Mutual Legal Assistance

 

Whenever evidence is available in a foreign country or a party to criminal proceedings or witness is located there, mutual legal assistance is required. The most important categories of mutual legal assistance are procuring evidence for preliminary investigation and trial and service of judicial documents. All this requires a request for mutual legal assistance.

A request may concern service of documents, hearing a party, witness or an expert, procuring evidence, criminal records or taking up prosecution as well as other assistance, which may be needed in criminal proceedings.

A Finnish authority grants mutual legal assistance as provided for in the Act on International Judicial Assistance in Criminal Matters or as agreed with a foreign country.

The Act contains only a few provisions on requesting assistance from a foreign state. The obligation of a foreign state to grant assistance is conditioned on applicable international agreements and the domestic legislation of that state.

The Ministry of Justice acts as the Central Authority in accordance with the 1959 Convention. The Central Authority transmits requests to Finnish authorities for execution. The National Bureau of Investigation plays a significant role in mutual legal assistance.

Requests to foreign states are forwarded following an applicable agreement. In accordance with the 1959 Convention requests are forwarded to the Central Authority of the foreign state (usually the Ministry of Justice) who in turn transmits them to a competent authority for execution.

Following the entry into force of the MLA 2000 Convention in the EU service of judicial documents by post and direct contacts between the competent authorities have become the main rule, from which deviation is possible only in limited occasions. Competent authorities consist of police and prosecution authorities and courts of law.

Certain provisions of the MLA 2000 Convention, such as service of judicial documents and procuring evidence, are also applied between the Member States and Norway and Iceland. The Protocol to the MLA 2000 Convention provides for requesting information on bank accounts.

Using direct contacts requires that the authorities know where to send their requests. EJN has made available a search tool (Atlas) to help pinpoint a competent authority in a Member State. Atlas can be found on EJN web site https://www.ejn-crimjust.europa.eu/ejn/

Mutual Recognition

Mutual recognition of judicial decisions has become an important form of cooperation in the EU along with the traditional mutual legal assistance.

In the traditional mutual legal assistance a requesting state submits a request for mutual legal assistance (e.g. request for search and seizure) to a Member State, which then takes a decision on granting assistance (decides on search and seizure). In a system based on mutual recognition of judicial decisions the authority in need of assistance takes a decision (search and seizure) and sends it to the competent authority of a Member State for execution.

The most important instrument based on mutual recognition in the EU is the Framework Decision on the European Arrest Warrant and Surrender Procedures between the Member States. Finland implemented the FD in 2004 by enacting a law on Extradition between Finland and the Other Member States of the European Union.

Nowadays mutual legal assistance in the EU is based to a significant degree on mutual recognition of judicial decisions.

Legislation And Agreements

The following acts and agreements can be found in Finlex

http://www.finlex.fi/fi/

Act (4/1994) and Decree (13/1994) on International Legal Assistance in Criminal Matters

Act on the Implementation of the Provisions of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union and on the Application of the Conven-tion (148/2004)

Act on the Temporary Transfer of a Person in Custody for Testimonial Purposes (150/2004)

Act on the Immunity in Certain Cases of Persons Participating in Criminal Proceedings and Investi-gations (11/1994)

Act on the Obligation to Appear Before a Court of Another Nordic Country in Certain Cases (349/1975)

European Convention on Mutual Legal Assistance in Criminal Matters (Treaty Series 30/1981) and the Second Additional Protocol thereto (TS 34/2005)

Treaty on Certain Aspects of Mutual Legal Assistance in Criminal Matters between Finland and the United States of America (TS 8/2010)

Treaty on Mutual Legal Assistance in Criminal Matters between Finland and Australia (TS 36/1994)

Treaty on Mutual Assistance in Criminal Matters between Finland and Hong Kong (TS 5/2012)