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OPEN LETTER – Urgent request reminding the Principality of Monaco and the Department of Justice of Monaco’s international committments on Mutual Legal assistance with respect to international corruption investigation.

Paris, December 11th, 2020   – In a letter addressed to the Principality of Monaco and the department of Justice, we remind the essential issue of Mutual Legal Assistance (MLA). International commitments are crucial to implement an efficient repression of International Crimes and the principality should provide promptly and diligently the widest possible legal assistance in the investigation, prosecution and related proceeding relating to money laundering, associated predicate offense and terrorist financing.

Object: Urgent request reminding the Principality of Monaco and the Department of Justice of Monaco’s international committments on Mutual Legal assistance with respect to international corruption investigation.

Sherpa is a leading French NGO, established in 2001, which engages with law enforcement authorities in its mission to protect and defend victims of economic and financial crimes and corruption, drawing on the power of the law to fight against the new forms of impunity linked to globalisation. 

A major part of our actions are undertaken through Strategic litigations: the pursuit of legal cases is part of a strategy to reshape global business as well as defend victims of economic crimes by establishing important legal precedents with a lasting and determining effect on our legal system.

As such we are particularly concerned by the issue of Mutual Legal Assistance (hereafter “MLA”) that we believe to be an essential element of efficient repression of international crimes. To increase the effectiveness of suppression, it is necessary for states to cooperate across borders in criminal investigations. MLA  is indeed one of the most practically important developments in public international law over recent decades[1] and States engaged in investigations, prosecutions and ultimately suppression of criminal activity must increasingly rely on each other to bring alleged offenders to justice and recover the proceeds of crime. In particular, combating serious crime such as corruption, organised crime and terrorism is a growing cross-border concern, and all nations face the risk that corrupt officials may flee or transfer stolen assets abroad.

In a report issued in 2000, the OECD identified a number of jurisdictions as tax havens according to criteria it had established. Between 2000 and April 2002, 31 jurisdictions made formal commitments to implement the OECD’s standards of transparency and exchange of information.

Seven jurisdictions, among which the Principality of Monaco, did not make commitments to transparency and exchange of information at that time and were identified in April 2002 by the OECD’s Committee as uncooperative jurisdictions.

We believe that commitment to cooperate is not enough and express serious concerns about the reluctance of the Principality of Monaco to respect its international commitments with respect to MLA.

The Principality of Monaco’s international commitments with respect to MLA

We want to draw your attention on the obligations provided for in the 1997 Convention on combatting bribery of foreign public officials in international business transactions[2] which requires member states to provide prompt and effective legal assistance to other states for the purpose of criminal investigations and proceedings concerning offences within the scope of the Convention as well as for non-criminal proceedings within the scope of this Convention brought by a Party against a legal person.

The Convention expressly urges the requested state to inform the requesting without delay, of any additional information or documents needed to support the request for assistance and, where requested, of the status and outcome of the request for assistance being clarified that bank secrecy shall not be considered as a valid ground for refusing such MLA.

We remind you also that following the FATF recommendations [3] Countries should keep comprehensive statistics on matters relating to the effectiveness and efficiency of their AML/CFT systems. They should include statistics on suspect transactions reports (STRs) received and disseminated, money laundering and terrorist financing investigations, money laundering and terrorist financing prosecutions and convictions, frozen, seized or confiscated assets as well as mutual legal assistance or other international requests for cooperation.

More particularly the FATF requires that Countries should, in a prompt, constructive and effective manner, provide the widest possible mutual legal assistance in the investigation, prosecution and related proceedings relating to money laundering, associated predicate offenses and terrorist financing. Countries should have an adequate legal basis to provide such assistance and, where appropriate, should have treaties, agreements or other mechanisms to enhance cooperation.

It is further stated that countries:

should not prohibit or impose unreasonable or unduly conditions

  • should ensure that they have clear and efficient procedures for prioritizing and timely execution of mutual legal assistance requests. Countries should have recourse to a central authority or other established formal mechanism for the efficient transmission and execution of requests. In order to monitor the progress of requests, a case management system should be in place;
  • should not refuse to execute a request for mutual legal assistance on the grounds that their laws impose the preservation of secrecy or confidentiality on financial institutions or designated non-financial businesses and professions (except in cases where the information sought is held in circumstances falling under legal professional secrecy or legal professional privilege);
  • Countries should provide mutual legal assistance despite the absence of dual criminality if the assistance does not involve enforcement action. Countries should consider adopting the necessary measures to enable them to provide broad assistance in the absence of dual criminality.

With respect to investigative powers and techniques available to their competent authorities, countries should ensure that a wide range of other investigative powers and techniques are available in response to a request for mutual legal assistance including relating to the production, search and seizure of information, documents or evidence (including material of a financial nature) held by financial institutions or other persons, and to the collection testimonials.

Lastly, Monaco ratified in 2007 the European Convention on Mutual Assistance in Criminal Matters[4] under which parties agree to afford each other the widest measure of mutual assistance with a view to gathering evidence, hearing witnesses, experts and prosecuted persons, etc.

This Convention sets out rules for the enforcement of letters rogatory by the authorities of a participating state which aim to procure evidence (audition of witnesses, experts and prosecuted persons, service of writs and records of judicial verdicts) or to communicate the evidence (records or documents) in criminal proceedings undertaken by the judicial authorities of another state requesting such assistance.

We believe that the Principality of Monaco and its judicial institutions do not show sufficient commitment in fighting transnational crimes, especially by their reluctance to respect their international obligations with respect to MLA. We thus remind you that MLA being an indispensable tool for law enforcement judiciary authorities handling international corruption cases with international aspects it is of the utmost importance that your services facilitate international cooperation, in accordance with international legal instruments ratified by Monaco.

We look forward to your prompt reply to our concerns and send you our best regards,

[1] UNODC, Manual on Mutual Legal Assistance and Extradition, Publishing and Library Section, 2012, p. 7-11.

[2] OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997.

[3] Normes internationales sur la lutte contre le blanchiment de capitaux et le financement du terrorisme et de la prolifération, Recommandations du GAFI, novembre 2017.

[4] European Convention on Mutual Assistance in Criminal Matters, June 1962.

Last modified: 2 December 2021