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 competen5t 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:

 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.

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:
  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.

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.
Resources

 Honiara Declaration
 Nasonini Declaration