conviction for illicit enrichment. Unlike most civil law jurisdictions, common law jurisdictions can confiscate assets using a lower standard of proof, plea agreements, and legislative presumptions. The orders that can be obtained through civil (private law) actions in common law jurisdictions also vary significantly, as does the standard of proof (balance of probabilities or preponderance of the evidence in common law versus proof beyond a reasonable doubt or intimate conviction—proof that intimately convinces a judge—in civil law). • Evidentiary requirements: The evidentiary requirements of the systems also differ, as well as the standards of proof required. For example, searches in common law jurisdictions must be authorized by a judge and require proof of probable cause to believe that an offense has been committed and that evidence is in the place to be searched, whereas many civil law jurisdictions permit the investigating magistrate or prosecutor to conduct all acts necessary to establish the truth.45 Jurisdictions also vary on what type of evidence needs to be submitted. If practitioners do not understand the different procedures within the two systems, they may improperly collect evidence that turns out to be inadmissible. • Requirements for admissibility: Common law jurisdictions generally require affidavits and certification of documents for the evidence to be admissible in a court, whereas many civil jurisdictions do not have such requirements. • Procedures to obtain assistance: Investigating magistrates and prosecutors in civil law jurisdiction usually have the authority to freeze assets and therefore can take swift action; in common law jurisdictions, they must often apply to a court before they can take action. Overcoming the obstacles created by these differences in legal tradition requires diligence by both originating and requested jurisdictions, as well as willingness on the part of the requested jurisdiction to be transparent about its process for fulfilling requests. See Barrier 23 for particular recommendations on how to increase transparency and facilitate the exchange of information between originating and requesting jurisdictions. Although legal differences can make mutual legal assistance more difficult to obtain and to provide, requested jurisdictions can help to overcome these challenges by exploring all procedural laws that may permit them to execute an MLA request. Several multilateral conventions allow for flexibility in complying with procedural forms. The UNCAC builds on previous similar provisions and stipulates that a request shall be
45. An example of probable cause: Police receive an anonymous report that persons are selling drugs out of a residence at a certain location in a high drug-trafficking neighborhood and that a supplier wearing a baseball cap and sunglasses visits the house every morning between 7 and 8 a.m. Police conduct surveillance and observe that on three successive mornings, a man fitting that description arrives carrying a large package between 7 and 8 a.m.; and that over the course of the day, every day, at least 20 people arrive at the house, knock, enter, and emerge about five minutes later carrying a small bag. There is no indication that any kind of legitimate business is being conducted from the house. The totality of the circumstances here would amount to probable cause, that is, enough evidence to obtain a warrant to search the house.
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Barriers to Asset Recovery
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