On February 1, 2010, 56 new agreements between the United States, the European Union ("EU"), and each of the EU Member States addressing extradition and mutual legal assistance took effect, according to the US Department of Justice ("DOJ"). The new treaties will make it easier for US and EU enforcement authorities to investigate and prosecute violations of antibribery and antifraud statutes, including the US Foreign Corrupt Practices Act, by individuals and corporations overseas. The agreements have been under negotiation since the September 11, 2001 terrorist attacks. The DOJ characterized the agreements as constituting "a milestone in cooperation on criminal matters between the EU, along with its Member States, and the United States."
The agreements as a whole are intended to facilitate both the extradition of individuals charged with transnational crimes, along with the gathering and sharing of information needed to investigate and prosecute those crimes. The agreement on extradition, for instance, replaces lists of crimes which were deemed extraditable with a more flexible "dual criminality standard." Under prior extradition treaties, if a particular offense was not identified expressly in a given treaty, the individual charged could potentially defeat the prosecuting country's attempt at extradition. This became more problematic over time as new criminal statutes were added to individual countries' criminal codes after the effective date of the treaties that had been in effect for years. Individuals charged under such new statutes could avoid extradition because the charged crimes were not listed in the treaty. Dual criminality, on the other hand, typically requires only that the charged offense constitute a criminal act in both countries, regardless of the name given the offense or the listing of the offense in the applicable treaty.
Similarly, the agreement on mutual legal assistance will provide for "prompt identification of financial account information in criminal investigations," will facilitate "the acquisition of evidence, including testimony, by means of video conferencing" and, perhaps most importantly, will authorize "the participation of US criminal investigators and prosecutors in joint investigative teams in the EU." Historically, mutual legal assistance treaties required the host country, where evidence was located, to deputize a local prosecutor to act on behalf of the requesting prosecutor for purposes of issuing subpoenas for documents and testimony, and conducting witness examinations without the benefit of the requesting prosecutor's presence or participation. By authorizing the use of joint investigative teams and video conferencing, requesting prosecutors presumably will be able to examine witnesses personally without traveling to the host country where the witnesses reside, thereby significantly increasing the pace of transnational investigations and reducing costs.
At a time when US enforcement authorities are dedicating significantly more time and resources to Foreign Corrupt Practices Act, conspiracy and other transnational fraud investigations, the new agreements will add yet another weapon to their arsenal.
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The DOJ press release can be found here: www.justice.gov/opa/pr/2010/February/10-opa-108.html