Guideline 7: CommunicationGuideline 5: Legal requirements

Guideline 6: Contacts

Requesting and requested jurisdictions should establish and use direct contacts between practitioners.

Direct and regular communication and coordination between the involved stakeholders in concerned jurisdictions throughout the various asset recovery steps is one of the cornerstones of any successful asset recovery process. In addition to communication in the context of sharing of criminal and financial intelligence or of investigative information (see Guideline 1), the subject(s) of such communication may also include case strategies, requirements for MLA and other legal requirements in the respective jurisdictions, and challenges encountered in the implementation of a co-ordinated case strategy. As such, direct communication between involved stakeholders within and especially among concerned jurisdictions facilitates the understanding of potential challenges at the operational and legal levels and may facilitate a quicker and more efficient collation of information. In addition, it builds trust and thereby further facilitates cooperation.

Requesting and requested authorities should consider seeking assistance from international experts.

Law enforcement agencies have increasingly sought the assistance of international asset recovery experts in high profile multi-jurisdictional asset recovery cases. Such international experts can include either (i) experts from intelligence and law enforcement agencies of other concerned jurisdictions, or (ii) experts from other organisations or law firms, who can assist in reinforcing the capacity of concerned agencies in requesting jurisdictions or facilitating cooperation with, and understanding requirements of, involved foreign jurisdictions.

The assistance of such experts has proven to be useful when a requesting or requested jurisdictions lack experience or capacity in dealing with complex international corruption or money laundering cases, are overwhelmed by the magnitude of the task at hand or for other reasons. An external expert can assist in developing investigation strategies and prioritising cases. When an external expert is used, he or she can further help coordinate between multiple concerned jurisdictions.

They should use all available channels for information sharing, such as international and regional networks.

Early and where possible proactively sharing of information between requested and requesting jurisdictions is key to enabling all concerned jurisdictions to efficiently progress in their investigations. Doing so may enhance trust amongst relevant practitioners, and positively contribute to the outcome of investigations, prosecutions and international cooperation.

Step 1 Establish productive relationships

Establish productive relationships with foreign jurisdictions at the earliest opportunity with a view to fostering trust, consistency and continuity.

Explanation of step 1

Building trust overlaps with building new, or expanding existing contacts. One needs to build contacts and to have trust in them as well: trust should be established while putting in place a relationship. Building trust also means overcoming potential negative perceptions or images this may bring with it.

An effective approach to facilitating direct contact is through periodic communication between peers, which should be established through different mechanisms of direct communication, such as telephone calls (incl. Skype), email, videoconferences, or face-to-face meetings with law enforcement counterparts. Establishing relationships should be done at an early stage, preferably prior to an actual case. Embassies can also play an important role as facilitators. Continuity and consistency in providing timely replies, and observing the confidentiality requirements, are important factors contributing to building up the necessary level of trust. Any limitations or delays in the possibility to provide assistance should be frankly communicated.

Step 2 Networking and follow-up

Utilise all opportunities for networking and following-up with contacts obtained, including through responsive and engaged interaction.

Explanation of step 2

Where the applicable legal provisions do not already address direct contacts, a starting point for establishing these is the conclusion of bilateral or multilateral agreements between law enforcement agencies of different jurisdictions allowing for such direct contacts. The many international and regional practitioner networks that exist (a list of relevant international and practitioner networks can be found here Annex 1), and specialised workshops and forums in which practitioners may have the opportunity to participate, can also assist in establishing contacts. Building up ones network is a continuous process and practitioners should not hesitate to contact the secretariat of these networks when they lack knowledge of whom to contact in a particular jurisdiction. Some networks also provide platforms for secure communication, which can assist in facilitating the exchanges.

International conferences and events should furthermore be used for networking. Participants in such events should be proactive, bringing a clear message about who they are, whom they represent and, how they can be reached if assistance is needed.

It is important to keep a record of contacts obtained, as there may be changes in personnel over time. Contacts should therefore be preserved at the institutional level to ensure continuity, e.g., by maintaining an institutional database of contacts, and changes in personnel should be communicated in a timely fashion.

Step 3 Consider requesting assistance from international experts

Consider requesting assistance from international experts to provide specialised support and advice as well as facilitate contacts for international cooperation. The role of these international experts should be clearly defined in order to manage e.g. confidentiality, non-authorised disclosure and cost implications.

Explanation of step 3

A practice that has evolved in the past few years is for jurisdictions to receive assistance from specialised (international) organisations, such as the International Centre for Asset Recovery (ICAR) and the Stolen Asset Recovery Initiative (StAR) of the World Bank and the United Nations Office on Drugs and Crime. These organisations have the benefit of usually being comprised of practitioners with experience in multiple jurisdictions and the capability and authority to advise on legal matters as they relate to any other concerned jurisdiction.

Countries have sometimes also relied on law firms to perform similar functions relating to one particular jurisdiction, and to act on behalf of the requesting jurisdiction in possible legal proceedings in the requested jurisdiction. Care should be exercised in selecting reputable law firms, and in understanding the terms of their engagements (e.g., fees structure and scope of work).

It should be noted, however, that the usefulness of mandating (international) experts should be balanced against potential cost implications, confidentiality requirements, the risk of non-authorised disclosure. It should be noted that while international experts provide advice, the ultimate responsibility for making decisions should remain [or remains] with the competent local authorities.

Step 4 Identify and use practitioner networks

Identify and use practitioner networks and their secretariats to obtain contact information, as well as to acquire knowledge and share experiences.

Explanation for step 4

International and regional practitioner networks provide platforms that can assist in providing relevant practical information. This important contribution does not replace legal formalities for mutual legal assistance. However, practitioners should be aware of and respect the limits of information sharing imposed by law. Publicly available information can be shared through practitioner networks. Information which is not public or is not available without first obtaining a court order cannot be shared through practitioner networks. Moreover, practitioner networks cannot be utilised when seeking to obtain evidence: a request for MLA is required to obtain the evidence.

In certain case-specific circumstances, concerned jurisdictions have also set up specific forums to enable their intelligence, law enforcement and prosecutorial communities to connect and meet face-to-face. Intelligence, law enforcement and prosecutorial agencies should be aware of, and utilise these channels for information to the largest extent possible. Participating practitioners in such networks should also promote the utility of such networks at the domestic level.

International and regional practitioner networks have proven to be particularly useful in providing strong support bases for many law enforcement agencies tackling multi-jurisdictional asset recovery cases. Such networks can furthermore provide FIUs and law enforcement agencies with an informal contact point with peers from another member jurisdiction. They can serve to share specific case-related information, although such information does not generate evidence, and cannot thus be collated to the relevant investigation and prosecution case file. The networks also serve as an excellent platform to better understand the practices of other jurisdictions in the asset recovery field, which in turn facilitates the definition of suitable investigation and prosecutorial strategies at the outset of a case. Practitioners should not hesitate to contact the secretariat of these networks (see list of international and regional practitioner networks here Annex 1)) when they lack knowledge of whom to contact in a particular jurisdiction.

Further reading

Annex 1 – Examples of International and regional practitioner networks

Guideline 7: CommunicationGuideline 5: Legal requirements