Overview: What is mutual legal assistance?
International mutual legal assistance in criminal matters (internationale Rechtshilfe in Strafsachen) covers any support that one state grants another in conducting a criminal case — with the exception of extradition and the enforcement of foreign sentences, which are treated as separate forms of international cooperation. Typical forms of assistance are the service of documents, the gathering of evidence (witness examinations, searches, seizures), the transmission of files and information, and the provisional freezing and confiscation of assets.
In Germany, international mutual legal assistance is governed by the Act on International Mutual Legal Assistance in Criminal Matters (IRG). Sections 59 ff. IRG contain the provisions on other forms of assistance — that is, all forms of cooperation that do not concern extradition or assistance with enforcement. The basic course of a mutual legal assistance procedure can be set out in three steps:
The European Investigation Order (EIO)
Within the EU, the European Investigation Order (EIO) has largely replaced the classic law of mutual legal assistance. Its legal basis is Directive 2014/41/EU, which was implemented in Germany by Sections 91a ff. IRG.
The EIO enables one EU member state to ask another member state directly to carry out investigative measures — without the diplomatic channel through the ministries of justice. Execution generally takes place within 90 days. The executing authority is bound by the investigative measure indicated in the order, but may, under certain conditions, order a different, less intrusive measure.
For the person concerned, the EIO means that foreign investigating authorities can gather evidence quickly and effectively in Germany — searches, seizures, telecommunications surveillance, account disclosures and witness examinations. The defense must therefore become active early in order to safeguard the rights of the person concerned.
Refusing an EIO
The execution of an EIO can be refused only on narrow grounds. The grounds for refusal under Section 91b IRG include the protection of essential security interests, incompatibility with ordre public (Section 73 IRG), the prohibition of double jeopardy (ne bis in idem), and the territoriality principle where the offense was committed wholly or in part in Germany and is not punishable here.
Evidentiary assistance
Evidentiary assistance is the most common form of international mutual legal assistance. It covers the examination of witnesses and accused persons, the search of residential and business premises, the seizure of evidence, the transmission of account data and business records, telecommunications surveillance, and the transmission of DNA profiles and identification data.
When evidence is gathered, German law applies as a matter of principle. This means that all procedural safeguards of German criminal procedure must be observed — including the requirement of a judicial order for searches and seizures, the right to refuse testimony, and the accused's right to the assistance of defense counsel.
The defense can and should monitor compliance with these procedural safeguards and, where appropriate, lodge remedies. If, for example, a search is carried out on the basis of a mutual legal assistance request without a judicial order, the admissibility of the evidence obtained can be challenged.
Asset recovery
An increasingly important field of international mutual legal assistance concerns cross-border asset recovery. Foreign states ask Germany for the provisional freezing (attachment, seizure) and the confiscation of assets that derive from a criminal offense or were used for a criminal offense.
Within the EU, Regulation (EU) 2018/1805 on the mutual recognition of freezing orders and confiscation orders forms the legal basis. It enables the direct recognition and enforcement of freezing and confiscation orders from other member states.
For the person concerned, a freezing of assets can be existentially threatening — when accounts are frozen, real estate is seized or business assets are secured. Here the defense must act quickly: challenging the freezing order, applying to lift or limit the attachment, and asserting third-party rights in the assets concerned.
Assistance with examinations and spontaneous disclosures
Within the framework of assistance with examinations, witnesses or accused persons are examined in Germany at the request of a foreign state. The examination is carried out by German authorities under German law. In certain cases, foreign parties to the proceedings may also take part in the examination — for instance by video conference.
So-called spontaneous disclosures are a special feature: information that a German authority transmits to a foreign state on its own initiative — without a request. These are governed by Section 61a IRG and are subject to strict conditions. What is problematic for the person concerned is that, as a rule, they learn nothing of a spontaneous disclosure and have no immediate legal protection against it.
Legal protection of the person concerned
The available remedies against international mutual legal assistance measures are limited, but they exist. The person concerned can challenge the lawfulness of the specific implementing measure (search, seizure, examination) under German law — for instance by an appeal against the judicial order or by an application for a court decision (Section 98(2) StPO by analogy).
Beyond this, the granting of assistance itself can be challenged where it breaches ordre public (Section 73 IRG) — for instance where assistance is granted to a state that intends to use the evidence for proceedings that violate fundamental human rights.
Why me?
International mutual legal assistance procedures often run in the background — the person concerned learns of the request only once searches have already taken place or accounts have been frozen. I know the procedural steps and the available remedies in this complex field of law. I represent clients against incoming mutual legal assistance requests, fend off disproportionate measures and enforce the safeguarding of procedural rights.