Reciprocity through Diplomatic Channels (Letters Rogatory) As a last resort, MLA may be obtained through letters rogatory on the basis of reciprocity through diplomatic channels. This approach has many disadvantages, however. Communications occur through diplomatic channels, slowing the response as well as the assistance. Moreover, letters rogatory are limited to court-to-court assistance and thus may not be available in the investigative or early stages of the prosecution if criminal charges have not been laid. Policy Recommendations a)
Jurisdictions that have not yet done so should accede to or ratify and implement UNCAC, UNTOC, and other regional or international instruments that facilitate the provision of MLA. b) Jurisdictions that need to transpose international conventions into domestic law should ensure that comprehensive and overarching domestic legislation on MLA is in place and fully compliant with Chapters IV and V of UNCAC and Article 18 of UNTOC. c) Jurisdictions that have the ability to directly apply self-executing international treaties should ensure that practitioners are aware that international conventions such as UNCAC and UNTOC can be used as a legal basis for MLA and are familiar with the convention provisions. Consideration should be given to adopting domestic MLA laws to allow for assistance in the absence of or in cases outside the scope of international conventions. d) Jurisdictions should consider entering into bilateral MLATs or memoranda of understanding with jurisdictions that provide only limited forms of MLA based on their domestic laws or based on conventions such as UNCAC, UNTOC, or jurisdictions with which cooperation would be overly burdensome without a bilateral agreement. Priority should be given to jurisdictions that have strategic importance including from an asset recovery standpoint. e) Existing MLATs should be reviewed and, if required, updated periodically to ensure their continued relevance.
Barrier 9: Failure to Observe UNCAC and UNTOC A number of jurisdictions that participated in the study have either failed to criminalize all UNCAC and UNTOC offenses or do not extend their legislative confiscation framework to all of these offenses. As a consequence, these jurisdictions are often limited in their ability to secure or confiscate property if a foreign request relates to an uncovered UNCAC or UNTOC offense. To eliminate these barriers to asset recovery, jurisdictions should ensure that the scope of their domestic restraint and confiscation framework encompasses all offenses under UNCAC and UNTOC. Some jurisdictions do not apply the restraint and confiscation framework provided in UNCAC to all types of property included in the convention. Jurisdictions should be able to assist one another in the restraint, confiscation, and return of proceeds of crime, Legal Barriers and Requirements that Delay Assistance
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