Operational Recommendations a)
Jurisdictions should identify a primary and secondary focal point within their central authority, as initial contact point for inquiries on making requests for assistance. Jurisdictions should also identify other competent authorities as focal points for managing informal inquiries. Focal point information should be kept current and include the name and address of the central or competent agency, the position or title of the focal point, contact details (e-mail, telephone, facsimile) and the languages spoken. b) Jurisdictions should implement policies and procedures to ensure that focal points within central authorities have the capacity and knowledge to provide information on how to make a request for international assistance. c) Jurisdictions should use a variety of avenues to provide information on focal points within their system and to ensure that focal point details remain current; options include use of domestic government Web sites, INTERPOL, and international or regional networks such as CARIN, ARINSA, and IBERRED. d) Jurisdictions should strengthen existing asset recovery networks or include asset recovery within an existing regional network. Where no such networks exist, jurisdictions should support their creation, requesting assistance from international organizations when necessary.
Barrier 22: Onerous Legal Requirements to MLA and Overly Broad MLA Refusal As a prerequisite to providing formal MLA, most jurisdictions require dual criminality and reciprocity. These requirements may be difficult to meet, stalling MLA and thus introducing obstacles to asset recovery. Dual criminality requires that the offense be criminalized in both the originating and requested jurisdictions. Practitioners identified this requirement as a barrier to the provision of MLA. Illicit enrichment, corruption of foreign public officials, and violations of foreign exchange control laws are examples of activities that are not criminalized in all jurisdictions. Moreover, because jurisdictions use different terminology to describe the offenses and required elements for proof, the assessment of dual criminality can prove problematic when it is based solely on the category and title of the offense without consideration of the criminalized conduct itself. The central authority in a requested jurisdiction might refuse the request because the originating jurisdiction cannot provide a reciprocity assurance to the requested jurisdiction.81 Some jurisdictions have removed the dual criminality and reciprocity requirements to facilitate the MLA process. Other jurisdictions consider waiving requirements in 81. For jurisdictions that have ratified UNCAC, reciprocity is not a valid reason for refusal of MLA; see UNCAC, Article 46(21).
Operational Barriers and Communication Issues
Book 1.indb 81
I 81
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