What is a Mutal Legal Assistance Treaty

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What is a Mutual Legal Assistance Treaty?

What is a mutual legal assistance treaty
What is a mutual legal assistance treaty

What is an MLAT and how can you request and send one? MLATs are treaties between cooperating states to request legal assistance. This article details a broad view on them.

MLAT AML – Cooperation Between Countries

Practices that restrict international cooperation between supervisory authorities or FIUs in analysing and investigating suspicious transactions, money laundering crimes, confiscating assets or extraditing accused money launders are serious obstacles to combating money laundering.

Methods for International Cooperation

  1. International ML Information Network
  2. Mutual Legal Assistance Treaties
  3. Financial Intelligence Units

IMOLIN – RESEARCH
Imolin is a Clearing house of money laundering information for the benefit of national and international AML agencies. Developed and administered by the UNODC ( Global Program Against Money Laundering) on behalf of the UN and other international organizations.

IMOLIN has five main features:

  1. Reference data: Research and analysis, bibliography, conventions, etc
  2. Country page: Includes full text of AML legislation, links to national FIUs
  3. Calendar of events: Training etc
  4. Current events: News of recent initiatives
  5. AML International Database – AMLID (password protected): compendium of laws, information and contacts internationally.

Mutual Legal Assistance Treaties

  • In money laundering cases, an MLAT can be extremely useful as a means of obtaining banking and other financial records from treaty partners.
  • Classical “Gateway” and powerful bilateral weapon embodied in a Mutual Legal Assistance Treaty (MLAT).
  • In the US: Negotiated by the Department of State in cooperation with the Department of Justice to facilitate cooperation in criminal matters.
  • MLATs are in force between countries globally.

The MLAT is a treaty-based mechanism for seeking foreign law enforcement cooperation and assistance in support of an ongoing criminal investigation or proceeding. The MLAT process, and its benefits, are available only to government officials, typically prosecutors. They are applied for via the country prosecuting agency and sometimes have clauses to prevent abuse. An MLAT can be multi-lateral or thematic, for example multi-lateral tax treaty agreements.

MLATs generally allow for the exchange of evidence and information in criminal and related matters. They provide a legal basis for transmitting evidence that can be used for prosecution and judicial proceedings. If evidence is required from another jurisdiction, a request can be made for “mutual legal assistance”.

Most MLATs require the country that receives a request for assistance to take certain actions, such as:
• Taking testimony or statements of persons
• Providing documents, records and evidence
• Service of documents on persons or organizations in the requested country
• Locating or identifying persons
• Executing requests for search and seizure
• Identifying, seizing and tracing proceeds of crime

FIU data sharing and analysis
FIU data sharing and analysis

FATF cooperation between countries.

The financial action task force makes several recommendations with regard to sharing information internationally – MLATs are just one…
• Recommendation 36: Implementation of Conventions
• Recommendation 37: Mutual Legal Assistance Treaties (MLATs)
• Recommendation 38: Freezing and confiscation
• Recommendation 39: Extraditable offenses
• Recommendation 40: Other forms of cooperation

FATF Recommendation 36

International Instruments

  • Countries should take immediate steps to become party to and implement fully:
    • The Vienna Convention, 1988;
    • The Palermo Convention, 2000;
    • The United Nations Convention against Corruption, 2003; and
    • The Terrorist Financing Convention, 1999.

FATF Recommendation 37

Mutual Legal Assistance:

Countries should rapidly, constructively and effectively provide the widest possible range of mutual legal assistance in relation to money laundering, associated predicate offences and terrorist financing investigations, prosecutions, and related proceedings. Countries should have an adequate legal basis for providing assistance and, where appropriate, should have in place treaties, arrangements or other mechanisms to enhance cooperation (…) Countries should render mutual legal assistance, notwithstanding the absence of dual criminality, if the assistance does not involve coercive actions. Countries should consider adopting such measures as may be necessary to enable them to provide a wide scope of assistance in the absence of dual criminality.

FATF Recommendation 38

Mutual Legal Assistance: Freezing and Confiscation:

  • Countries should ensure that they have the authority to take expeditious action in response to requests by foreign countries to identify, freeze, seize and confiscate property laundered;
  • Proceeds from money laundering, predicate offences and terrorist financing; instrumentalities used in, or intended for use in, the commission of these offences; or property of corresponding value.
  • This authority should include being able to respond to requests made on the basis of non-conviction-based confiscation proceedings and related provisional measures, unless this is inconsistent with fundamental principles of their domestic law.
  • Countries should also have effective mechanisms for managing such property, instrumentalities or property of corresponding value, and arrangements for coordinating seizure and confiscation proceedings, which should include the sharing of confiscated assets.

FATF Recommendation 39 Extradition:

  • Countries should constructively and effectively execute extradition requests in relation to money laundering and terrorist financing, without undue delay.
  • Countries should also take all possible measures to ensure that they do not provide safe havens for individuals charged with the financing of terrorism, terrorist acts or terrorist organizations.
  • Countries should ensure that they have clear and efficient processes for the timely execution of extradition requests including prioritization where appropriate.
  • Countries should monitor progress of requests a case management system should be maintained;
  • Countries should not place unreasonable or unduly restrictive conditions on the execution of requests; and
  • They ensure they have an adequate legal framework for extradition.
  • Each country should either extradite its own nationals, or, where a country does not do so solely on the grounds of nationality, that country should, at the request of the country seeking extradition, submit the case, without undue delay, to its competent authorities for the purpose of prosecution of the offences set forth in the request.
  • Those authorities should take their decision and conduct their proceedings in the same manner as in the case of any other offence of a serious nature under the domestic law of that country. (…)

FATF Recommendation 40

  • Other forms of cooperation:
    • Countries should ensure that their competent authorities can rapidly, constructively and effectively provide the widest range of international cooperation in relation to money laundering, associated predicate offences and terrorist financing.
    • Countries should do so both spontaneously and upon request, and there should be a lawful basis for providing cooperation.

MLATs are useful tools for FIUs to exchange evidence, documents and even people suspected of criminality. Banks receiving requests based on MLATs should respond in a timely manner to avoid criticism and reputational damage in post court press. Talk to us to advice on institute response.

For information on FIUs see this post.

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