LA INSTRUCCIÓN PRIMARIA

In this context the role of bilateral agreements and, in particular, of mutual legal assistance treaties (MLAT) as an instrument to curb organised crime cannot be bypassed and minimised. This kind of agreement is signed by two countries. In it, the two countries consent to improve and intensify cross-bor- der co-operation, to increase the level of investigations by sharing informa- tion and know-how and to ease judicial co-operation by speeding up the exchange of criminal proceeds and, among others, making the extradition of criminals easier. The essential feature of these agreements is that they can be tailor-made and they are adaptable to the different requirements and urgen- cies which arise in a specific geographical context. Consequently, they can more easily counter the peculiar threats coming from well-defined criminal groups or criminal activities. Unfortunately, they also have some disadvan- tages; in particular, it is very difficult for small states to get involved in the negotiations needed to give life to such agreements, since such states often lack the resources, competence and expertise required to finalise them.

It is not difficult to understand why bilateral and multilateral agreements have spread all over the world, particularly in the areas where the presence of organised criminal activities which can cross the borders with great ease represents an alarming menace to the national stability. Building up special law enforcement and legal assistance networks among countries can, there- fore, be seen as a comprehensive response to the way in which criminal organisations exploit particular countries and particular trafficking routes.

The United States, in particular, has always been very active in construct- ing this web of agreements with other countries in order to counteract organised criminality. Here reference should be made to the mutual agree- ment which was signed in November 1982 between the United States and Italy and which gave a powerful tool to magistrates and public prosecutors in dismantling the organised criminal connections between the two nations. More recently the United States has adopted other instruments of this kind. On 23 May 1997 a mutual legal assistance Treaty between the United States and Korea entered into force, extending to Southeast Asia the ability of United States agencies to pursue money laundering cases and representing a United States commitment to block international money laundering escape routes. The United States - Korea treaty is the seventh MLAT that America has put in force since the beginning of 1996. These agreements enhance bilateral co-operation in criminal cases in Europe, South America, Southeast

Asia and the Caribbean56. On 30 April 1997, the United States and Australia

56 “U.S. Mutual Legal Assistance Treaties continue proliferating”, in Money Laundering

signed a MLAT, with the aim of strengthening law enforcement investigations in criminal cases. This MLAT includes taking testimony or statements; providing documents, records and other evidence; transferring persons in custody for testimony and other purposes; locating and identifying persons; serving documents; and executing requests for searches and seizures and freezing assets. In the Asia-Pacific region, the United States has a MLAT with

Thailand and recently concluded one with Hong Kong.57

A Mutual Legal Assistance Treaty signed by the United States usually contains one or more of the following provisions:

– assistance in the investigation and prosecution of a range of crimes, including money laundering;

– assistance in legal procedures such as taking testimony, locating persons, and freezing forfeitable assets;

– availability of MLAT mutual assistance for offences that both countries consider felonies, such as drug trafficking, theft and fraud, as well as currency transaction violations;

– establishment of a “central authority” in each country to follow processing and the executing of the assistance requests;

– permission to conduct searches and seizures relating to offences commit- ted in the other signatory country;

– the commitment of the requested nations to promptly give assistance58.

As far as Europe is concerned, through a process of co-operation, contacts have recently been established, especially among Western European nations and with Central/Eastern European countries. It is therefore important to mention that, as a consequence of the serious criminal problems inherent to the relation between Italy and Albania, these two countries have signed a bilateral agreement on 28 October 1997, aimed at stepping up the fight against organised crime. On 13 December 1996, another agreement of the same kind had been signed by Albania and Austria. Hungary signed bilateral agreements with Moldova (June 1997), Latvia (March 1997), Poland (May 1996) and Bosnia-Herzegovina (April 1996). Poland concluded agreements on the fight against organised crime with Slovenia (August 96) and the United Kingdom (June 1997). On 6 October 1997, the United Kingdom and Russia signed a joint plan for the fight against organised crime. On 4 April 1995, Germany and Belarus signed an agreement for tightening their co-operation in the fight against organised crime and nuclear smuggling. Many others could be mentioned as examples of the strengthening network for mutual co-operation.

57 R. Schmertz Jr. and Mike Meier, “U.S. and Australia conclude MLAT” in

International Law Update, vol. 3, n. 6, June, 1997.

58 “New MLATs extend U.S. laundering effort”, in Money Laundering Alert, vol. 8, n. 9, June, 1997, p. 2.

Turning to other regions, on 7 January 1997 the Israeli Government approved mutual legal assistance legislation and sent it to the Knesset. This legislation allows for comprehensive reciprocal legal assistance with compe- tent foreign authorities regarding asset forfeiture investigations, the provision of material evidence and witnesses for forfeiture proceedings and the imple-

mentation of forfeiture orders.59Turkey has signed several bilateral agree-

ments to enhance co-operation in international narcotics interdiction. Turkey also signed an agreement with the former Soviet Union in December 1990. India has extradition treaties with Bhutan, Belgium, Canada, Nepal, The Netherlands, Uganda, Britain and the USA. In September 1992, India and Great Britain signed an extradition treaty and an agreement on the confis- cation of terrorists’ property and assets. This agreement might inhibit the illegal movement or laundering of money, particularly through the hawala system which is widely used in the UK. At present, efforts are being made to conclude extradition treaties with Hong Kong, Germany, the United Arab Emirates, France and a new extradition treaty with the US. India has also entered into mutual legal assistance agreements with Turkey, Switzerland, the UK and Canada. At present efforts are being made to conclude mutual legal assistance agreements with France. In addition to standard features, the agreements with the UK and Canada, which are the most recent ones, also provide for the confiscation of the proceeds of crime. Furthermore, the Ministry of Home Affairs has concluded agreements with some countries for combating terrorism and organised crime. On 5 May 1994, Pakistan signed an agreement with Iran and the United Nations Drug Control Programme to co-operate on controlling drug transit trade from Afghanistan. On 1 June 1995, Pakistan also signed two agreements with Kazakhstan on co-operation in the fight against organised crime, drug trafficking and other dangerous crimes. During 1994, it also agreed with the United Arab Emirates to expand co-operation against “narco-terrorists”. Myanmar has modest anti-drug co- operation with neighbouring countries. In late 1994, Myanmar and Bangla- desh formally signed a drug co-operation agreement calling for information- sharing and co-ordination of enforcement activities along the two countries’ mutual border.

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