Guideline 4: Timing
Consider – and discuss with the jurisdiction to be requested – the timing of various types of requests for MLA.
Requesting and requested jurisdictions should consider the timing of various types of requests for MLA, before their submission, as the timing of the submission of a formal request may impact the proceedings in a range of manners that may or may not be conducive to the efficient recovery of stolen assets. In general, other assistance channels, such as the Egmont Group, CARIN, Interpol or other intelligence sharing networks, should be exhausted among involved jurisdictions prior to submission of formal request for MLA (see Guideline 6).
Why is the timing of requests for MLA crucial?
Information provided to a requested jurisdiction — informally or through a request for MLA — may result in the requested jurisdiction initiating its own domestic investigation. Subsequently, the requested state may be unable to provide MLA as there are "on-going proceedings" in the requested jurisdiction.
It is essential that requesting jurisdictions understand the consequences of request for MLA as some jurisdictions require authorities to provide notice to the targets of a request for MLA and grant these targets the right to appeal a decision to provide the assistance sought through a request for MLA. As a result, premature request for MLA may alert targets of the investigation and thus allow the movement or dissipation of assets by the target to other jurisdictions, or the destruction of evidence. Appeals by targets may lead to delays which impact other aspects of international cooperation. Requesting jurisdictions are advised to discuss the timing of any request for MLA with the designated focal contact point of the requested jurisdiction (see Guideline 7).
Once a request for MLA has been filed, some jurisdictions impose limitations on the further exchange of financial or law enforcement intelligence (see Guideline 6). Thus, requesting and requested jurisdictions should always consider together whether the request for MLA is necessary or if the information sought may be made available through other channels first.
Where there are likely to be multiple requests for MLA to obtain information, evidence, provisional measures, or confiscation orders, requesting and requested jurisdictions should, also as a trust-building measure, discuss sequencing of the requests in the most expeditious manner to ensure, inter alia, that evidentiary requirements are met and unnecessary delays avoided. Such sequencing of requests should take into account existing rules in the requesting and requested jurisdictions.