CREATING AN EFFECTIVE MUTUAL LEGAL ASSISTANCE (MLA)
REQUEST
Afief Yulian Miftach*I.

INTRODUCTION

As one of the primary forms of international cooperation, mutual legal assistance (MLA)
requests play a very important role to recover assets that have been stashed abroad, either
assets that belong to the perpetrator or that are considered as proceeds of corruption. Such
requests have become the basis for the requested states to provide assistance in obtaining
information, intellegence, evidence, provisional measures, confiscation, and eventual returnof assets. Thus, an effective MLA request is very crucial to ensure the effectiveness of thewhole process of asset recovery. In order to deal with this, the international community has
concluded a number of multilateral treaties or instruments requiring states parties tocooperate with one another on investigations, production of evidence, provisional measuresand confiscation, and asset return. 1
Even though there are many references available that can be used to formulate MLA
requests, it is unfortunate that creating such requests is not a simple process, especially forcountries submitting MLA requests for the first time, not only because it often depends on
assistance given by the requested state, but also because it can be slowed and complicated bydifferences in legal traditions, law and procedures, languages, capacities, and even time zone.
Therefore, it requires strategic considerations, and characteristics of various options that canbe used to create an effective MLA request. The Indonesian Anti-Corruption Commission(KPK) has experienced numerous cases of succesful international cooperation with otherjurisdictions in investigating and prosecuting corruption cases. 2 One of the keys to successthat can be learned by those experiences is the use of an effective MLA request, which wasconducted by combining both the informal request for assistance and formal MLA request.
Inspired by those cases, KPK is now moving forward to deal with international cooperation
related to asset recovery. Recently, KPK through the Indonesian Central Authority has beenrequesting assistance from other jurisdictions to identify, freeze, seize, and confiscate theproceeds of corruption. Due to the ongoing process of the investigation, this paper will not
explain the detail of the requsted assistance. Therefore, this paper will seek to describe
mechanisms and strategies that can be used to formulate an effective MLA request.

*The Corruption Eradication Commission (KPK).
Brun, Jean-Pierre, Gray, Larissa, Scott, Clive, Stephenson, Kevin, Asset Recovery Handbook, A Guide for
Practitioners, p. 121.
2For example: The Alstom case, The Innospec case, and the arrest of fugitives in several jurisdictions.
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KEY PRINCIPLES IN DEVELOPING INTERNATIONAL COOPERATIONInternational cooperation is essential for the succesful recovery of assets that have beentransferred to or hidden in foreign jurisdictions. Efforts to develop international cooperation
should consider these four key principles: 3a.

Incorporate international cooperation into each stage of the case
It is important for the law enforcement agency to immediately focus on international
cooperation efforts when the case reaches beyond domestic borders. Any delay ofthis effort may gave the corrupt official the chance to transfer funds or to hide assets
in uncooperative jurisdictions.

b.

Establish and Maintain Personal Connections
Developing personal connections with foreign counterparts is very crucial to ensure
the success of asset recovery cases. A telephone call, an e-mail, a video conference,or a face-to-face meeting with foreign counterparts will go a long way to moving thecase to completion. 4 Even though establishing personal connections can be difficult,the time and effort spent making such connections will be worth the result.

c.

Engange in informal assistance channels before, during, and after transmitting anMLA request
Prior to the drafting of the MLA request, some important information can beobtained more quickly and with fewer formalities through direct and infomal
communication with counterparts abroad. Thus, more proper considerations for
MLA requests can be provided and all the requirements are met.

d.

Awareness of Potential Barriers
In order to obtain international cooperation, law enforcement agencies may facenumerous obstacles, and appropriate measures are needed to overcome those barriers.
Differences in legal traditions and confiscation systems, jurisdicition issues,variations in procedural, legal obstacles and delays are among those barriers. Thus,
law enforcement agencies should consider and take actions to overcome thosebarriers.
III. MEASURES FOR CREATING AN EFFECTIVE MLA REQUEST

Mutual Legal Assitance (MLA) is a process through which jurisdictions seek and provide
assistance, and this can be done at any stage of investigation, prosecution, or court
proceeding. Thus, it has become an indispensable part of international cooperation. The
success of international cooperation in asset recovery might depend on the effectiveness ofthe MLA request. In order to create an effective MLA request, the combination of both theinformal request for assistance and formal MLA request is needed.

3Brun, Jean-Pierre, Gray, Larissa, Scott, Clive, Stephenson, Kevin, Asset Recovery Handbook, A Guide forPractitioners, p. 123.
4Ibid, p. 123.

- 79 -IV. EARLY COMMUNICATIONAs a part of informal assistance, an early notification and consultation is essential. Two
initial questions that must be asked are who should be contacted in order to obtain sufficientassistance and what mechanism should be used. The first person that should be contacted isthe legal attache officer from the embassy of the requested country, or other related officer
such as police liaison officer. Instead of government-to-government and organization-toorganization mechanisms, there are numerous mechanisms available such as the EgmontGroup of FIUs, The Global Focal Point Initiative, the Camden Asset Recovery Inter-Agency
Network (CARIN), or the Interpol channels. The process, then, may occur over the telephone,email, video conference, or even face-to-face meeting between counterparts. It may
incorporate non-coercive investigative measures, such as gathering publicly available
information, conducting visual surveillance, and obtaining information from financial
intellegence units; and it may extend to spontaneous disclosures of information, conducting a
joint investigation, or asking the authorities in another jurisdiction to open a case. 5 Thus,
information gathered during this phase can be used to develop further investigation and may
also lead to a formal MLA request.
V. DRAFTING MLA REQUESTS
When the process subsequently will lead to a formal MLA request, communication
should be focused on what will be needed to execute the request and to address potential
barriers. Then, the process can be continued by drafting the MLA request before it is formallysubmitted. It is very important to ensure the involvement of the central authorities from both
the requsting and requested countries when a formal MLA request is being prepared.
Important matters which should be considered by both requesting and requested states while
drafting the MLA request are:a.

Legal Basis for International Cooperation
There are several legal bases that can be used by a requested state to proceed with an
MLA request, and they must be clearly specified in the request. Those legal basesare:
1. Multilateral conventions, treaties, and agreements.
2. Bilateral treaties and agreements.
3. Reciprocity undertakings.
4. The use of domestic legislation of the requested stateb.

5

Principle of Dual Criminality
The principle means that both requesting and requested states have criminalized thespecified criminal conduct. Moreover, details of criminal offences and a summary ofcriminal conduct should be addressed in the request.

Ibid, p. 128.

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The Description of Assistance or Material Sought and the Reason Why It is Sought
Requirements for assistance vary among jurisdicitions. Although most jurisdictions
will permit requests during the investigation stage, others will require moreconsiderations, especially for the provisonal seizure or restraint of assets. Moreover,other jurisdictions will not provide assistance if the criminal proceedings have beenconcluded. 6
It is also very important to address any particular requirements/procedures to befollowed to provide the assistance requested. Practically, request for assistance must
contain sufficient information in order for the requested state to understand what isbeing sought and its connection with the underlying facts. Thus, the requested stateis able to act on behalf of the requesting state within its jurisdiction.

d.

Assurance and Undertakings (Reciprocity, Confidentiality, Limits on Use/Speciality,and Commitment to Pay Costs or Damages)
Many jurisdictions require a reciprocity assurance, a written statement that therequesting jurisdiction will provide the requested jurisdiction with the same type ofcooperation in similiar cases in the future. Others may also require the requesting
jurisdiction to specify if it wishes the request to be treated as confidential.
Furthermore, jurisdictions may require an assurance that the requesting state will use
the information given by the requested state only for the case described in therequest of assistance. Lastly, some jurisdictions may require a commitment to pay
any costs or damages incurred by the requested party during the course of executingof the request. 7e.

Evidentiary Requirements
The requesting state usually has to provide sufficient admissible evidence to officials
in the requested state to enable them to meet the evidentiary treshold mandated bytheir courts in executing the request. 8 The involvement of a prosecutor during theprocess is very crucial in order to ensure the admissibility of the evidence before thecourts.

f.

Form and Content Requirements
MLA requests must be in writing and must meet the language, content, and format
requirements of the requested state. 9g.

Refusal Grounds
There are several reasons why the requested state may refuse an MLA request incertain circumstances when the execution of the request would prejudice theessential interests of the requsted state. There are also other reasons such as assets ofde minimis value, double jeopardy, capital punishment, immunities, and lack of due
process of law in the requsesting state. 10

6Ibid, p. 141.
Ibid, p. 142.
8Ibid, p. 143.
9Ibid, p. 143.
10Ibid, p. 147.
7- 81 -h.

Particular Time Frames for the Execution of the Request
This drafting process and resulting assistance helps to ensure that all therequirements are met and to avoid unnecessary delays of refusal of assistance. It also
gives the requested state a chance to prepare its responsive actions.
VI. THE SUBMISSION OF AN MLA REQUEST

After the draft is finalized, an MLA request must be signed by the appropriate
authorities—often the central authority of the requesting state, which is then transmitted to
the requested state through specified channels. Some jurisdictions may use optional
diplomatic channels when transmitting the MLA request.
After the submission, the requesting state must ensure that the request is excecuted by
the requested state. Another informal communication is needed to clarify whether any
terminology or translation issues have occured or additional information is needed. A
supplementary MLA request may be required to overcome those issues and to provide
additional information.
VII. CONCLUSION
An important part of international cooperation in the recovery of proceeds of corruption
is the MLA request, which is used by jurisdicitons to seek and provide appropriate assistance.
The process of creating an effective MLA request is not an easy task and requires a
combination of both the informal requests for assistance and formal MLA requests. By
creating an effective MLA request, international cooperation in the recovery of proceeds ofcorruption can be successful.

Reference: STAR Asset Recovery Handbook, A Guide for Practitioners, Jean-Pierre Brun,
Larissa Gray, Scott, Clive Scott, Stephenson, Kevin M. Stephenson.

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