Guideline 10: Execution of request for Mutual Legal Assistance (MLA)

The requested authority promptly proceeds to the execution of the request.

After the draft request for MLA has been revised and agreed on by the requested jurisdiction, the requesting jurisdiction should promptly proceed with the submission of the request for MLA. The requested jurisdiction should, in turn, proceed with the execution of the request for MLA as soon as possible upon its receipt. Furthermore, the requested jurisdiction should keep the requesting jurisdiction informed of the status of the request for MLA during its execution.

When considering concluding domestic proceedings that may affect related proceedings in another jurisdiction, including settlements, engage in consultation, where appropriate, to minimize obstacles to foreign proceedings or international cooperation.

As noted in Guideline 8, both requesting and requested jurisdictions may be conducting domestic procedures in the same case. The outcome of such procedures may affect the involved jurisdictions in a range of manners. For this reason, concerned jurisdictions should keep each other continuously informed when proceedings are nearing conclusion, and should keep in mind the effect that the conclusion of their own procedure may have on other concerned jurisdictions’ procedures with a view to preventing any adverse impacts.

This is of particular importance in instances where procedures may be concluded through alternative avenues for recovering assets, which may not require a criminal conviction – a solution to which jurisdictions have increasingly turned in recent years. Such alternative avenues may for instance include negotiated agreements such as settlements, plea-bargains or deferred prosecution agreements (DPAs), and non-conviction based forfeiture (NCBF) proceedings. The use of such alternative avenues often involve the negotiation of confidential arrangements with suspects that involve the confiscation of assets in return for an asset sharing agreement or for interrupting criminal proceedings and the (non-)admission of guilt. Interrupting these criminal proceedings in one jurisdiction however can make it very challenging for another concerned jurisdiction to pursue related asset recovery efforts of their own. A negotiated settlement in one jurisdiction may affect the ability of that jurisdiction to provide mutual legal assistance on the matter, or to provide information or evidence, to another jurisdiction.

Similarly, increasing amounts of jurisdictions are abandoning some criminal proceedings in favour of pursuing NCBF proceedings. The legislative framework providing for NCBF can differ greatly from one jurisdiction to the next and consequently, the decision of one jurisdiction to conclude criminal proceedings in favour of NCBF proceedings can have repercussions on the ability of another jurisdiction to pursue criminal proceedings on related matters. Furthermore, even if both jurisdictions have NCBF legislation, the standard of proof required by this legislation can vary from jurisdiction to jurisdiction, and may impact on the ability of these jurisdictions to enforce each other’s judicial orders. Lastly, even if a jurisdiction proceeds with NCBF, it may be met with challenges during its enforcement in other jurisdictions.

Terminology
Deferred Prosecution Agreement (DPA) An agreement reached between a prosecutor and an organisation which could be prosecuted, under the supervision of a judge. The agreement allows a prosecution to be suspended for a defined period provided the organisation meets certain specified conditions.
Non Conviction Based Forfeiture (NCBF) Confiscation through judicial procedures related to a criminal offence for which a criminal conviction is not required.



Последнее изменение: Thursday, 13 August 2020, 15:14