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.
Article 18. Mutual Legal Assistance
1. States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention as provided for in article 3 and shall reciprocally extend to one another similar assistance where the requesting State Party has reasonable grounds to suspect that the offence referred to in article 3, paragraph 1 (a) or (b), is transnational in nature, including that victims, witnesses, proceeds, instrumentalities or evidence of such offences are located in the requested State Party and that the offence involves an organized criminal group.
2. Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws, treaties, agreements and arrangements of the requested State Party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with article 10 of this Convention in the requesting State Party.
3. Mutual legal assistance to be afforded in accordance with this article may be requested for any of the following purposes:
a) Taking evidence or statements from persons;
b) Effecting service of judicial documents;
c) Executing searches and seizures, and freezing;
d) Examining objects and sites;
e) Providing information, evidentiary items and expert evaluations;
f) Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records;
g) Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes;
h) Facilitating the voluntary appearance of persons in the requesting State Party;
i) Any other type of assistance that is not contrary to the domestic law of the requested State Party.
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:
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.
Requests for MLA
15. A request for mutual legal assistance shall contain:
(a) The identity of the authority making the request;
(b) The subject matter and nature of the investigation, prosecution or judicial proceeding to which the request relates and the name and functions of the authority conducting the investigation, prosecution or judicial proceeding;
(c) A summary of the relevant facts, except in relation to requests for the purpose of service of judicial documents;
(d) A description of the assistance sought and details of any particular procedure that the requesting State Party wishes to be followed;
(e) Where possible, the identity, location and nationality of any person concerned; and
(f) The purpose for which the evidence, information or action is sought.
16. The requested State Party may request additional information when it appears necessary for the execution of the request in accordance with its domestic law or when it can facilitate such execution.
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:
UNODC's tools to facilitate MLA
UNODC has developed tools to facilitate international cooperation and address the challenges posed by transnational organized criminal groups. The UNODC Model Treaty on Mutual Assistance in Criminal Matters includes state-of-the-art provisions that States can use as the basis to develop their own bilateral agreements (UNODC, 1998). In order to facilitate the drafting of domestic legislation, UNODC has developed the Model Law on Mutual Legal Assistance in Criminal Matters (UNODC, 2007). The Model Law includes provisions that aim to help States in providing more effective assistance in criminal cases with transnational implications.
In addition, the Mutual Legal Assistance Request Writer Tool (MLA Tool) was developed by UNODC to assist criminal justice practitioners in drafting expeditiously MLA requests, thereby enhancing cooperation between States and accelerating responses to such requests. In its revised and expanded version, the Tool is an HTML-based stand-alone application, capable of running on all devices. It provides guidance to practitioners through each step of the drafting process and further helps them draft MLA requests by filling in all appropriate and relevant information.
These examples of technical assistance tools are intended to be used by States to promote more effective cooperation in criminal cases with transnational implications.
Regional perspective: Pacific Islands Region
Pacific Islands Forum's Declarations onLaw Enforcement Cooperation and Security
Security is a vital principle of the framework for Pacific Regionalism that guides the work of the Pacific Islands Forum. Over the years, the Forum adopted declarations to improve law enforcement cooperation and support security initiatives in response to the threat of transnational organized crime.
In 1992, the Forum adopted the Honiara Declaration on Law Enforcement Cooperation. The Forum agreed on a more comprehensive, integrated, and collaborative approach to counter the threat of transnational crime and sought to strengthen effective law enforcement in the region.
The Honiara Declaration "calls for a range of procedural and substantive measures to provide for law enforcement cooperation, mutual assistance in criminal matters, money laundering control, asset forfeiture and banking regulation, extradition, suppression of drugs offences, suppression of environmental offences, suppression of terrorism, maritime surveillance, cooperation in respect of taxation, assistance in prison administration, and to address indigenous issues. Further areas identified post-Honiara by the Forum include human trafficking, regional security, small arms proliferation, identity fraud and corruption." [Boister, Neil (2004). Transnational crime in the Pacific. The University of South Pacific (USP).]
In 2002, the Forum adopted the Nasonini Declaration on Regional Security which led to the development of model law that helped Pacific Island countries enact legislation to combat terrorism and transnational organized crime (i.e., Kiribati's Measures to Combat Terrorism and Transnational Organized Crime Act of 2005).
Other important guidelines on good governance and regional security cooperation are the Aitutaki Declaration in 1997, and the Biketawa Declaration in 2000.