This module is a resource for lecturers

Mutual legal assistance (MLA)

Mutual legal assistance (MLA) in criminal matters is a process by which States seek for and provide assistance to other States in servicing of judicial document and gathering evidence for use in criminal cases.

The traditional tool of mutual legal assistance has been letters rogatory - a formal request from the judicial authority of one State to a judicial authority of another State, in which the requested judicial authority is asked to perform one or more specified actions, usually collecting evidence and interviewing witnesses, on behalf of the requesting judicial authority. These requests are conventionally transmitted through diplomatic channels. After the prosecutor prepares a request, it is authenticated by the competent national court in the requesting State and then delivered to by that State's foreign ministry to the embassy of the requested State (Funk, 2014; Efrat and Newman, 2017). The embassy sends the request on to the competent judicial authorities of the requested State. Once the request is completed, the sequence is reversed.

Formal treaties have created a more solid basis for international cooperation. The process for letters rogatory is more time-consuming and unpredictable than that for Mutual Legal Assistance Treaties. This is in large part because the enforcement of letters rogatory is a matter of comity between courts, rather than treaty-based. For these reasons, prosecutors typically consider letters rogatory an option of last resort for accessing evidence abroad, to be exercised only when Mutual Legal Assistance Treaties are not available.

Bilateral treaties (between two countries) can be negotiated between States with a higher degree of certitude regarding the obligations and expectations of both parties. But negotiating, drafting and agreeing on bilateral treaties can be costly as well as time-and resources-consuming, and it is not possible to have a bilateral treaty with every country in the world. The globalization of crime, as reflected in the Organized Crime Convention, requires States to have some method for international cooperation with parties from the same region (regional instruments) and from different regions of the world (international instruments).

Harmonizing legal frameworks at national and international level is crucial. Having similar procedures and legislation in place makes cooperation easier and faster. Multilateral and regional treaties serve this purpose. In the Organized Crime Convention, article 18 is devoted to mutual legal assistance, and the text consists of 30 paragraphs, the longest article of the entire Convention. This level of attention shows the importance of harmonization of legal procedures.

This article builds upon a number of previous global and regional initiatives (Dandurand, 2007). It calls for States parties to afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings. The offences for which assistance should be granted include transnational "serious crimes" involving an organized criminal group, the offences established under the Organized Crime Convention itself (participation in an organized criminal group, money-laundering, corruption and obstruction of justice) and the offences established under any Protocols thereto that States are party to.

The Organized Crime Convention also obliges States parties to "reciprocally extend to one another similar assistance" where the requesting State has "reasonable grounds to suspect" that one or some of these offences are transnational in nature. This transnational nature includes cases in which victims, witnesses, proceeds, instrumentalities or evidence of such offences are located in the requested State and when the offences involve an organized criminal group.

As outlined in the Organized Crime Convention, legal assistance may be requested for:

• Taking evidence or statements;
• Effecting service of judicial documents;
• Executing searches and seizures;
• Examining objects and sites;
• Providing information, evidence, expert evaluations, documents and records;
• Identifying or tracing proceeds of crime, property or instrumentalities for evidentiary purposes and their seizure for the purpose of confiscation;
• Facilitating the appearance of witnesses;
• Any other type of assistance not barred by domestic law.

The Organized Crime Convention also requires States parties to afford each other mutual legal assistance to the fullest extent possible.

However, different countries and traditions usually have substantial differences regarding evidence gathering. For instance, in many civil law systems a magistrate supervises the process, while in common law systems generally investigators have broader powers. Evidence gathered without respecting procedures and formalities of the requesting country may not be admissible in its courts, thus hampering prosecution. Article 18 provides guidance to States on how to deal with incoming and outgoing requests in order to reduce the risk of admissibility issues of the evidence gathered.

Increasingly, mutual legal assistance treaties require that States parties designate a central authority (generally the ministry of justice) to whom requests can be sent, thus providing an alternative to diplomatic channels. The judicial authorities of the requesting State can then communicate with the central authority directly. Today, to an increasing degree, even more direct channels are being used, in that an official in the requesting State can send the request directly to the appropriate official of the other State. This tendency demonstrates the importance of a national central authority as a prerequisite for rendering mutual legal assistance more effective. The Organized Crime Convention makes its designation a mandatory requirement for ensuring the speedy and proper execution or transmission of the requests, without, however, prejudice to the right of States parties to use the traditional diplomatic channels (art. 18, para. 13). Moreover, it is equally important to staff the central authorities with practitioners who are legally trained and have developed institutional expertise and continuity in the related practice, as well as to ensure the dissemination of up-to-date information for them.

Given the wide and growing range of international instruments, each requiring States parties to afford one another the widest possible mutual legal assistance and to designate for that purpose a central authority, it is also important for States to ensure that their central authorities are a single entity in order to facilitate greater consistency of mutual legal assistance for different types of criminal offence and eliminate the potential for fragmentation of effort in this area.

The relationship between bilateral and multilateral treaties for international mutual legal assistance is addressed in the Organized Crime Convention. Major points are summarized below:

• The Convention does not override any existing mutual legal assistance treaty already in place between States. Instead, the Convention gives States the option to use its article 18, if that would facilitate cooperation.
• The Convention applies to States parties if there is no existing treaty in place, allowing for a framework for mutual legal assistance when making a request pursuant to the Convention.
• The Organized Crime Convention also encourages States parties to enter into their own regional or bilateral agreements, with a view to enhancing cooperation regarding transnational organized crime in all its forms and manifestations.