Dual Criminality
Definition
The requirement in most MLAT regimes that the conduct under investigation constitutes a crime in both the requesting and the requested state. Evidence requests for conduct that is lawful in the requested state are typically refused. Some modern cybercrime treaties narrow this requirement for procedural assistance even where substantive dual criminality does not exist.
- Field
- Mutual legal assistance (MLAT) law
- Requirement
- Conduct must be a crime in both requesting and requested states
- Effect of absence
- Requests typically refused
- Recent trend
- Some cybercrime treaties narrow the requirement for procedural assistance
Common questions
Why does dual criminality complicate cross-border digital evidence requests?+
Cybercrime definitions vary between countries, so conduct treated as criminal in the requesting state, such as certain forms of online harassment or unauthorised data access, may not be an offence at all in the requested state, letting that state lawfully decline to compel a service provider to produce evidence even where the requesting investigation is legitimate.
How do modern cybercrime treaties work around strict dual criminality for evidence requests?+
Some instruments distinguish between assistance for substantive prosecution, which still generally requires dual criminality, and narrower procedural assistance such as data preservation requests, which some treaties allow even without full dual criminality, on the reasoning that preserving evidence pending a request causes less intrusion than compelling its production or use in prosecution.
Related terms
- Chain of Custody
- The documented chronological record of who collected, handled, transferred, and examined a piece of evidence. For digital evidence, chain of custody includes...
- CLOUD Act
- The Clarifying Lawful Overseas Use of Data Act (US, 2018). Clarifies that US service providers must comply with valid US legal process...
- European Production Order (EPO)
- A court order issued by a judicial authority in one EU member state, under Regulation (EU) 2023/1543, compelling a service provider in...
- Mutual Legal Assistance Treaty (MLAT)
- A bilateral or multilateral treaty under which signatory states agree to assist each other in gathering evidence for criminal investigations. MLATs define...
- Preservation Order
- A legal instrument directing a service provider to retain specific data for a defined period pending receipt of a production order or...