) under Mutual Legal Assistance Treaty (MLAT) between Republic of India and USA to get the details of social media accounts and communications between Accused and their associates in India and abroad is under progress.'

The United States District Court for Eastern District of Pennsylvania in the matter between United States v. Fleet Mgmt. Ltd.[9] did briefly discuss the MLAT between USA and India. The case dealt with illegal discharge of oil by a sea vessel and witness warrants were issued to sailors who were Indian citizens. The District Court considered applying the processes under the MLAT to secure the Indian witnesses for trial.

 

MLAT IN CIVIL & COMMERCIAL MATTERS:-

The Civil Procedure Code, 1908 also lays down provisions that outline the execution of a request sent or received from a foreign country in civil matters. The CPC acknowledges the power of foreign judgments and foreign courts in India. There are provisions in the code that deal with execution of decrees passed by courts in reciprocal territories along with procedure to be followed to get the same enforced in India. Further, the code also explains what presumptions exist with respect to foreign judgments and the test of its conclusiveness in the country.

In Nimesh Harkisandas Topiwala vs Deepa Dalpatram Topiwala[10]the division bench of the Bombay High Court by its order dated 5^th May, 2017 discussed how an order passed by an Indian court may be enforced against a party residing in the USA. The Bombay High Court held that since India and the USA had a MLAT in force and that the steps as set out in the MLAT must be followed to execute and enforce an Indian Court order in a foreign jurisdiction. Further, since it was a civil matter the Department of Law and Justice of the Government of India was directed to take the matter up with the Central Authority, USA. We also learn from this case that the MLAT despite having been signed for mutual assistance in criminal matters, its procedures are also applied in civil and commercial matters.

 

MLAT IN MONEY LAUNDERING CASES:-

Corruption cases often – and increasingly – involve a transnational element as well; in the case of foreign bribery, for example, or when corrupt officials conceal evidence and embezzled funds abroad, the case in point remains to be that of Vijay Mallya and Nirav Modi. Earlier companies with offices or branches could get away with illegal activities but  with the introduction  of MLATs it is easier for countries to procure evidence and documents and apprehend the wrongdoer. India also has a legislation that prevents money laundering crimes namely, Prevention of Money Laundering Act, 2002 and Sections 57[11], 58[12]& 61[13]of the Act acknowledge MLAs.

 

DATA TRANSACTION AND LAW ENFORCEMENT:-

Since a significant number of transaction and interactions take place on the internet which is spread around the world, and a substantial number of criminal investigations in the present century necessitate law enforcement agencies to access electronic evidence stored extra-territorially. MLAT helps facilitate the likes of such.

Although the conventional methods of obtaining evidence might not work when the said electronic evidence is not stored within the territory of the state where the crime has occurred. Few countries have explicit statutory provisions that do not permit disclosure of data to foreign jurisdiction. It becomes important to note that US headquarters a major share of technology companies such as Google, Apple, Microsoft and Facebook which practises the aforementioned policy. To make such transactions easier US recently introduced the Cloud Act (Clarifying Lawful Overseas Use of Data Act) 2018.

Through this the CLOUD Act foreign law enforcement to request electronic content directly from US service providers. U.S. law also permits service providers to share non-content-related records or other information pertaining to a subscriber with foreign agencies on a voluntary basis.

 

REFORMS REQUIRED IN MLAT

Despite the potential of MLATs, successful execution of assistance requests remains a case-by-case matter, depending on a series of legal, political and practical factors. Firstly, the A standard format for MLAT request would prima facie make the process easier to initiate and comply with for law enforcement agencies as a mere request sent under MLAT takes about ten months to be complied with.

Secondly, an important aspect would be adequate training of law enforcement officials to understand and use the MLAT system more effectively. Often, many requests do not satisfy legal obligations, and as communication both locally and between foreign states is poor, development and implementation of an electronic system for sending and receiving MLAT would help with reducing the time involved. 

Furthermore, Indian law enforcement has been facing challenges with regard to legitimate cross-border access to data for years. For example, under the existing law, Indian law enforcement places relies on a bilateral mechanism through the India-US Mutual Legal Assistance Treaty (MLAT) to transmit requests for user data. This process of MLA under MLAT has often been criticised for being outdated and time consuming, and by some estimates from Indian sources takes as long as three years and four months on an average to complete.

 

CONCLUSION

MLAT is an imperative tool in adjudication of justice in International Law. It can be used broadly and widely if it is further reformed. Additionally MLAT not only helps supress and solve crimes but also in maintaining mutual harmony and cooperation along with healthy relations with our country.

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* Student of Army Law Institute , Mohali 

[1] https://www.business-standard.com/article/pti-stories/india-maldives-sign-treaty-on-mutual-legal-assistance-in-criminal-matters-119090301001_1.html

[2] https://datatopics.worldbank.org/world-development-indicators/

[3] https://www.mha.gov.in/sites/default/files/ISII_ComprehensiveGuidelines16032020.pdf

[4] Ibid

[5] Wherever possible and consistent with fundamental principles of domestic law, when an individual is in the territory of a State Party and has to be heard as a witness or expert by the judicial authorities of another State Party, the first State Party may, at the request of the other, permit the hearing to take place by video conference if it is not possible or desirable for the individual in question to appear in person in the territory of the requesting State Party. States Parties may agree that the hearing shall be conducted by a judicial authority of the requesting State Party and attended by a judicial authority of the requested State Party.

[6] Letter of request competent authority for investigation in a country or place outside India.

(1) Notwithstanding anything contained in this Code, if, in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter.

(2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf.

(3) Every statement recorded or document or thing received under sub- section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter.

 

[7] Procedure in respect of letter of request. Every letter of requests summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, be transmitted to a contracting State under this Chapter shall be transmitted to a contracting State or, as the case may be, sent to the concerned Court in India in such form and in such manner as the Central Government may be notification specify in this behalf.

[8] CRIMINAL APPEAL NO(s). 865 OF 2019

 

[9] No. CR 08-0160 SI

[10] CIVIL APPLICATION NO.56 OF 2017  FAMILY COURT APPEAL NO.127 OF 2009

 

[11]  Letter of request to a contracting State in certain cases.—

(1) Notwithstanding anything contained in this Act or the Code of Criminal Procedure, 1973 (2 of 1974) if, in the course of an investigation into an offence or other proceedings under this Act, an application is made to a Special Court by the Investigating Officer or any officer superior in rank to the Investigating Officer that any evidence is required in connection with investigation into an offence or proceedings under this Act and he is of the opinion that such evidence may be available in any place in a contracting State, and the Special Court, on being satisfied that such evidence is required in connection with the investigation into an offence or proceedings under this Act, may issue a letter of request to a court or an authority in the contracting State competent to deal with such request to—

(i) examine facts and circumstances of the case,

(ii) take such steps as the Special Court may specify in such letter of request, and

(iii) forward all the evidence so taken or collected to the Special Court issuing such letter of request.

(2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf.

(3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation.

 

[12]  Assistance to a contracting State in certain cases.—Where a letter of request is received by the Central Government from a court or authority in a contracting State requesting for investigation into an offence or proceedings under this Act and forwarding to such court or authority any evidence connected therewith, the Central Government may forward such letter of request to the Special Court or to any authority under the Act as it thinks fit for execution of such request in accordance with the provisions of this Act or as the case may be, any other law for the time being in force.

[13]  Attachment, seizure and confiscation, etc., of property in a contracting State or India.