The Suspect and Mutual Legal Assistance : A legal analysis of the rights of the individual in the suppression of transnational organised crime
The suppression of transnational organised crime has continued to rise on the agenda of the international community and is today an affirmed goal of most states. To increase the effectiveness of suppression, it is necessary for states to cooperate across borders in criminal investigations. The legal regime by which this is done is called mutual legal assistance, MLA, and is one of the most practically important developments in public international law over recent decades. The development however has led to several unanswered questions regarding the position of the individual in the procedure. Those are manifested in three main areas, namely; the requirements for employment of MLA; the application of exceptions and; human rights protection.
This thesis elaborates on and analyses the balance between effectiveness in formal international law enforcement and the protection of fundamental rights in such procedures in the three main ambiguous areas.
The analysis points to the importance of the principle of reciprocity for effective cooperation and argues that the conditions for MLA should not be altered. It argues that the number of exceptions shall be kept at a minimum. However, the efforts to abolish the exception for offences of a political nature should be halted or at least approached with more caution. This is true also of when concerning terrorism offences.
The analysis shows that the protection available to the person whom the MLA request concerns is inadequate. There is an urgent need to reform the system in that respect, in particular by opening channels of complaint.
The final conclusion is that, in light of the unquestionable importance of MLA in the suppression of transnational organised crime, it is possible to make limited reform in the areas of human rights and the guarantee of a right to a fair trial without jeopardising the necessary effectiveness of the system.
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