Whilst intended to facilitate the investigation and prosecution of serious cross-border crimes such as corruption, inefficiencies with the mutual legal assistance (MLA) process often creates barriers to effective international operation.
A recent report published by the Asian Development Bank (ADB) and Organisation for Economic Co-operation and Development (OECD) highlights the common challenges to MLA among the 31 member jurisdictions of the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific.
Common challenges to mutual legal assistance
Lack of legal basis for cooperation
If two countries are not parties to the same agreement or treaty providing for mutual legal assistance in relation to corruption cases, a party might not feel obligated to provide MLA.
In the absence of such an agreement, international assistance may still be provided on the basis of reciprocity. Problems arise, however, when courts will not enforce decisions of foreign courts in the absence of a treaty.
Furthermore, even if a state is a party to an international agreement such as the United Nations Convention against Corruption (UNCAC) which requires state parties to provide MLA in relation to corruption cases, the treaty may not be legally enforceable unless domestic legislation is passed.
Bilateral treaties can often provide an effective alternative framework for MLA when an international agreement does not apply.
Differences in legal and procedural frameworks
Varying legal frameworks between countries present challenges to both outgoing and incoming MLA requests.
Outgoing MLA requests
If a requesting state does not understand the legal requirements of the jurisdiction from which assistance is needed, it will be difficult to prepare an effective MLA request. Legal misunderstandings can arise in a variety of areas:
- The legal basis for providing MLA (ref. above)
- The grounds upon which MLA may be refused (e.g. in relation to dual criminality)
- Legal requirements for obtaining certain types of assistance – different jurisdictions take different approaches to due process requirements, e.g. the evidence that must be produced before coercive actions may be undertaken.
- Procedural requirements for obtaining assistance – e.g. submitting the request to the appropriate channel, in the correct form and language, and providing any required supporting information or evidence.
- The approaches of common law versus civil law jurisdictions – authorities in each jurisdiction may have differing perspectives on the weight of legislation versus court judgments.
Incoming MLA requests
A state receiving an MLA request may not be able to assist for a number of reasons including:
- The legal requirements were not sufficiently addressed by the requesting state
- The responding state is not allowed to undertake the requested action because of its own due process law
In some instances, assistance provided may be deemed unusable because of the requesting state’s legal or procedural requirements.
If the requesting state submits an MLA request in a language that is not well understood by the receiving state, there will be inevitable barriers.
English is the most commonly used language in preparing outgoing MLA requests, however is not used across all countries and jurisdictions. Taking China as an example, Hong Kong prepares MLA requests in English whilst Macao prepares requests in Chinese or Portuguese.
Whilst translations may be used, a number of jurisdictions noted that translations are often quite poor.
Delayed or insufficient response
Receiving timely responses to MLA requests is a significant challenge in corruption cases. Delays can be caused by:
The requesting country
- The need for coordination between multiple parties can delay the issuance of the request
- Not providing sufficient information to allow the receiving country to action the request
The responding country
- Lack of resources to action request
- Lack of cooperation between the relevant agencies
- Procedural steps required before the request can be carried out (e.g. the need to obtain a court order prior to a search and seizure)
- Providing material that is not admissible in the requesting country’s courts (a new MLA request must then be submitted)
Obtaining a response to a request for MLA can take anywhere from 3 months to over 4 years, and in some cases no response is received at all. This seriously hampers investigations as ample time is allowed for suspects or witnesses to relocate, shell companies to be disbanded and documents to be destroyed.
Lack of resources present challenges to both obtaining and providing MLA. This is an increasing problem with expanding globalisation as international crime becomes more prevalent and requests for mutual legal assistance increase.
Common resources which are lacking include:
- Technology – e.g. videoconferencing
- Budget – to support additional resource needs
- Time – required to obtain court orders, locate witnesses etc.
- Training (problem exacerbated by regular staff turnover)
What are the grounds for refusal of MLA?
There are some legitimate grounds for refusing an MLA request which present challenges to requesting states. Whilst not typically encountered in Australia, two of the most prevalent grounds for refusing MLA among Asia-Pacific jurisdictions are evidentiary issues and dual criminality.
Evidentiary and informational issues
Issues occur when the responding state deems that the request lacks essential information, such as evidence of the alleged crime or that proceeds of corruption are located in the receiving country.
Even if this information is not legally required, its omission may make it impossible for the request to be logistically carried out.
“Dual criminality” refers to the requirement in some states that the criminal offence underlying a request for MLA must be a crime in both the state requesting and the state providing the assistance.
This can present a challenge in corruption cases as the same action may give rise to a different criminal offence in different jurisdictions, however the requirement for dual criminality will typically be satisfied as long as the conduct is a criminal offence under the laws of both jurisdictions (regardless of what it is actually called).
The successful investigation and prosecution of cross-border corruption cases requires effective international cooperation between the relevant government and law enforcement authorities. Mutual legal assistance (MLA) is a key form of international cooperation designed to assist in the fight against serious international organised crime, however significant inefficiencies and challenges greatly limit its effectiveness. There is a need for states to better adapt to differences in legal and procedural frameworks and language barriers, whilst ensuring sufficient resources are available to adequately prepare and respond to MLA requests.