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Vasciannie’s advice to the dpp
Further to our telephone conversation of yesterday’s date, I write pertaining to a request for mutual legal assistance made by the Government of the Netherlands pursuant to the United Nations Convention against Transnational Organized Crime. The request for legal assistance has been made to you as the Competent Authority, and it concerns a criminal investigation in respect of Trafigura Beheer B.V., a Dutch legal entity. The allegation set out in the request for legal assistance is that Trafigura Beheer “is believed to be guilty of having bribed public officials of a foreign state, i.e. Jamaica.”
The scheme for the provision of mutual legal assistance involving Jamaica is set out in our Mutual Assistance (Criminal Matters) Act. Part III of the Act indicates the circumstances in which Jamaica is obliged to give assistance to foreign states. The term “foreign state” is defined in the Act as:
“(a) a designated Commonwealth state; or
(b) a treaty state”.
The act further defines a “treaty state: as “a state that is a party to a relevant treaty and in respect of which an order under section 31(2) is in force”; it empowers the making of an order under Section 31 (2) in the following terms:
“(2) Where any relevant treaty has been made with any foreign state, the Minister may, by order, declare that the provisions of this Act shall apply in respect of such foreign state, subject to such exceptions, adaptations or modifications, as the Minister, having due regard to the terms of such treaty, may deem expedient to specify in the order for the purposes of implementing such terms.”
Thus, subject to certain exceptions, you would be obliged, under Jamaican law, to give assistance to the Dutch authorities in this matter if (a) the Netherlands is a party to a relevant treaty, and (b) an order under section 31 (2) of the Act is in force in respect of that relevant treaty.
Both the Netherlands and Jamaica are parties to the United Nations Convention against Transnational Organized Crime (which entered into force in 2003). However, there is no order in force pursuant to section 31(2) in respect of this Convention: the Second Schedule to the Mutual Assistance (Criminal Matters) Act lists a number of Conventions, but makes no reference to the United Nations Conventions, but Transnational Organized Crime. As there is no section 31 (2) order in force in respect of the United Nations Convention on Transnational Organized Crime, you would not be authorized by Jamaican law, as the Competent Authority, to give the assistance sought by the Dutch Government.
One additional question arises: does the language of the United Nations Convention against Transnational organized Crime require the Jamaican Government as a matter of international law, to comply with the request of the Dutch Government? If there is such an obligation, then, even though you are compelled to follow Jamaican law, the Dutch Government could complain that Jamaican is in breach of international law. There is, in my view, no such obligation. I have reached this conclusion with reference to the language of Article 18 (2) of the Convention, which reads as follows:
“(2) Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws treaties, agreements and arrangements of the requested State party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with article 10 of this Convention in the requesting party.” (Emphasis added).
In the present context, the effect of Article 18(2) is to ensure that each State party will not be obliged to violate its domestic laws in carrying out its duties under the Convention. Jamaica would have a full defense in international law in response to any Dutch claim to the effect that the country is not giving full effect to the terms of the Convention.
Yours sincerely,
Stephen Vasciannie
Deputy Solicitor general
Source: Sunday Herald - Dec 2 - 8, 2007
Further to our telephone conversation of yesterday’s date, I write pertaining to a request for mutual legal assistance made by the Government of the Netherlands pursuant to the United Nations Convention against Transnational Organized Crime. The request for legal assistance has been made to you as the Competent Authority, and it concerns a criminal investigation in respect of Trafigura Beheer B.V., a Dutch legal entity. The allegation set out in the request for legal assistance is that Trafigura Beheer “is believed to be guilty of having bribed public officials of a foreign state, i.e. Jamaica.”
The scheme for the provision of mutual legal assistance involving Jamaica is set out in our Mutual Assistance (Criminal Matters) Act. Part III of the Act indicates the circumstances in which Jamaica is obliged to give assistance to foreign states. The term “foreign state” is defined in the Act as:
“(a) a designated Commonwealth state; or
(b) a treaty state”.
The act further defines a “treaty state: as “a state that is a party to a relevant treaty and in respect of which an order under section 31(2) is in force”; it empowers the making of an order under Section 31 (2) in the following terms:
“(2) Where any relevant treaty has been made with any foreign state, the Minister may, by order, declare that the provisions of this Act shall apply in respect of such foreign state, subject to such exceptions, adaptations or modifications, as the Minister, having due regard to the terms of such treaty, may deem expedient to specify in the order for the purposes of implementing such terms.”
Thus, subject to certain exceptions, you would be obliged, under Jamaican law, to give assistance to the Dutch authorities in this matter if (a) the Netherlands is a party to a relevant treaty, and (b) an order under section 31 (2) of the Act is in force in respect of that relevant treaty.
Both the Netherlands and Jamaica are parties to the United Nations Convention against Transnational Organized Crime (which entered into force in 2003). However, there is no order in force pursuant to section 31(2) in respect of this Convention: the Second Schedule to the Mutual Assistance (Criminal Matters) Act lists a number of Conventions, but makes no reference to the United Nations Conventions, but Transnational Organized Crime. As there is no section 31 (2) order in force in respect of the United Nations Convention on Transnational Organized Crime, you would not be authorized by Jamaican law, as the Competent Authority, to give the assistance sought by the Dutch Government.
One additional question arises: does the language of the United Nations Convention against Transnational organized Crime require the Jamaican Government as a matter of international law, to comply with the request of the Dutch Government? If there is such an obligation, then, even though you are compelled to follow Jamaican law, the Dutch Government could complain that Jamaican is in breach of international law. There is, in my view, no such obligation. I have reached this conclusion with reference to the language of Article 18 (2) of the Convention, which reads as follows:
“(2) Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws treaties, agreements and arrangements of the requested State party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with article 10 of this Convention in the requesting party.” (Emphasis added).
In the present context, the effect of Article 18(2) is to ensure that each State party will not be obliged to violate its domestic laws in carrying out its duties under the Convention. Jamaica would have a full defense in international law in response to any Dutch claim to the effect that the country is not giving full effect to the terms of the Convention.
Yours sincerely,
Stephen Vasciannie
Deputy Solicitor general
Source: Sunday Herald - Dec 2 - 8, 2007
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