EXTRA TERRITORIAL INVESTIGATION AND DEPOSITION OF WITNESS

"The investigation, prosecution, and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. That has long been the case, but it is increasingly evident today."[1]

Introduction

Crime control has been a major challenge for the establishment and functioning of a civilized and just society. Controlling crime is the most important duty of every state and for this state adopts various measures including punitive, preventive, promotional, and protective. If all stages and actions of the crime are limited to one sovereign state or if the related evidence related to the crime exists in that country, the said state will investigate the crime, collect, obtain, and test the evidence, prosecute the persons involved in the crime, conduct judicial proceedings and execute the judgment by convicting the persons involved in the crime by practicing its legal system and laws.

However, Crime control becomes difficult when different stages of a crime, along with related objects, evidence, and witnesses, are spread across multiple sovereign countries. A single country cannot effectively handle the responsibility alone, necessitating international cooperation for crime control. As Nepali Supreme Court has held that confessional statement-oriented prosecution should be reformed to Evidence-oriented investigation and evidence-supported prosecution and if the state prosecutes without evidence then it should be understood as mere persecution.[2] Under such circumstances, the importance of the extraterritorial investigation, prosecution, and deposition of witnesses plays a huge role in criminal prosecution.

In today’s time, every state is sovereign and states take their sovereignty seriously. So when we proceed extraterritorially we need to respect their sovereignty, otherwise, it can hamper the proceedings. Investigators and prosecutors often face legal, practical, and often diplomatic obstacles that can be daunting. Failure to comply can result in strong diplomatic protests, liability for reparations, and other remedial repercussions, to say nothing of the possible criminal prosecution of offending foreign investigators.[3]

Legal Provisions

Looking at the provisions of Section 30(1)[4] of the Muluki Criminal Procedure Code, notwithstanding anything contained elsewhere in this Act, it has been accepted that the case will be tried in the courts of Nepal through the investigation of the offenses committed outside Nepal. According to this, there must be a treaty with a country so that the investigation of criminal offenses that can be prosecuted in the courts of Nepal can be conducted by authorized investigation officers from other countries. In the absence of such a treaty, it is accepted that the investigation of cross-border crimes or international crimes can be prosecuted in Nepal through the investigation by the competent authority of the country where the offense was committed through communication by diplomatic channel if possible.

Under the law on mutual legal assistance, when individuals accused of offenses reside in foreign countries, arrest warrants or summons can be issued according to Section 64 of the code. Also, Section 191[5] of the act states that if a summons or arrest warrant needs to be issued, or evidence needs to be taken from an offender who is in a foreign country, the matter shall be dealt with in accordance with mutual legal assistance (MLA) provisions.

In cases where a court needs to examine witnesses or evidence outside Nepal, Section 115 (1)[6] specifies that the examination must be carried out in accordance with the existing law on mutual legal assistance. Additionally, Section 109[7] allows witnesses to be examined via video conference, even if they are located in foreign countries.

Mutual Legal Assistance and Administrative Assistance

Traditionally, to access needed evidence from foreign entities, most governments relied on “letters rogatory”, which formal documents were issued through diplomatic channels. Many governments realized over time, however, that this method could not sufficiently provide timely, predictable, and efficient assistance in international criminal matters.[8] As a result Mutual legal assistance (MLA), came which is the formal way in which states request and provide assistance in obtaining evidence located in one state to assist in criminal investigations or proceedings in another state.[9] Hence a “Mutual Legal Assistance Treaty,” is a formal agreement between two or more countries to use their national legal processes to assist each other in criminal matters.[10] Since it is not possible to maintain control over some organized crimes such as corruption, terrorism, and so on by a single state, it is desirable to maintain mutual legal cooperation between nations.[11]

Nepal has also taken a step in the area of making its judicial outreach to cross-broader issues by promulgating the Mutual Legal Assistance Act, 2014 (2070) (“MLAA”). The MLAA deals with the process and requirements of providing and obtaining legal assistance between Nepal and any other foreign country on certain legal matters. Section 5[12] of MLAA outlines the scope of potential mutual legal assistance, both that the Nepali Government can seek from any foreign government and a foreign government can seek from Nepal. Requests may be made inter alia for the legal assistance to (a) examine the evidence, (b) serve notice, (c) carry out the investigation, (d) attach the title of any property, (e) present a person, and (f) enforce a judgment.

Likewise, a request for mutual legal assistance can be made from Nepal to a foreign state. If there is a sufficient basis for the investigation or prosecution of a crime, the officer investigating or prosecuting any document, evidence, information, or item in a foreign state, including bank, financial, or business records, which will assist in the investigation or prosecution, can request the central authority to provide such documents, evidence, or records that are necessary for the prosecution and write to the central authority to identify and provide such evidence in the foreign state and to initiate the process of MLA.[13]

But requests for intelligence should be made through administrative assistance; that is to say, police to police or prosecutor to prosecutor. Administrative assistance can, and should, also be used when making evidence-gathering requests to a state where no coercive power (e.g. a warrant or court order) is required to be exercised in order to obtain the evidence. In this context, it is important to remember that, although administrative assistance is sometimes referred to as ‘informal assistance’, it does not mean that the form of the evidence obtained is informal or non-evidential.[14]

Some of the forms of Administrative assistance are:

·       Police to Police Network and Co-operation

·       Network and Cooperation between Law Enforcement Agencies of Sovereign States

·       International Criminal Police Organization e.g. INTERPOL

·       Assistance through the Diplomatic Channel

Liaison officers are hired by agencies like INTERPOL, who are usually responsible for establishing a communications channel between their agency and its counterpart in a foreign country, acting as the "human interface" between different organizations.[15]

Contrary Provision in Muluki Criminal Procedure Code, 2074 and MLAA, 2070

In the mentioned perspective, section 64 of our Civil Criminal Procedure Code, 2074 provides that an arrest warrant can be issued in the name of the accused residing abroad, so some confusion may arise. In principle, the arrest warrant should be issued to the accused to proceed with the process of arraignment. Sub-section (1) of the said section contains the provision that "an arrest warrant can be issued in the name of such a person or a warrant of arrest can be issued in the name of such a person according to the prevailing Nepal law on MLA", so it seems that section 64 will not be automatically activated but the prevailing law on MLA will be drawn.[16] But section 2 (h)[17] of MLAA, 2070 while defining the term “Process”, only includes notices, certificates, and subpoenas issued to any person.

Under MLA, a term or notice can be served in the name of the accused or the defendant abroad. However, it is not possible to issue an arrest warrant. The deadline or notice is the information given to him under the principles of natural justice for the opportunity to respond due to the fact that a case has been filed against him in Nepal. After receiving the notice or information about the deadline, he can voluntarily appear in the relevant court. But if he is not present, an arrest warrant cannot be issued under MLAA to arrest him and make him appear. Generally, the arrest is done through organizations like INTERPOL through lookout notices or red corner notices like in the case of Mohammad Husen Sakil.[18]

Conclusion and suggestions

The criminal procedure code has provided that the investigation conducted abroad will be recognized. For that, there should be a treaty on mutual legal assistance and extradition with as many countries as possible as MLA requests cannot be made for the request for arrest of a fugitive. Such a request is strictly the domain of extradition.[19] As long as such treaties cannot be concluded with foreign countries, cases cannot be conducted in Nepal on the basis of investigations conducted abroad.

 A recent study by Human Rights Watch found that the ‘credibility of witnesses’ is a ‘paramount concern for some investigators [in universal jurisdiction cases], and several practitioners with experience in extraterritorial investigations noted that translation problems hampered their ability to assess the reliability of a potential witness’s statement’.[20] Nepal faces logistical challenges such as disparate information technology, unequal access to resources, and complex approval procedures for extraterritorial investigations. To overcome these hurdles, Nepal should prioritize diplomatic efforts to establish more MLA relations and enhance global cooperation between agencies. This will improve information sharing and resource allocation, streamlining extraterritorial legal processes.

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[1] United States v. Cotroni, 527 F.2d 708 (2d Cir. 1975).

[2] Government of Nepal v. Magare Kha and others, NKP (2041) Decision No.8243 (Supreme Court).

[3] RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 432 cmt. c and rptrs. n.1 (AM. L. INST.1986) (“In a case that received wide attention, two French customs officials traveled to Switzerland on several occasions in 1980 to interrogate a former official of a Swiss bank, with a view to gaining information about French citizens believed to be hiding funds from the French tax and exchange control authorities. The person interrogated informed the Swiss federal prosecutor’s office, which caused the Swiss police to arrest the French officials on their next visit. The officials were convicted of committing prohibited acts in favor of a foreign state, as well as of violations of the Swiss banking and economic intelligence laws. Even though the two French defendants were engaged in official business on behalf of the government of a friendly foreign state, they were given substantial sentences.”).

[4] Muluki Criminal (Code) Act, 2017, § 30, No. 37, Acts of Parliament, 2017 (Nepal).

[5] Muluki Criminal (Code) Act, 2017, § 191, No. 37, Acts of Parliament, 2017 (Nepal).

[6] Muluki Criminal (Code) Act, 2017, § 115, No. 37, Acts of Parliament, 2017 (Nepal).

[7] Muluki Criminal (Code) Act, 2017, § 109, No. 37, Acts of Parliament, 2017 (Nepal).

[8] Anurag Devkota, Mutual Legal Assistance and the Transfer of Sentences Prospects for Nepali Migrant Workers Imprisoned Abroad, NJA J. 151, 172(2021).

[9] MUTUAL LEGAL ASSISTANCE MANUAL, 9 (Council of Europe 2013).

[10] Michael A Rosenhouse, Validity, Construction, and Application of Mutual Legal Assistance Treaties (MLATS), 79 A.L.R. Fed. 2d 375, 1 (2013).

[11] Prithivi Bahadur Pandey v. Kathmandu District Court and others, NKP (2073) Decision No.9667 (Supreme Court)

[12] Mutual Legal Assistance Act, 2070 (2014), § 5, No. 7, Acts of Parliament, 2014 (Nepal).

[13] SanjivRaj Regmi, Mutual Legal Assistance, Nepal Laws and Responsibilities of Public Prosecutors in Implementation, 1 PROSECUTION J. 43, 52(2076).

[14] MUTUAL LEGAL ASSISTANCE MANUAL, 9 (Council of Europe 2013).

[15] Mona Singh, Organized Crime Investigation: Tools, Challenges and Their Remedies, 5 PROSECUTION J. 125, 132(2022).

[16] Hari P. Phuyal & Ramesh Dhakal, Mutual Legal Assistance: Concept and Practice, Pratipadan J. 1,10 (2078).

[17] Mutual Legal Assistance Act, 2070 (2014), § 2, No. 7, Acts of Parliament, 2014 (Nepal).

[18] THEHIMALAYANTIMES, https://thehimalayantimes.com/kathmandu/four-persons-interpol-red-notice-arrested-brought-home-three-months (last visited July 24, 2023).

[19] Mutual Legal Assistance Manual, Council of Europe, 2013, p.7.

[20] Human Rights Watch, 2006. Universal Jurisdiction in Europe: The State of the Art. Human Rights Watch Report, 18.