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Targeting Transnational Crimes: Outcome Report of the 10th IAP regional conference for Asia & Pacific

4/21/2017

The 10th Asia & Pacific Regional Conference took place in Busan, Korea and brought together 64 prosecutors from 25 different countries for two days of engaging sessions, discussions and community building. 13 speakers from 9 different countries took the group through interactive sessions and inspiring discussions both during and between sessions. The Supreme Prosecutors Office and the Busan District Prosecutors’ Office hosted the conference and ensured a great and meaningful conference and a wonderful visit to Busan, Korea. Read the full report here ...


The aims of the conference were to 1) allow prosecutors to learn and exchange experiences in the area of transnational crimes and mutual legal assistance in general and asset recovery in particular, 2) strengthen the connections between prosecutors in the region for future collaboration, and 3) to advance constructive policies of MLA and asset recovery for prosecutors. Furthermore, important innovations in Japanese and Korean prosecution reform were presented and discussed.

The two days’ combined professional and social programme easily brought together the many delegates and allowed them to get to know each other, to exchange experiences and to strengthen their connections for potential mutual assistance in the future. Specifically, as to the professional programme, three main themes emerged through the sessions and discussions:

  • The proceeds of crime and how to seize and confiscate them
  • Transnational and interagency collaboration
  • Evolving strategies of law enforcement – keeping up with change

Asset recovery

There are few other areas of criminal procedure which have developed as much in time as asset recovery. Confronted with often few tools to deal with the actual organized and financial crimes, focus has turned to the proceeds of the crime – to recover the assets. Presentations from Chinese Taipei, Thailand, Hong Kong and Korea confirmed this and allowed us to compare and discuss different legal and practical arrangement of asset recovery. Central to our discussions was the transnational and interagency collaboration. It appeared that with few exceptions the challenges for prosecutors in these collaborations included:

  • Proofing the criminal origin of assets
  • Lacking a clear focal point for securing assets
  • Difficulty in identifying foreign banks
  • MLA issues (efficiency, legality of request, sufficient facts)
  • Seized funds being mismanaged

Also, the discussions made it clear that the changed and less burdensome procedures that associates asset recovery in many countries, give reason to be careful that due process principles are maintained. Most importantly, comments concerned access to judicial control and the burden of proof for securing and confiscating assets.

To facilitate collaboration in asset recovery, there are now more than 10 different regional networks. More if we include the many informal regional networks. On a global scale, however, there are limited coordinating mechanisms. It seems that the annual meetings of the STAR initiative is the only one. Improving the networks between these regional networks is surely one of the concrete improvements that the international society can work on. There was some discussion of how we can move towards shared standards of asset recovery. To what extent we will move towards convergence of standards of asset recovery relies among other things on whether we will see a convergence of the underlying evidence rules.

Transnational and interagency collaboration

Central to our discussions were the constantly increasing demand for prosecution services to work with other agencies and across borders. With presentations on drug trafficking, terrorism, cybercrime, money laundering and asset recovery, discussions touched both on the matter of convergence of transnational crimes and on the processes of collaboration.

There are several areas where can see a transnational convergence of criminalization, most significantly in the areas of financial and organized crime. The criminalization of terrorism was discussed. Taking point in departure of Australian, US American in particular, the case was put forward for continuing efforts to secure a single transnational definition of terrorism to allow us to approach the problem in one rather than many different ways. The lack of convergence of how we define terrorism presents a significant functional limitation in our ability to investigate and prosecute the underlying acts. The question remains fiercely debated. It is indeed possible that international organisations may derive at shared concepts of terrorism. It is less likely that such definitions will be fully functional under the different legal traditions of criminalization in the legal systems of the world.

Turning to the operational collaboration, both domestic and international, we need first to remember that there is nothing new about working across borders and there is nothing new about working together between other agencies. The ‘new’ that we are confronted with these years in:

  • the drastic increase in the volume of cross-border requests
  • the expanding regulatory frameworks through which we must operate and which require collaboration
  • the reality that evidence – and assets – often are spread over multiple and changing jurisdictions
  • the increasing involvement of private agencies – in particular communication service providers – in both law enforcement and in investigation of crimes.

As prosecutors, we are requested to carry out an unprecedented level of cooperation with other agencies; and at the same time to maintain our unique role of prosecutors. Historically, it is not so long ago that this changed. It is only with the late introduction of internet-based financial governance, easy travel conditions, and providers of internet-based instant-communication services. The latter has happened very recently. For example, Facebook and twitter have only been global service providers for little more than 10 years.

This means that we are only in the very beginning of finding out how to solve the challenges of working across borders. It is very possible that we have yet to find the truly efficient solutions. This can be approached on a short-term and a longer term.

On the short term, we need to embrace the actual challenges before us. The two days’ presentations reveal a number of practical challenges for practicing prosecutors that we need to deal with internationally:

  • Lack of effective legal basis for cooperation (treaties, etc.)
  • Difference in legal and procedural frameworks
  • Delay, no response or insufficient response
  • Language difficulties
  • Communicating sufficient evidentiary and legal requirements in MLA requests
  • Political reasons for refusal

The discussions revealed a number of possible activities to deal with these challenges:

  • Building strong formal and informal relationships
  • Using joint investigation teams or parallel investigation mechanisms
  • Preparing a strong request for assistance
  • Domestic institutional setup and build interagency relationships
  • Domestic training and guidance of how to make and receive MLA requests
  • Closer connections between CAs and executing prosecutors
  • Early consultations to clear uncertainties in relation to MLA requests

The need to build and sustain informal relationships to facilitate many of these activities cannot be overstated. It is only fitting to recall that the recent ADB-OECD report for MLA in the Asia-Pacific from January 2017 also focus on this in their recommendations:

“Submitting requests: If possible, make informal contact with the likely executing authority in the foreign jurisdiction at the same time that the request is formally submitted to the central authority, in order to alert the executing authority of the request and allow for more efficient.” (ADB-OECD, Mutual Legal Assistance in Asia and the Pacific. Experiences in 31 jurisdictions, January 2017)

A point which this and other OECD and UNODC reports also reveal is that prosecutors is missing from many international mechanisms of MLA despite the important role of prosecutors. It is necessary that the role of executing prosecutors is taken more seriously in the available international instruments.

Embracing this point, the IAP is in the middle of a two year initiative to extend our global database with updated MLA contact points in all prosecution services in our membership base. Combined with the many meetings at our regional and global conferences, the database is a practical tool for prosecutors to reach out to colleagues worldwide and make the necessary informal contacts to support efficient formal MLA procedures. Specifically in the area of Counter-terrorism, the IAP is partnering with UNODC and with UN CTED to capacity-build public-private MLA mechanisms with prosecutors worldwide and to build a global platform to provide executing prosecutors and Central Authorities with better legal and practical knowledge of how to process effective MLA requests.

Turning to what we can do on a longer term we need to embrace a few basic likely conditions: First, despite globalization, there is no indication that the nation-state is disappearing. We will continue to rely on national criminal justice institutions, and thus on tools to collaborate across agencies and borders for the foreseeable future. Second, we will increasingly have to rely on the role of private institutions, be that financial institutions or communication service providers. Third, much of the evidence and the assets we are seeking is internet-based and often involves collaboration with multiple jurisdictions, public agencies and private institutions producing a high level of legal and procedural complexity.

Embracing these conditions and asking ourselves what solutions we can offer, today’s technological developments leave us only with our imagination as limits of what is possible. We need to push for solutions that facilitate a smooth communication and allows us to request mutual legal assistance worldwide – and solutions, which include assistance from the many private and public communication service providers. We need a global MLA platform that goes beyond both the UN writer tool and the UN Central Authorities database.

As many others I remain optimistic. I do think we share a common language of mutual legal assistance and do think we can built dramatically better solutions in the future that not only make mutual legal assistance much more efficient, but also systematically observe individual human rights.

Keeping up with change – evolving strategies

We heard from three important areas of evolving strategies that both regionally and globally are important to advancing our investigation and prosecution of criminal offences. From Japan the recent amendments to improve the criminal procedure – both in efficiency and in ensuring reliable and due process based evidence in court. From Korea we heard about the processes of applying DNA evidence techniques in investigation. Confronted with an increasing public pressure to deliver convictions – the case was made that DNA based evidence represents an important tool to maintain a procedure that relies on facts. Finally, we heard from the implementation of victim-offender mediation through prosecution services in Korea as an important example of the widespread rebirth of traditional methods of conflict resolution: restorative justice.

I want to add a few words to this. Few jurisdictions (though some do exit) are not burdened with overload of cases in the criminal justice system. Making different tracks for different kinds of criminal cases and defendants is a widespread and likely a good solution. Some cases require a more extensive procedure than others. The Korean example of victim-offender mediation rightly takes point of departure in its ability to produce a more efficient procedure (average of 35 days process time). The presentation of the Korean case also made the important reference to its value of actually solving a conflict – of a more effective problem-solving mechanism in preventive terms. Reference was made to the condition of a “heartfelt apology” thus reminding us of the difference between admission of guilt, confessions, and then penance, apologies and the reciprocal and just as important forgiveness. There is a strong movement internationally to allow our formal criminal justice systems better mechanisms of embracing these more traditional mechanisms of conflict resolution (often called restorative justice). The Korean case is a good example of how restorative justice can be effectively institutionalized through the prosecution service combinging the restorative values with prosecution under rule of law. We will, together with the Korean prosecution service, keep focus on this area.

Conclusion

In conclusion, we will in the IAP continue to bring together prosecutors to create strong professional communities both regionally and globally, we will continue to built strong practical tools for prosecutors worldwide to reach out to colleagues across borders, and we will continue to discuss these many relevant topics and push for better professional tools wherever we can.