Unlike crimes like murder, theft and rape that are committed in one jurisdiction, corruption can take multiple jurisdictions. Hence, the fight against corruption is complex as it is supported by advanced technologies and confronted by jurisdiction barriers.
Identifying this difficulty, international as well as regional anti-corruption instruments have highlighted the significant of international cooperation to combat corruption. Among other mechanisms, countries are recommended to use mutual legal assistance.
This paper will discuss the concept of mutual legal assistance and how it is stipulated under the international and regional anti-corruption instruments. It will also look at the practice and challenges of it.
2. What is Mutual Legal Assistance?
Mutual legal assistance denotes a practice through which countries seek and provide assistance to each other in the gathering, tracing, freezing, seizing and confiscation of assets.
Often mutual legal assistance is confused with extradition and traditional cooperation; nevertheless it differs from both. Extradition denotes the process in which a state requests for the transfer of a fugitive from another. While, traditional cooperation among law enforcement authorities symbolizes extensive range of intelligence and information sharing that can extend to the use of coercive actions.
Mutual legal assistance is very crucial particularly for developing countries as most of these countries suffer from corruption. Hence, by using mutual legal assistance they can get confidential information like the records of banks that will enable them to trace, seize and confiscate assets lost through corruption.
3. International and Regional Instruments Regarding Mutual Legal Assistance
International Instruments that aim to tackle cross border crimes like; human trafficking, money laundering, organized crime and corruption indicate mutual legal assistance as the major international cooperation mechanism to be used in the investigation, prosecuting and confiscation of transnational crimes.
The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the United Nations Transnational Organised Crime Convention (UNTOC), the United Nations Convention against Corruption (UNCAC), Organization of Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention on Combating Bribery) have stressed the importance of mutual legal assistance in tackling transnational crimes.
Moreover, regional instruments such as; the Council of Europe Convention on Mutual Assistance in Criminal Matters, Inter-American Convention on Mutual Legal Assistance in Criminal Matters, the Caribbean Mutual Legal Assistance Treaty in serious Criminal Matters, the African Union Convention on Preventing and Combating Corruption (African Convention on Corruption), the Council of Europe Convention on Criminal Law on Corruption, the Economic Community of West African States Protocol on the Fight against Corruption (ECOWAS Protocol on Corruption), the Inter-American Convention against Corruption (IACAC), are examples for regional instruments that incorporate mutual legal assistance provisions.
4. Mutual Legal Assistance as an Anti-Corruption Mechanism under International and Regional Instruments
As indicated above, one can find mutual legal assistance under various international and regional instruments. However, Most of these instruments prescribe mutual legal assistance in relation with specific criminal acts they intend to fight. This necessitates for examining instruments which describe mutual legal assistance as anti-corruption mechanism. Examining these instruments is vital; as the instruments incorporate mutual legal assistance bring the nature of the crime in mind.
Accordingly, in the coming topic the writer will discuss the international and regional anti-corruption instruments that provide mutual legal assistance as an anti-corruption mechanism. In doing so, special emphasis will be given to UNCAC.
4.1. International Instruments
Most organised criminal groups use corruption as a tool to achieve their plan. On the other hand, many cases of corruption are the result of organised criminal groups. Considering the connection between corruption and organised crime, UNTOC, though it aims to tackle transnational organised crime, it also incorporates corruption as one of the acts of organised crimes and request states to criminalize it. Most importantly, UNTOC urges states to afford one another the widest measure of mutual assistance in the investigation, prosecution and judicial proceeding for offences covered under it.
OECD Convention on Combating Bribery is another international instrument that deals with corruption. Although, this instrument takes a narrow scope with regards to the offences it covers and focuses only on bribery of foreign public officials in international business transitions, it takes a broader scope when it deals with mutual legal assistance issue, and requests states to provide assistance both in criminal and non-criminal cases.
UNTOC, OECD and all the other anti- corruption international instruments have significantly contributed on combating corruption. Nevertheless, UNCAC is considered as a milestone, as it embraces the different forms of corruption and provides the broadest possible measures in the fight against corruption.
Similar to the other international instruments, UNCAC obliges states to afford the widest measure of mutual legal assistance to one another in the investigation, prosecution and judicial proceedings of corruption cases. In executing mutual legal assistance, states can rely on already existing agreements, or in the absence of agreements, states can use the provisions provided under UNCAC.
The request for assistance can be for various purposes. The main once are for gathering evidence, executing searches and seizures and freezing, examining objects and sites, providing originals or certified copies of relevant documents, identifying or tracing of proceeds of crime and properties. Among others, assistance for the purpose of asset recovery is considered as one of the greatest achievements of UNCAC, as it enables states to retrieve what they have lost through corruption. However, the effort to recover assets would be worthless, unless supplemented by international cooperation mechanisms like mutual legal assistance.
For the promptly and effectively execution of mutual legal assistance, UNCAC urges states to establish a central authority which has the power and responsibility to receive and execute mutual legal assistance requests. This will enable the request to go directly to a central authority and avoids the dilemma between police, prosecutor or courts to determine who is responsible for such requests.
In comparison to other international instruments, UNCAC discuss the issue of mutual legal assistance in detail, and tries to overcome most obstacles attached to it. Some of the critical factors; dual criminality, forms and contents of a request, execution and denial grounds of mutual legal assistance will be centre of discussion in the subsequent sections.
Dual Criminality is stipulated in different ways; some instruments are flexible and permit states to determine on the grant of assistance when dual criminality is absent, while others take a strict approach and request states to grant assistance even in the absence of dual criminality. For instance, UNOTC gives states the discretion to decide on the grant of assistance when dual criminality is not satisfied.
UNCAC however, takes a strict approach and provides only three conditions on which states can refuse assistance when dual criminality is not satisfied. First, states can refuse assistance when the request is not in line with the purpose of the convention. Secondly, it permits states to refuse assistance if the request is against their interest and thirdly, when the request sought can be granted by other provisions of the convention.
Nevertheless, even in the absence of dual criminality states are required to grant assistance, as long as, the request sought is in line with the domestic legislation and it does not involve a coercive action.
4.1.2.Forms and Contents of the Request
In principle, a request for mutual legal assistance should be in written form and should be written in a language suitable for the requested state. However, in times of urgency, it can be done orally, on condition that, it will be confirmed by writing immediately.
Provided additional details can be requested by the requested state, among others facts a request should contain; identity of the authority making the request, the subject and nature of the request and description of the assistance sought. Upon demanding a request, the state can also demand confidentiality, especially regarding the facts and substances of the request.
4.1.3. Executing Mutual Legal Assistance
Mutual legal assistance requests are generally executed based on the domestic legislation of the requested state. Similarly, UNCAC requires states to execute assistance based on their domestic legislation and to the greatest extent; states are required to follow the procedures specified under the request. However, this obligation works if the request is not in contradiction with their domestic laws.
Furthermore, the requested state is required to endeavour to the extent possible, to meet the deadline and try to comply with the procedures specified under the request. Throughout the execution process, the requesting state can bring reasonable demand regarding the status and progress or measures taken regarding its request.
The requested state is also obliged to provide copies of government records, documents or information under their possession which are available to the general public. Nonetheless, regarding the documents, records or information which are restricted by law, the power to grant or deny assistance depend on the discretion of the requested state.
Besides the grant of documents and information, the transfer of individuals who are detained or sentenced in another territory can also be sought. Such request can be taken into consideration if the person who is the subject of the request is crucial in identifying, testifying or assist the investigation, prosecution or judicial proceedings. However, such kind of request can only be executed if the person has given his free consent regarding the request and if the competent authorities of the requested and requesting states have reached agreement.
Unless the requested state has agreed, the obtained information or evidence should not be used for other purpose than what is stated under the request. However, this should not hamper the requesting state from using the information or evidence as exculpatory evidence upon notifying the requested state.
Moreover, in cases when a person from another jurisdiction has to be heard as a witness or as an expert by the judicial authority of the requesting state and if the person is not in a position to give his words in person, UNCAC suggests the use technologies like video conference. Nevertheless, states can also agree on other means they prefer to use.
Unless there is a contrary agreement, the ordinary costs of executing a request should be covered by the requested state. However, if the expenses are extra ordinary or substantial, states should consult on how to execute the request as well as determine on who bears the responsibility of expense.
4.1.4. Grounds for Refusing Mutual Legal Assistance
As mutual legal assistance depends on the domestic legislations of the requested state, countries are allowed to refuse assistance when their authorities are prohibited by the domestic legislation from executing similar task in related circumstances. States can also refuse assistance when the request is contrary to their legal system and when the request is not in conformity with the provisions of UNCAC. Moreover, states are allowed to refused assistance when, the request is likely to prejudice their sovereignty, security or public order.
Although, states are allowed to refuse assistance in the above mentioned grounds it does not denote the refusal to be automatic. Rather, before refusing the request states are obliged to consult with the requesting state and hear what the state has to say.
Although, there are instance states can refuse assistance, UNCAC and almost all anti-corruption instruments prohibit the use of fiscal matter and bank secrecy to deny mutual legal assistance.
Even if, UNCAC is considered as one of the core international anti-corruption instrument it is criticised in many points. First it is criticised as most of its provisions are non-mandatory and leaves the matter to the discretion of states. The second critic is related to its minor emphasis given to corruption by officials of international organisation and for excluding the issue of political offences in cases of corruption from the discussion part.
4.2. Mutual Legal Assistance under Regional Instruments
As indicated above, there are also regional anti-corruption instruments that deal with mutual legal assistance. As most of these instruments are parallel with the international anti-corruption instruments, only the special features will be discussed in the next topics.
No other continent is more suffering from the problems of corruption than Africa. Recognizing this predicament, African countries have adopted several anti-corruption instruments. The African Union Convention on Corruption, SADC Protocol against Corruption, the ECOWAS Protocol on the Fight against Corruption, most importantly, all of these instruments highlight the importance of mutual legal assistance in the fight against corruption.
These instruments oblige countries to provide the greatest possible assistance, not merely in investigating and punishing acts of corruption, but also in the area of preventing and detecting corruption. Besides, they also advocate the importance of establishing independent and autonomous central authority that is responsible to deal with mutual legal assistance issues.
In the effort of preventing and combating corruption, The African Union Convention on Corruption also urges states to collaborate in conducting researches, exchanging studies and expertise. Furthermore, states are also obliged to cooperate in designing programs and codes of ethics as well as organizing joint training courses.
On its part, the ECOWAS Protocol on the Fight against Corruption emphasised the need to undertake bilateral and multilateral agreements that establish joint investigative bodies. In the absence of agreements, states are advised to agree on the joint investigation on a case by case basis.
The Council of Europe Civil Law Convention on Corruption is the first instrument to introduce civil proceedings as method of anti-corruption mechanism. It urges states to cooperate in the investigation, freezing and execution of civil proceedings.
One can find different European anti-corruption instruments having different scopes. For instance; the Council of Europe Criminal Law Convention on Corruption takes a relatively narrow scope, and limits its application and only consider bribery, trading in influence and laundering the proceeds of corruption as acts of corruption. On the other hand, the European Union Twenty Guiding Principles for the Fight against Corruption, the European Union Convention on the Fight against Corruption Involving Officials of the European Union Communities or Officials of Member states of the European Union take a broader scope and embrace different forms of corruption.
Whether the above mentioned instruments have narrow or broad scope regarding the acts of corruption, however, they all stress on the significance of mutual legal assistance in order to fight corruption.
Like the other international and regional instruments, the Inter-America Convention against Corruption (IACAC), promotes the use of mutual legal assistance as an anti-corruption mechanism. It demands states to tackle corruption through exchange of experiences, agreements and meetings. Moreover, it requests states to give a special emphasis on the mechanisms and procedures used in participating citizens.
Additionally, it tries to avoid the loophole which hinders countries from providing mutual legal assistance. It stipulates if a property is obtained through corruption, then the defence that it was motivated by political goals will not be sufficient to qualify the act as a political offence.
Just like the international anti-corruption instruments, the regional instruments are also criticized. One of the major critics is related with their far-reaching character. Additionally, though the regional instruments promote the use of mutual legal assistance they fail to stipulate how countries should execute assistance.
5. Mutual Legal Assistance in Practice
Although, there are several anti-corruption instruments regulating mutual legal assistance, its execution is dependent on domestic legislation. Accordingly, countries have promulgated laws governing the issue of mutual legal assistance.
For instance, after the ratification of UNCAC and UNTOC, China has extended its mutual legal assistance frame work by incorporating the rules of mutual legal assistance in its domestic legislation. The rules require the presence of agreement in order to grant assistance. However, even in the absence of agreements, assistance can be granted, if it fulfils the requirement of dual criminality. Based on these rules, in average China undertakes 5 outgoing and fifty incoming assistance requests per annum.
On the other hand, the practice of mutual legal assistance under Japan legal system is strict and highly dependent on its domestic legislation. Any request for assistance can be granted, if it satisfies the requirement of dual criminality and, if the offence is considered severe under its legislation. Additionally, the request can be granted, if the requesting state can demonstrate the search, seizure or compulsory inspection is decisive for the success of the case.
Comparable mutual legal assistance legislation is also found in Switzerland legislation. Like China and Japan mutual legal assistance rules, a grant for assistance needs to satisfy the requirement of dual criminality, require the presence of agreement, in cases of absence, the requesting state need to assurance reciprocity. Nevertheless, a request for assistance can be refused if; the subject of the request is considered as a political or military offence under its legislation. In addition, except for cases of excise or tax fraud, mutual legal assistance can also be refused on the ground of fiscal offence. A request can also be denied if the requesting state has violated the principle of human rights and fundamental freedoms stipulated under the European Union Convention or other international instruments. Regarding assistance request for the purpose of asset recovery, it stipulates, the requested asset can only be returned if a final executable order has been made by a criminal, civil or administrative court of the requesting state.
Though, domestic legislation like that of Japan and Switzerland are strict, the importance of mutual legal assistance unquestionable. This is mainly attested in asset recovery cases, as many countries are able to identify and recover their assets.
For instance, in the case of Ferdinand E. Marcos, in which an estimated amount of 5 billion US$ was laundered from the Philippine government through corruption, the government used mutual legal assistance to recover assets from USA and Switzerland. Though, an estimated amount of 1.5 billion US$ was found in USA and 1 billion US$ in Switzerland, due to difficult bank secrecy rules of these countries, the Philippine government was able to recovered only fifty million US$ from USA and 374 million US$ from Switzerland.
Similarly, in the case of Sina Abacha, although Nigeria does not have mutual legal assistance agreements with all of the requested countries, it was able to trace and recovered 2 billion US$ from ten different jurisdictions. This was executed using mutual legal assistance in gathering information from several bank accounts located in in Luxembourg, Switzerland, United Kingdom, Liechtenstein and Jersey.
The above mentioned cases are just few examples that witness the significance of mutual legal assistance in the fight against corruption. However, the use of mutual legal assistance is confronted by different factors, which be discussed in detail in the next section.
6. Challenges of Mutual Legal assistance
The execution of mutual legal assistance is confronted by legal and practical challenges. The legal challenges are related with restrictions provided under legal instruments, while practical challenges refer to procedural and bureaucratic issues related with executing authorities.
6.1. Legal Challenges
Even though, various international and regional anti-corruption instruments provide mutual legal assistance as an anti-corruption mechanism; its implementation is dependent on states parties. Accordingly, the grant of documents, the gathering of evidence, search and seizure of properties and other procedures related to execution of mutual legal assistance depend on how these issues are governed under the domestic laws of the requested state.
Moreover, the anti-corruption instruments describe the issue of mutual legal assistance using general terms. This opened a door for diverse interpretation under different legal systems. For instances terms like, “national interest”, “public order” and “national security”, which are the main grounds to refuse mutual legal assistance, are left for interpretation of states. This also demonstrates the extent to which mutual legal assistance is dependent on domestic legislation.
Another challenge is related with dual criminality, though, UNCAC, as well as the other instruments request states to provide assistances for offences covered under them, this will not solve the problem of dual criminality, as some of the offences provided under these instruments are optional while others are mandatory. For instance, unjust enrichment, private-to-private corruption and bribery of foreign public officials are optional offences, the criminalization of which depends on the willingness of the states.
6.2. Practical Challenges
The implementation of mutual legal assistance is not merely exchange of information or ideas; rather it denotes the process in which states with different national legal system having different methods of investigation and prosecution collaborate regardless of the disparities. For instance, the usage and weight attached to evidences gathered through coercive means might be governed in different ways under the requesting and the requested states legislation. Consequently, the different mechanisms and technics used in the process of investigation and prosecution have made mutual legal assistance a complex process.
Additionally, UNCAC urges states to establish central authorities having the power and responsibility to receive and execute mutual legal assistance requests. Though establishing central authority can be taken as a first step to enhance mutual legal assistance; nevertheless, effective assistance is highly dependent on the availability of skilled manpower that are well trained on the principles and procedures of the matter. Due to this, though there is a central authority dealing with the issue of mutual legal assistance, in many developing countries assistance has been problematic as there is of lack of skilled manpower.
In addition to the above mentioned problems, the central authority also needs to be independent. This is crucial, as most of individuals who are the subject of mutual legal assistance are influential figures that work as top government officials and can use their power to undermine the process of mutual legal assistance.
Furthermore, the request for mutual legal assistance is also challenged by financial constraints. As, in some instances the execution of mutual legal assistance is found to be expense.
Additionally, the practice of mutual legal assistance has been criticized on various grounds. For instance developing countries claim the developed countries are not cooperative in mutual legal assistance since these countries are slightest affected. While the developed countries argue, the execution of mutual legal assistance in developing countries is unreliable as the legal system and the protection of human rights in these countries are suspicious.
Moreover, countries like Luxembourg, Liechtenstein and Switzerland allow those individuals who are the subject of the request to appeal against the request. This procedure though it aims to protect the right of the person in question, it can be misused to delay the process of mutual legal assistance.
Though, corruption is devastating for many countries it does not mean all states are victims from it. Rather, some states are benefiting from the proceeds of corruption. This particularly explains the situation in developing countries, as leaders from these countries are known to launder the proceeds of corruption to developed countries. For this reason, as the developed counties are benefiting from corruption, they have no or very minimum willingness to fight corruption.
Moreover, the requirement of language in which the requesting state is required to present its request in a language that is suitable for the requesting state and the restriction to use the information only for the purpose it has been requested for have also been mentioned as challenges of mutual legal assistance. As these factors will take time and restrict the use of documents for other purposes.
As discussed in the above paragraphs, though mutual legal assistance is one of the best mechanisms to fight corruption, it is challenged by numerous grounds.
As corruption has no boundaries, in the fighting against corruption, countries need to use mechanisms which go beyond jurisdictions. Even though, mutual legal assistance is stipulated under International as well as regional anti-corruption instruments, its significance is more attested by practical examples, as many countries were able to recover assets they lost through corruption. As a result, despite the various limitations attached to mutual legal assistance, it is one of the best international cooperation mechanisms that can be used in the fight against corruption.
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