Guideline 9: Draft request for Mutual Legal Assistance (MLA)
Share draft requests for MLA between the requesting and requested jurisdictions to confirm all requirements are met.
The execution of a request for MLA is subject to its compliance with the legislation of both the requesting and requested jurisdictions. While international conventions have mostly standardised requirements for requests for MLA, specific procedural and legal elements still vary from jurisdiction to jurisdiction. Additionally, language, content and format of a request for MLA, as well as evidentiary standards often differ from one jurisdiction to the next. Finally, an offence in one jurisdiction may not constitute an offence in another jurisdiction, which is likely to cause difficulties, as the fulfilment of the dual criminality requirement is a prerequisite before a request for MLA can be executed. Concerned jurisdictions should familiarise themselves, when necessary, with any guidelines or country specific information available when drafting a request for MLA.
Jurisdictions should establish contact with each other prior to sending a request for MLA to ensure that the request meets the applicable standards and is of appropriate quality, establish and maintain a level of mutual trust and understanding, and consequently increase the efficiency of the MLA procedure and the asset recovery process as a whole. Prior contacts often help to determine the best course of action and whether, for the particular case, draft requests for MLA should be shared before submitting them through formal channels.
Prior contacts also allow for better strategic planning. The requested jurisdiction(s) may alert the requesting jurisdiction about potential obstacles and challenges in relation to executing the request for MLA and thus be of better assistance throughout the asset recovery proceeding. Prior contact will further allow the requested jurisdiction to understand the sensitivities surrounding the criminal investigation in the requesting jurisdiction, thereby determining the priority and urgency of the request, and whether there is sufficient time to first review a draft request for MLA before its formal submission. When determining the sensitivities surrounding the criminal investigation, consideration should be given to the seriousness of the offence, the value of the assets, the stage of the investigation and the degree of public interest.
Prior revision of draft requests for MLA by the requested jurisdiction can save valuable time and other resources, allowing the concerned jurisdictions to use MLA as an effective and strategic tool to further criminal proceedings.
Where a revision of the draft requests for MLA by the requested jurisdiction is not required, the central authority of the requesting jurisdiction should review the draft request for MLA.
Requesting and requested jurisdictions should ensure follow-up to support the prompt execution of requests for MLA and periodic consultation on progress in domestic processes.
Concerned jurisdictions should ensure that they communicate with each other on a regular basis throughout the entire asset recovery process – even after a request for MLA has been formally submitted and then accepted by the requested jurisdiction. As requesting jurisdictions are often under enormous pressure to progress rapidly with cases, remaining in contact with requested jurisdictions while they analyse and eventually execute the requests will enable the requesting jurisdictions to have a realistic understanding of the timeframe within which they can expect the request to produce results. Being in contact during this phase will also enable the concerned jurisdictions to be aware early on of any hindering developments that may arise during the process. Continuous communication among concerned jurisdictions allows them to anticipate and plan for any further actions upon the completion of the initial request, such as the need for drafting of additional requests for MLA.