MUTUAL LEGAL ASSISTANCE AND ASSET RECOVERY
Pedro Gomes Pereira*

I. INTRODUCTION
The international community has seen cross-border movement of persons, goods andcapital intensify greatly throughout the second half of the 20th century. While this global
integration has brought greater wealth, it has also brought with it the growth of, and new
trends in, cross-border crime. As a consequence, a new paradigm in criminal law has been
emerging in this period, challenging the age-old international legal standards that havedefined the modern sovereign State since the 17th century.
The rising international visibility of certain local events alongside the intensification ofcross-border movements has allowed this rise of transnational crime 1 , in particular of
corruption, of money laundering and of transnational organised crime. The traditional
interconnection between criminal law and sovereignty has, as a result, rendered the control oftransnational crime at a purely local level obsolete. This is due to the fact that sovereignty
becomes the main defence mechanism for transnational crime, as the latter normallystructures itself through the use of different, and often conflicting, legal systems andtraditions.
The response from the international community, in order to bridge this perceived
impunity gap, has sought to enhance its cross-border co-ordination with regards to certain
criminal offences. This co-ordination is done through hard and soft law instruments at thebilateral, regional and international levels. These instruments allow for a better co-ordinationof disparate legal systems in order to avoid the superimposition of jurisdictions and efforts,
where possible and applicable.
The focus of these international instruments, when combating corruption and money
laundering, is to choke their incentives through the asset recovery process. It is understoodthat, if the financial incentives — be they the undue advantage offered or accepted, or the
profits generated from it — are removed, the occurrence of corruption will be less likely.
The
Theasset
assetrecovery
recoveryprocessprocesscancanbe
be understoodunderstood as
as aa four-phased
four-phased processprocess22, made up ofthe:
1. Pre-investigative or intelligence gathering phase, during which the analyst or theinvestigator verifies the source of the information which may initiate an investigationand determines its authenticity;*

Senior Asset Recovery Specialist, Basel Institute on Governance.
Maíra Rocha Machado (2004). Internacionalização do Direito Penal: A Gestão de Problemas Internacionais
por meio do Crime e da Pena. p. 18.
2International Centre for Asset Recovery (ICAR) (2009). Tracing Stolen Assets: A Practitioner’s Handbook. p.
19.
1- 28 -

2. Investigative phase, where the proceeds and instrumentalities of crime are identified
and located, as well as evidence of the true nature and ownership is collected. This
stage covers several areas of investigative work in more formal processes, e.g.,through the use of requests for MLA, and financial investigations to obtain andanalyse bank records. This phase involves substantiating the veracity of theintelligence and information collected in the previous stage and converting it into
admissible evidence. The result of this investigation can therefore be only a temporary
measure – e.g., seizure – in order to later secure a confiscation order through thecourt;
3. Judicial phase, where a judgement against the perpetrator is obtained and, whereapplicable, a decision on the confiscation of the proceeds and instrumentalities ofcrime is determined;
4. Realisation phase, where the property is actually confiscated and realised by the Statein accordance with the law, while taking into account international asset sharing
obligations, as well as compensation for victims and determination on what to do withthe confiscated assets.
One of the tools which is to be used within the asset recovery process – in particular if
there are elements of cross-border movements – is known as mutual legal assistance (MLA).
Its purpose is to articulate States in order to repress the cross-border criminal activity3.
Therefore, MLA can be defined as the manner through which a State renders assistance toanother so that the requesting State may comply with its jurisdictional obligations. The needfor MLA is mainly due to the fact that the requesting State cannot exercise its jurisdiction in
the requested State. As a result, the latter may furnish evidence or take coercive measures onbehalf of the former in a way that both complies with its legal requirements and which may
be valid in the courts of the requesting State.
MLA is based on the premise that a State will request another, through channels decided
upon between them either bilaterally or through the international community, which will thenrule on the contents of the request. It is not just a form of communication between States: ittranscends to assistance provided by one State to another in order to co-ordinate legal
systems with a view to satisfying evidentiary requirements relating to the investigations in therequesting State, or to safeguarding assets which may be at risk of loss or that are the fruits
derived from criminal activity, and which are found in the requested State. When viewed thisway, it is possible to expand the scope of application of MLA while respecting traditional
perceptions of the sovereignty of States.4
This paper seeks to briefly put MLA into context in the asset recovery process, on the
one hand, while focusing on the international and cross-border efforts to prevent and combat
corruption, on the other. This paper will therefore seek to introduce the practitioner to thebases of MLA, its main principles, limits to international co-operation, and also the contentsof requests for such assistance. Special focus will be given to the channels of communication,
which must remain open and be used regularly and proactively by both the requesting and therequested States. Finally, this paper will also seek to address the issue of validity of theevidence in courts in both the requesting and requested State.
34GONZÁLES, S. A. ; REMACHA Y TEJADO, J. R, org. (2001). Cooperación Jurídica Internacional. p. 141.
GONZÁLES, S. A. ; REMACHA Y TEJADO, J. R, org. (2001). Cooperación Jurídica Internacional. p. 70.

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II. ASSET RECOVERY AND CORRUPTION
The traditional perception of preventing and combating criminal activity is that there isa need to collect the evidence, identify the perpetrator of the criminal offence underinvestigation, prosecute him or her and convict or acquit him or her to a punishment that has
been pre-determined in law. The identification, seizure and confiscation of the proceeds andthe instrumentalities of crime, in this scenario, is secondary: the focus of this action is inorder to ensure that there are funds to satisfy the civil obligations which derive from thecriminal process, e.g., compensation to victims.
While this approach remains applicable in those cases in which the focus of thecriminal action is the unlawful financial gain deriving from the criminal activity, the object isensuring firstly that these assets are secured, as they are the gains of criminal activity. This isbecause corruption-related offences5, money laundering, fraud and other financial crimes
focus on the illicit financial advantage gained by the perpetrator when committing suchoffences. In these cases, while it is important to seek the conviction and incarceration of theperpetrator, the prime focus is to ensure that they do not enjoy the profits of their crime. Thus,
it is fundamental that these criminal assets are identified, seized and confiscated. They are theobject of the investigation and prosecution, not its by-product.
The identification of corruption-related proceeds and instrumentalities of crime is done
through, and is part of, the asset recovery process, as explained above. This is because, theunlawful assets are laundered6 by the perpetrator of the crime. Money laundering is the tool
used by the perpetrators of corruption and financial crimes to hide the true nature, origin andownership of the profits derived from crime7. On the other hand, asset recovery is the process
through which law enforcement identify and trace those assets, linking them to theperpetrators and their criminal activities, in order to obtain the necessary seizure andconfiscation of these unlawful assets.8
The identification of the proceeds and instrumentalities of crime, however, isoftentimes complex and time-consuming. As a consequence, the asset recovery process may
be constricted by the difficulties in identifying these proceeds and instrumentalities.9 An
added complexity is the fact that, during the money laundering process, it is common totransit the proceeds and instrumentalities of crime through numerous jurisdictions, in an
attempt to mask the true nature, origin and ownership of those unlawful assets.

5

The United Nations Convention Against Corruption (UNCAC), the global standard for preventing andfighting corruption, defines the following offences and corruption-related offences: active and passive
corruption of national public officials, of foreign public officials and of officials of public internationalorganisations; embezzlement; trading in influence; abuse of functions; illicit enrichment; bribery in the private
sector; embezzlement of property in the private sector and money laundering of corruption-related offences.
It should be underscored that not all of these offences are mandatory under the UNCAC, as the corruptionrelated offences are graded as mandatory and non-mandatory by the Convention.
6
While the exact definition of money laundering depends of how this criminal offence is defined in thenational legislation of each country, it can be generally understood, for the context of this paper — and based on
the international standards — as the process of concealing, disguising or hiding the true origin, nature andownership of property derived from, or involved in criminal activity, such as the corruption-related offences.
7International Centre for Asset Recovery (ICAR) (2011). Development Assistance, Asset Recovery andMoney Laundering: Making the Connection. p. 9.
98Ibid. p. 6.
9Ibid. p. 13.

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As a result, States will normally require, during the investigation and prosecution of acorruption-related case, to make use of MLA, in order to collect the evidence – tosubstantiate the criminal activity – and to take coercive measures – such as the preservationof the proceeds and instrumentalities through seizure orders – in another jurisdiction. One ofchallenges to MLA, however, is its response time, which may be inadequate for seizing andconfiscating assets, given the time needed for its execution between the involved countries
versus the speed in which international financial transactions occur.10
III. MUTUAL LEGAL ASSISTANCE AND ASSET RECOVERY
There are several ways through which a State may pursue MLA with another, through:(i) bilateral or multilateral international treaties, (ii) reciprocity undertaking, or (iii) use of thelegislation of the requested State.
The international community has established a trend since the adoption of the United
Nations Convention against Illicit Traffic in Drugs and Psychotropic Substances, adopted in
198811 (1988 Vienna Convention), by including specific provisions pertaining to MLA.
Since then, these provisions have been enhanced and detailed more thoroughly, as can beseen in the United Nations (UN) Conventions against Transnational Organized Crime(UNTOC), adopted in 2000, and against Corruption (UNCAC), adopted in 2003.
There are also regional MLA conventions within regional bodies, such as the African
Union (AU), the Southern Africa Development Community (SADC), the Organisation ofAmerican States (OAS) and the Council of Europe (CoE). Furthermore, according to current
trends in the field of tackling corruption, there is, at the international legal level, theOrganisation for Economic Co-operation and Development (OECD) Convention on
Combating Bribery of Foreign Public Officials in International Transactions (OECD AntiBribery Convention)12 and on the regional level, the corruption conventions of the OAS, theAU, the SADC and of the CoE.
An international multilateral or bilateral convention may be invoked for the purpose of
MLA if both the requesting and requested States have ratified it. In the absence of suchratification by both States, a State may seek to request assistance with the provision ofreciprocal treatment in future cases of a similar nature emanating from the requested State. It
should be noted, however, that not all legal traditions allow for such a reciprocity undertaking
without a legal basis between both countries. Finally, assistance may also be requested on thebasis of the internal legislation of the requested State. This is because several jurisdictions
already have within their legal framework provisions for MLA, e.g., Switzerland and theUnited Kingdom.

10International Centre for Asset Recovery (ICAR) (2011). Development Assistance, Asset Recovery andMoney Laundering: Making the Connection. p. 13.
11
The 1988 Vienna Convention establishes a turning point for the international community as a whole. Prior tothis, however, there were some successful experiences seen on the bilateral and regional levels, as is the case of
the European Convention on Mutual Assistance in Criminal Matters (adopted by the CoE in 20 April 1959) and
its additional Protocol, adopted in 17 March 1978. On the bilateral level, Switzerland and the US signed abilateral treaty on mutual legal assistance in 1977.
12
It should be noted that the OECD Anti-Bribery Convention does not contain mechanisms enabling MLA. It
has nevertheless been mentioned in this paper as it is an important instrument for the prevention and thecombating of corruption.

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There are, however, subtle differences between multilateral and bilateral treaties thatprovide for MLA. Due to the fact that multilateral conventions encompass numerous
jurisdictions (e.g., the UNCAC has been ratified by over 150 jurisdictions), the co-ordination
between all these States limits itself to establishing important principles and standards
concerning specific criminal conduct which the international community wishes to addressand combat. The main element of multilateral conventions is not the co-ordination of MLA
instruments, but rather the co-ordination of specific offences deemed relevant by theinternational community. In these cases, more attention is given to the internationalisation of
local paradigms,13 rather than the procedural provisions enabling the prevention and thecombating of such offences.
On the other hand, bilateral treaties on MLA, due to the limited number of parties
involved, are able to establish exact procedures and the limits to co-operation that the
involved States are willing to provide through such assistance. Bilateral treaties, therefore, do
not generally address criminal conduct of the substantive criminal law, but rather leave its
application open to any criminal activity (although limited by the principle of speciality, as
will be seen below), specifying the rules of procedure to be followed in requests for MLA.
Co-ordination between two jurisdictions that have a bilateral MLA treaty in place is moreeasily attainable, as they seek the co-ordination of jurisdictions and their mechanisms tocounter cross-border criminal activity, rather than focusing on the internationalisation of thelocal paradigms.
It should be noted that the use of the bases for MLA listed above are not mutually
exclusive. A request for MLA can be based on one or more conventions, or on a convention
and the national legislation of the requested State. This is because the request may address
multiple criminal activities of a person or persons, which can easily span numerous
multilateral conventions. On the other hand, it may be possible to use a multilateralconvention, which addresses specific transnational crimes, and a bilateral treaty, which will
specify the appropriate procedures to be followed.
The practitioner should therefore, at an initial stage, analyse the criminal activity foundwithin his or her jurisdiction but which carries effects outside of it, superimposing the said
activity with all the international conventions that its country has ratified. Following this step,
it should observe whether these conventions have also been ratified by the State in whichassistance is to be requested.
1.

Mutual Legal Assistance and the Pre-Investigative and Investigative Stages
When an investigation reaches the stage at which an action must be executed within
another jurisdiction, the investigator or prosecutor must focus on three initial questions:whom should be contacted in order to request effective assistance, what mechanism should
be used, and when should this request be submitted to the requested State? In order to answer
these questions, several factors must be taken into account and they have to be considered
and analysed on a case-by-case basis.
The investigator should first determine whether the information sought in anotherjurisdiction could be produced formally or informally. Should the latter scenario be the case,that is, if no evidence is to be presented to a court or coercive measures sought but rather thecollection of information to support furthering the investigation, the investigator may wish to

13

Boaventura de Sousa Santos (2005). A Crítica da Razão Indolente: Contra o Desperdício da Experiência. p.
18.

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make use of his or her contacts in order to obtain said information. If no contacts are known,
the practitioner should make use of his or her contacts to pursue other contacts within their
network. Another avenue to be considered is the use of legal attachés or police liaisons with
the Embassy of the requested State. Another mechanism that should be sought in the informal
assistance is making use of the numerous groups available for such purposes, such as theEgmont Group of Financial Intelligence Units (FIU) or the Interpol channels.
Should the procedure sought be produced formally, not only must the practitioner makeuse of the contacts mentioned in the preceding paragraph prior to issuing a request for MLA,
but he or she must also contact the central authority of his or her State. The central authority
is a body comprised of experts in the field of MLA. Ideally, the central authority is
responsible for assisting the law enforcement community and prosecutors in devising theirinternational strategies for an investigation and prosecution, if MLA is required. In order todo so, the central authority must heavily rely on its networking capabilities with central
authorities and officials of other jurisdictions, but also have a general understanding of therequirements for MLA and the legal requirements necessary in the requested State inrendering assistance, in order to ensure effectiveness and diligence in the execution of therequest. The staff at the central authority should, for this reason, have an adequate
understanding not only of the legal and judicial requirements of their country, but also that of
the main requested States.
Preliminary contact prior to taking any actions pertaining to MLA is essential in raising
the chances of a successful request: in international co-operation, communication is key.
Such contact will ensure that the requesting authority attains an understanding of what
information must be contained in the request and how the information should be best
conveyed within the request to the requested State. Also, such preliminary contact will
anticipate the forthcoming request, and allow the requested State to analyse and agree on theterms of the draft request, ensuring its future effectiveness. All these factors become
particularly important when the request is either deadline driven which is often the case, or its
execution is urgently required.
The timing for issuance of the request is also very important. This is because while theinvestigation may be confidential in the requested State, procedures in the requesting State
may determine that the request must be disclosed to the defence prior to sending the evidence
to the requesting State. Communication, once again, is paramount so that both the requested
and the requesting States fully understand the outcomes, results and consequences of theassistance rendered. It is only through appropriate communication that the practitioner willlearn and understand the legal implications of the request in the requested State. Moreover,understanding these implications will also anticipate legal challenges in the proceeding in therequesting State.
2.

Principles Governing Mutual Legal Assistance
There is an array of principles that govern MLA, derived from both international andnational law. From a day-to-day practical experience, however, two principles stand out forpractitioners who are faced with drafting requests: the principles of dual criminality andspeciality.
The principle of speciality prohibits or prevents the requesting State from utilising theresults arising from the assistance rendered by the requested State in proceedings other thanthose specified in the request for MLA. This does not mean, however, that the results from- 33 -

such a request cannot be utilised in proceedings other than those specified in the request for
MLA. Rather, it means that the requesting State must ask in writing for permission from therequested State to utilise the results in other proceedings, and obtain such authorisation prior
to disclosing the evidence in other proceedings.
This written request must refer to the new proceedings in which the requesting State
wishes to use the evidence, explaining the offences under investigation, the context of theinvestigation and how the evidence provided would benefit the other proceedings. Should therequested State agree, the evidence may then be lodged in the new proceedings, respecting
any conditions that the requested State may wish to impose.
The principle of dual criminality, on the other hand, is capable of easy understanding
but often difficult to fully comprehend. Requesting States often see it as the main reason for
restricting or denying assistance by requested States. This principle, which can also be foundin other forms of international assistance, such as extradition proceedings, conveys the factthat the offence under investigation in the requesting State must correlate to an offence in therequested State. The offence in both the requesting and requested States do not have to be
identical – if this were to be required, it would, in fact, greatly diminish the possibility ofrendering assistance. Rather, it means that the core elements of the offence in both States
must be similar in nature.
While drafting the request for MLA, the practitioner must be aware of the dual
criminality principle, and explain how its jurisdiction perceives the offence. The practitioner
cannot simply lay down the legal definition of the offence and hope that the requested State
will be able to understand it and find a similar offence within its legal system – thepractitioner drafting the request must seek to explain how the offence operates within its
jurisdiction, and to intertwine it with the subject-matter of the request with the criminal
offences found in the requested State. The practitioner must heavily rely on communication
with the requested State in order to achieve this, as the understanding of the criminal offencesin the requested State will only be forthcoming through this channel.
It should be highlighted that mutual legal assistance is not a transfer of the
responsibility to investigate to another country (commonly known as a “fishing expedition”).
While the requested State may have the jurisdiction to conduct an investigation, it is therequesting State which has the jurisdiction to investigate and prosecute. It is merely
requesting the former to collect evidence or to conduct and act on behalf of the latter, as it
does not have jurisdiction to act in the requested State. Thus, the requesting State must
conduct its own investigation, especially if it is the only one which has jurisdiction over thematter, and the requests for MLA must be sufficiently clear, detailed and based on
preliminary findings from its own investigation. The requesting State’s preliminary
investigations must sufficiently provide details about the background for the action which is
being requested in the request for MLA.
3.

Kinds of Assistance
Treaties on MLA generally provide a list of measures under which assistance may besought. This list, however, is not exhaustive and States will render assistance insofar as therequest does not contradict its own internal constitutional and legal framework. Furthermore,assistance may be rendered at any stage of the criminal proceedings — both pre-trial and trial— and includes acts ranging from the service of process to more complex coercive measures
such as obtaining bank statements and seizing proceeds of crime. Other coercive measures- 34 -

such as seeking to enforce arrest warrants or the extradition of persons are not encompassed
by MLA and are done through extradition.
It should be noted that MLA is entrenched within the criminal jurisdiction of a State,
which, in turn, is the most visible aspect of its sovereignty, and no other State may seek toapply criminal proceedings directly or enforce criminal orders within another State’s
jurisdiction without its prior approval. What this means in practical terms is that requests for
MLA must contain sufficient information in order for the requested State to understand what
is being sought and its connection with the underlying facts, so as to be able to act on behalfof the requesting State within the former’s jurisdiction. Failure to provide the minimal
amount of information to satisfy the requested State’s jurisdiction will more likely than not
result in the rejection of the request, as it will be deemed insufficient. Furthermore, therequesting State must also inform the requested State upon application for MLA the reasons
for which such coercive measures or production of evidence are necessary for its criminal
proceedings.
MLA is not a means to have the requested State carry on an investigation for therequesting Sate, and thereafter to retransmit the results to the requesting State, so that it may
initiate its own investigation or prosecution. This is also known as a fishing expedition, or
when the requesting State shifts the burden of the investigation to the requested State. One of
the keywords in MLA is co-ordination, and, as such, the requesting State must provide
sufficient information, which can only be obtained through investigation, to enable therequested State to render the assistance sought.
When requesting assistance, the practitioner must also be aware of the legal
requirements to be met in both the requesting and requested States for the assistance sought,
e.g., transmission of affidavits or court orders alongside the request for MLA. While thepractitioner of the requesting State is knowledgeable of the standards needed for the
production of evidence, one must assume that this is not the case regarding the legal
standards of the requested State.
There are many variables to this equation. The type of assistance to be pursued in therequesting State is the first point that the practitioner should analyse. Requests seeking theservice of documents or court orders from the requesting State will have simpler standards,
whilst taking evidence from a witness or expert may be more complex, as some States deemthe production of evidence by witnesses a coercive measure, should the witness not wish to
produce it voluntarily and must, therefore, be compelled to produce evidence.
Providing bank records or seizing proceeds of crime, on the other hand, have higher
standards. Banking information is, for the most part, legally protected, and a court order has
to be obtained prior to its disclosure to both the authorities of the requesting and requested
States. Seizing of assets in the requested State on behalf of the requesting State, is the mostcomplex type of assistance to be sought, as is its maintenance for future confiscation andrepatriation.
One important point to consider is that requests for MLA are not final. This is to saythat requests may be issued at any stage of the criminal proceedings in the requesting State,
and that more than one request may be issued for the same proceedings. The practitioner may
wish to pursue initially the production of banking information pertaining to an account heldby the investigated person. Upon disclosure of the banking information, the investigation- 35 -

may conclude that other accounts were also used, at which point further requests fordisclosure should be made to the requested State. When this investigation has firmly
established the link between the investigated person, the facts and the bank accounts, and themonies have been located, a further request for MLA should then be made, seeking to seize
the proceeds of crime.
As such, requests for MLA should remain simple, to the extent possible, and shouldseek precisely what the investigation in the requesting State has already uncovered. One
overly long and detailed request, containing multiple requests for assistance are not only
cumbersome to execute but also raise the level of complexity, which will invariably result indelay in its execution. Therefore, the practitioner should seek to issue requests with precise
objectives: the issuance of a request does not preclude issuance of future requests seeking toamend the previous one or containing a different focus for the assistance sought. Thisapproach, in fact, is generally better accepted and usually has a better chance of success.
Upon establishing the type of assistance to be pursued, the practitioner must then know
and understand the standards to be met in the requesting State. This must be done with priorcommunication with the requested State. Where a more experienced practitioner in MLA
may be able to make use of his networking contacts, a new practitioner in the field will haveto rely on the central authority of his country.
However, it may not only
be the central authority of the requesting State that will havebe only
the necessary information. Additionally, other very important sources of information for thepractitioner are contacts within the Embassy of the requested State in its own State, such aslegal attachés or police liaisons. Many countries nowadays have within their Embassy staff
experts from their law enforcement community, and they should be contacted as they areaware of their own law enforcement community and the requirements necessary to obtain theassistance sought in the requested State. Embassy contacts seek to bridge the gap between
law enforcement communities of States.
4.

Contents of the Request
A request for MLA must be simple and objective, as the requested State must
understand the correlation between the criminal activity in the requesting State and what isbeing requested. The assistance sought should be clearly established and linked to the facts
and criminal conduct described in the request.
In order to have a successful request for MLA, it is common to have an investigationthat has already been initiated in the requesting State. Its findings will lead the investigator to
new leads or hypotheses, which must then be tested in order to confirm if the investigatedperson(s) is guilty. However, should the information needed to confirm some of thesehypotheses be in another jurisdiction, a request for MLA will be necessary.
In order to initiate a request for MLA, the request in the requesting State must be
prepared by the relevant authority. It is of little use to have all the information andproceedings done properly if the competent authority does not sign the request, as no court oflaw in the requesting State will accept the evidence that was, in the final analysis, requested
by an incompetent authority. The proper authority will then seek to provide the necessary
information emanating from the investigation in the requesting State to the requested State,and be sure that the requirements in both States are met.

- 36 -

The request for MLA must include personal information of the person or persons underinvestigation, i.e. the full name of the person, date of birth, name of his or her mother andpassport number; a summary of the proceedings underway in the requesting State, including
the docket number, a brief description of the proceedings, and the stage which theproceedings under the criminal procedures of the requesting State has reached.
A brief description of the facts is to follow the introductory information. Here, therequesting State must provide information of the facts, and how these facts correlate to theinvestigated person or persons. A correlation between the criminal offence or offences andthe facts and persons must also be explained.
Thereafter, a copy of the criminal offences and their sanctions must be made available
to the requested State. It is of the utmost importance, however, that these criminal offences
are explained. This is necessary as some countries require that requests for MLA meet thedual criminality principle, in which the offence in the requesting State must find correlation
with a criminal offence in the requested State.
5.

Validity of the Evidence
Preparing a request for MLA is only part of the work which has to be done in MLA. Its
preparation must be thorough and complete, as the main goal is to guarantee its effectiveness.
Not only must the effectiveness of the request be considered but also the results arising
therefrom.
Whilst it is important to meet the requirements of a request for MLA established by thelegal framework of the requesting State, in order for it to provide the assistance sought, theactions undertaken by the requested State must also be deemed applicable in the requesting
State. Bilateral, regional and international treaties which contain rules for MLA determinethat the rules of procedure for the execution of the request shall be those of the requested
State.
What if, however, the way in which the evidence is produced by the requested State isconsidered inadmissible by the requesting State’s jurisdiction? It should be highlighted thatthe general rule mentioned in the preceding paragraph does contain an important exception:
the requesting State may ask the requested State, in the former’s request for MLA, for it toobserve specific procedures applicable in its jurisdiction whilst executing the request. The
requested State shall then comply with these rules during the execution of the request, to theextent that they do not conflict with the requested State’s internal legal framework or its
constitutional requirements.
An important observation thus arises: as uncommon as the procedure may be in therequested State, it shall be observed. Therefore, communication between the requesting andthe requested States is of the essence in order to guarantee the success of this procedure, andto understand the extent of application of the requesting State’s procedures within therequested State’s jurisdiction.
Therefore, if the evidence is produced in a valid manner in the requested State, or if theprocedure adopted for the production of the evidence is considered valid by the requested
State, it must be considered as valid in the requesting State’s jurisdiction.

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IV. CONCLUSION
The asset recovery process is a powerful tool for the combating of corruption-related
offences. It is also, however, a complex process which requires the investigator and theprosecutor to think outside the box.
An important part of the asset recovery process is mutual legal assistance, as theproceeds and the instrumentalities of crime will normally transit between numerous
jurisdictions in an attempt to have hidden – and sometimes even have it as a final destination– by the perpetrator, the true nature, origin and ownership of these proceeds andinstrumentalities.
A request for MLA is however a delicate balance between what information isnecessary and should be conveyed, and what, in fact, has to be disclosed. This is so because
several factors come into play – whereas the requested State needs enough information andunderstanding of the case in the requesting State in order to render assistance in the assistancesought, an excessive amount of information may create confusion in the requested State, andmisunderstanding as to what is the purpose of the request. Moreover, too much information
may be made readily available to the defence at a moment when the investigation is still
confidential, thus defusing the element of surprise necessary to any investigation. Of
fundamental importance to the asset recovery process in general, and mutual legal assistancein particular, are that the channels of communication between the requested and requesting
States remain open and are used at all times, even prior to the issuing of the request for MLA
itself.
The key to successful MLA is, thus, communication. It is only through clear, concise
and constant communication prior to, throughout and after the assistance has been rendered,that the requesting authority will be able to know the intricacies of MLA with the requested
State. Moreover, communication brings another important element to MLA: trust. Throughcommunication,
one party
party isis able
able toto gradually
gradually build
build the necessary trust that any law
communication one
enforcement activity requires in order to ensure effectiveness and success.
Although the variables of MLA – difference between legal systems and traditions, thetype of assistance required and the subject matter of each investigation all interacting
simultaneously – do not allow for one to establish a formula for sure success, it is possible toestablish a checklist against which a request should be tested whilst it is in the process of
being drafted.
The practitioner should establish what assistance will be sought through the request andwhat the legal basis will be. Once this is defined, dual criminality issues should beestablished, if any, and the drafting of the request should be done in a way that it can becomprehended by the requested State’s jurisdiction. The request should be proofread in orderto ensure that all the necessary information and linkages are contained and, if possible, sent to
the requesting authority so that it too may determine that all the information is contained
within. Finally, prior to sending the request, it should be checked whether all the appropriate
supporting documentation, if any, or, if necessary, accompanies the request.

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I. APPENDIX OF ABBREVIATIONS
1988 Vienna Convention

United Nations Convention against Illicit Traffic in Drugs
and Psychotropic SubstancesAU

African Union

CoE

Council of Europe

FIU

Financial Intelligence Unit

MLA

Mutual Legal Assistance

OAS

Organisation of American States

OECD

Organisation for Economic Co-operation andDevelopment

OECD Anti-Bribery Convention Convention on Combating Bribery of Foreign Public
Officials in International Transactions
SADC

Southern Africa Development Community

UN

United Nations

UNCAC

United Nations Convention Against Corruption

UNTOC

United Nations Convention against Transnational
Organized Crime- 39 -