With the rapid increase in global trade and market competition in recent times, the risk of international bribery and corruption has risen significantly.
Investigations are often complex and involve gathering evidence across borders, posing great challenges for investigative agencies in dealing with multiple legal systems.
Mutual legal assistance (MLA) is the process by which states seek and provide assistance in gathering evidence for use in criminal cases, whether through police, state legal processes (e.g. a judicial order) or a compulsory measure (e.g. the search of a residence). In the investigation of foreign bribery and associated money laundering cases, MLA is usually crucial.
Transparency International, the global civil society organisation leading the fight against corruption, recently released its 2018 report. We explore their findings as to the key trends observed relating to the function of MLA in international corruption and bribery matters, as well as key recommendations to improve the MLA process.
What are the key recent trends observed by Transparency International?
Transparency International independently assesses the enforcement of the OECD Anti-Bribery Convention, which requires parties to criminalise bribery of foreign public officials and introduce related measures.
Part of this process involves assessing the function of MLA in OECD Convention countries, including the capacity to request, the ability to provide assistance and the responsiveness of authorities in other countries.
A number of key trends, both negative and positive, were identified in the 2018 report.
Negative trends
- Several legal requirements hamper countries’ ability to take full advantage of MLA, such as:
- the requirement for dual criminality (e.g. Austria, Belgium, Hungary)
- restrictions on MLA being provided to foreign countries conducting civil or administrative proceedings against a company for foreign bribery (Australia)
- MLA processes often suffer from limited resources, lack of coordination and long delays – sometimes up to 4-9 months (Argentina).
- Language challenges and inadequate resources for translation (Bulgaria, Costa Rica, Poland)
- Insufficient number of officials responsible for processing MLA requests (Colombia)
- MLA requests failing to adequately specify the actions require by recipient authorities (Costa Rica)
- Lack of a special unit for coordinating foreign bribery MLA requests (Russia)
Positive trends
- Improvement in processing of MLA requests with the introduction of a system which allows law enforcement authorities to access information electronically without a court order (Austria)
- Implementation of a new system allowing for the processing of statistical data on incoming and outgoing MLA (Slovenia)
- Formation of working groups with prosecutors and judges from all over Latin America assisting each other in ongoing investigations
Transparency International stresses the importance of effective international cooperation and joint investigation work for solving complex international bribery and corruption cases, and posits that such cooperation is on the rise.
What are the key recommendations for improving MLA?
In the 2018 report, Transparency International presents a number of key recommendations for strengthening the function of MLA in combatting international bribery and corruption:
Countries party to the Convention and other major exporters should ensure their capability to competently make and receive MLA requests
This involves ensuring adequate organisation, resourcing and training of enforcement authorities, so they can competently make MLA requests and handle requests received without undue delay. They should also use joint investigation teams and other forms of cooperation in cross-border investigations.
The OECD Working Group on Bribery (WGB) should review MLA data and performance
The OECD should formally assess MLA performance across all countries party to the Convention, including a review of data on response levels and rates.
The OECD WGB should foster collaboration and improvement in MLA
The OECD WGB should continue to facilitate exchange of experience among law enforcement practitioners, foster joint investigation teams, and develop guidance materials and tools, in cooperation with other anti-corruption bodies.
