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Human Trafficking: Cross-Border Law Enforcement And Prosecutor Cooperation

This is the third of four human trafficking articles to appear in the monthly NAAGazette. These articles are the work of attorneys who participated in the June 2011 National Attorneys General Training and Research Institute (NAGTRI) International Fellows Program. Human trafficking is also the focus of NAAG President and Washington Attorney General Rob McKenna’s 2011-2012 presidential initiative.

In this article, fellows from Mexico, United States, Canada, and Czech Republic discussed cross-border law enforcement and prosecutor cooperation, looking at how countries might cooperate with one another to combat human trafficking. Would this best be approached on a regional basis? The Southeast Asian nations, for instance, have been working on a protocol and the Arab nations have developed a protocol. Or would this be better handled on a bi-national basis? Should agreements be formalized or might cooperation be better achieved through an informal mechanism such as Memoranda of Understanding between various law enforcement agencies? Or in even more informal arrangements through personal contacts with prosecutors and law enforcement in neighboring states? If a trafficking victim wishes to be repatriated to his/her originating country, how is this best handled? What role might INTERPOL play? What agreements would need to be worked out in order for law enforcement in one country to be able to achieve assistance in investigating in another country?

By Jorge E. Iruegas, Assistant Attorney General, Mexico, Abigail Kuzma, Director and Chief Counsel, Indiana Attorney General’s Office, Sonia Paquet, Criminal and Penal Prosecuting Attorney, Canada, Asha Vaghela, Deputy Attorney General, New Jersey Attorney General’s Office,and Pavel Zeman, Supreme Public Prosecutor, Czech Republic

At the outset, this group noted that two basic principles are involved in the discussion: the principles of sovereignty and territoriality. The principle of sovereignty states that an entity has independent authority over a certain geographic area. It includes the power to rule and make law over that geographic area. The principle of territoriality, recognized internationally as a principle of law, states that all persons and entities within a state are subject to the legal system of that state.

There are two existing forms of international cooperation in combating crime: police cooperation and judicial cooperation. The purpose of police cooperation is to obtain a quick exchange of information regarding pending investigations. Various channels can be used for this exchange, depending on location and the specific circumstances of the case: INTERPOL, Europol, liaison officers at embassies, FBI liaison officers, Homeland Security officers, Royal Canadian Mountain Police, and direct contact. These contacts may be authorized by international and bilateral treaties or simply made on an ad hoc basis. The requests can be made through writing, through INTERPOL alerts, or simply through telephone calls.

Judicial cooperation is used to obtain evidence that can be used in prosecutions. Cooperation between and among prosecutors is legally authorized through international treaties such as UN conventions, Council of Europe conventions, or through bilateral treaties. Obtaining judicial cooperation is sometimes accomplished through diplomatic channels and, sometimes, simply through personal relationship on an ad hoc basis. The forms of cooperation include a mutual legal assistance request under a mutual legal assistance treaty (MLAT), extradition, transfer of criminal proceedings, and the recognition of foreign decisions. There are numerous institutions that support judicial cooperation: Iber Red, the network of contacts in Latin America for judicial cooperation, the Organization of American States, the European Judicial Network, EUROJUST (for EU and countries having cooperation agreements, memoranda of understanding, or contact points), ASIAJUST (which is undergoing development to provide contacts throughout the continent of Asia), and UNODC (a basis for information exchange between UN countries, and the Council of Europe).

Judicial cooperation can be especially helpful in using various investigative techniques such as wiretapping, cross-border surveillance, undercover investigations, and forming joint investigative teams.

There are, unfortunately, many problems with using the normal channels of cooperation. It is often a slow and lengthy process and the line prosecutor often does not know where to begin to even request the cooperation needed. Educating these prosecutors through formal means or through providing information on websites, such as http://www.ejn-crimjust.europa.eu/ejn/, will help to inform, for instance, as to how to draft a mutual legal assistance request (MLAs) and to whom and how such requests should be submitted. It streamlines the process quite a bit when prosecutors develop personal and trusting relationships with their counterparts in other countries. Nonetheless, prosecutors still need to know how to draft an MLA even if they are not going through official channels to procure cooperation.

There is a need for quick reaction, especially in the area of human trafficking which involves all type of organized crime. It would be helpful for local prosecutors to have a contact person in their own country who would serve as an expert in international cooperation who could advise how to proceed and who would perhaps make the first contact to foreign authorities. The “expert” should be one who is dedicated to assisting prosecutors in this effort and eager to cut through any bureaucratic red tape that so often delays these types of requests.

Our group, thus, makes the following recommendations:

· Each country create a position of a national/state contact point for judicial cooperation.

· Each country raise awareness by training prosecutors on judicial cooperation, including how to proceed regarding different types and forms of judicial cooperation.

· Place the information regarding judicial cooperation within the secure intranet of the prosecution service. For those countries without an intranet, we recommend creating one.

· Raise awareness of prosecutors to facilitate contact with INTERPOL to find evidence of human trafficking perpetrator convictions in order to facilitate international cooperation of human trafficking prosecutions.

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JORGE E. IRUEGAS

JABIGAIL KUZMA

SONIA PAQUET

ASHA VAGHELA

PAVEL ZEMAN