Digst f organized crime cass A compilation of cases with commentaries and lessons learned
Ppad i cpati with Th Gvmt f Cmbia Th Gvmt f Itay InTerPol
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UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna
DIGEST OF ORGANIZED CRIME CASES A compilation o cases with commentaries and lessons learned
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© United Nations, October 2012. All rights reserved. Te designations employed and the presentation o material in this publication do not imply the expression o any opinion whatsoever on the part o the Secretariat o the United Nations concerning the legal status o any country, territory, city or area, or o its authorities, or concerning the delimitation o its rontiers or boundaries. Tis publication has not been ormally edited.
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CONTENTS Acknowledgements
v
Preaces
vii
Director-General/Executive Director o UNODC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Representative o Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Representative o Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Secretary General o INERPOL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
vii viii x xi
Summary
xiii
Introduction
1
I Organized crime: its nature and criminalization
5
A. B. C. D. E.
Policie iess again insst organized cri rim me. Organized cr criime oences . . . . . . . . . . . . . . . . . . . . . . . . . . . . Patterns o criminal organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Participation in an organized criminal group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Liability o legal persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ransnational oences and jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5 13 21 26 28
II Investigation and prosecution
33
A. B. C. D. E.
Inves esti tiggati tive ve and pros osec ecut utoori rial al approa oacches to orga gani nize zedd cr crim imee . . . . . . . . . . . . . . . . . . . . . . . . . Insti titu tuti tioona nall se settti tin ng: sp spec ecia iali lize zedd en enti titi ties es or org rgan aniz ized ed cr crim imee . . . . . . . . . . . . . . . . . . . . . . . . . . . Special investigative techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other investigative techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection o witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
33 39 42 47 49
III Internatio ion nal law enorcement and judi diccia iall co coo ope pera rattio ion n
53
A. B. C. D. E. F.
Te international legal basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Law enorcement cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Institutional aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INERPOL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joint investigative teams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mutual legal assistance and extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
53 57 64 68 72 80
IV Measures related to proceeds o crime
87
A
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V Features o specic ofences
A. B. C. D. E.
99
Maaritime piracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 M Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Environmental crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Cultural property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Cybercrime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
VI Prevention Prevention
117
A. General issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
117
Annexes
I. Countr y case abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 II. List o cases divided by type o oences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 III. List o experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
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ACKNOWLEDGEMENTS Te Digest o Organized Crime Cases was developed by the Implementation Support Section o the Organized Crime and Illicit racking Branch, under the supervision o Mr. John Sandage, Director, Division or reaty Aairs (DA/OCB/ISS) o the United Nations Oce on Drugs and Crime. Te Digest initiative as a whole was coordinated by Ms. Simonetta Grassi (UNODC). Te Digest was draed by Mr. Gioacchino Polimeni (Senior Legal Consultant), with the support o Ms. Simonetta Grassi (UNODC), Mr. Ricardo Peixoto (Legal Consultant), Ms. Livier Calderon (Intern), Ms. Dayan Faria (Intern), Mr. Sergio Rea (Intern) and Mr. Pascal Valette (Intern). Valuable contributions were provided by many UNODC sta members, in particular (in alphabetical order): Ms. Mounia Ben Hammou, Mr. Mike De Feo (consultant), Ms. Simone Heri, Ms. ejal Jesrani, Ms. Karen Kramer,, Mr. Aldo Lale-Demoz, Kramer L ale-Demoz, Mr. Pierre Lapaque, Ms. Luz Elena Restrepo (consultant), Mr. Stephen Turlow, Ms. Veronic Wright. Te English version o the Digest was edited by Ms. Mary Albot (editor). Overall logistic and administrative support was provided by Ms. Hilda-Olivia Sarkissian. Te development o the Digest would not have been possible without the fnancial and in-kind support o the Governments o Colombia and Italy, and Interpol. Te United Nations Oce on Drugs and Crime is thankul to the ollowing persons and institutions, that have made the development o the Digest possible:
Partners
Colombia
Ms. María Ángela Holguín, Minister o Foreign Aairs, Republic o Colombia; Major General José Roberto León Riaño, Director General, National Police o Colombia, President American Police Community—AMERIPOL;
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Central Director o Criminal Police; Brigadier General Fabrizio Lisi, Director o the International Police Cooperation Service, Guardia di Finanza; Police Brigadier General Filippo Dispenza, Head o the State Police Provincial Headquarters o Alessandria Police; Colonel Gennaro Capoluongo, Head o Cabinet o the International Police Cooperation Service; Police Lieutenant Colonel Claudio Martini, Head o the Bilateral and Multilateral Relations and Cooperation Agreements Section, International Police Cooperation Service; Ms. Vittoria Vit toria Palmerini, Expert Exper t in Bilateral and Multilateral Relations and cooperation Agreements at the International Police Cooperation Service. Anti-Mafa National Director Anti-Mafa Directorate ate Mr. Pietro Grasso, National Anti-mafa Prosecutor, Antimafa National Directorate; Mr. Giustino Sciacchitano, Deputy Anti-Mafa Prosecutor, General Prosecutor’s Oce, Antimafa National Directorate. Interpol
Mr. Ronald K. Noble, Secretary General Mr. Gianni Baldi, Assistant Director, Drug Control and Criminal Organizations Sub-Directorate.
Experts Te Digest is the result o a broad participatory process involving experts in the areas o law enorcement and prosecution rom several regions o the world. Tose experts contributed their time, imparted their expertise, shared their cases and experiences and brought boundless energy and enthusiasm to the process o elaborating the Digest . Most o them have also participated in at least one o the three expert group meetings held in Rome (Italy), Cartagena (Colombia) and Palermo (Italy). UNODC is prooundly grateul or their personal dedication and also or having remained committed to the initiative by providing eedback, commentary and suggestions throughout the process o developing the Digest and generating tangible and practical lessons learned. A ull list o experts (in alphabetical order) appears in annex I. • Special thanks go to the interpreters and translators o the Italian Ministry o Interior and the National Police o Colombia who have assisted during the three meetings o experts and translated the Digest into other languages.
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PREFACE DirectorGeneral/Executive Director United Nations Oce on Drugs and Crime Over the past twenty years, the international community has been increasingly concerned about the threats posed by transnational organized crime. Te United Nations Convention against ransnational Organized Crime (Palermo Convention) represents a rst decisive response to these threats and provides a unique set o legal tools and a ramework or concerted criminal policy. Te sharing o the knowledge o practitioners is an eective tool that supports the implementation o the Palermo Convention, and in general, the criminal justice response to organized crime. With this in mind, the United Nations Oce on Drugs and Crime (UNODC), in cooperation with the Governments o Colombia and Italy and the International Criminal Police Organization (INERPOL), decided to seek the help o criminal justice experts—including law enorcemen enorcementt ocials, prosecutors and judges—to share their experiences and insights on how to deal with organized crime. Over the last 18 months, UNODC and its partners, the governments o Colombia and Italy, and the International Criminal Police Organization (ICPO-INERPOL), have worked closely with approximately 50 experts rom 27 countries, who submitted and discussed their cases during three expert group meetings. Te result is the Digest o Organized Crime Cases – A Compilation o Cases with Commentaries and Lessons Learned . Its purpose is to provide policymakers and criminal justice practitioners with an analysis o concrete cases and related good practices. Te Digest Digest explains explains all relevant stages o the criminal justice response, including legislation, investigation, prosecution and adjudication, as well as international cooperation. By using illustrative cases, the Digest lays out the successes and the diculties encountered by the practitioners, and so refects the state-o-the-art in eorts to combat organized crime globally. Te Digest Digest conrms conrms that the criminal policy, underlined by the Palermo Convention to dismantle the criminal organizations and bring their leaders to justice, is present in the national laws and practices o many countries. Tis policy is being successully applied to a wide range o criminal oences, including new and emerging orms
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PREFACE Minister o Foreign Aairs, Minister o Interior, Minister o Justice, Italy ransnational organized crime is one o the most dangerous scourges that aect the world in the 21st century. It undermines the oundations o our societies and poses a serious obstacle to their development. By distorting competition in world markets, by taking advantage o ailed states or contested spaces, and, in some cases, by establishing nearious partnerships o convenience with other destabilizing actors such as terrorism and maritime piracy, criminal networks may even threaten world peace and security. Te misuse o technologies gives rise to new illegal activities such as cybercrime and identity raud. racking in drugs, arms or in human beings is complemented—inter alia—by countereiting o products and medicines, tracking in cultural property and environmental crime. Criminal organizations have developed the ability to adapt promptly their areas o intervention to the fuctuations o demand and to inltrate insidiously legal businesses and nancial circuits beyond national borders. Tey operate on a global scale accumulating huge illegal assets and reinvesting them in dierent countries, including through moneylaundering. Curbing the nancial power o criminal organizations would indeed aect their raison d’être. Te nature and extent reached by transnational organized crime require collective responses, on the basis o the principle o shared responsibility. A comprehensive and eective response may be delivered by the ull and universal implementation o the United Nations Convention Against ransnational Organized Crime, signed in Palermo in 2000. Its open-ended nature makes its provisions applicable to an indenite range o crimes, thereore embedding the potential or a lasting eectiveness also against uture new challenges. wenty years aer the murder o judges Giovanni Falcone and Paolo Borsellino, whose ideas and proposals largely inspired the Convention, we are honoured to declare that this landmark legal achievement o the International Community has contributed to turn Palermo into a global symbol o the common struggle against all kinds o maas. Tis Digest is meant to promote the eectiveness o the Palermo Convention and o its Protocols by illustrating good practices related to its actual employment against organized crime in concrete cases. Developed
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No single jurisdiction can break the economic and corruptive power o transnational criminal networks. But, working together, willing and committed States have the tools to win the struggle. We have on our side the law and the support o our societies: that’s where our power comes rom, and that’s why our power is stronger than crime. Giulio Terzi di Sant’ Sant’Agata Agata Minister o Foreign Afairs, Italy
Annamaria Cancellieri Minister o Interior Interior,, Italy
Paola Severino Di Benedett Benedettoo Minister o Justice, Italy
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PREFACE Minister o Foreign Aairs, Chie o Police Republic o Colombia Crime has ound international illicit enrichment opportunities using various means and routes, through phenomena such as drug tracking, money-laundering, countereiting currency, people smuggling and human tracking, tracking in cultural heritage, crimes against the environment, among other criminal activities which organized crime have exploited and which have led to a deterioration o the security environment. Te entry into orce in 29 September 2003 o the Palermo Convention gave birth to the most important global instrument to promote cooperation and prevent and combat international crime, eectively. Trough this mechanism, States Parties have set orth a commitment to identiy the globalizing processes, which international crime networks have taken advantage o to nd shelter rom law enorcement, and to attack head-on transnational crime in all its dierent maniestations. Since then, the participating nations have developed the competencies necessary to prevent, investigate and suppress criminal activities that aect their national territories and that cross their borders, under the multilateral cooperation principle, to ght these phenomena that aect us all. Following the initiative o the Governments o Italy and Colombia, the United Nations Oce on Drugs
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PREFACE Secretary General o INTERPOL Proposed by Italy as an initiative ollowing the recommendation o the Conerence o the Parties to the Palermo Convention in 2010, the Digest o Organized Crime Cases tells the story, ull o obstacles and as yet unnished, o international cooperation that works. It dives deep into the complexities o international law enorcement cooperation and multi-jurisdictional investigations against criminal groups active in all regions o the world. Te analysis spans more than 200 cases and national legislation submitted through the dedicated hard work o 52 experts rom 27 countries worldwide, also drawing its unique wealth o policing lessons and good practice rom the input o the UNODC and INERPOL. One o the Digest’s two partner countries, Italy, contributes numerous exemplary cases rom its relentless, decades-long battle with the Maa, in particular demonstrating the country’s successes in illegal asset tracing and recovery. Colombia, the other partner country, has provided several textbook cases drawn rom its own combat against illegal armed groups involved in transnational illicit tracking o drugs, arms and other commodities, as well as money-laundering, kidnapping, extortion and murder. INERPOL’s own contribution underlines the essential role that global law enorcement cooperation tools and mechanisms play in deeating transnational organized crime. It is refected in the instrumental use o INERPOL’s secure global police communications system (I-24/7), colour-coded notices, and criminal data-
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Te pages to ollow contain knowledge o immense value or the numerous men and women across the globe who are working tirelessly to combat transnational organized crime. Ronald K. Noble Secretary General INERPOL
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SUMMARY Te rst chapter o the Digest is devoted to subjects o substantive criminal law. Te analysis o the cases provided by the experts has allowed elaboration on the scope o application o the national laws against organized crime; on the oence o participation in an organized criminal group; on the liability o legal persons; and on the extension o national criminal jurisdictions. Many o the cases presented in the Digest relate to new or emerging organized crime oences, including cybercrime, environmental crime and crimes against cultural property. Similarly, the cases reveal a diverse array o organizational typologies o organized crime. Te organized criminal groups involved in the commission o such oences range rom groups ormed on an ethnic and/or hierarchical basis to those with a looser and more fexible structure, rom territorially based groups to business-centred ones. Furthermore, the links among various actors perorming distinct roles also reveal diverse possibilities, with one group conducting the entire action, or a combination o numerous cells managed by a single coordinator, or a network o autonomous entities acting together on a transactional basis. Te same cases conrm that investigative and prosecutorial methods adopted or more traditional oences or organizational typologies are also appropriate in proceedings related to these new oences or networking systems. Tus, the rst lesson learned on this topic is that domestic laws against organized crime should ideally have a broad or fexible scope o application, so as to avoid the risk o rigidity and also permit the use o
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there is a need to better tailor those oences to the characteristics o organized crime in each country and at the transnational level. Te conspiracy/association oences are essential to expanding the scope o investigations and prosecution to the widest possible circle o acts and oenders. Few cases were provided on the dicult topic o the liability o legal persons. It is dicult to draw specic conclusions on whether the dearth o cases is due to the act that this measure is rarely used or that it is irrelevant to the ght against organized crime. However, some experts have noted that measures on the liability o legal persons remain dicult to introduce and/or apply in legal systems where they are not already customary. It appears that an in-depth, comprehensive study would be useul, ocusing in particular on the identication o all the criminal aspects o organized crime where a provision on such liability appears necessary or appropriate. Cases show that organized crime oences are at present characterized by transnationality, which complicates eorts to counter them. It is thereore necessary to develop legal means, practices and, more generally, a culture o eective international cooperation among law enorcement and judicial activities. Cases illustrate the status quo o international cooperation and demonstrate, inter alia, that cooperation requently involves the continuous coordination o activities, including entire stages o law enorcement or prosecutorial action. In this regard, some experts note that the lack o coordination in the exercise o jurisdiction may lead to conficts, while the majority o experts support the opposite view that the parallel exercise o criminal jurisdiction by more than one country could substantially contribute to investigations and prosecutions and, in particular, allow or improved coordination and synergy o law enorcement activities by the countries involved. Chapter II o the Digest pays special attention to investigations and prosecutions, which are signicant elements o the criminal process. Te experts emphasize some undamental methodological aspects, whose importance in addressing organized crime is well evidenced by specic instances, such as, in particular, the
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specialized investigative and prosecutorial legal tools; (d) coordinate or consolidate investigations and prosecutions so to avoid possible overlaps o initiatives; and (e) optimize the results o prosecutorial eorts against single criminal groups or networks. Te Digest discusses, then, matters related to the use o special investigative techniques, in particular those mentioned in article 20 o the Organized Crime Convention, namely, controlled deliveries, surveillance and undercover operations. Te lesson learned is that, while practitioners should continue making the best use o traditional means o investigation and evidence, the above mentioned special techniques are requently indispensable or the successul investigation o organized crime. Tey are linked to the successes achieved in the most serious investigations presented by the experts. Special techniques such as interception o communications or controlled deliveries ocus on the interaction between oenders. Tey are o particular added value when dealing with a criminal organization, as they lead to the discovery o the structure and the conduct o such organizations. In presenting the cases, the experts emphasized that such special techniques require detailed regulation at the domestic level, which is still absent in some countries. In addition, they pointed out that the lack o harmonization among domestic laws requently creates diculties in international cooperation. Tat is demonstrated by cases in which the results o such techniques could not be used in the court o the requesting country or reasons related to ormal or substantial inringement o legal requirements. Tereore, the operative
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identiy oences at an early stage and relay them to their counterparts. Te lesson learned is that law enorcement agencies should make contact as early as possible with their counterparts in other jurisdictions in order to ensure the coordination o investigative action. In the case o transnational organized crime oences, cooperation at the law enorcement and prosecution levels is rarely conned to single, limited acts o assistance, but rather consists o a series o continuous and interlinked activities carried out by two or more countries. Tis implies coordination o investigative initiatives, including their programming, timing and distribution, and the development o the new concept o co-management comanagement o investigation and prosecution. In the cases analysed, such characterizations appear to be connected to the transnational nature o organized crime and are essential to policies aimed at dismantling criminal organizations. Moreover, the concept o prolonged coordination o investigative and prosecutorial activities entails the creation o cooperative institutions. Te cases provided by experts have shown that an international law enorcement system, as described above, which allows or a continuous and expanded exchange o intelligence and signicant coordination during investigative activities, greatly benets rom a permanently established structure, at either the bilateral or the international level, to assist in speci c investigations and to ensure ensure a permanent channel o communication. Te Digest Digest expands expands on these structures and provides urther clarications, based
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Te importance o mutual legal assistance and extradition is underscored by the act that these orms o international cooperation are present in almost hal o the cases presented. Te experts have expressed regret that customary diculties encountered in this area o international cooperation, such as late or incomplete answers to requests or assistance and discrepancies in the procedural laws o the countries involved, persist and could lead to evidentiary results that cannot be introduced at trials in the requesting States. Te lesson expressed in the Digest is that prosecutorial and judicial authorities should work, to the greatest extent possible, in an environment o mutual trust. Tey should allocate operational resources to the development o inormal, direct contact to prepare or the ormal procedures o mutual legal assistance. Te use o specialized central authorities, the establishment o international networks o prosecutorial and judicial authorities and the use o meetings with oreign ocials, either o a general nature or in the context o single cases, can also be important acilitating actors. Te limited instances o extradition cited in cases demonstrate that, i norms regulating the essential aspects o the extradition procedures exist in the domestic laws o the two countries involved, then article 16 o the Convention can be successully used as a legal basis in cases where the legal system o the requested State requires an extradition treaty or extradition to be granted. Chapter IV o the Digest deals with the conscation o proceeds o crime, a measure that, over the years,
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Te Digest notes that the variety o domestic conscation mechanisms and extended conscation lead to uncertainty in the granting o eective assistance, particularly when conscation is ordered in the requesting State. In-depth research on and analysis o this issue would be o interest to practitioners interested in pursuing the conscation o assets o oenders located abroad. In this connection, the United Nations Convention against Corruption states that, in order to acilitate international mutual assistance in the execution o oreign orders o conscation, specic procedures should be studied separately rom the domestic proceedings o conscation. In accordance with article 55, paragraph 1, o that Convention, such procedures may consist o recognizing and giving eect to the original order o conscation issued by a court o the requesting State. As already indicated, the themes o the Digest refect the various stages o the criminal justice response, rather than the specic categories o oences. However, the cases provide adequate starting points or observations on some o the specic eatures related to single categories o crime. Tereore an additional chapter V was added, which contains a miscellanea o issues specically concerning oences related to rearms, moneylaundering, maritime piracy, cultural property and environmental crime. Similarly, chapter VI touches upon various aspects o organized crime prevention that could not easily t within a scheme centred on the unctioning o criminal justice. Te cases provided and the interventions made by experts at the meetings have contributed a series o indications on prevention measures ad hoc tailored to
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INTRODUCTION
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4. Te Digest is intended to complement and reinorce the existing technical assistance tools produced by UNODC to strengthen the capacities o States to prevent, investigate and prosecute transnational organized crime and the related legislative processes. Among others, such tools include legislative guides to UNOC and its Protocols, model treaties and laws, tailor-made legal publications or practitioners, an online directory o competent national authorities, an online legal library and the Mutual Legal Assistance Request Writer ool.3
Nature and purpose o the Digest
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Methodology 9. It would have have been impossible impossible to produce the Digest without the participation and support o national experts rom selected countries, who in their personal capacity shared their experience and knowledge and provided UNODC with cases and inputs. Due consideration was given to ensuring a balanced geographical distribution, as well as to capturing the most representative experiences in the ght against various orms o organized crime. In total, 52 experts rom 27 dierent countries participated in the exercise and/or provided cases and comments.4
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Structure and content o the Digest Digest takes 12. Te Digest takes a thematic approach, ocusing on dierent aspects o the criminal justice response (criminalization, investigation, prosecution, etc.) or all relevant types o oences rather than on specic categories o criminal conduct. Tis approach is based on the assumption that many o the lessons learned rom the cases apply to all oences, or at least to a wide range o oences, in which criminal groups engage. However, in some instances the Digest also addresses special eatures o particular orms o crime. 13. Te Digest Digest is is divided into six chapters: I. Organized crime: its nature and criminalization; II. Investigation
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prevention measures, ocuses on regulations and administrative practices that not only make it harder to commit certain crimes, but also, and primarily, hinder criminal groups rom developing economic activities, including the inltration and subsequent corruption o legal markets and economies. Such policy evidently applies to any type o criminal organization, or at least to any serious maniestation o organized crime. Tus the legal tools and operative methods created by this policy should apply in theory to any type o criminality generally recognizable as organized crime. However, this Digest does not attempt to produce a general denition o organized crime. Instead, the collected cases and expert commentaries permit some elaboration on how the notion o organized crime is conceived and applied in dierent domestic laws and practices. Tis subsection and the one ollowing analyse how the scope o application o national laws against organized crime
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justied; the
that: “As
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they “xate only on the charge aspect and not enough on the tools that may be available to organized crime
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limited already when nalized and signed. Te convention should attack and seek to destroy criminal organiza-
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C.
SPECIAL INVESTIGA INVESTIGATIVE TIVE TECHNIQUES
Summary: Successul use o special techniques; respect or human rights; insufcient regulation in some countries;
surveillance, undercover operations, controlled delivery.
98. Article 20 o the Palermo Convention Convention obliges obliges the Parties to “take the necessary measures to allow or the appropriate use o controlled delivery and, where it deems appropriate, or the use o other special investigative techniques, such as electronic or other orms o surveillance and undercover operations” in national proceedings as well as in the context o international cooperation. Cases where these techniques have not been used are very ew: phone-tapping is almost always used, requently in combination with undercover operations and controlled delivery. Indeed, in some o the cases the experts reerred to wiretapping as a traditional means o investigation. Tus these types o investigative action are called “special” not because they are exceptional or rare, but or other reasons. 99. What qualies these investigative investigative techniques as special is the act that their use is oen costly and complicated, requiring specialized expertise and, sometimes, advanced technological knowledge and instruments; their use may in some cases pose ethical problems, while in others it may endanger the operators; and most important, the use o these special investigative techniques may inringe on undamental individual rights (e.g., the right to privacy). In principle, thereore, these techniques should only be used when there is no reasonable alternative to obtain inormation or evidence. However, despite this problematic scenario, a clear and indisputable conclusion can be drawn:
LESSON LEARNED Special investigative techniues are oten irreplaceable in the investigation and prosecution o organized crime. They are at the root o the successul results achieved in the most serious and complicated investigations illustrated by the cases.
100. Especially in criminal proceedings or human human tracking oences, oences, special investigative techniques, techniques, such as telephone interceptions and other orms o surveillance, have sometimes only served as a supporting source o evidence, corroborating witnesses’ statements or other pieces o evidence. In other signicant cases, however, surveillance, undercover agents and controlled delivery have provided the undamental inormation on entire international networks, the composition and modus operandi o criminal groups, identication o individual oenders, preparation o uture oences, etc.—and thus were essential to the intelligence-led, proactive investigative approach that probably would not have been possible to adopt with only more basic techniques. 101. However However,, because o their problematic problematic nature, special special investigative techniques require require detailed domestic regulation, which is still lacking in some countries. Tis is true o Nigeria, the expert observed, lamenting the detrimental impact on the investigation in NIG 1 o the lack o a law on telephone interception. Moreover, as the expert rom Kenya underscored, i a country has no law on special investigative techniques, evidence gathered through special techniques legally adopted by the cooperating authorities o another country cannot
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ARTICLE 20. 1.
SPECIAL INVESTIGATIVE TECHNIqUES
I permitted by the basic principles o its domestic legal system, each State Party shall, shall,
within its possibilities and under the condition prescribed by its domestic law, take the necessary measure to allow or the appropriate use o controlled delivery, and, where it deems appropriate, or the use o other special investigative techniques, such as electronic or other orms o surveillance and undercover operations, by its competent authorities in its territory or the purpose o eectively combating organized crime.
102. By attaching a series o requirements and conditions conditions to the obligation obligation to establish these techniques, the very language o article 20 o the Palermo Conven Convention tion indirectly reveals the need or careul and thorough regulation: “I permitted by the basic principles o its domestic law,” “within its possibilities and under the conditions prescribed by its domestic law,” etc. It also shows that the negotiators o the Convention acknowledged how dicult it would have been to attempt to introduce any specic international norms on the use o the techniques, even o a very general nature. At the same time, the absence o any minimum level o harmonization among domestic laws may create diculties or international cooperation: or example, in the presentation on UKG 1, the expert regretted that although rinidad, Guyana and Granada were able to cooperate in surveillance, any evidence they gathered would not be admissible in court because it was only reported in a written summary to the police superior, with no logs or recordings to back it up. In discussing UKG 2, another drug tracking case, the same expert noted that inormation gathered rom a type o telephone interception carried out legally in the Netherlands but not allowed in the United Kingdom provided valuable assistance in the United Kingdom prosecution, and that “the ability to disclose this material as part o the case undoubtedly contributed signicantly to the guilty plea”. 103. From its privileged privileged perspective on the unctioning o the Convention, Convention, UNODC UNODC noted: “In the ten years years since the signing o the UNOC Convention, the use o special investigative techniques has remained an area where much more capacity building, as well as legislative assistance, is needed.”59 104. Special techniques such as interception interception o communication communication or controlled controlled delivery ocus on the relationship relationship between oenders; thus they are particularly valuable when dealing with a criminal organization since they can help uncover its structure along with its criminal conduct. However, because the use and value o special techniques are shaped by the distinctive eatures o national legal systems, extracting general “good practices” rom the cases in this Digest would be an uncertain exercise. Tereore, the ollowing boxes contain only ragmentary comments on some characteristics o these techniques.
SURVEILLANCE The Palerm Palermo o Conven Convention tion reers to “electronic “electronic and other orms o surveillance surveillance,,” which includes all types o surveillance other than controlled deliveries or undercover operations. The term “surveillance” thereore covers traditional modalities o police action (e.g., shadowing), as well as the use o modern electronic technologies (interception o e-mails, telephones and other electronic messaging; listening and tracking devices; video devices). The object o such surveillance can be the communication, movements or other behaviours o the person under investigation.
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Taking into account this broad concept o surveillance, one epert has observed that surveillance per se does not generally require the authorization o a magistrate. When an individual is suspected o involvement in a crime, police can keep a close watch on all his movements, actions and contacts. And indeed, some o these surveillance activities can be carried out using traditional methods such as shadowing or observation (including with a high-powered telephoto lens) that do not require authorization. However, or surveillance methods that are considered more invasive, precise legal requirements are usually prescribed, sometimes entailing a comple authorization mechanism. Between these two etremes there are a series o surveillance techniques that require prosecutorial/judicial control in some countries but not in others. For eample, “electronic tailing” using sophisticated GPS technology does not need authorization in many countries, yet the United States Supreme Court decided that according to United States law, in using GPS to monitor a car’s movements or our weeks, the police had perormed a search that should have not been done without a valid search warrant.60 To identiy and track individuals, investigato investigators rs also use video surveillance when the layout or accessibility o the suspect’s location prevents the use o traditional surveillance techniques, or when the suspect operates in high-crime areas. With regard to telephone interception, the Brazilian epert stressed the diculties that requent delays in granting judicial authorization created in BRA 8 and BRA 9. In CAN 10, the decision o the Supreme Court o British Columbia is instructive, highlighting how many detailed aspects must be taken into consideration in evaluating whether the requirements o the domestic law are ullled when granting permission or telephone interception. In SWI 1, a drug tracking case in which other evidentiary tools were considered unsatisactory in proving that the same criminal group initiated various episodes o illicit conduct, the Swiss epert concluded that telephone surveillance could still reveal communication among members o the organization, and thus secure conviction or the oence o participation in an organized criminal group. The Italian epe eperts rts raise raised d a prob problema lematic tic “technical” “technical” aspect aspect o tele telephone phone interceptio interception: n: inte interpre rpretatio tation. n. They note noted d that when wiretapping is used in investigations o transnational organizations, it is oten dicult to nd interpreters o a oreign language, and even more challenging to nd interpreters who understand dialects used in small communities. Even when qualied interpreters are ound, they may be reluctant to provide interpretation or ear o possible retaliation by ellow nationals under investigation. The trustworthiness o the interpreters is also a concern.
UNDERCOVER OPERA OPER ATIONS As is the case with “surveillance,” the Palermo Convention does not dene “undercover operation”. The term usually indicates operations—distinct rom surveillance and controlled delivery—involving delivery—involving the inltration o an individual into an organized criminal group or illicit network to participate in its general criminal activity or in a specic illicit business. The inltrator plays an appropriate role in order to discover and report on crimes committed and planned, as well as on the structure and membership o the organization. In presenting ITA 19, an important drug tracking case, the epert eplained the main eatures o the Italian legal system governing undercover operations operations and the main line o its development. Italian undercover operations evolved rom a limited institution consisting in simple simulated purchases o drug substances into a comple method used in cases involving practically all serious oences and with dierent subjects serving as undercover agents in a variety o roles. For eample, oreign law enorcement agents can go undercover in Italian investigations, receiving the same protection as domestic ocers. Individuals who support the criminal activity o the undercover agent without having a direct role in the commission o an oence (e.g., the owner o an apartment or a car, a chemistry epert who analyses drug substances, etc.) can also receive protection.
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Signicantly, Italy implemented an important legal reorm o undercover operations when it ratied the Palermo Convention. The basic rules or undercover operations are now contained in the ratication law together with all the other measures adopted to implement the Convention. 61 The substantive pillars o the systems are: (a)
Undercover agents are immune rom criminal liability: i undercover operations are properly authorized and documented, a discriminating circumstance benets the undercover agent;
(b)
Action by an undercover agent shall not constitute instigation;
(c)
Undercover agents are protected in various ways during the operation and at trial, where the agent’s name and physical appearance remain secret.
Other cases provide eamples o national legal systems that epressly allow the creation o legal entities to simulate business activities as part o an undercover operation. A separate section o the Serbian Law containing Special Provisions on Procedure or criminal oences o Organized Crime, Corruption and other eceptionally aggravated criminal oences specically regulates “Rendering Simulated Business Services and Rendering o Simulated Legal Services”. In SAF 1, a case o illicit tracking in precious metal products (PGM), the eperts said that the undercover operation encompassed the ollowing activities: “the establishing o an assay acility to assist the syndicates with the analysis o stolen PGMs, the buying-up o the illicit PGM product rom identied targets in undercover operations, the selling o the illicit PGM product to the principle targets, and eventually acting as transporter o the illicit product or the targeted eporter to oreign oreign destinations to then identiy the oreign dealer and to identiy the o-shore accounts utilized by the syndicates, or purposes o recovery at a later stage.” In SPA 5, a case involving drug tracking rom the United States to Spain, controlled delivery and undercover agents were used in both countries. The case presentation presentation showed that the drugs were transported entirely under the supervision o the inltrated agents. Nonetheless, only two medium-level trackers were arrested, while the top levels o the criminal groups, which were the target o the investigation, were not penetrated. The epert surmised that it became necessary to arrest the two trackers to protect both the American and Spanish undercover agents, which made impossible the arrests o higher-ups planned or ater delivery o the drugs. The case USA 2 is an ecellent eample o the massive use o underco undercover ver operations in comple investigations targeting an entire transnational illicit network o dangerous criminals. In this case, two investigative operations led to the conviction o more than 80 people conspiring in the United States, Canada, China and Taiwan Province o China to trac in drugs, arms, countereit currency, tobacco and other goods. The epert stated that “the undercover operations, which occurred simultaneously on both United States coasts, were integral to the success o this organized crime investigation and prosecution … they were the only eective means to inltrate the criminal conspiracy and identiy a broad array o culpable parties. The eight-year investigation began when FBI undercover agents, posing as underworld criminals, helped make sure that shipping containers ull o countereit cigarettes made it past United States Customs ocers undetected. Over time, as undercover agents won the smugglers’ trust, they were asked to acilitate other illegal shipments … .” Furthermore, “[t]he investigation was a long term, comple undercover investigation. Several undercover ederal agents dealt directly and repeatedly with targeted criminals in locations within the United States and abroad. Most o their conversations were recorded. Many were also surveilled. Since smuggling was the core criminal oence, controlled deliveries were also useul investigative tools … The evidence obtained through the undercover operation provided the bulk o incriminating evidence.” The eperts discussed at length various aspects o undercover operations, including who could serve as an undercover agent. Whereas some countries only allow domestic law enorcement ocers to go undercover, other countries permit third parties to do so. The practical consequences and the impact o these dierent
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approaches must not be underestimated, as they raise important questions related to, inter alia, the physical security o ocers who work undercover in more than one operation over a period o time, as well as the security o their identity.
CONTROLLED DELIVERY The Palermo Convention denes controlled delivery as the “technique o allowing illicit or suspect consignmen consignments ts to pass out o, through or into the territory o one or more States, with the knowledge and under the supervision o their competent authorities, with a view to the investigation o an oence and the identication o persons involved in the commission o the oence”. Among the various special investigative techniques, controlled delivery has the longest history o international law, probably because it was initially developed to combat transnational drug tracking. Already in 1988, article 11 o the United Nations Convention against Illicit Trac in Narcotic Drugs and Psychotropic Substances included norms regulating the use o controlled delivery at the international level. The Digest’s cases illustrate many situations where controlled delivery was used, requently in connection with undercover operations and always in a contet o transnational oences and international investigations. ALB 1, a case involving cocaine tracking rom South America to Albania, oers a linear eample o controlled delivery. It started in a transit country, the Netherlands, where a shipping container containing the drug was discovered. The Dutch authorities authorities contacted the Albanian prosecutors prosecutors and promptly promptly agreed agreed on the modalities modalities o the controlled controlled delivery, which led to the arrest o two o the organizers in Albania. The readiness o the Dutch authorities to immediately inorm the destination country and participate in the operation deserves credit or the launch o a successul operation. In ITA 6, a case o tracking in orged artworks attributed to important modern artists such as Miró, Lichtenstein, Picasso and others, the international controlled delivery had to be arranged very quickly between Italian and United States law enorcement agencies. Italian police ocers observed two people in a parking lot at the Rome airport signing “Miró” on lithographs immediately destined or the United States. Having received authorization by telephone, the ocers did not make the otherwise mandatory seizure o the artworks, but instead managed to coordinate a controlled delivery operation with the FBI. Allowed to pass through United States Customs, the ake lithographs were delivered to art galleries on the West Coast, where one was the object o a simulated purchase and all the others were seized. In KEN 1, a drug tracking case involving etensive international cooperation among law enorcement agencies in Kenya, the Netherlands and the United Kingdom, the latter two countries utilized controlled delivery. As noted earlier, the Kenyan epert lamented the act that the “lack o clear provisions on modern investigation techniques hampered the use o some o the evidence obtained in the Netherlands using such methods”. Most o the Russian drug tracking cases (RUS 1 to 6) also demonstrate a wider use o international controlled delivery. In cases o cross-border controlled delivery, it is essential to maintain continuous communication between the competent authorities o the cooperating countries to ensure that both sides are ully inormed and aware o each other’s movements. Gaps in communication can be detrimental to the operation and may even lead to counterproductive results, such as loss o the delivered items.
105. Special investigative techniques techniques play a undamental role role in counteracting organized organized crime, but to properly properly
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to many countries. Te Hungarian expert pointed out a remarkable example o the hazards o controlled delivery that is still under study and discussion in the European Union: whether “controlled delivery o persons”—i.e., persons” —i.e., controlled transport o smuggled migrants or tracked persons—should be absolutely orbidden or allowable within certain limits. 106. In relation to to special investigative techniques and and other investigative investigative activities intrinsically invasive, the 62 Canadian expert explained the system o “general warrants”. General warrants are judicial authorizations permitting the use o investigative techniques that inringe on privacy interests but are not specically covered (or even contemplated) by other statutory search provisions. Tey are most oen used in the course o ongoing investigations so the police may act without revealing the true nature o their investigation to persons o interest. General warrants permit, among other things, covert entries into dwellings and other real property, staged “thes” or breaking and entering, and video surveillance. 107. For instance, in a Canadian investigation o o illicit drug production, a general warrant authorized authorized the police to make numerous covert entries into a drug laboratory or a period o 59 days. Te warrant was necessary both to gather evidence and to ensure the saety o the public (i.e., to ensure that the laboratory was not on the verge o exploding and/or contaminating the surrounding area). While an ordinary search warrant could have achieved some o these same objectives, only a general warrant authorizing repeated secret entries would allow the police to observe and document the production process, identiy accomplices, and so on. Given its many advantages, the general warrant assures a considerable degree o fexibility in the management o investigative operations, which the police can better adapt to the concrete and evolving circumstances o cases. In addition, because the general warrant authorizes the possibility o repeated actions, the cumbersome and lengthy process o requesting and obtaining separate authorizations or each investigative activity can be avoided. 108. Finally Finally,, there is the complicated question o whether the development development o bilateral or multilateral agreements, as suggested in paragraph 2 o article 20 o the Palermo Convention, would acilitate the use o special investigative techniques in the context o international cooperation. Te Digest’s cases do not indicate the existence o such agreements, nor do they suggest specic areas where such agreements should intervene. On the contrary, article 20, paragraph 3, which addresses situations in which a general agreement on controlled delivery does not exist and countries make case-by-case decisions, mentions “nancial arrangements” and “understandings with respect to the exercise o jurisdiction by the States Parties concerned” as two possible issues to regulate.
D.
OTHER INVEST INVESTIGA IGATIVE TIVE TECHNIQU TECHNIQUES ES
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one’s property and control, the owner has abandoned the property and cannot object to its examination. Tese covert searches produced essential investigative leads that helped to secure the cooperation and testimony o Lazarenko’s associate (who agreed to a plea bargain and reduced sentence), which in turn enabled Lazarenko’s prosecution. Tis case is an excellent example o how traditional and innovative methods can eectively combine in a single investigation. 110. A peculiar example is IA 3, in which the investigators investigators o an important important case o transnational transnational tracking in cultural property ound themselves in a situation where they could not avoid seizing some ake paintings that they would have preerred to leave on the market to help them uncover higher levels o the illicit network. Te seizure was executed with the prosecutors’ authorization, but the oences listed in the warrant were adjusted so they would not reveal knowledge o the orgery to the trackers, who did not suspect the main ocus o the investigation. Te expert called this procedure “undercover inormation about a crime”. 111. An important, and and oen problematic, problematic, element o an investigation investigation o transnational transnational crimes is the precise identication o the oenders. Te Italian experts, in discussing several o their cases, underlined this dimension, emphasizing that identication can become a serious obstacle i the laws o the alleged oender’s country o origin make it easy to change a personal name (or more generally, to change one’s identity) and to acquire new documents. International channels o police cooperation can help to establish whether identity documents issued by another country are genuine, but the experts emphasized that this is not always an easy task. One possible identication scheme suggested by Italian law and practice is described in the box below. Identication is meant as the investigative activity needed both to attribute personal data to an individual person, and to connect a person to the crime scene or narrative, or to previous cases.
IDENTIFICATION OF OFFENDERS IN THE ITALIAN SYSTEM The Italian Penal Code provides or the punishment o individuals who reuse to provide inormation about their own identity. The identication o a person under investigation and o a person who is in a position to “report on circumstances relevant to the construction o acts” is a typical mandatory criminal police activity regulated by the Code o Criminal Procedure. A suspected person must be identied through his/her documents and when necessary, by taking his/her ngerprints, photographs and anthropometric details as well as through other types o enquiries. An important aspect o the process is the so-called police detention or identication purposes: i a person under investigation or a potential witness either reuses to produce identity documents or produces identity documents which it is reasonable to believe are alsied, police ocers can take the individual to their oces and keep him/her there long enough to make an identication, but in no case or more than 12 hours. The judicial authority is immediately
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Facial composites and physiognomic comparisons can acilitate an identication when an eyewitness makes a statement describing the suspect’s acial eatures or other distinctive eatures (e.g., scars, tattoos, missing limbs). A physiognomic comparison between subjects lmed by video cameras during a criminal action and persons under investigation can be similarly useul.
112. At their meeting in Cartagena, the experts also touched on the problem problem o identication identication o persons persons in conjunction with telephone interception. Dierences in national legislation and the cumbersome aspects o international assistance were mentioned. Te necessity o submitting requests or rogatory commissions to authorize requests or inormation about the identity o subscribers and users o telephone numbers is oen cited. As can be readily understood, this request inevitably conficts with the strict time limits on operations to identiy oenders as well as with the adoption o restrictive measures. Discrepancies have also been noted with regard to the obligation to identiy SIM card purchasers; in some States, card sellers are under no such obligation. Discrepancies also exist among national laws concerning voice recordings made without the consent o the person concerned.
E.
PROTECTION OF WITNESSES
Summary: The central role o witnesses; the Palermo Convention’s provisions concerning witnesses; the Italian witness
protection system and its shortcomings; identity change.
113. Article 26 o the Palermo Convention Convention underscores the importance importance o cooperative oenders, oenders, plea agreements, mitigation o penalties and immunity rom prosecution. Te case presentations oen reerred to these issues, but did not elaborate on them. However, at the rst meeting several experts pointed out the extremely signicant role o the witness protection system in their national experiences. Tis system covers both witnesses to crimes and so-called collaborators o justice—i.e., individuals involved in or associated with criminal organizations who decide to cooperate with the prosecution in order to secure leniency in their own prosecution. Oral testimony is still the cornerstone o any evidentiary construct in proceedings related to maa groups or other types o criminal organizations, so the possibility o being protected rom intimidation and retaliation can be a decisive stimulus to cooperate or many accused persons or witnesses.
ARTICLE 24.
PROTECTION OF WITNESSES
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non-disclosure or limitations on the disclosure o inormation concerning the identity and whereabouts o such persons; (b)
Providing evidentiary rules to permit witness testimony to be given in a manner
that ensures the saety o the witness, such as permitting testimony to be given through the use o communications technology such as video links or other adequate means. 3.
States Parties shall consider entering entering into agreements agreements or arrangemen arrangements ts with other
States or the relocation o persons reerred to in paragraph 1 o this article. 4.
The provisions provisions o this article shall also apply to victims insoar insoar as they are witnesses.
114. Te Palermo Convention Convention mandates that Parties Parties shall give eective protection to witnesses (article 24, paragraph 1) but leaves it to domestic laws and regulations to determine the concrete protection measures and procedures (article 24, paragraph 2). Te Convention implicitly acknowledges that special protection measures are costly and in some circumstances dicult to implement, by speciying that the obligation to adopt them stays “within the means” o the State Party concerned. Te United Nations has assisted States in developing or strengthening witness protection laws and establishing witness protection programmes. In 2008, UNODC published a manual o good practices in witness protection that compares national witness protection systems and highlights the undamental practical diculties, legal conditions, requirements and eects on proceedings and persons entailed by a protection system and its implementation in concrete cases.63 115. At the rst meeting, the Italian Italian experts provided an introduction to their national witness protection protection system, which is described in the box below. Te Italian system is in line with the Convention and in agreement with one o the conclusions in the UNODC guide to good practices: “the eects o witness protection programmes are maximized when there is a multipronged approach, starting with the application o temporary police measures [refected in the Italian scheme] [and] continuing with the use o evidentiary rules during court testimony.” Tis latter aspect, which includes, or example, permitting testimony via videoconerencing, is not demonstrated by the cases studied in this Digest .64
PROTECTION OF WITNESSES AND COLLABORATORS OF JUSTICE The Italian system
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crime or any person who has witnessed a crime and testies at trial, thus eposing himsel/hersel to serious and imminent danger (e.g., witnesses o criminal acts that occurred in their home or immediate environment, such as relatives o members o criminal groups; entrepreneurs and traders victimized by a racket). A witness can be put under protection regardless the type o crime. The cooperation must be trustworthy. Within 180 days rom the time the person has epressed willingness to cooperate, s/he must supply critical inormation, in particular all inormation he or she possesses that can help to reconstruct criminal acts and circumstances and to locate and arrest the perpetrators. The protection programme is determine determined d by a Central Commission (the Deputy Minister o the Interior Interior,, two judges and ve police ocers) upon request o a public prosecutor, or a period o 6 to 60 months. A temporary plan can be adopted as soon as the intention to cooperate is epressed. The special protection measures can be etended to persons living permanently with the collaborator or witness, or persons at risk because o their relationships with the collaborator or witness. The protection system is based on the principle o “camoufage” “camoufage”,, i.e., i. e., the achieveme achievement nt o complete anonymity. anonymity. The subjects relocate to a new, secure place o residence and are given a provisional identity document valid during the protection term only. In particularly sensitive cases, regulations also provide or a permanent change o identity. Assistance measures can also be prescribed to acilitate social reintegration and provide material support (accommodation, transer ees, health care, legal and psychological assistance, and allowances or those who are unable to work). The Central Protectio Protection n Service and 19 local operational units are responsible or the implementa implementation tion o the programme through, inter alia, direct assistance to the protected persons; contacts with agencies to acilitate their programme human relationships (school, health, work, etc.); and assistance to the local police in ensuring the saety o the protected persons. The protected persons commit themselves themselves to: observing security rules and cooperating actively in carrying out the protection measures; being questioned, eamined or being available or any acts to be carried out; not disclosing acts o the proceedings to anyone other than law enorcement and judicial authorities and their deending counsel; and not contacting any person involved in criminal activities. Collaborators o justice, but not witnesses, shall speciy all personal properties and assets at their disposal, directly or indirectly, which will be seized. The program programme me is terminate terminated d when the conditions that called or it no longer eist, or because o noncompliance with the obligations, perpetration o oences, unauthorized return to the place o origin or revealing the new identity or place o residence. The protected person can also quit the programme with a written renunciation. The programm programme e may include measures to acilitate social reinteg reintegration ration when the cooperatio cooperation n is completed completed.. For collaborators o justice, these measures include a monetary allowance or two to ve years, plus a lump sum or accommodation. For witnesses, these measures cover a period up to 10 years and guarantee the person’s
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117. Another serious problem problem in the Italian experience concerns the granting o a new permanent identity to oreign nationals since it rst requires granting Italian citizenship. Some problems also arise rom the pro visional new legal identity granted or the term o cooperation. Tough it has an important unction in concealing the individual’s true identity, thus increasing saety, the new identity document creates many problems or the individual’s individual’s uture social reintegration. Indeed, when the document is returned to the competent authorities at the end o the programme, i the holder intends to stay in the place where he or she has been living under protection (the so-called “sa “saee area”), he or she will have to use the old identity identity,, which will create practical diculties and conusion in the social environment. Another problem arises rom the act that non-EU citizens require a residence permit to stay in Italy. At present they are given residence permits or humanitarian reasons, but a proposal to change the regulation has been put orward that would create an ad hoc residence permit or witnesses and collaborators. 118. In several countries, in the past, the need to provide provide adequate protection protection to the judiciary had led to the introduction o so-called “aceless judges and prosecutors”. Tese measures, however, have been gradually abandoned on the ground o human rights and due process considerations.
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III.
A.
INTERNATIONAL LA INTERNATIONAL LAW W ENFORCEM ENFORCEMENT ENT AND JUDICIAL COOPERATION
THE INTERNA INTERNATIONAL TIONAL LEGAL BASIS
Summary: The double purpose o the Palermo Convention; reciprocity and bilateral instruments instruments as the basis or international
cooperation; the use o the Palermo Convention to globally align cooperation practices; international cooperation on nontransnational oences.
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requently reacted to its call by introducing important reorms o their national legal systems. It is against this general background o compliance with the general aim o the Convention that the second, more specic dimension o article 1—the operations o law enorcement and judicial entities in an international context—is here analysed in light o the presented cases. 121. In this connection, connection, it must be acknowledged that that the existence o a solid legal basis is not in itsel sucient or the eective development o international assistance practices. What is also needed, to cite an expert who spoke at the second meeting, is “a modern proessional culture o international cooperation,” meaning the inclination to expand both the analysis and the investigative approach o a case to cover its transnational dimensions and to devote operational resources to coordination with oreign authorities. Some cases demonstrate that the lack o this kind o proessional attitude and objective resources not only damages the quality o the response when assistance is requested by another country, but also creates a limited inclination towards requesting cooperation. Te South Arican expert provided a representative description o these shortcomings in his presentation on law enorcement cooperation at the rst expert meeting, in which he highlighted diculties that do not originate rom deciencies in legal systems but instead rom domestic criminal policy and general strategic attitudes: (a) lack o willingness to get involved in a crime that occurred in another country (“your crime is not my crime”); (b) lack o understanding o local criminal phenomena (e.g., tracking in precious metals or endangered species); (c) insucient crime awareness; (d) non-comp non-compliance liance with international legal instruments; and (e) conficting perceptions o priority issues at the global and regional level. In subsequent discussions the experts agreed that developing global and regional technical assistance programmes ocused on the promotion o international cooperation and establishing coordinating bodies could also help to overcome these general drawbacks. 122. Many provisions provisions o the Palermo Palermo Convention concern law enorcement enorcement and judicial cooperation: the ght against money-laundering (article 7); cooperation or purposes o conscation (article 13); extradition (article 16); transer o sentenced persons (article 17); mutual legal assistance (article 18); joint investigations (article 19); special investigative techniques (article 20); transer o proceedings (article 21); and various orms
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operandi; or because they better correspond to the specicities o the national legal systems and, in particular, satisy special procedural requirements. Yet it must also be noted that the cases do not support—but also do not dismiss—the hypothesis that in the area o judicial cooperation, national authorities may not be ully aware o the potential o multilateral criminal law conventions or may tend to ignore them. For example, in relation to ROM 2, a case o transnational cyberraud, the Romanian expert pointed out that one country that was requested to provide assistance asked or assurance o reciprocity, which was unnecessary since both countries were Parties to the Palermo Convention. 125. Tus, considering that article 18 o the Convention Convention provides provides or complete regulation o o mutual assistance (which in some cases can result even more avourable than bilateral treaties), the previous conclusion is complemented by the ollowing recommendation:
LESSON LEARNED Using the provisions o article 18 o the Palermo Convention should be encouraged in the area o mutual legal assistance. These provisions provide a complete and modern legal regime that may oster more eective assistance in criminal proceedings that all within the Convention’s scope o application. In line with article 18, paragraph 7, the application o norms o the Convention should be promoted when they acilitate cooperation, as an alternative to norms ound in bilateral or regional treaties and domestic laws.
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128. Te important role o the European European Convention on on Mutual Legal Assistance o 1959, or or example, is abunabundantly emphasized in the Russian cases, and in Europe, where this instrument has been widely used or decades also within the European Union, it is commonly held that it shaped the practice o mutual assistance within the region by establishing undamental legal concepts and standards that now constitute a common culture o mutual legal assistance and also contributed to the ormation o related domestic systems. Tereore, without denying the value and possible advantages oered by bilateral and regional instruments, the recommendation implicit in the Romanian expert’s commentary should be careully weighed as supporting the ollowing conclusion:
LESSON LEARNED The Palermo Convention as a legal basis or law enorcement and judicial cooperation should also be promoted as an important actor in the development o globally aligned practices o cooperation. In cases where several countries are reuested to provide cooperation, the possibility should be eplored o using the Palermo Convention as the sole legal basis valid or all o them, with the aim o acilitating greater homogeneity and coordination in granting assistance.
129. Oences that are are not transnational transnational can also require international international criminal justice cooperation, which reinorces the utility o the Palermo Convention as a tool or aligning these practices. Oen in cases involving solely domestic oences, national authorities are in a position to request assistance because the investigation uncovers international elements (e.g., the alleged oender or items and sources o evidence are located abroad).
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130. While in the area o law enorcement enorcement cooperation cooperation article 27 o the Palermo Convention Convention does not allow exceptions to its scope o application, which remains limited to transnational oences, the provisions on judicial cooperation don’t limit the application o the Convention to the strict bounds o “ransnationality”. Article 16 autonomously xes the scope o application or extradition, avoiding any reerence to the transnational nature o the oences or which extradition is requested. For mutual legal assistance article 18 still requires the transnational nature i the oence is still required, but its concept is expanded well beyond the one used in article 3 to dene the general scope o the Convention.
B.
LAW ENFORCEMEN ENFORCEMENT T COOPERATION
Summary: Exchange o intelligence on organized crime and related bilateral agreements; the role o early cooperation and
spontaneous inormation sharing; the necessity o continuous coordination o investigations carried on by multiple countries; direct, inormal cooperation cooperation..
ARTICLE 27.
LAW ENFORCEMENT COOPERA COOPERATION TION
States Parties shall cooperate closely with one another, consistent with their respective
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(e)
To exchange inormation with other States Parties Parties on specic means means and methods
used by organized criminal groups … ()) (
To exchange inormation and coordinate coordinate administrative and other other measures measures
taken as appropriate or the purpose o early identication o the oences covered by this Convention.
132. Te lack o inormation inormation on this specic aspect o law enorcement enorcement cooperation cooperation may be a result o the nature o the collected cases, which cover investigation and prosecution o oences but not the entire range o international activities o law enorcement agencies. In addition, as the Serbian expert noted (with particular regard to subparagraph subparagraphss (e) and () o article 21, paragraph 1), the lack o inormation might also simply refect that cooperation against transnational crime has reached a stage where it is considered a ully integrated part o routine working practice. In any case, another kind o analysis would be needed to determine how the above-mentioned prescription o the Convention has been implemented, starting with the study o bilateral or regional agreements on law enorcement cooperation (which traditionally also cover criminal intelligence sharing) and their implementation.
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EXAMPLES OF THE SCOPE OF APPLICATION OF THE SWISS-GERMAN CROSS-BORDER POLICE COOPERATION AGREEMENT Article 1.
Common interests in security matters
The contracting States shall inorm each other about the relevant aspects o their strategy or the ght against criminality, as well as on major initiatives in the police sector that might aect the other contracting State interest. interest. In the development o law enorcement strategies and the application o police measures, the common interests o the parties when dealing with security issues shall be taken into account. Where one contracting State considers that the other contracting State should take certain steps to ensure the security policy, it may submit a proposal to this eect. Article 2.
Joint security analysis
The contracting States shall endeavour to reach a level o inormation as uniorm as possible regarding the state o police security. For this purpose, they shall, periodically and whenever circumstances require, echange points on the situation established according to specic criteria and conduct joint analysis, at least once a year, on the relevant aspects o the security situation. Article 3. Threat prevention and the fght against against crime
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And to this end, The parties shall ensure the systematic and detailed echange o inormation, upon request or by its own initiative, related to the relevant criminal phenomena. Establishment o a Working Group
Another Italian model agreement creates a permanent Working Group or both intelligence echange and operational cooperation; its provisions speciy: Both parties, in conormity with their national legislation and international law in orce, undertake to set up an Italo-xxx Working Group pursuing the ollowing objectives: 1. The analysis and echange echange o inormation, including including operational, o mutual mutual interest on criminological criminological phenomena, the agents involved, their modus operandi and structure, which are o common interest. The results will acilitate the development o a mapping, including computer-based, o criminal organizations operating in both countries; 2. The development development o inormational-operational inormational-operational measures, measures, which aim to identiy identiy and locate the assets assets o illicit origin, also through the establishment o joint investigative mechanisms; mechanisms; and the acquisition o a deeper understanding o their system o law in matter o seizure and conscation o criminal proceeds, in order to identiy the best legal instruments to attack the illegal assets.
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intelligence sharing protocols were established with Dutch and Spanish law enorcement”; in 2007, the Dutch police received intelligence that enabled a series o arrests in the United Kingdom and the start o disclosed investigation and prosecution, during which evidence gathered by the Dutch authorities also proved useul. In SER 1 the expert noted that: “Aer careul and detailed analysis o relevant acts and available intelligence, a police le was opened; results o the analysis were compared with the acts and ndings rom the intelligence sources in various countries.” 138. On the whole, the cases show that many internationa internationall sources o inormation and initiatives can trigger an investigation, and oreign intelligence can play various roles. Te case BRA 13, involving illicit tracking o endangered species, also indicates that sharing inormation or the purpose o criminal investigation can originate in a prior non-criminal context. Te Brazilian expert emphasized that in this case the international cooperation, which was essential to the successul investigation, occurred among Member States o the Convention on International rade o Endangered Species o Wild Flora and Fauna (CIES) and initially consisted o a common eort to identiy and prole the criminal conduct under investigation. In this regard, it should be noted that CIES is a normative scheme or international regulation o licit trac that provides ew criminal law measures and tools. It would be interesting to study whether international regulatory regimes or licit trac (e.g., in drugs or rearms) provide an institutional environment and practical opportunities or international intelligence sharing or the suppression o related illicit tracking, and i so, how strong they are.
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successul, or would not have been initiated at all, i oreign authorities did not promptly involve the most interested countries in the response to the suspected criminal conduct. Tus, we may conclude:
LESSON LEARNED When dealing with transnational organized crime, law enorcement agencies should make contact as soon as possible with the other jurisdictions involved. I communication is initiated during the earliest phases o law
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A CASE OF COMPLEX COORDINATION The case IT ITA A 8 provides a good eample o comple coordination in the investigation o a transnational criminal case. In this case, a powerul network o Serbian, Croatian, Albanian and Montenegrin citizens resident in various European and Latin American countries was tracking cocaine and heroin to European destinations. The main organizers were based in Northern and Central Europe, Albania and South America, while other members operated in Europe, moving around requently and supported by local cells. Local operations and communications among local cells were always “ltered” by the main organizers. The prosecuting countries were Croatia, Germany, Italy, Luemburg and the Netherlands; Austria, Belgium and Slovenia cooperated in the investigation. The investigation started in Germany and Italy, while the other countries
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C.
INSTITUTIONAL ASPECTS
Summary: The role o liaison ofcers; the multiple unctions o law enorcement bilateral bodies and arrangements; regional
bodies: the ofces o the European Union.
144. Institution Institutional al specialization, which was rst rst considered with regard to domestic domestic investigation and prosecution, is also relevant to international law enorcement cooperation. Tere are numerous reasons why international police-to-police assistance should be as rapid and inormal as possible, and directly available to the widest possible range o national law enorcement agencies and units. At the same time, a certain degree o specialization can help achieve the most productive use o the mechanisms o international cooperation; this
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out the entire exchange o operational inormation. Finally, the case NIG 1 suggests that legal attachés at consulates or embassies may also play a productive role in the development o an investigation, at least as providers o open source inormation and acilitators o mutual legal assistance. 149. In the cases collected in this Digest , liaison ocers are most oen mentioned in cases involving drug oences. Considering the seriousness and pervasiveness o other transnational organized crime oences (as the Digest testies), perhaps it would be useul to refect on whether the unctions o liaison ocers are too limited given the array o criminal matters they deal with. 150. At the bilateral bilateral level, law enorcement enorcement structures that are more more complex than liaison ocers can be cre-
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institutions at the regional or subregional level. In the European Union, Europol is the oce or police cooperation and Eurojust is a centre where prosecutors and investigative judges o the Member States coordinate prosecutorial actions.71 Tese two organizations have played an important role in very complex European investigations. For example, in SPA 4, a case involving smuggling o migrants and tracking in persons, the Spanish investigators knew through Europol that other European countries were also investigating the same organized criminal group; subsequent meetings within Eurojust acilitated the coordination o these investigations, including setting a date or simultaneous arrests o the alleged oenders. Te expert who presented this case underlined the importance o this second aspect o centralized coordination as an eective means to avoid duplication o, and conficts among, law enorcement initiatives o the various countries involved. It is also worth noting that there is probably no other communication system or receiving and disseminating
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major investigations. In the eld o drug tracking, or instance, INERPOL recently deployed our IRs to
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guards, allowing them to search the databases on wanted persons (nominal data), stolen and lost travel docu-
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228. Article 5 o the Protocol against the Illicit Manuacturing Manuacturing o and racking racking in Firearms, Teir Parts and Components and Ammunition, supplementing the United Nations Convention against ransnational Organized Crime (hereinaer: the Firearms Protocol), obliges the Parties to establish three specic oences in relation to rearms: illicit manuacturing, illicit tracking and alsication or modication o the marking(s). None o the submitted cases concerning rearms deal with marking-related oences. In addition to one Colombian case involving guerrilla and paramilitary groups, ve cases concern organized criminal groups specically dedicated to transnational tracking o rearms; three cases concern organized groups involved in various types o illicit tracking, including rearms; three cases involve illicit possession o rearms; and one case presents a mixture o tracking and assembling, and thus includes an element o the manuacturing oence. 229. Tere are numerous numerous conceptual links between rearms oences oences and organized crime. First, the cases indicate that the illicit business o rearms tracking, when conducted on a grand scale, requires complex organization and thus entails the participation o organized criminal groups in the acquisition, transport and delivery o the weapons and in related commercial and nancial activities. Tereore, it is not surprising that rearms are oen tracked by well-structured, organized criminal groups (requently with strong ethnic and maa-type characteristics) that are usually engaged in tracking drugs or other lucrative illegal commodities. Examples can be ound in the cases BRA 3, SPA 6 and USA 2, in which drug tracking groups were also engaged in transnational trac in rearms and other illicit goods. Despite the absence o specic details on the rearms dimensions o the criminal conduct, the cases still illustrate how well-established criminal groups can easily diversiy the object o their illicit trac, taking advantage o their solid structure and system o power, including experienced and reliable associations with networking counterparts. 230. Te case USA 2, involving Asian organized criminal groups, groups, is particularly noteworthy, noteworthy, underscoring the enormous variety o illegal items that a group can smuggle. As the American expert stated, “the investigation and prosecution revealed that Asian organized crime groups (like all others around the world) are adept at nding and developing illicit money-making ventures and will stop at nearly nothing to make a prot … Te eight-year investigation began when FBI undercover agents, posing as underworld criminals, helped make sure that shipping containers ull o countereit cigarettes made it past United States Customs ocers undetected. Over time, as undercover agents won the smugglers’ trust, they were asked to acilitate other illegal shipments such as narcotics and millions o dollars in Supernotes. Later, the smugglers oered a variety o Chinese military-grade weapons, including the QW-2 surace-to-air missiles”. Tis case also demonstrates that the type o criminal organization and the vast scale o the illicit conduct naturally require a holistic investigation o the criminal group rather than separate investigations o the various oences involved. 231. However However,, some trackers specialize specialize in rearms, or at least their their criminal activity is restricted to rearms. In SER 4, two dozen Kalashnikovs and pistols were smuggled rom Bosnia and Herzegovina to the French black market by a group o people managed by an individual resident in Serbia; apparently the guns were smuggled without the trackers rst securing buyers in France. In BRA 8 and BRA 9, rearms o United States and European origin were transported to Paraguay, and rom Paraguay to Brazil (directly or via Bolivia) by groups o criminals who appeared to have acquired the specic instrumental role o rearms providers within a broader arena o organized groups involved in other types o oences. Tis represents a second important conceptual link between rearms oences and organized crime: criminal groups are requently armed groups, or they arm themselves on specic occasions; consequently, criminal groups are requently the ultimate destination or arms tracking. Te two Brazilian cases are examples o vast rearms tracking
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232. In COL 14, an an older case o transnational transnational rearms tracking, the trackers trackers intended to export export 50,000 rifes rom Europe, via Peru, to the Colombian guerrilla group FARC. Te Colombian expert explained that criminal schemes like this one, characterized by illicit commerce o a certain magnitude and importance, oen involve corruption at the higher levels o government. In COL 14, the tracking was organized by the chie o the Intelligence Service o Peru, and the acquisition o the arms was negotiated in Jordan by two ocials o the Peruvian Ministry o Deence. 233. Another case, BRA 2, which has not yet concluded concluded with a denitive judgement, judgement, involves the discovery discovery o an extensive, well-established illicit market or rearms, ammunition and components and the seizure o more than 300 weapons. Te trackers were individuals with a particular tie to rearms (either proessionals such as owners o shooting clubs, or amateurs such as sport shooters and gun collectors); most o them were authorized to perorm their proessional or amateur arms-related activity; and their clients were not organized criminal groups. Te “organized crime” component o the case, i proved, would reer to the organization o the individuals involved, who all participated repeatedly in the illicit commerce in various roles: a network o people that the expert dened as “criminal group” (quadrilha (quadrilha o bando criminoso). criminoso ). 234. A third link between rearms and organized organized crime is that rearms are oen oen used in the commission o o organized crime oences, or rearms are ound and seized as a result o investigations o organized crime oences and their illicit possession can be an additional criminal charge. Cases o this type include SER 1, in which the main crime was drug tracking, and ROM 1, in which the investigators discovered 22 rearms in the possession o trackers in persons. In these cases there was no direct use o the rearms or, during, or in connection with the commission o the investigated oences, so it can be reasonably assumed that the oenders used the arms or general purposes o deence, attack or intimidation. 235. A ew o the cases make a feeting, non-detailed non-detailed reerence to investigations investigations o the arms themselves to better identiy their origin and classication Tis point merits consideration, not only because a seized rearm can provide evidence o its use in previous crimes, but also because its history and movements can eventually lead to new lines o investigation that can help to construct extensive scenarios o related crimes and criminal organizations. 236. Te Firearms Protocol obliges obliges the Parties to establish an eective regulatory regime or rearms (articles 7 to 15) and imposes a series o preventive measures100 that may be o use to investigations. Tese measures include: the marking o rearms (article 8); various record-keeping mechanisms concerning their manuacture, trade and disposal (articles 7 and 10); and the obligation to exchange inormation at the international level (article 12). Te Protocol is strongly characterized by the combination o criminal law and regulatory tools as two strictly and unctionally related components o a single law enorcement system. In such a system, identication and tracing o rearms are central pillars o both prevention and suppression: e.g., article 7 clearly prescribes the obligation to keep records on markings and international transactions o rearms or both the prevention and detection o illicit manuacturing and tracking. racing a rearm ound and identied in the course o an investigation o a single oence may not only help the investigation but also disclose other criminal patterns. 237. Retaining and exchanging exchanging inormation on on rearms that are known as lost, lost, stolen, smuggled or tracked can also be useul. INERPOL is currently developing a global database or this purpose (INERPOL Illicit Arms Records and tracing Management System, iARMS). Authorized users could query the system and
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instantly determine whether a rearm that has been seized has been reported to INERPOL by another member country. Te iARMS project will be completed in December 2012 and will supplement existing INERPOL tools, such as the INERPOL Firearms racing System that allows an investigator to request the ownership history o a rearm rom the country o origin or legal import. Te INERPOL Firearms Reerence able (IFR) enables investigators to correctly identiy a rearm—its make, model, calibre and serial number—which signicantly increases the chances o identiying its ownership history when submitting a trace request. Finally, there is the INERPOL Ballistic Inormation Network (IBIN); since every rearm leaves unique microscopic markings on the surace o red bullets and cartridges, IBIN can identiy links between pairs o spent bullets and cartridge cases within minutes, thereby helping orensic experts to provide police investigators with timely inormation about crimes and suspects. 238. At the nal nal expert meeting, the Canadian expert presented an example example o a successul investigation investigation based on rearms tracing in a case known as CANXXX riple X Project, which involved arms imported to Canada rom the United States. An entire criminal group that had been illegally supplying rearms to a certain Canadian province or years was dismantled (106 people were arrested), which resulted in a substantial reduction in the level o violence in that area. Tis result was possible thanks to accurate and complete tracing o the weapons conducted with the ull cooperation o the United States authorities, which revealed that some o the arms came rom a store in exas; the knowledge o the store allowed the identication o a purchaser who was arrested in the United States when he attempted to cross the border to Canada; through the cooperation o this individual the entire network was subsequently disclosed. Te Canadian expert also emphasized the importance o good tracing mechanisms and, given that rearms-related oences are oen transnational, the establishment o appropriate, tested procedures or international cooperation in tracing. Based on these observations, we may conclude the ollowing:
LESSON LEARNED In investigations o trafcking in rearms, as well as in any case where rearms are ound in the course o an investigation, their identication, ballistic eamination and especially their tracing may provide evidence and inormation useul to the prosecution o the original oence. They may also enable this oence to be connected to a wider set o crimes and link individuals under investigation to a network o other oenders and criminal groups. This is in line with the holistic approach that is particularly valued in dealing with organized crime. The provisions o the Firearms Protocol, which prescribe regulatory measures or the keeping and echange o inormation on rearms, should thus be considered an eective basis or rearm tracing. Related international cooperation should be developed to the maimum etent possible.
239. A nal link between rearms and organized organized crime was pointed pointed out at the last expert meeting: domestic criminal laws may provide that an oence committed with the use o rearms is “upgraded” to a more serious
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imprisonment or certain oences (e.g., extortion, robbery, hostage-taking, kidnapping and attempted murder), when rearms are used in their commission or the benet o, at the direction o, or in association with a criminal organization.
C.
ENVIRONMENT ENVIRONMEN TAL CRIME
Summary: Transnational organized crime aspects o a Brazilian case o illegal logging; the use o “geo-intelligence”; trade
in protected animals; other elds o environmental protection: pollution and waste trafcking; INTERPOL’s projects.
240. Te Digest has already introduced in chapter I some Brazilian cases o environmental crimes linked to organized crime. Another Brazilian case, BRA 15, concerning illicit logging in the Amazon Rainorest, though not yet denitively adjudicated, sheds urther light on these crimes. Tis case is particularly interesting because it reveals the complexity o the modus operandi o modern environmental crimes. Te oenders allegedly obtained ocial authorizations to log and to trade timber through raudulent means, such as misrepresentation o the nature and legal ownership status o properties, use o ctitious “orest credits”, alsication o the Forest Registry (Inventario Florestal) and presentation o ake Projects or Forest Management (Planos de Manejo Florestal). Tey also bribed public ocials to secure a avourable and speedy evaluation o the applications or authorization. In all, 172 persons were accused o various oences, including not only specic timber-related oences, but also corruption (allegedly also committed by high-level ocials and a parliamentarian) and participation in a criminal association. 241. In identiying the reasons or the investigation investigation’’s success, the Brazilian expert underscored u nderscored the combination o classical investigative techniques with modern techniques o “geo-intelligence”. In BRA 15, remotesensing and geoprocessing techniques were used extensively. Te expert considered the multi-time analysis o satellite images o the relevant territories a unique, irreplaceable method o gathering evidence. Tis method is based on an “independent production o inormation and intelligence data”, and thus suits a proactive approach to investigation. Te Brazilian authorities subsequently adopted the investigative methodology used in this case as a model or all cases o illicit exploitation and transnational tracking o orest and mineral resources. 242. It is also noteworthy noteworthy that, in the expert’s expert’s evaluation, the role o the corrupt ocials and the proessionals proessionals (e.g., engineers, topographic experts and other experts) who conspired in the issuance o the authorizations was not conned to mere acilitators in the raudulent activities. On the contrary, since they were actively pursuing their own personal interests, they were one o the “motors” o the entire criminal scheme, promoting it just as much as the other participants, including the landowners, sawmill owners, transporters and licensed managers o the Forest Projects. Tis kind o scenario, where a variety o people or groups o people combine their distinct interests and unctions and collaborate with the shared aim o earning illicit prots, characterizes the criminal conduct as organized crime. Tus the expert concluded that in similar cases, eorts to prevent and suppress the crime must be comprehensive, touching upon the various categories o potential criminal actors. Tis case was also considered important because the investigation enabled the prosecution o 12 highlevel public ocials.101 243. However However,, the Brazilian expert also stated that, despite the successes o the law enorcement enorcement operations in BRA 15, a lack o sucient resources in law enorcement agencies and public prosecutor oces in all the
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cited areas could be a major obstacle to uture investigations. Reliable monitoring and intelligence services and the integration o environmental criminal law into organized crime legislation have been proposed as measures to strengthen the criminal justice response. 244. As to the transnational transnational aspects o this kind o environmental environmental crime, the expert pointed out that 80 per cent o orest products are destined or oreign countries such as the United States, China and European countries. For various reasons, including the lack o proper international criminal law norms, trackers t rackers can easily provide ake documentation or the exported material that “proves” its legal origin and trade, and buyers can easily shield themselves behind the principle o good aith that protects legitimate interest o third parties (“bona de third party” principle). o overcome these kinds o situations, the expert suggested adopting an approach that corresponds to the international norms applied to money-laundering, and stressed the urgency o studying and adopting international provisions or normative schemes or orest and mineral products similar to those in orce or nancial proceeds. 245. Te Brazilian expert’s expert’s repeated reerences to mineral resources and products in conjunction with orest orest products allow the observations made in this chapter to extend to the issues the South Arican expert raised about the lack o international criminalization o tracking in precious metals in connection to RSA 1.102 246. Within the United United Nations, Nations, the role o criminal law in the protection protection o the environment environment and the development o related international criminal law norms was marginally dealt with at the welh United Nations Congress on Crime Prevention and Criminal Justice held in Salvador, Brazil (12-19 April 2010). Te Congress, in its nal political declaration, the “Salvador Declaration on Comprehensive Strategies or Global Challenges: Crime Prevention and Criminal Justice Systems and Teir Development in a Changing World”, acknowledged the challenge posed by emerging orms o crime that have a signicant impact on the environment and encouraged Member States to strengthen their national crime prevention and criminal justice legislation, policies and practices in this area and to enhance international cooperation, technical assistance and the sharing o best practices.103 247. Te cases SPA SPA 8 and BRA 12 concern tracking in protected animals. In SPA SPA 8, Spanish investigators investigators discovered a criminal organization (a total o 15 people) clearly divided into two levels: one group captured protected birds o prey or collected their eggs or chicks; the second group received the birds and traded them domestically and internationally. Te Spanish expert emphasized that the second group was the driving orce, and in some instances it was clear that the trackers or the nal buyers specically ordered the capture o birds. Te trackers were also charged with orgery because they tried to conceal the illicit origin o the birds with phony documentation (e.g., they attached ake identication rings to the birds). In BRA 12, which involved international tracking o protected animals rom numerous parks and nature reserves in various Brazilian states, the dimensions are notably larger: 102 persons investigated; 72 arrest warrants; 102 seizure warrants and 300,000 animals seized. Te Brazilian expert estimated that the annual volume o trac was 500,000 animals with a value o 20 million Brazilian Reals. In the ace o such huge gures, the expert noted that “as to the legislation in orce in Brazil to prevent and combat the environmental crimes, the Law 9605/98 has not
102
See paragraph 86.
“Salvador Declaration on Comprehensive Strategies or Global Challenges: Crime Prevention and Criminal Justice Systems and Teir Development in a Changing World,” doc. A/CONF.213/18, op. para. 14. At the same Congress, the International Institute o Higher Studies 103
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established as criminal oence the conduct o international trac o wild animals, and in the case, taking into account the international nature o the oence, the oence o contraband was charged as provided or by art. 334, par. 3, o the Brazilian Penal Code”. 248. Te Spanish and Brazilian cases cover only one one area o environmental environmental crime. o o draw general conclusions on environmental oences and their relation with organized crime, cases concerning other environmental crimes—at a minimum, pollution and tracking in waste—must also be studied. Te Italian experts noted the existence in their country o extremely serious cases o illicit waste trac and illicit waste disposal; they emphasized that in some regions (particularly Campania) these oences are unavoidably related to the interests o local maa-type organized criminal groups, which are wholly involved in their commission. 249. A 2009 report o the Italian National National Anti-maa Anti-maa Directorate104 intended to provide a general description o this class o crime in Italy stressed the need to promote these oences as alling within the jurisdiction o this specialized prosecutorial oce, which would allow it to supervise and coordinate their investigation and prosecution as necessary when dealing with well-established amily- and territory-based maa groups. Te specic cases o illicit disposal o hazardous or normal waste briefy mentioned in that report involved raudulent authorizations, which were requently issued by corrupt ocials. On this point the Italian cases correspond to the criminal nature noted in BRA 12, which may lead to the conclusion that in ghting environmental crimes, a strong regulatory regime and eective prevention mechanisms, including anti-corruption measures, may be just as important as criminal law tools. 250. A wealth o current current and uture INERPOL INERPOL projects oers an an interesting perspective perspective on the various areas where criminal law can intervene to protect the environment: Project Predator aims to enhance law enorcement capacity in the 13 countries where wild tigers still live and to improve intelligence sharing to develop a global picture o the criminal activity threatening tigers, and Project Wisdom seeks to conserve elephants and rhinoceros through international operations, enhanced communication and training o local police. Project Lea is an initiative to combat illegal logging and other orest crime led by INERPOL and the United Nations Environment Programme; it aims to support enorcement operations, provide training and tactical support, and improve intelligence gathering. Project Clean Seas delivers law enorcement training courses and is producing a manual on investigating pollution by sea-going vessels; tools to assist in the investigation o illegal discharge o waste rom vessels are also in preparation.
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D.
CULTURAL CUL TURAL PROPERTY
Summary: Italian cases o exportation o archaeological objects; “laundering” the illicit origin o artworks; proposals on
criminal law and civil justice issues; technical tips or mutual legal assistance and undamental steps or reinorced international cooperation.
251. Another emerging emerging orm o o illicit tracking increasingly increasingly linked to organized crime is tracking in cultural property. As already indicated in chapter I, several Italian experts submitted cases on cultural property oences to the Digest . With the exception o IA 3, which concerns the countereiting and marketing o paintings alsely attributed to modern and contemporary masters, all the cases concern archaeological objects illicitly excavated in and illicitly exported rom Italy. Te organized crime and transnational nature o the oences is an important eature o the criminal conduct in all o these cases. In relation to IA 1, a massive case o tracking involving more than 20,000 objects, including some o enormous cultural and economic value (estimated at more than 100 million euros), the Italian expert stated: … organized crime is a requent phenomenon in the art market, highly specialized and in need o dierent abilities and expertise, rom “tombaroli”[tomb “tombaroli”[tomb raiders] or thieves, to mediators, shippers and drivers, customs ocials, dealers, experts, restorers, auction house employees, etc. All these people are oen working together, either in a network-type or pyramidal-type o organization o transnational dimension, carrying out the acquisition o the cultural goods and their illicit exportation rom the country o origin, the production o “expertises” in order to raise the price, the laundering activities in order to credit the items with a alse licit provenance. … Felony oences against cultural heritage is no longer, as beore, characteristic o petty oenders, peasants or poor city dwellers, whom ate has placed close to abulous sites, or o smaller merchants, who collected the results o the plunders or thes committed by the rst ones. Te generalised aggression against cultural heritage that is being aced today comes … rom trans-border organizations o criminals who enjoy a powerul trading structure, vast logistical means and, sometimes, also the complicity and support o administrative and political institutions o the State. 252. Te oence o participation in a criminal group was charged charged in most o the Italian cases. Law enorceenorcement and judicial international cooperation was always essential to the success o the Italian prosecutions. Te recovery o the objects (oen rom abroad) and their restitution to the public were always the main aims o investigators and prosecutors, together with the suppression o the illicit activity. 253. In this regard, it should should be noted that there is a dierence between those situations situations in which “open “open”” law enorcement operations intervene while the objects are still in the hands o the looters (or the transporters or rst receivers) and situations in which the objects have already entered the market o destination. Seizing
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the core o the experts’ concerns. In IA 1, laundering methods to remove or obscure the illicit provenance o the objects or their illicit exportation are described in detail and include: alse documentation, intricate legal transers o property (including with the involvement o art galleries and auction houses), temporary placement in museums, ctitious handling o the pieces themselves, and raudulent certication obtained rom databanks, etc. In this specic case, the arteacts were mainly moved rom Italy to Switzerland, deposited rst in the Free Ports o Geneva or Basel, then ctitiously attributed as property o certain companies, which acted as “clearing and laundering houses,” and nally sent to Australia, England, Germany, Japan and the United States. Tis kind o intricate tracking machinery is oen reinorced by weak domestic legislation, and given the very real risk (similar to that encountered in environmental crimes) that the nal buyers o the arteacts can justiably claim to be bona de third parties, the Italian expert recommended that practitioners should explore the possibility o charging the oence o laundering, which can apply to the concealment o the arteacts’ illicit origin and, in his experience, makes the buyer’s position more dicult to deend. 255. Te expert also recommended considering the ollowing general measures when dealing with tracking in cultural property: •
•
•
•
•
When introducing the criminal oence o tracking in cultural property, use a broad denition that can apply to all stolen, looted and illicitly exported or imported cultural items, and make this oence a serious crime in line with the denition o the Palermo Convention to the extent possible (in part to make that Convention Conven tion applicable). Study the possibility o establishing a criminal oence o importation o items that have been unlawully exported rom a oreign country (in (i n light o article 6 o the 1970 UNESCO Convention).105 Describe the conduct in the oences committed by the “launderers” and the nal buyers as oences having a permanent nature so as to avoid statutes o limitations. Tis is necessary be cause trackers increasingly “reeze”” cultural objects abroad, sometimes waiting or years beore selling them. “reeze Study and possibly expand the power o conscation o cultural objects even in cases o statute-barred judgement or acquittal acquittal due to the absence o the subjective elements o crime. Work towards the harmonization o decisions in civil law cases since these cases are usually decided by “domestic Courts who oen emphasize national or private interests, rather than the superior value o culture and dignity o peoples”. peoples”. One possible solution is to establish a group o international arbitrators to which the cases should be mandatorily reerred or mediation.
256. Te cultural property cases present very very interesting issues related to all aspects o the criminal justice
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1. Every legal system has its own terminology. terminology. Since Since a request or assistance assistance is intended or a oreign oreign authority, specic terminology should be avoided. Instead, the request should describe what is sought, rather than reerring to a term. 2. In almost every legal system the relevance o the evidence sought has to be established. Tereore, every request or assistance should address that issue: i.e., there should be a clear description o why and how the evidence in question is relevant to the investigation or prosecution. In most legal systems “shing expeditions” are not permitted. All requests or assistance should be spe cic, at a minimum mi nimum identiying the principal theme o the investigation. However, determining whether the requested inormation is necessary or o use to the proceedings under way must be le to the requesting authorities to assess. Furthermore, at the time o preliminary investigation the evidentiary area is inevitably broader than that o an already developed investigation. Tus a margin o “shing” should be justied by the requested authority where the act-nding process is still at an initial stage. 3. In preparing preparing a request, prosecutors prosecutors should should also ocus on the the orm or manner in which the evidence must be provided or it to be admissible at trial. Tese requirements must be explicitly stated in detail in the request rom the very outset. 4. Requests or assistance take time to execute. While urgent urgent situations situations and emergencies emergencies may arise, investigators and prosecutors should try to submit requests on a timely basis, with reasonable deadlines that take into consideration the resource constraints o the requested State. 257. Te Italian expert asserted that international international cooperation in ghting ghting cultural property crimes still had a long way to go, but at least it was improving. He was condent that in this eld “all legal systems are in erment, and can oer interpretations o the laws that surely oster a cooperation between States, based not only on ormal aspects but also on substantial ones,” and that a new public international order or policy has emerged. In his view, it is time to try to denitively arm undamental legal principles deriving rom this order or policy, such as: (a) In civil proceedings, the applicability o imperative legal provisions in orce in a oreign country to nulliy contracts: or instance, contracts concerning archaeological items exported rom a country in violation o its domestic law prohibi prohibiting ting the export; (b) In relation to requests or restitution o archaeological objects, a more lenient consideration o the burden o proo charged to the requesting authorities, who are oen asked to provide evidence probatio (probatio diabolica)) o provenance and ownership o the objects and o the time when they have been illicitly diabolica excavated: the expert suggested several assumptions that could be taken into consideration by the requested authorities to ascertain the unlawul acquisition and illicit exportation; and (c) Te establishment o the destruction o cultural heritage as a violation o human rights.
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necessary responses to criminals “who think that the cyber world is a place where [they can] commit crime with impunity”. Te complexity o cybercrime has already been noted in chapter I, and the 10 cybercrime cases in this Digest conrm this initial assumption. wo separate aspects o cybercrime can be analysed: the huge variety o criminal conduct covered by the term “cybercrime” and the extremely complicated technological methods used to commit these oences. 259. As to the rst point, point, some o the cases involve involve oences that in their general general orm can be committed using either cyber or other means (e.g., inringement o copyrights in HUN 1, extortion in RUS 13, child pornography in MEX 2, raud in NIG 1). In these particular cases, the oenders were charged solely on the basis o provisions that describe the general orm o the crime with no reerence to cybertechniques: in other words, the applicable domestic laws do not consider these traditional oences as separate orms o crime when they are committed using computer technologies. However, this basic method o criminalization and bringing charges does not indicate that the techniques used by the oenders are less intricate or that investigation and prosecution is less dicult. Te description o the illicit conduct in HUN 1 and RUS 13 provides an interesting illustration in this regard.
CYBERCRIME EXAMPLES In HUN 1, the two principal organizers o a group o about 30 people supplied legal computer server and hosting services or several private individuals and business associations. Through Through this licit activity they concealed hundreds hundreds o “smswarez” (an Internet slang epression that reers to illegal trade in content protected by copyright in return or payment by SMS), “smswebs” (webpages where copyright-protected content can be downloaded in return or payment by SMS) and “torrents” (a system that allows an Internet user to download the desired le or parts o les not rom a central server, but rom unknown users who already have it). The advantage o the torrent system is that i a le becomes very popular, more and more people download it and its distribution becomes even more widespread. In HUN 1, the organizers and their accomplices used spam to advertise these illicit services, which ultimately led to the seizure o 48 illegal servers with a capacity o 200-250 terabytes and other high-tech supplies rom 16 dierent premises. The Hungarian epert stated that, “an internet based criminal organization with country-wide proessional relationship has been liquidated. The seriousness o the illegal activity was conrmed by the act that, according to available inormation, the volume o the seized illegal data worldwide amounts to 45 terabytes. Ater this action the internet data turnover has been reduced (10 per cent) country-wide”. The case RUS 13 involved etortion on an etremely large scale. Its main victims were British bookmakers. Ocials rom the United Kingdom National Hi-Tech Crime Unit (NHTCU, which was later integrated into the Serious Organised Crime Agency, or SOCA) and the United States Secret Service were directly involved in the investigation. The criminal group used a network o computers to which they had access and which they had
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over 600,000 simultaneous connections with the company’s web server, sending requests or inormation at over 70 MB per second (under normal conditions the web server would receive requests arriving at 2 MB per second). This attack cut o the company’s website rom the Internet, and the criminals demanded and obtained US$ 40,000, threatening that i their demands were not met, they would continue their attack until the company was completely ruined.
260. In other cases o o cybercrime, the core criminal conduct conduct could still be considered traditional traditional oences (e.g., raud, swindling, the), but the applicable criminal law includes special oences or situations where these crimes are carried out using cybertechnologies. I the criminal conduct and its eects are essentially characterized by the use o cybertechnologies, this justies the establishment o separate and “specialized” criminalization. Tis is the case in USA 3, in which the indictment expressly charged the seven deendants with “conspiracy to commit wire raud”. Tey were charged with participation in a scheme involving the posting o raudulent advertisements on eBay and other websites oering expensive vehicles and boats or sale that the conspirators did not possess. When the United States victims expressed interest in the merchandise, they were contacted directly by e-mail by a purported seller. According to court documents, the victims were then instructed to send payments by wire transer using “eBay Secure raders”—an entity that had no actual aliation with eBay and was used as a ruse to persuade the victims that they were sending money to a secure escrow account pending delivery and inspection o their purchases. Instead, the victims’ unds were wired directly into bank accounts in Hungary, Slovakia, the Czech Republic and Poland that were controlled by the co-conspirators. 261. Te cases ROM 2 and and ROM 4 respectively involve involve oenders oenders engaged in auction wire rauds rauds and attempts attempts to commit the by using orged credit cards. Tey were prosecuted under both traditional crimes o swindling and orgery as provided or by the Romanian criminal code, and relatively new oences introduced by the Romanian Law No. 161 o 2003 on the prevention and combating o cybercrime. In ROM 2, a group o
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a three layer structure: the coordinators, who acquired and prepared the skimming devices; the second layer, supposed to extract the money and prepare the administrative details or other travels abroad; and the third layer who had as a main task to obtain and veriy credit cards data obtained by them … From the investigation undertaken it emerged that no raudulent activities took place”. Te oenders were charged, inter alia, with “misuse o devices” (article 46) and “illegal access” (article 42, which punishes access without rights to a computer system) as provided or by the Romanian cybercrime law, and with the oence o “possession o equipment with a view to orge electronic payment instruments” established by article 25 o the Romanian Law 365/2002. 263. It must be noted that that most o the oences charged charged in the two Romanian cases concern preparatory acts 106 (article 46 o Law 161/2003 and article 25 o Law 365/2002107) or conduct that cannot be considered preparatory acts or be characterized by the description o any criminal intent or purpose but is merely unlawul conduct (articles 42, 44 and 48 o Law 161/2003). We can conclude that the Romanian legislature considered it necessary to lower the threshold o criminalization or electronic and cybercrime; this was done by recognizing in the protection o individual rights (such as the right to preserve cyberdata and computer systems) a public interest that should be properly deended through criminal law and by including in the criminalized conduct even precursory activities. Te rationale or and the results o this approach (as well as its impact on the eectiveness o investigation and prosecution) merit study, including comparative study at the global level. Many countries have no specic criminal provisions or cybercrime; an extreme case is BRA 5, in which an international criminal group that included a Brazilian citizen was tracking “botnets” (inected computers
Te Romanian Law 161/2003 on the prevention and combating o cybercrime, title III, contains the ollowing provisions: Article 46 (Misuse o devices) 106
1. It is a criminal criminal oence and shall shall be punished with with imprisonment rom 1 to 6 years: (a) the production, sale, import, distribution or making available, in any other orm, without right, o a device or a computer program designed or adapted or the purpose o committing any o the oences established in accordance with Articles 42-45.
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used or cyberattacks) to the tune o 25 million euro. Te Brazilian oender was only charged with tax evasion and currency-related oences. 264. In IA IA 22, several ake e-mail messages were randomly sent to employees employees o the Italian Italian Ministry o Foreign Aairs and other public administrative oces. Te sender’s address was orged and the messages were constructed in a way that made them appear trustworthy. However, the messages contained hidden soware (“rojan (“ro jan horses”) that secretly captured IDs and passwords used to access restricted databases. Tese credentials were delivered to a server in Malaysia or illicit use or sale. Te oenders were charged under the Italian Penal Code, modied by subsequent laws, or the crimes o gaining unlawul access to a cybersystem and possession and distribution o access codes (articles 615-ter and 615-quarter); protection o the integrity o cyberdata and systems (article 615-quinquies); computer raud (article 640-ter); and interception o inormation and communications (article 617). Tis diverse list shows that all the previously mentioned approaches to criminalization are present in Italian criminal law and they were used in this case, as evidenced by the charges o the traditional oence o interception o communication, the traditional oence o raud reramed in terms o computer raud to better comprehend the cybereatures, and other oences that directly cover new illicit conduct exclusively characterized by cybercontent. Indeed, the Italian criminal law on cybercrime108 is characterized by a combination o various criminalization approaches. 265. Te second aspect o complexity complexity o cybercrime, the “high-tech” “high-tech” modalities used by criminals to commit oences, has already been eectively demonstrated by the above case examples. Tere is no doubt that the criminal justice response requires an identical level o technological preparation in investigations. Te Italian expert pointed out some o the specic actions needed during an investigation: thorough technical analysis o the soware that was used to capture the keystrokes o the victims and o the e-mail headers in order to trace the origin o the communication; preservation and examination o the log les related to the activity o the criminals; and inspection o the server system soware to exclude possible uncontrolled inection. Tese kinds o activities require the establishment o specialized units or oces (the cases mention some o these).
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systems), other cases—especially wire raud—reveal the vulnerability o computer systems when the user does not respect basic security rules and is careless about using the computer. In this connection, the Italian expert emphasized that education about Internet security is also needed at the individual level. 269. A more general general conclusion is that the prevention prevention aspect o cybercrime deserves signicant attention and adequate development, including at the international level.
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VI.
PREVENTION
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272. At the nal meeting, the experts rom the United United Kingdom and and South Arica noted that in some o the cases they presented, the aim rom the very beginning o the investigation was liquidating an entire criminal phenomenon rather than prosecuting individual nal oences. Tose same experts, along with the Hungarian expert, also remarked that an investigation o organized crime oences, which is a very ecient means o learning about the size, methods and modus operandi o criminal organizations, can generate “lessons learned” that apply not only to uture investigations but also to prevention eorts. In their cases, concrete measures o a purely preventive nature have been adopted (regulatory or administrative measures, or arrangements with the private sector) as a direct consequence o investigations.110 Te expert rom South Arica recalled that in a case o international tracking in precious metals, prevention measures derived rom enhanced knowledge about the buyer side o the international market acquired during the investigation. 273. Tese observations combine combine well with certain eatures o organized organized crime proceedings, including the policy o “dismantling the criminal group,” a “pro-active and holistic approach” and “extended investigation”. In this way targeting prevention becomes an integral component o the criminal justice response. 274. Similarly Similarly,, conscation o the proceeds o crime has already been identied as an extremely important tool o prevention in chapter IV. Tis is another demonstration that the linkage between prevention and criminal justice is very strong, given that conscation depends on a conviction or is at least related to the commission o oences.
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277. At the same time, and and as already considered with regard regard to the purposes and eects eects o the conscation conscation o proceeds o crime, controlling the nancial activities o organized criminal groups is part o a prevention policy having as one o its main objectives the reduction o the participation o those groups in lawul markets. In this connection, article 31, paragraph 2 o the Palermo Convention shall be considered as a source o welldetailed prescriptions.
ARTICLE 31.
PREVENTION
… 2.
States Parties shall shall endeavour, endeavour, in accordance accordance with undamental undamental principles o their
domestic law, to reduce existing or uture opportunities or organized criminal groups to participate in lawul markets with proceeds proceeds o crime, through through appropriate appropriate legislative, administrative or other measures. These measures should ocus on: (a)
The strengthening o cooperation cooperation between law enorcement agencies or prosecu-
tors and relevant private entities, including industry;
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reerred to earlier: the prevention eect is equally obtained through a post-conviction judicial intervention. Similarly, a strict interdependence between criminal justice proceedings and prevention is at the basis o section (a) o the same paragraph, which osters cooperation between law enorcement and prosecutorial authorities and the private sector. Te above-mentioned cases UKG 3, HUN 3 and SAF 1, as well the comments o the Italian expert on cultural property (in relation to IA 1), clearly indicate the signicance attached to such cooperation, especially when organized criminal groups engage in illicit tracking o commodities or which legal trade is also permitted under certain circumstances and within certain limits. 279. Article 31, paragraph 2(b) and (c) (dealing with the protection o the integrity o public and private entities as well as relevant proessions such as lawyers, notaries and accountants) prescribe administrative measures (or codes o conduct) independent rom criminal proceedings. At the meeting in Cartagena, the Italian experts illustrated a measure o this kind that was in orce in Italy or long time: to incorporate a company in Italy, as well as to obtain certain administrative authorizations, including admission to a public antimaa) attesting to the absence o any ties between tender, a special certicate was requested (Certicato (Certicato antimaa) the individual and organized criminal groups or organized crime oences. 280. In certain areas o legal activities, strong regulatory regimes may have have a signicant prevention prevention eect. Tis has already been observed about the international regulatory regime imposed by the Firearms Protocol, which is contained in Part II o the Protocol, which is signicantly entitled “Prevention”. It may be appropriate
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ANNEx I.
COUNTRY CASE ABBREV ABBREVIA IATIONS TIONS
Albania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ALB Argentina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ARG Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BRA Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CAN Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COL El Salvador . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ELS France. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FRA Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . GER Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . HUN l
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ANNEx II. LIST OF CASES DIVIDE DIVIDED D BY TYPE T YPE OF OFF OFFEN ENCE CES S
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OFFENCE
Drug tracking and other drug related oences (cont. )
CASE
NAME
ASSOCIATED OFFENCES
BRA 9
Liquidaçao Operation
Firearms tracking and participation in an organized criminal group.
BRA 14 14
Farol da da Co Coli lin na Op Operation.
Money-laundering, r rearms tr tracki kin ng, corruption, crimes against the national nancial system and participation in an organized criminal group.
CAN 2
Terezak is Case.
Participation in an organized criminal group.
CAN CA N7
Punk nko o 201 2010 0 an and 201 2011 1 Cas Case es.
Par arttic icip ipa ati tio on in in an an or organ aniized cri crim min inal al grou oup p.
CAN 8
M l
T ki
h C
ll d
b
( b
)
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OFFENCE
Drug tracking and other drug related oences (cont. )
CASE
NAME
ASSOCIATED OFFENCES
COL 1
Vanguardia Operation – FARC Case.
Tracking in rearms, terrorist oences.
COL 2
Zeus Operation.
Conspiracy.
COL 3
Cronos Operation.
Money-laundering.
COL 4
Beto Renteria Case.
Conspiracy.
COL 8
Cuchillo Case
Conspiracy, homicide, manuacture and tracking o rearms or ammunition, etortion, orced displacement, aggravated robbery, disturbance o possession o
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OFFENCE
Drug tracking and other drug related oences (cont. )
CASE
NAME
ASSOCIATED OFFENCES
RUS 1
Report.
SER 1
Niva Operation.
Illegal possession o rearms and eplosives and participation in an organized criminal group.
SER 3
Valter Operation.
Participation in an organized criminal group, etortion, illegal possession o rearms and eplosives, instigation to a murder, accessory ater the act, countereiting documents.
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OFFENCE
Firearms oences (Illicit possession, illicit tracking, etc.) (cont.)
Forgery
CASE
NAME
ASSOCIATED OFFENCES
COL 16
Buque Otterloo.
Corruption, orgery, obstruction o justice and participation in an organized criminal group.
ITA 4
Red Skorpion Operation.
Participation in an organized criminal group.
SER 5
Victor Operation.
Participation in an organized criminal group.
USA 4
Victor Bout Case.
CAN 5
Beauchamp Case
CAN 50
R. v. National Post
Participation in an organized criminal group.
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