Asset Recovery Handbook

Page 147

TABLE 7.1 Factor Purpose

Differences between Informal Assistance and MLA Requests Informal assistance

MLA requests

• Obtain intelligence and information to assist investigation

• Obtain evidence for use in criminal trial and confiscation (in some cases,

• Emergency provisional measures in some jurisdictions

non-conviction based [NCB] confiscation) • Enforcement of restraint order or confiscation judgment

Type of assistance

Noncoercive investigative measures;

Coercive investigative measures (such

proactive disclosure of information;

as search orders) and other forms of

joint investigation; opening of a

judicial assistance (such as enforce-

foreign case

ment of provisional measures or confiscation judgment)

Contact process

Requirements

Direct: law enforcement, prosecutor,

Generally not direct: central authorities

or investigating magistrate directly to

in each jurisdiction to proper contact

counterpart, among Financial

point (law enforcement, magistrate,

Intelligence Units, between banking

prosecutor, or judge)a; letters rogatory

and securities regulators

through the ministry of foreign affairs

• Usually just agency-to-agency

May include dual criminality, reciproc-

contact; sometimes a memorandum

ity, specialty, ongoing criminal

of understanding

investigation, or link between assets

• Must be lawfully gathered in both

and offense

jurisdictions Advantages

• Information is obtained quickly;

Evidence is admissible in court;

formality of an MLA request is not

enables enforcement of orders

required (for example, dual criminality) • Useful for verifying facts and obtaining background information to improve an MLA request Limitations

Information cannot always be used as

Time consuming; resource intensive;

evidence; difficult to determine

many requirements that are often

contacts; few resources allocated to

difficult to meet; potential leaks

networking; potential leaks Source: Authors’ compilation. a. There may be bilateral or multilateral agreements that permit direct contact among practitioners.

Instead, the better method is a step-by-step process in which information or evidence obtained pursuant to one request is used to support the next (follow-up) request. For example, it may be possible through informal assistance to obtain bank account details that will help provide the necessary foundation and background information for an International Cooperation in Asset Recovery

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