Mutual Legal Assistance Treaty

 Investigation of local crime is done by collecting local shreds of evidence, local witnesses, etc but a local crime does involve plenty of digital shreds of evidence, much of which is controlled by the foreign internet companies which do creates a problem for the local law enforcement body to investigate the crime further and therefore do seeks the mutual legal assistance from those foreign companies. Hereunder MLAT the countries abound to provide legal assistance to another country, irrelevant to the fact that the crime is of criminal nature of civil. This paper does highlights the fact that how Mutual Legal Assistance between the countries have gained importance especially in India where crime is increasing at an alarming rate and what are the various benefits of signing the Mutual Legal Assistance Treaty with relevant case laws. The paper does tell about the Central authority appointed by the government, who carries out the operations regarding mutual legal assistance. Further the process of issuing a summon to the person residing in foreign jurisdictions is also being discussed. 

Introduction to Mutual Legal Assistance Treaty

Modern states have developed the idea of requesting other countries for legal assistance against criminal activities which generally do involve foreign digital/internet services. Mutual Legal Assistance Treaty (MLAT)[1] is an agreement (treaty) which is signed between two or more nations to exchange the information with each other, to enforce civil or criminal laws. One country can have the shreds of evidence, witnesses, or documents, if needed from the foreign jurisdictions, which do, provides that MLAT is being signed between the two countries. To maintain the political image by a country or because of security reasons too the country could deny assisting other countries even though MLAT is being signed. If the criminal offense which has occurred in not equally punishable in both the countries, then also assistance can be denied. The assistance referred to as in the above context can be in form of examining or identifying the person, place, or thing, it does includes custodial transfer and assist concerning handing over the instruments and the documents of the criminal act.

Even though the countries under MLAT do carries an obligation to provide legal assistance to others, many countries have successfully provided legal assistance to many countries with the help of their justice systems without MLAT. Today in this modern era, some countries are there who’s domestic laws don’t allow the interference of other countries in any form.

MLAT a New Concept

MLAT is not a new concept perhaps India has signed this treaty with 32 countries including Mauritius, Iran, Kuwait, Vietnam, Thailand, Mexico, Kazakhstan, South Korea, Spain, Sri-Lanka, United Arab Emirates, the United States of America, South Africa, France, Mongolia, Turkey, Ukraine, United Kingdom, Egypt, Canada, Bulgaria, Belarus, Bosnia, Bangladesh, Australia, Bahrain, Russia, Myanmar, Singapore, Uzbekistan, Switzerland, and Herzegovina

Some Examples of MLAT

  • European Convention on Mutual  Assistance in Criminal matters
  • United Nations Convention against Trans-national Organized crime
  • European Convention on information on foreign laws
  • Convention on Mutual Administrative Assistance in Tax matters
  • European Convention on International Validity of Criminal judgments

Types of MLAT

MLAT is of two types-

  • Bilateral treaty– it is a treaty signed between two countries only.
  • Multilateral treaty– it is a treaty signed between more than two countries.

Brief Introduction to MLAT between the USA and India

As we look back into history, India and the USA have shared a strong bond and eventually, it has grown stronger and stronger. Commercial, non-commercial and legal matters are some of the subjects upon which India has signed over 40 treaties with the USA which do help in boosting trade and business.

One of the above-mentioned treaties being signed between India and the USA is MLAT, which eases both the countries to provide the measures of prosecution, prevention, investigating, and suppression of criminal related matters, moreover all the provisions of the treaty will be binding on both the countries. Mutual Legal Assistance Treaty (MLAT) was the one which was ratified by the President of India on 1st July in the year 2005. Since then, India has signed MLAT with 7 more countries that are 39 countries in total and the USA has signed the treaty (MLAT) with approximately 59 countries till the date. By signing this treaty both the countries would be able to have the access to each other’s data about the domestic investigation on criminal matters. Moreover, it does not benefit both the countries only here India and the USA but does help in minimizing the crime rate at an international level too.

Central Authority in India for MLAT

The Ministry of Home Affairs (MHA[2]) is the ministry which is centrally authorized by the government of India for providing MLA in criminal related matters. The ministry when do receives a request from their diplomatic channels asking them to provide mutual assistance, they do examine the matters and do takes the appropriate action. The cases of civil nature do require MLA and for the same assistance is provided by the Ministry of law and Justice which acts according to the provisions of the Civil Code (CPC).

The Procedure for issuing of summons under MLAT

According to the Indian laws, all the matters of other jurisdictions and civil and commercial nature are governed by the Indian Ministry of Law and Justice, and matters of criminal nature are governed by the Ministry of Home Affairs. Whereas the statue governing the criminal matters is dealt with the provisions laid down under the Criminal Procedure Code (CrPC) and the statute governing civil and commercial related matters are the provisions mentioned under Civil Procedure Code (CPC).

According to Section 105 of the Criminal Procedure Act (CrPC)[3], the Central government does have the authority to make the reciprocal arrangments with the foreign government concerning issuing the warrant or judicial notice to the person living in a foreign country. Moreover, according to the Ministry of Home Affairs, India has signed MLAT concerning criminal matters with 39 countries. According to Article 1 of MLAT[4] taking the testimony of people, providing documents, shreds of evidence, and other sought of information like the location of the person, etc are some of the grounds based on which the contracting parties of MLAT do provide legal assistance to each other. Whereas Article 3 of MLAT[5] does talks about the limitations that are the circumstances under which either of the contracting parties of MLAT do refuse to provide MLA. The reasons for the refusal to assist can be-

  • if assisting goes against the domestic laws of that particular country
  • if proving information may lead to the breach of security norms of that particular country
  • if assisting may bring a threat to the life of the residents of that country

Benefits of MLAT

The nature of criminal activities and this digital era have blurred the geographical boundaries for the criminals therefore MLAT came into the picture, especially the benefits of MLAT have become evident over the past few years, especially in India. If we look back into the books of history of India one will get to know that any company having it branches in abroad or any individual too if involved in any criminal activity, then, in that case, the government of India does face a lot of problems in seeking documents, shreds of evidence, etc from a foreign jurisdiction. Since with the help of MLAT, the documents and shreds of evidence can be availed by the government of Indian from the foreign jurisdiction and can even deport the criminal. MLAT does help in getting their information regarding the terrorist activity too and even precautions can be taken prior. MLAT not only give a prior signal of terrorist activities but helps in eradicating the terrorist activities too.

India in recent years has taken the help of MLAT and because of that people like Vijay Mallya, Nirav Modi, etc can be investigated. The MLAT despite being signed to assist in criminal matters, can also be used for assistance in civil matters. This statement can be proved by the judgment passed by Bombay High court ion 5th May 2017 in the case Nimesh Harkisandas Topiwala v. Deepa Dalpatram Topiwala[6] Here in the case, the court ordered that, since India and the USA do have an MLAT in criminal matters then also can seek assistance from the USA in civil matters.

Conclusion

One must be clear with the fact that the contracting parties of MLAT do carries an obligation of assisting in both criminal and civil matters. The countries which are not a part of MLAT or not have signed MLAT do not carry such obligation of assisting. If India is dealing with such a country where MLAT has not being signed then in such a case the provisions of the Criminal Procedure Code, 1973 (CrPC) and Civil Procedure Code, 1908 (CPC) would apply.

References

  • https://www.mondaq.com/india/terrorism-homeland-security-defence/956062/the-mutual-legal-assistance-treaty-and-its-impact-on-india-us-legal-relations
  • https://en.wikipedia.org/wiki/Mutual_legal_assistance_treaty
  • http://www.cbi.gov.in/interpol/mlat/UnitedStatesofAmerica.pdf
  • https://www.mha.gov.in/
  • https://indiankanoon.org/

Frequently Asked Questions

  • Define the Mutual Legal assistance treaty and its types?
  • Explain the role of the Ministry of Home Affairs concerning mutual legal assistance treaty?
  • Explain the procedure by which Indian Judiciary can issue a summon to the person residing in foreign jurisdictions?
  • Give a brief description of articles 1 and 3 of the MLAT agreement?
  • Explain the benefits of MLAT with the help of relevant case law?

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