International Mutual Legal Assistance in Corruption Cases: Lessons for Investigators & Prosecutors

1. Law Enforcement:Lessons for Investigators & Prosecutors by Ahmer Bilal Soofi ConsultantNational Accountability BureauGovernment of Pakistan

2. “Object of investigation is to ensure successful prosecution”

3. It is understood that in every State:- • Laws exist that define the offence of “corruption” • Laws exist that prescribe the steps in the process of investigation • Laws exist that prescribe the process of prosecution • Laws exist that regulate related issues like “confinement”, “bail”, etc

5. Trans-National Legal Aspects of Investigations & Prosecutions

7. MutualLegal Assistance: • Can be done administratively. • Ideally be through a national statute. • Statute may be in the nature of a “general MLA provision”. • Statute may be a stand alone MLA law.

9. Approach A To have a provision of MLA in existing predicate offence law (Corruption law) Section 21 of NAB Law in Pakistan: International Cooperation: Request for mutual legal assistance. The Chairman NAB or any officer authorized by the Federal Government may request a Foreign State to do the following acts in accordance with the law of such State: Have evidence taken, or documents or other articles produced; Obtain and execute search warrants or other lawful instruments authorizing search for things relevant to investigation or proceedings in Pakistan believed to be located in that State, and if found, seize them; Freeze assets, by whatever processes are lawfully available in that State, to the extent to which the assets are believed on reasonable grounds to be situated in that State…. Approach B To have stand alone MLA Law Swiss MLA law UK MLA regime Legislative approaches to MLA

10. Obstruction to International Investigations and Prosecutions Dual criminality Principles of severability Lack of understanding of laws of other state Other obstructions

11. Swiss Penal Code Article 314 Dishonest Public Administration “Members of authorities or officials who, in negotiations, damage public interests entrusted to them to obtain for themselves or others an unlawful profit shall be sentenced……..” Article 159 Unfaithful Management, “Whoever dissipates the resources of another person entrusted to him by law or contract shall be confined in the prison.” National Accountability Bureau Ordinance,1999, Pakistan Section 9(a)(IV) …if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or title in [acquired] moveable or immoveable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for.. Section 9(a)(III) If he fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do, Probable Solutions to Dual Criminality

12. Innovative Approaches towards Prosecution Prosecution under stand alone offences of Laundering of proceeds of “Corruption” State A State B Laundered Proceeds Predicate Offences

13. Three Challenging Stages for Prosecutors and Investigators Collection of Evidence Framing of Charge (Language of the Charge) Admissibility of the Evidence

14. Investigators/ Prosecutors Must have a good understanding of: • National law relating to procedure • National law on substantive offences • Law of the state where part of the offence took place Both must team up together

15. Thank You