Back in 2014, Rick called for further analysis of mutual legal assistance (MLA) processes and potential reforms that would promote responsiveness to MLA requests in anticorruption cases (and others). As a follow-up, I wanted to highlight the findings of a recent report from the Asian Development Bank (ADB)/Organization for Economic Cooperation and Development (OECD) Anti-Corruption Initiative for Asia and the Pacific. The report, entitled “Mutual Legal Assistance in Asia and the Pacific: Experiences in 31 Jurisdictions,” provides examples of various obstacles to effective MLA, which I have sorted into two general categories: legal and practical.
- Legal impediments to cooperation. In theory, the UN Convention Against Corruption (UNCAC) provides an independent basis for MLA, and indeed conditionally requires state-parties to afford to one another MLA. The same goes for the UN Convention Against Transnational Organized Crime (UNTOC) and treaties enacted by regional and subject matter-specific intergovernmental organizations, such as ASEAN and the OECD. But the general language in these multinational treaties only obligates countries to provide MLA to the extent possible under domestic laws, and legal hurdles at the domestic level regularly impede cooperation. For example, many signatories of UNCAC, UNTOC, or other international agreements have not followed through with the domestic implementing legislation that is required before law enforcement agencies are authorized to request or provide MLA. In addition, there are a number of case-by-case grounds for denying MLA, including differences among requested states in their evidentiary standards for granting MLA requests (especially as they pertain to due process requirements); narrowly-construed dual criminality provisions; limitations on the release of confidential information; prohibitions against providing assistance to prosecutions when the sentence may be death or otherwise overly severe by the standards of the requested state; and other political concerns. These issues can most effectively be addressed through the implementation of bilateral Mutual Legal Assistance Treaties (MLATs), but MLATs are only in place for a small subset of state-pairs that regularly confront transnational law enforcement issues. Other pairs may be willing to engage in less formal alternatives, such as ad hoc agreements with an expectation of reciprocity. But even when a state can request MLA informally, the evidence it receives may not be usable in court, depending on domestic laws. Consequently, gaps in the governing legal framework remain, in many cases slowing down and in some cases outright barring effective MLA.
- Practical impediments to cooperation. Even with an adequate legal framework in place, resource constraints—including insufficient time, staffing, and expertise—operate at all phases of the MLA process. Responding to received requests in a timely fashion is a challenge even for countries like the United States that have comparatively well-funded and efficient bureaucracies. For example, earlier this year, the Department of Justice—which received over 6,000 new MLA requests in FY2016—instituted a new rule delegating authority to sign off on MLA responses down to Associate Directors in the Office of International Affairs, in order to “more efficiently process these requests, avoid unnecessary delays, and effectively satisfy MLA requests.” Matters are as bad if not worse for states that are infrequent participants in MLA exchanges, because the knowledge and experience of the personnel managing the process will naturally be limited. The great variance across states in domestic laws and procedural requirements doesn’t help: uncertainty regarding each country’s particular requirements for the form, language, and content of an MLA request is a significant hindrance. Coordination between requesting and receiving states, both prior to and alongside the transmission of the official request, can make the process smoother, but this requires a commitment of people and time that is not always easily afforded. Beyond resource constraints, there are also domestic institutional dynamics that may affect a state’s ability to either identify its need for MLA or fulfill an incoming MLA request. Effectiveness in this process often requires cooperation between national and local law enforcement agencies, and in cases of economic crimes like corruption, with banks and other private sector actors as well. If relationships between these entities are not well-established, or are strained for whatever reason, it may cause additional friction. Delays could be fatal to an investigation if evidence or access to it is perishable, as in the case of illicit financial assets that could be moved or off-loaded by someone trying to evade prosecution.
After laying out the numerous challenges facing states seeking to obtain and provide MLA, the ADB/OECD report discusses best practices and concludes with recommendations at the subnational, national, and international levels. I’ll mention just a few:
- The report recommends direct and persistent engagement by law enforcement agencies with foreign counterparts, either on a bilateral basis or through multinational fora (such as INTERPOL and the Egmont Group), to promote familiarity with capabilities, authorities, and procedures, and to establish channels of communication that can be used when MLA is needed. Informal coordination among these entities can greatly facilitate fulfillment of MLA requests, assuming a permissive legal framework. Law enforcement entities that execute received MLA requests will often have a better idea than national-level coordination offices of what is needed to fulfill a request. They are therefore also in a good position to help draft outgoing MLA requests that have the necessary specificity and evidentiary support to enable their counterparts to act upon the request.
- States should make easily accessible on the internet information about what entity at the national level handles incoming MLA requests, along with appropriate contact information, the required content and language of requests, applicable international and domestic laws and procedures governing what and how information can be shared, and sample request templates and other relevant documents. Requesting states should consult this information when drafting and submitting a request to ensure it meets all requirements and goes to the proper agency for action. These are easy actions that can make the process more efficient and ensure requests are not rejected before even reaching the substantive review stage. Direct, informal communication between requesting and requested states ahead of official submission of a request is also recommended, whether through permanent liaison officers posted in embassies or through other designated personnel.
- Even among state-parties to multilateral treaties that encourage or mandate MLA, domestic legal hurdles remain a substantial barrier to effective cooperation and will continue to impede transnational investigations until states adopt laws that promote sharing of information through both formal and informal channels. States should make a concerted effort to conclude MLATs with nations with which they anticipate cooperating and ensure all relevant treaties are implemented as required under domestic law. Ad hoc sharing on the basis of reciprocity will continue to be a significant feature of the international MLA landscape, but is ultimately no substitute for standing arrangements.
For deeper analysis and specific country-by-country data, the whole report is worth a read.