Investigating Organised Crime in European Border Regions Law Enforcement and Judicial Cooperation with Regard to Organised Crime: A Comparison between European Border Regions
Research Project financed by: the Falcone Programme of the European Commission (2000/FAL/134); and co-financed by the Programme Politie en Wetenschap (Call 2000-2001)
Tilburg/Brussels/Bloemendaal, 24 September 2002 Monica G.W. den Boer Toine C. Spapens (Editors)
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Publisher:
IVA, Institute for Social Policy Research and Consultancy Warandalaan 2, P.O. Box 90153 NL-5000 LE Tilburg, The Netherlands Phone: + 3113 4668420, telefax: + 3113 4668477
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ISBN 90-6835-379-9
8 2002 IVA, Institute for Social Policy Research and Consultancy, Tilburg University All rights reserved. No part of this book may be reproduced in any form, by photostat, microform, retrieval system, or any other means, without the prior written permission of the publisher.
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Table of Contents
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Euroregions and the investigation of organised crime .............
1.1 Introduction: Motivation, Methodology and Chronology of the Project ................................................................. 1.2 Euregional Law Enforcement Cooperation within a Multi-Level Governance System ......................................................... 1.3 Situating Cross-Border Law Enforcement Cooperation within European Border Regions .................................................. 1.4 The Role and Function of Euroregions within the European Union .......................................................................... 1.5 General Findings and Conclusions ........................................ 1.6 Future Research Questions .................................................
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1 5 13 18 25 29
Case Report “Operation Mallard” from the Cross Channel Euroregion ................................................................... 31
2.1 Description of the selected Criminal Investigation ..................... 2.2 Description of the Euroregion ............................................. 2.3 Police cooperation in the Region, Cross Channel Intelligence Conference .................................................................... 2.4 Operation Mallard: Background .......................................... 2.5 Conclusion ....................................................................
31 33 35 39 49
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Case report on the Euroregion Meuse-Rhein ........................ 51
3.1 Introduction ................................................................... 3.2 Summary of the Hammer and Alphabet criminal investigation cases ........................................................................... 3.3 The Starting Phase of the Criminal Investigation ...................... 3.4 Gathering the facts .......................................................... 3.5 Apprehension of the suspects .............................................. 3.6 Aftermath .....................................................................
51 55 62 67 69 71
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Case report on the Euroregion Rhein-Waal .......................... 73
4.1 4.2 4.3 4.4 4.5 4.6
Introduction ................................................................... Summary of the criminal investigation case ‘Foxtrot’ ................. The starting phase of the investigation ................................... Gathering the facts .......................................................... Apprehension of the suspects .............................................. Aftermath .....................................................................
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Case report on the EuroregionSønderjylland (DK) – Schleswig Holstein (G) .................................................................. 93
5.1 5.2 5.3 5.4 5.5 5.6 5.7
Introduction ................................................................... 93 Research methods ........................................................... 97 Description of the case ..................................................... 99 National Police Co-operation ...............................................100 International Police Co-operation ..........................................101 Aftermath ......................................................................104 Conclusions and Discussion ................................................105
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73 77 82 84 90 91
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Report on Judicial and PoliceCooperation in Saar-Lor-Lux-Rheinland-Pfalz Region .................................107
6.1 Introduction: The Euregion Saar-Lor-Lux-Rheinland-Pfalz ...........107 6.2 Historical development of cross-border co-operation in Luxembourg ...................................................................108 6.3 Bilateral Agreements relating to Policing of the Euregion .............109 6.4 Existing Methods of Police co-operation in cross-border crime cases ............................................................................114 6.5 Co-operation with Europol ................................................. 117 6.6 Co-operation based on the Schengen Convention .......................121 6.7 European developments in the Justice and Home Affairs field: a practical point of view .....................................................122 6.8 Summarising the experience of cross-border cooperation in criminal matters ...............................................................124
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The case of the Euroregion Tirol (Austria and Italy) ...............127
7.1 Introduction ....................................................................127 7.2 Formal cross-border law enforcement co-operation frameworks between Italy and Austria ...................................................128 7.3 Concrete co-operation on an organised crime case involving Austria and Italy ..............................................................135 7.4 The ‘practice’ of police and judicial co-operation .......................137 7.5 Conclusion .....................................................................138
Bibliography ........................................................................141
Appendices ........................................................................147 Appendix 1: Research proposal .................................................149 Appendix 2: List of researchers ................................................155 Appendix 3: Research protocol .................................................157
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Euroregions and the investigation of organised crime By Monica G.W. den Boer and Toine C. Spapens
1.1 Introduction: Motivation, Methodology and Chronology of the Project Over two years ago, we embarked on a truly international research project concerning European police and judicial cooperation in border regions. Looking back on this process, it is clear that many facets of this enterprise have been rather time-consuming. First of all, after gratefully obtaining confirmation from the European Commission’s Falcone Committee that it had approved our research proposal, we had to search a co-sponsor. This process took another six months. Second, due to the architecture of the project, we had to establish an international research network with researchers who were linguistically and professionally equipped to perform the research and to produce a case report. Naturally, this process was accompanied by the need for confirmation and detailed explanations of the objective(s) of the research project. Hence, the project geared momentum by the time it was Spring 2001. This was the time when we, as coordinators of the project, performed a pilot research in the Euregion Maas-Rhine, and developed a joint research protocol. The main objective of this protocol was to seek a certain level of standardisation between the research projects that were going to be executed in the other selected European border regions, with a view to maximise the 1
comparability between the research findings. Moreover, we personally visited most of the regions or met up with the researchers (with the exception of SouthTirol), in order to further explain the details of the project. It was clear that this direct contact turned out to be a fruitful approach. One researcher, with whom we had established a positive contact, did eventually not respond to our calls and e-mails: hence, we are unfortunately not in the position to present a report on the cooperation between France and Spain in the Pyrennees-region. This void is very much compensated however by the materialisation of the research reports on the other six European border regions. Although the original deadline for the case reports was the end of October 2001, it soon became clear that the majority of our researchers needed more time for the completion of their case report. Hence, we ‘’granted” another two-and-a-half months, and asked the draft case reports to be submitted by the middle of January 2002. After revisions, the final versions of these reports were submitted by 15 March 2002. This allowed us as coordinators to pull the reports together and to present a first draft of the final report to the Committtee Criminal Matters of the Programme Politie en Wetenschap on 26 March 2002, which represents one of the two co-financing bodies. The European Commission, which is the chief sponsor of this research project, received the compiled report by the beginning of May 2002, including a narrative report and a financial overview concerning the project expenditure. From the reports, it emerges very quickly that an international research project like this one necessarily accommodates a diversity of views and perspectives. First of all, the researchers represent a variety of disciplines, including politics, law, linguistics and public administration. Second, although most of our researchers are full-time academics, some reports were either co-authored or co-produced with police officials (one with a postgraduate degree). Third, throughout the project, it soon became clear that legal systems differ considerably in their degree of disclosure: for some researchers it was far from easy to obtain the case-documents which allowed them to perform the “bottomup” research that we had asked for, whilst for others the cooperation from judicial and/or police authorities was immediate and enthusiastic. Fourth, we have had to allow a disparity of case-studies, some of which exclusively focus on the pro-active sequence in the criminal investigation, others – notably the case report on Operation Mallard – which focus more on the sequence of the investigation following the crime. Notwithstanding this level of heterogeneity between these reports, it is our firm belief that the output of this research is courageous, innovative and informative, especially because the case reports are 2
original and make no sweeping generalisations about police and judicial cooperation in European border regions. The main objective of this introduction is to provide the reader with a background analysis of the functioning of border regions within the European Union, and the explanation of the dynamics in those regions concerning crossborder police and justice cooperation. In particular, we have sought to investigate whether centralised and de-centralised criminal investigations into (international) organised crime are complementary in character. The European Union, in particular through the adoption in 1997 of the Action Plan against Organised Crime, has urged a co-ordinated system of intelligence-exchange concerning organised crime, through national contact points. These units have or are in the process of being created within existing national infrastructures, such as National Criminal Intelligence Services. The philosophy behind this model of co-ordinated intelligence exchange is that national contact points will be fed by sub-national (local and regional) law enforcement agencies, and that these contact points – in turn – feed this intelligence through to EU bodies like Europol and Eurojust. This philosophy of central co-ordination is based on two premises, namely that law enforcement organisations are supposed to cooperate closely in a hierarchical and multi-organisational set-up, and second, that these organisations function on the basis of unlimited trust and reciprocity, which facilitates and even stimulates spontaneous vertical intelligence-exchange with (supra-)national bodies. From practice, however, we learn that informal contacts, networking1, and “horizontal” information-exchange are still crucial levers for cross-border law enforcement cooperation, also when it concerns sensitive investigations into organised crime. Our leading assumption throughout this research is that cross-border law enforcement networking finds a fruitful basis in European border regions, which often have a common cultural background, linguistic code, and joint problems with criminality. Leading on from this assumption, we argue that the pre-judicial investigation of organised crime is often facilitated by previously 1
Networks are defined as the organisation of relations between relatively autonomous, but interdependent actors, in which hierarchy is either not important or non-existent (Van Kersbergen and Van Waarden, 2001: 24). Network governance is characterised by the shifting boundaries between the public, private and voluntary sectors; the exchange of resources and negotiations between the sectors; the game-like interactions ‘rooted in trust and regulated by rules of the game negotiated and agreed by network participants’ (Rhodes, 2000: 61); and the autonomy of the networks from the state (quoted in Van Kersbergen and Van Waarden, 2001: 44).
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existing contacts between law enforcement officials across the national borders. Furthermore, for reasons of subsidiarity and confidentiality, we argue that even larger-scale cross-border investigations into organised crime are hardly ever dealt with at the supra-regional level, even if, as in the example of Belgium, the authorisation of the federal prosecutor or one of his delegates is required for the execution of cross-border operations (such as a controlled delivery or a surveillance). This, by the way, is not the same as arguing that these cases are investigated beyond the control of national authorities, but that the interconnection between (EU-)regionally investigated cases and (inter-)nationally investigated cases may sometimes be rather thin. In fact, with the exception of the occasional request for mutual legal assistance, there seems to be little interaction between formal procedures that are handled through (inter)national authorities (e.g. a Ministry of Justice, or Europol) and the execution of cross-border investigation competences. Network contacts in border regions also allow the relevant actors to be creative-within-the-confinesof-the-law, and to be pragmatically opportunistic. In translating these assumptions into research questions, one cannot be but rather modest. As the principle objective of our research project, we put forward that we have sought to: “(identify) forms of law enforcement and judicial co-operation concerning organised crime in a number of European border regions, with the objective to describe ‘best practices’, to the benefit of co-operation in this respect between all European Union Member States.” A growing tendency of urbanisation of the European border regions has culminated in increased opportunities for criminal groups to perform crossborder activities. Criminal groups – be they networks, loose coalitions or hierarchically structured organisations – no longer view the internal borders of the European Union as an obstacle, whereas law enforcement organisations and the judiciary have to take account of them as an expression of legal and territorial national sovereignty. Evaluations of the ‘Turbo Diesel”-case – which concerned Turkish heroin dealers in the region of Maastricht (NL), Hasselt and Genk (BEL) – illustrated these problems very clearly. In order to improve our understanding of the interaction between crime patterns and law enforcement activities, we undertook the following research activities: • Selection of “closed” organised crime cases (drugs, man-smuggling, organised vehicle crime, etc.)2; 2
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Access to running investigations would have been severely restricted, which is why we decided to ask – through the researchers – permission to analyse dossiers of closed organised crime cases, supplemented with interviews with relevant actors.
•
• •
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Analysis of cross-border flows of information and intelligence, either through direct (horizontal) exchange, or through indirect (vertical) exchange (information and intelligence exchange with national coordination units and contact points regarding these cases); Analysis of the legal-administrative frameworks that apply to these information flows; Analysis of the role of the judiciary and customs organisations in crossborder law enforcement cooperation; possibly also analysis of interagency co-ordination; Analysis of the investigation methods and competences that were used in executing requests for international legal assistance.
These research activities were further refined in a so-called research protocol which was also meant to standardise the eventual research output. As already indicated before, we approached academic institutions in the Member States of the selected Euroregions, and requested them to participate in the research. Meanwhile, Tilburg University (CRBI3 and IVA4) were responsible for the coordination of the project. Six Euroregions and/or European border regions were selected for the research project, and this included nine EU Member States. The role and function of these Euroregions within the EU is described in more detail in section 3 below. Before that we will draw up a more general analysis of Euregional law enforcement cooperation and the way it can theoretically be positioned within a multi-level governance model (section 1.2), and we will anticipate the possible conseqences of Europeanisation for law enforcement organisations (section 1.4). General findings and conclusions are presented in section 1.5, and section 1.6 contains suggestions for future research.
1.2 Euregional Law Enforcement Cooperation within a Multi-Level Governance System Within academic literature on multi-level governance5, it is hard to find references to forms of subnational cross-border cooperation, and in particular to 3 4 5
Centre for Law, Governance and Information Technology, attached to Tilburg University. Institute for Policy Research, attached to Tilburg University. The term ‘governance’ can be defined in a variety of ways. Keating, referring to Rhodes, refers to it as a system of social regulation, a regime in which power and authority are dispersed and hierarchical regulation is replaced by horizontal negotiation (e.g. through networking). The term has been applied especially to the study of regions, “since the fragmented and disorganized nature of regional space makes it difficult to talk of government in the conventional sense.”
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“regional configurations” of cross-border policing (Spoormans, Reichenbach & Korsten, 1999: 5).6 Others report the ample availability of research findings (certainly on the basis of empirical research in selected areas, such as SouthLimburg in the Netherlands), but the relevant researchers do not always seem acquainted with each other’s findings, for instance because they analyse crossborder law enforcement cooperation from a variety of theoretical angles. The research performed by Hofstede et al. (Hofstede, Van Twuyver, Kapp, De Vries, Faure, Claus and Van der Wel: 1993) focuses on cultural aspects of cross-border cooperation, looking at values, behaviours and institutional aspects across nations, but the research also includes an analysis of the legal and organisational aspects. The work of Jim Sheptycki, who has analysed crossborder law enforcement cooperation for instance in the Channel region, is more of a sociological character. In our research, we have sought to carve out a focus on aspects related to public administration, such as the situation of the Euregion within a wider administrative context, and the cooperation between different institutions (police, prosecution and public administration). The relative importance of the Euregion is – as we see it – mainly infused by the assumption that cultural and linguistic ties facilitate day-to-day cooperation between law enforcement agencies, which in turn should be regarded an essential factor in the building of trust, mutuality and reciprocity. Moreover, as Hofstede et al (1993: 3) argue, geographical reasons may increase the relevance of direct cross-border with foreign police colleagues instead than national colleagues. This assumption may apply – in varying degrees – to the six Euroregions that we have selected for further analysis. In our findings there is an undeniable overlap with legal, political and cultural aspects. Some of this work ties in with the research which was done in the context of a conference entitled “Regional Configurations of Cross-Border Policing” held at the Max-Planck-Institute of Foreign and International Criminal Law, Freiburg i. Breisgau, Germany, in October 2000. Several of the papers presented at this conference7 point out that due to a new level of
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(Keating, 1998: 127). See also: Peterson and Bomberg (1999: 5), who define 'governance' as a synthetic concept, which results from a mix of factors, including political leadership, statesociety relations, institutional competition, electoral politics, and so on. Bulmer (1997) defines "governance" as the "pattern of rule" (quoted in Wientjer, 2000: 320). See also Editorial (2001), European Journal of Crime, Criminal Law and Criminal Justice. Published in special issue (2001) of the European Journal of Crime, Criminal Law and Criminal Justice, Vol. 9/2.
interconnection of social motives and activities (globalisation), also law enforcement cooperation may find itself entangled by new challenges in the field of governance and administration. Globalisation and Shifts in Governance In the era of globalisation, the nation state – certainly when placed in the context of Europe – is undergoing fundamental changes. National sovereignty and centralised forms of public administration may be subject of a gradual process of erosion, to the benefit of a reinforcement of other levels of governance (Eising and Kohler-Koch, 1999: 4).8 On the one hand, globalisation and internationalisation patterns may give rise to the consolidation of the supranational level of governance (e.g. reinforcement of multilateral polities, such as the United Nations, the G8, and the European Union). On the other hand, globalisation seems to be paralleled by patterns of devolution, which involves more competencies for regional and local polities: the new regionalism is not contained in the traditional governance framework of the nation state: “A tension is created between the global logic of capital, seeking out the most profitable locations, and the spatially-bound logic of regions, which seek to tie capital down” (Keating, 1998: 73, see also 161 and 164). This double logic does not merely apply to the distribution of economic sources, but also to cultural and institutional developments. The term glocalisation has frequently been used to denote this paradoxical evolution in structures of governance. These shifts in governance also have an undeniable impact on practices of policing. Except for the process of ‘glocalisation’, there are trends of privatised policing, policing suspect populations rather than sovereign territories, and increased technological capacity for pro-active monitoring on the basis of risk factors (Sheptycki, 2002). Multi-Level Governance in the EU It seems that within a a multi-level governance system, responsibility for administration is increasingly shared with other levels than the central levels of government, with supranational, regional and local players, but also with private actors and non-profit organisations (Kettl, 2000: 488). Van Kersbergen and Waarden (2001: 8) characterise this development as a shift in governance location: Within the public sphere, we see a gradual, horizontal shift from public to semi-public or to private forms of governance, as well as a shift to business. But the EU should not be compared with a 'layer cake system', which
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could be associated with the multi-level governance model. Instead, EUgovernance is very much characterised by an "intricate web of transnational relations between interested parties", also called "advocacy coalitions", which are organised around policy networks which loosely couple actors in the transnational, the horizontal and the vertical dimension (Kohler-Koch, 2000: 88). "Network governance" refers to the setting of policy-making within highly organised social sub-systems, which have specific rationalities (Eising and Koch, 1999: 5). Moreover, globalisation has sparked an “emerging system of governance without government, management or control”, from which shared values have yet to emerge (Kettle, 2000: 488). In a multi-level governance system, layers of governance are interdependent for the achievement of their objectives (Nomden, 2001-2002: 17). However, throughout this structure of interdependencies, loci of government may enter into competition and bargaining: the relationship between the centre and the sub-centre (locality/regional entity) may be subject to continuous movement, in which neither side is able to dominate completely (Rhodes, 1981; quoted in De Vries, 2000: 193-194). Loughlin9 also states that we experience massive paradigm shifts in government. A kind of governance is arising consisting of “self-organising networks10”
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Wiener (2000: 318) uses the word 'de-borderisation' to characterise processes of politics and policy-making across national borders. Mimeo Analysing styles of public-private interaction, Falkner (2000: 103) relates four basic types of policy networks within a European multi-layered system to statism, issue networks, traditional policy communities and corporatist policy communities, all of which throw a different light onto the participatory aspect of non-state actors.
independently of government: “At any rate, the existence of such networks of governance constitutes a challenge to government and might hinder ‘governability’.” “The Network model conceptualises both territory and borders differently again. In this conception, there is neither the ‘hard’ territory and impermeable borders of the classic nation-state nor the ‘deterritorialised’ abstractions of pluralism. In the network mode of governance, territory is conceived rather as one of the arenas or dimensions, among others, in which networks operate. ‘Space’ rather than ‘territory’ might be the more appropriate term here.” Government co-exists with ‘network governance’, and this is the case very much in border regions which constitute the subject of our research. In Europe we may see the emergence of ‘competitive regionalism’. In his conclusion, Loughlin11 states the following: “New forms of governance are emerging but alongside and interpenetrating the old shell. Border regions have in general been disadvantaged under the old system and cross-border co-operation has been difficult to achieve. However, nations and their regions, including those on their borders, are facing unprecedented challenges from globalisation, Europeanisation, new technologies to such a degree that they must adapt their traditional practices of governance in order to survive and prosper. These challenges are also opportunities for regions and especially for border regions. Through innovative administrative design and practice, they might move from a situation of peripherality and neglect to being forerunners and beacons of new forms of democratic governance for the 21st century. They might be seen as laboratories of new democratic practice and governance from which more central regions and states might learn.”
Liam O’Dowd (2000: 10 and 11) notes the following: “To some extent cross-border regions mirror the working of the EU itself. They provide examples of multi-level governance involving the European Commission, national states, local and regional authorities, inter-governmental commissions and a variety of non-governmental agencies. Cross-border regions involve a series of flexible strategic alliances between local political, administrative and business elites. The availability of funding brings into being new voluntary bodies and enables existing agencies to engage in new activities. It provides opportunities for such bodies to influence regional developments in border zones where historically the priorities of national governments have minimised local influence on cross-border regimes. Crossborder contexts are created with potentials for negotiation and learning thereby creating fora for deliberative or participatory democracy. (..) Cross-border cooperation also reflects some of the weaknesses of the EU such as excessive bureaucracy and limited popular identification with cross-border projects. Like EU institutions, agencies involved in cross-border co-operation control remarkably few resources, despite their profusion.”
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Loughlin, mimeo, p. 7.
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The Increasing Significance of Regions Keating (1998: 9) argues that the concept of “region” is an elusive concept as it covers a variety of territorial levels and a range of social contents: “A minimal definition would present it as an intermediate territorial level, between the state and the locality, (…). More positively, regions can be recognized according to geographical criteria, as physical spaces. These are either homogeneous regions defined by topography, climate or other fixed characteristics; or nodal regions, defined by a common central point (…). An economic definition of a region would focus on common production patterns, interdependencies and market linkages, and labour markets. A broader functional definition would add patterns of social interaction, including leisure, recreation and travel patterns. Such functional regions are discernable in metropolitan areas, focused on large cities or conurbations but they may also be drawn more widely, on a provincial state. However drawn, they are often unstable, changing their contours according to economic and social trends.”
Furthermore, regions can be defined on the basis of a common language or common identity. Regions are situated in a double (dyadic) relationship with other levels of government: they interrelate with the level of the nation state, but at the same time, regions have developed as “new places for the construction of policies” and hence enter into direct interaction with international regimes (Keating, 1998: 78, 90; Rhodes, 1997). Moreover, as regions have gradually matured into important governance partners, the phenomenon of “para-diplomacy” is increasing, in which regions build interregional partnerships and in which the monopoloy of the state in transnational relations is challenged (Keating, 1998: 178). Continuing along this line, Keating (1998: 127) argues that: “Regions are now a key level of intervention and action, the nexus of a variety of territorial and sectoral systems of action (…).”
The European Commission has played a pivotal role in mobilising regional interests across the European Union. The main stimulus for this has been the EU’s regional policy, which in the meantime has been subsumed by the structural funds (1993: one third of the EU budget). The policy logic for an EU regional policy has been similar to that for national regional policies in the sixties and seventies, namely to provide a mechanism for rectifying the territorial disparities produced by market integration and for achieving allocative efficiency (Keating, 1998: 173). The EU Committee of the Regions was created by the Maastricht Treaty on European Union in 1991, and started
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in March 1994.12 The Maastricht Treaty states that the Committee of the Regions must be consulted as a matter of course on all areas likely to have repercussions at local or regional level. The responsibilities were limited to five areas, namely economic and social cohesion, trans-European infrastructure networks, health, education and culture. The Amsterdam Treaty on European Union, which entered into force on 1 May 1999 gave the Committee of the Regions another five areas for compulsory consultation, namely employment policy, social policy, the environment, vocational training and transport. The principles of subsidiarity and proximity are driving forces behind the work of the Committee of the Regions. The Committee has 222 members and 222 alternates, who all have reponsibilities at regional or local level and who do not sit in Brussels permanently. In the era of decentralisation, the sentiment of regional and local identity will almost certainly grow. Loughlin, who published a book on subnational democracy in the European Union, argues however that the Committee of the Regions is completely unknown to many local and regional administrators.13 Decentralisation and regionalisation are seen as instruments to bring the EU closer to its citizens. This is one of the central themes that runs through the European Commission’s White Paper on governance, which was published in the Summer of 2001. In this document, the European Commission reemphasises the role of local and regional government,14 the aim of which is to narrow the distance between the EU and the citizens (Hoetjes, 2002: 84).
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Web site: www.cor.eu.int. Loughlin, 2001 (quoted in Hoetjes, 2002). http://europa.eu.int/eur-lex/en/com/cnc/2001/com2001_0428en01.pdf (Europese governance – een witboek, Brussel, Publikatieblad van de Europese Gemeenschappen, 12.10.2001, 29 p.).
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Decentralisation15 or Recentralisation16? Many countries have shown a tendency towards decentralisation, which is the devolution of power and responsibility over policies from the national level to the local level. Arguments in favour of decentralisation are: overcoming overregulation, designing tailor-made policies, short lines between allocating agency and the receivers thereof, service delivery based on greater knowledge of the actors based at the local level, with regard for local circumstances, enhancing civil participation, and allocating public goods and services more efficiently and effectively (De Vries, 2000: 193). Yet, at the same time, it is being observed that decentralisation may be on its return, and that the abovementioned advantages have become disputed points. In the Netherlands, for instance, there seem to be cautious steps towards re-centralisation (De Vries, 2000: 193), which is the transformation of governance towards the national level. Thinking in terms of the difference between centralisation and decentralisation may not be helpful, because many policy areas, including that of internal security, can be seen as a complex, multidimensional administrative practice. In this context, Scharpf et al. advance the opinion that no individual decisionmaker is able to tackle problems single-handedly. His view is that the interaction between central and decentral actors is crucial (politische Verflechtung) (Scharpf, Reissert, & Schnabel, 1976, quoted in De Vries, 2000: 201). Finally, it seems that centralisation and decentralisation are not necessarily cyclical developments which succeed one another: in Northern and Western Europe, centralisation to the EU seems to be going hand in hand with decentralisation to regional and local levels (De Vries, 2000: 210). Opinions about the ideal level of governance – in our case for internal security and public safety – may vary in accordance with the position of a policy individual in public administration. Moreover, the features of the policy domain itself may influence the point of view of local elites on it being decentralised (De Vries, 2000: 212). In our research project, we also witness differing views and opinions about the need to decentralise and “regionalise” law enforcement 15
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In 't Veld's term "ontcentralisatie" is hard to translate in English. "Decentralisation" here not means the process whereby powers and mandates are delegated from the national to sub-national levels of government, but also the process whereby these mandates are moved out of the centre into a polycentric direction. This approach includes the pluri-centric approach, in which the establishment of networks plays an important role. Recentralisation is defined here as a hierarchical direction of competence towards national and supranational levels of governance.
cooperation across national borders. For people at the local level who have a major role in a policy domain it may be more than justified to exercise that policy at the local level, but naturally, this is (in most cases) to the benefit of the retention or expansion of their own power (De Vries, 2000: 214). However, local elites do not support decentralised responsibility for issues having national or global causes or consequences (De Vries, 2000: 219). This is a crucial finding which should be analysed from the perspective of the control of (transnational) organised crime: it may be the case that organised crime (and ‘global’ terrorism) has such wide ramifications that action at subcentral level may be less self-evident.
1.3 Situating Cross-Border Law Enforcement Cooperation within European Border Regions Borders: A Hindrance for Law Enforcement Cooperation? Borders have a divisive effect, which is the consequence of stark differences between national legal systems, organisational patterns, and concrete administrative objectives and instruments (Kessen, 1999: 30). Nogala (2001) notes that the concept of (the) border is a basic social invention which has to be considered as an early and (in a way) successful concept of social organisation. “(…), borders help us to find orientation in a complex social and physical environment.” At the same time, borders both have a mental connotation (inclusion versus exclusion) and a material-physical association with the demarcation of territories. “At least with the creation of nation states, the stateborder has become the incarnation of a basic tool of governance and administration of populations and territories". The process of European integration has sought to decrease the divisive effect of national borders on law enforcement cooperation. The abolition of internal border controls throughout the whole European Union – with the exception of the United Kingdom and Ireland – has been achieved through gradual expansion of the “Schengen zone”. The Schengen Agreement was first signed in 1985 between the Benelux countries, France and Germany; the Schengen Implementing Agreement, which laid down 142 different legal provisions to complement the abolition of internal border controls, was signed in 1990, and entered into force on 27 March 1995 for the five original partners and Portugal and Spain. In the meantime, Italy, Greece, Austria, Finland, Sweden and Denmark have also acceeded the agreement, and Norway and Iceland (both non EU-countries) are associated partners. Schengen can be evaluated as a genuine 13
success, given its appeal and its impact on operational aspects of cross-border cooperation. At the same time, however, Schengen is the embodiment of sovereign politics, in which EU Member States have demonstrated a strong urge to secure their national interests. For instance, the right of pursuit across the border is arranged differently for the partner countries: Germany allows access beyond its national frontier by Belgian and Dutch law enforcement authorities without any limitations, whereas the Netherlands applies a far more restrictive 10 kilometer zone for the penetration of its territory by Belgian and German authorities (Van Twuyver and Soeters, 1999). Situating Law Enforcement Cooperation in Patterns of Governance In the specific case which we have been analysing, the actors have been exposed to a (relatively) new challenge, namely the Europeanisation of law enforcement cooperation against transnational organised crime. These new challenges, which are thrown up by the seemingly unstoppable European agenda, confront national governments with new responsibilities, but have not necessarily supplied them with an extended capacity to manage these problems in an efficient manner.17 Within the European Union, the challenge to prevent and combat transnational organised crime has predominantly been responded to in a state-centrist formula: legal instruments and action plans concluded at EUlevel have mainly inspired forms of central coordination within the EU Member States. Europeanisation seems to have further encouraged trends to organise police and judicial cooperation in a more centralist manner. For instance, the Europol Convention demands from participant Member States that they all create a Europol National Unit, for instance within the context of a National Criminal Intelligence Service. Also the Schengen Implementing Agreement has had a centralist spin-off, as the SIRENE18-offices were created at central locations in the Schengen countries for the verification of SIS19-alerts. Also the control of international organised criminality has had some impact on the centralisation of criminal intelligence and cross-border law enforcement cooperation (Den Boer, 2002). But as we will see below, there does not seem to be a contradiction between patterns of centralisation on the one hand and de-centralisation and regionalisation patterns on the other: frequently, they seem to be simultaneous, 17 18 19
14
The American experience with transformations of governance can be instructive for shifts in European governance (Kettl, 2000: 488). SIRENE = Supplementary Information Request at the National Entry. SIS = Schengen Information System.
complementary processes, or they succeed each other. These fluctuations in models of governance are subject to the logic of the pendulum (Wallace, 2000) and the influence of contingent variables, such as the commitment of the participants and the availability of funding. One of the problems emphasised by numerous authors is that the shifting patterns of governance, e.g. through decentralisation and regionalisation, may culminate in more fragmented and even deficient accountability (Van Kersbergen and Van Waarden, 2001: 27; Sheptycki, 2002). For law enforcement organisations competent to investigate and prosecute transnational organised crime, this may constitute a particular problem. Operating at decentral, interregional level, may automatically lead to pioneering trends in the gray legal zone. Except for the development of (informal and flexible) networks, local and regional configurations in cross-border cooperation area are increasingly often subject of institutionalisation, e.g. in the form of bilateral or multilateral regional cooperation arrangements (Nogala, 2001). An example of further regulation of concrete cooperation procedures and the establishment of a joint Police and Customs Cooperation Centre (PCCC) in the border region is the Mohndorf agreement of 9 October 1997 between the French and German government (Nogala, 2001):20 “The centre is organised as a 24-hour information board facility, with a normal shift for high-ranking officers. The French side is represented by officers from the Police Nationale (23), Gendarmerie (6) and Douane (5); involved German authorities on a permanent basis include officers from the police of Baden-Württemberg (14) and Rhineland-Palatine (2), Zoll (2) and Bundesgrenzschutz (BGS) and federal police (7). Each side has appointed a national co-ordinator. It took up its official business in March 1999.”
The PCCC may thus be regarded as an “innovative institutionalisation of crossborder policing efforts.” (Nogala, 2001).
20
The PCCC is seen as a potential nucleus for a new joint law enforcement power in the region, with the ability to respond to the special security needs of the borderland area.
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Vertical and Horizontal Policing in the European Union Law enforcement cooperation in the European Union (EU) can be viewed as a multi-layered pattern (Aden, 2001). First, at the supranational and/or intergovernmental level between the member states of the EU, we find the European police office Europol, the Anti Fraud Office (OLAF21) of the European Commission, and the Schengen framework. The range has recently been expanded by the Task Force of Chiefs of Police and pro-Eurojust, while the creation of Joint Investigation Teams and a European Police College are under preparation. Second, at the national level we find several national law enforcement facilities that are meant to improve the national coordination of cross-border information exchange, international mutual (legal) assistance, and cross-border operational activities. Important in this regard are the Europol National Units (ENU’s), the Interpol National Central Bureaux (NCB’s) and the national SIRENE offices, which function as 24-hour facilities for the verification of SIS22-alerts. Third, on the sub-central and trans-regional level we find several cooperative ventures between police forces and/or judicial organisations across national borders. These forms of cooperation often have a semi-formal character, to the extent that they are often based on a memorandum of understanding or function on the basis of a semi-permanent secretariat. Examples of this kind of cooperation are the Cross Channel Intelligence Conference (Kent County Constabulary, France-in particular the Pas de Calais area, and Belgium – in particular the Federal Police of the Ghent region); NEBEDEACPOL, which is a longstanding cooperative venture between chiefs of police in the Netherlands, Belgium and Germany, particularly in the Aachen-Liège-Maastricht area (Brammertz, De Vreese and Thys, 1998); and the Nordic cooperation which encapsulates all Scandinavian states that are a member of the Nordic Union.
21 22
16
OLAF = Office de la Lutte Anti-Fraude. SIS = Schengen Information System.
Within the EU, the two axes of “vertical” and “horizontal” levels of law enforcement governance intersect: “Vertical” Law Enforcement Cooperation
“Horizontal” Law Enforcement Co-operation
Institutional Appearance
Europol, OLAF, Eurojust, Task Force
Schengen, Bilateral and Multilateral Agreements, MoU’s
Level of Cooperation
Formal, Policy-Making, Strategic, Semi-Operational
Informal, Policy-Making, Information-Exchange, Operational Co-operation Across Borders
Actors
Politicians (national and intergovernmental), senior executive
Philosophy
Centralised intelligence-gathering, high-profile targets (organised crime, terrorism), Principle of subsidiarity
Politicians (national and subnational), Practitioners (police, judiciary, public administration at local and regional level) Decentralised approach to internal security, Flexibility, (Eu-)regional security cooperation
At the level of horizontal policing, the cooperation is more ad hoc and focused on specific cases; a much closer link seems to exist with local and regional problems and hence – in relation to the citizens – this kind of police cooperation can be seen as a form of concrete service delivery. “Vertical” police cooperation is, on the other hand, much more a product of traditional hierarchical bureaucracies. It is also important to note that these patterns may compete with one another, but they certainly do not substitute each other: “rather, the horizontal links have been layered on top of the vertical ones.” (Kettl, 2000: 494). We are currently witnessing new developments in the European criminal justice arena which do not neatly fit any of the above-mentioned categories of governance. A good example is the establishment of so-called joint investigation teams (Schalken and Pronk, 2001), which derive their legal basis from Article 13 of the Convention on Mutual Assistance in Criminal Matters, which was adopted by the Justice and Home Affairs Council in May 2000. These teams can be established on the basis of a prior agreement between the competent authorities in the EU Member States. Furthermore, they are created for a specific purpose for a certain amount of time. Different agencies can be represented within a joint investigation team: police officers, customs officials, members from prosecution agencies, but also members from EU-institutions, such as officials employed by OLAF (the European Commission’s Anti-Fraud 17
Office), Europol or Eurojust, and officials from non-EU countries as well as other international organisations, such as Interpol. The territorial link is that team is stationed where it has been established, and it is expected that this will be in the EU Member State where the most substantial part of the investigation takes place. A joint investigation team will be supervised by an official from that particular country. When the team is no longer active within a Member State, the team leadership may change. The team is required to respect the law of the country in which it is active. This development is an illustration of the trend that cross-border law enforcement cooperation becomes increasingly inter-territorial in nature, and that the traditional lines of accountability will be developed among many different agencies with diverse mandates and competences. Changes in territorial management may thus have encouraged a new regionalism (Keating, 1998). The creation of EU joint investigation teams can also be regarded as a demonstration of interconnections between different levels of regimes, which is the principal characteristic of multi-level governance (Aden, 2001). New Governance Challenges for the European Criminal Justice Arena Concretely, the “shifts in governance” translate into the following new challenges for the way in which law enforcement organisations operate: • • • • •
Operating within an increasingly complex network of competent actors. Operating at different levels and domains of governance (central-subcentral, public-private). Operating within an extended chain of implementation. Operating within a mixed and unstable environment of (strategic) partnerships and competition. Operating within a pluriform accountability environment.
1.4 The Role and Function of Euroregions within the European Union The cooperation between regions in Europe has been based on the representation of common interests (Spoormans et al., 1999: 15). Several multilateral cooperation agreements have been established, for instance between
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the Alpine regions in Italy, Austria and Germany23, and the Rhine regions in Germany, the Netherlands, Belgium and Luxembourg.24 The aims and objectives of Euroregions and other forms of bilateral and multilateral cooperation may be rather diverse, depending on historical ties, joint cultural identities, economic necessity, political-administrative visibility, and the level of ambition among the participants. Keating (1998: 178) draws a distinction between two levels of interregional cooperation: multi-purpose associations of regions25, and the more focused alliances of specific regions. The EU-sponsored Interreg-programme (1990) certainly has been responsible for providing an impulse for cooperation across national borders, as it supports new cross-border cooperation projects with subsidies of 50% (Spoormans et al. 1999: 19; Wouters, 1999). The establishment of regions and regional cooperation have also been encouraged by other multilateral for a, such as the Benelux and the Council of Europe. The Secretariat-General of the Benelux has stimulated cross-border cooperation agreements, such as the Euroregion Scheldemond, the Benelux “Middengebied”, and the “Belgisch-Nederlands Grensoverleg (Benego)” (Kessen, 1999: 33). The Council of Europe has engaged itself (local) cross-border cooperation since 1947. The efforts of the Council of Europe have led to three concrete results (Kessen, 1999: 36), namely: 1) the establishment of the “European Outline Convention on Transfrontier Cooperation between territorial Communities or Authorities” (Madrid Outline Convention, 1980); 2) the establishment in 1982 of a research and information bureau on cross-border cooperation as part of the Council of Europe; 3) the establishment of a conference of Ministers of spatial development in 1970, which adopted a charter on spatial ordering in border areas in 1983.
23
24 25
An example given by Spoormans et al. (1999: 15) is the ARGE ALP, which is the Arbeitsgemeinschaft Alpenländer, which included the Italian provinces of Bolzano, South-Tirol, Trento and Lombardy; the German Länder Baden-Württemberg and Bayern; and from Austria Grauwbunderland, St.Gallen and Tessino. E.g. the Saar-Lor-Lux cooperation between the Saar region, Lotharingen and Luxembourg; and the Euregion (1958) between Belgium, Germany and the Netherlands. The three principal multi-purpose associations named by Keating (1998, p. 178-179) are the Council of Local Authorities and Regions of Europe (under the aegis of the Council of Europe) which was founded in 1994; the Assembly of European Regions (founded in 1985); and the EU Committee of the Regions. Groups of regions which represent more focused interests are for instance the Association of European Frontier Regions (1971), the Conference of Peripheral Maritime Regions (1973), and the Foundation Europe of Cultures (1992).
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In our research, we specifically focused on Euroregions which have cultivated different forms of cross-border cooperation between geographically adjacent regions. “Euroregional” cooperation takes place between sub-central authorities, and “Euroregional” law enforcement cooperation takes place mostly between sub-central public authorities (police, judiciary, prosecution, public administration). From this, it follows that we have excluded forms of “transnational” cooperation, which can be seen as international cooperation between municipalities, regions or institutions which are not necessarily located in the proximity of a border.26 The latter exclusion also involves the cooperation between central law enforcement authorities. Nevertheless, we have been very curious to find out more about the interaction between “Euroregional” law enforcement cooperation and intergovernmental law enforcement cooperation (e.g. through Europol); in section 2 above, we associated this with the distinction between “horizontal” and “vertical” law enforcement cooperation respectively. From the research proposal (see Appendix No 1), it can be seen that we have merely selected Euroregions which have acquired a semi-formal status. We can thus assume that within all these regions, there has been a longstanding practice of cooperation of administrative and investigative actions across the national border(s). As the specific area of law enforcement cooperation (certainly when it concerns the control of international organised crime) has not been a formalised practice within the Euroregions selected by us, it seems self-evident that this type of cooperation does not follow neat guidelines and ready-made scenarios. Most of the cooperation is, as we shall see when we discuss the findings of the casereports, of an incidental and case-oriented nature. “Before, and sometimes even after, the signing of the Schengen treaty, the police have often co-operated ‘illegally’. The established de facto cross-border networks by making use of small-scale official channels, even where the legal framework was lacking. These proceedings were and still are known to the ministers of the interior on both sides of the border. Indeed, they have not only suggested joint police patrols, but have positively encouraged the co-operation of emergency services, such as fire brigades, despite the lack of a legal framework and the use of illegal radio frequencies.” From: “Border Absurdities”, Lace Magazine, 03.2000, p. 9.
26
20
This distinctive definition has been taken from Spoormans et al., 1999: 16.
Euroregion Rhine-Maas Within this Euroregion, there are five partner regions (South-Limburg, five municipalities in Middle-Limburg, Belgian Limburg, the German-speaking community in Belgium, the province Liège in Belgium, and the Aachen-region in Germany). Within this Euroregion, three different languages are being spoken, but there is also a common regional dialect, and there are joint religious (catholicism) and economic (mining) ties (Spoormans et al., 1999: 17). Next to the “Rhein-Maas” Euroregion has 3.6 million inhabitants and accounts for sizeable parts of Belgium as well.27 The Euroregion is sponsored by Interreg II (72 million ECU), and covers the following areas: spatial structuring; improvement of infrastructure; economy, technology and innovation; reinforcement of business cooperation; living environment; usage of human potential; and societal integration (including the building of networks and communication between citizens and governmental authorities) (Jeurissen, 1999). One of the best-known forms of law enforcement cooperation in this area concerns the longstanding NEBEDEACPOL, which is a forum for chief police officers. There are several other examples of cross-border law enforcement cooperation in this area, including the creation of liaison bureaux on either side of the Dutch and German border; the joint training of Belgian, Dutch and German arrest teams; a joint Belgo-Dutch initiative to clean up the Maastricht “junky-park”; a joint agreement between Belgium and the Netherlands in 1994 which allows the Belgian police to exercise certain competences on the Dutch side of the river Maas and vice versa; the facilitation of direct Internet-communication between notification rooms, joint patrols, and a joint training module for Dutch, German and Belgian operational police officers and their direct supervisors (Van Twuyver and Soeters, 1999: 153). Regional network contact points have been established along the whole DutchBelgian-Dutch border. In the Netherlands, these are called IRC's Internationaal Rechtshulp Centrum (Informatie- en Coordinatie Centrum); in Germany, they are called Verbindungsstellen, and in Belgium, they are called OIPG's (Operationeel Invalspunt voor de Grensregio). The ICC in Limburg-South was the first Dutch contact centre and was established on 29 March 1995 (just after the entry into force of Schengen). Except information-exchange, the ICC functions as a help-desk, and provides support to all forms of operational cooperation and management. In particular the information-exchange seems to be a thriving function of the ICC. The South-Limburg ICC cooperates directly 27
From: Lace Magazine, 07.1999: 10/11.
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with the OIPG in Genk and Eupen in Belgium, and with the Verbindungsstelle in Aachen (for the German forces Aachen and Heinsberg). The so-called "EMMI"-project – which started in January 1996 with financial support of the EU (Verbeek, Van den Herik, Plugge and De Roos, 1999: 26) and which also involves the Euroregion Rhine-Maas-North - has even helped to accelerate information-exchange across the border. The project stands for Euroregional Multimedia Information exchange, which involves a direct cooperation between four different universities (Aachen, Liège, Maastricht and Diepenbeek) and six police forces (Mönchen-Gladbach, Limburg-North, Aachen, police in Europe and Genk, and Limburg-South) in the three countries involved. The four EMMI-products are: PALMA (an electronic form for requests to another country, e.g. about the antecedents of a suspect); a Euroregional kiosk (Euroregional translation of Digital representation system); video-conferencing which allows direct visual contact between police forces by means of video- and document camera's; and E-mail, which allows direct electronic information-exchange within a closed network. Within The Netherlands, the EMMI-network has been linked with the national police computer network (PODACS). Euroregion Rhine-Maas-North This Euroregion comprises North- and South-Limburg in the Netherlands, the cities Krefeld and Möngengladbach, and the Kreise Neuss, Viersen and the southern part of Kleve (in Germany). The region comprises around 1,7 million inhabitants and was established in 1978. The Euroregion is sponsored by the Interreg II programme with an amount of 13 million ECU. All major decisions fall to the Regional Council, which is the most senior body, and are implemented by a Regional Committee, supported by a Policy Commission and an administration. The (Interreg) programme comprises the following areas: spatial structure; economy, technology and innovation; research and development, innovation and transfer of technology; natural living environment; usage of human potential; societal integration (including crossborder communication citizens/governmental authorities) (Jeurissen, 1999: 113).
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Euroregion South-Tirol A shared history and language have particularly connected Austria and South Tirol. Until the First World War Austria and South Tirol were part of the Austrian-Hungarian Empire. In 1919 the Treaty of Versailles led to the carving up of the Empire and created new borders. Italy gained South Tirol, with a population of 250,000 Austrians. Since then cultural and linguistic ties have remained strong between Austria and the autonomous Province of South Tirol. In the last three decades common economic and ecological interests have been the driving force behind co-operation between border regions in Germany, Austria and Italy.28 The Austrian-Italian border is 430 km long. In total 2.3 million people live in the Interreg area which covers the autonomous province of Bolzano (BozenSüdtirol), the Province of Belluno (Region of Veneto) and Undine (Region of Friuli-Venezia Giulia) in Italy and parts of Kärnten, the regions of Osttirol and Innsbruck, southern areas of Tiroler Ober-und Unterland and the PinzgauPongau region on the Austrian side. Euroregion Schleswig-Sønderjylland Between Germany and Denmark there has been a long tradition of GermanyDanish cross-border co-operation. For almost 600 years, both Denmark and Schleswig-Holstein were ruled by the same kings. Relations were cordial and based on flourishing commerce. Within the last two centuries the GermanDanish border has shifted several times in different directions. Its present course was only defined in 1920. Since then, populations of officially recognised minorities have lived on both sides of the border with their own educational systems and schools. Following the Second World War and German occupation of Denmark, cross-border co-operation was re-established in the Kiel Declaration (1949) and the Copenhagen Declaration on Minorities (March 29th, 1955). Co-operation tends to be mostly pragmatic and nonformalised. The land border in the Schleswig/Sønderjylland Region (between the North Sea and the Baltic Sea) is only 67.7 km in length; the cross-border region is relatively small with 692,000 inhabitants (1997). On September 16th, 1997 the cross-border “Schleswig/ Sønderjylland Region’ across the German-Danish land border was formally constituted. The districts adjacent to this internal EU land border – Sønderjyllands Amt (DK), Nordfriesland, Schleswig-Flensburg and the city of Flensburg – institutionalised their co-operation, setting their past pragmatic co-operation onto a completely 28
Source: Lace Magazine, 07.1999: 18.
23
new footing. Co-operation now takes place within an integrated programme of management model. The Regional Office (Regionskontor) provides support to the regional organisations on all matters related to cross-border co-operation, particularly to the Regional Council and its executive body as well as the working groups and committees.29 Another source, namely a paper from the Consul-general, Mr. Henrik BeckerChristensen, is slightly more apprehensive about the history of this regional cooperation: The membership of the two countries brought about a softening in the 1980s; this led to the establishment of a joint Danish-German Management Committee, whose membership included the Mayor of Sønderjylland and the Minister for Europe in the Schleswig-Holstein Government. Meeting twice a year, this committee takes decisions on projects of common interest. Inspired by these developments the German side made several further approaches in 1995, seeking a more long-term perspective for an formalisation of the DanishGerman co-operation. This led, in 1996, to the tabling of a proposal, initially in the Danish-German Forum already mentioned, for a co-operation agreement between the County of Sønderjylland, the town of Flensburg, and the counties of Nordfriesland and Schleswig-Flensburg. The gist of this was the formation of a so-called Euro-Region Schleswig which would have a joint Danish-German Council and secretariat and be responsible for cross-border co-operation. This led to a fierce debate in the winter and spring of 1996-1997 on the Danish side of the border, in which letters to the press, public meetings and vandalism to the houses and cars of leading politicians all expressed strong resistance to this institutionalisation of Danish-German co-operation. While all this was going on, Sønderjylland County had signed the new co-operation agreement in the summer of 1997. On one point, however, a change was made. Instead of the Euro-Region Schleswig, the name was changed to Region Sønderjylland/Schleswig. The cooperation consists of a Regional Council, a Management Board, a Secretariat and several working parties and committees. The Regional Council is the organisation’s supreme authority. It has 42 members, 21 from each side. Each party itself decides on the composition of its delegation. The Region is an advisory body. Euroregion Saar-Lor-Lux-Rheinland/Pfalz This Euroregion involves France, Germany and Luxembourg. Within this hemisphere, we can find the Regional Council of Lorraine, the Planungs29
24
Source: Lace Magazine, 07.1999: 22-23.
gemeinschaft Rheinpfalz, and the Planungsgemeinschaft Westpfalz. There is also the PAMINA region, which is situated in the river Rhine valley. PAMINA’s biggest city is Karlsruhe. The European Union has acted as a catalyst. Among the pilot projects has been the creation of a French-German regional secretariat. The PAMINA office has to deal with about 3,000 inquiries per year. They concern all kinds of matters that are caused by the existence of a border or rather because of the different laws, regulations and customs which one can find entering another country. For example, the 16,000 commuters who travel daily from France to their German working places need to know precise information about social regulations like health insurance or the labour law.30 The Rhineland-Palatinate and Saarland regions respectively comprise 1,379,032 and 1,072,013 citizens.31 Between the German and French sides of the border there are significant economic and social ties. In spite of the intensive regional interface, France and Germany differ significantly in political and cultural traditions. Cross-Channel Co-operation The cooperation that takes place between law enforcement authorities in the United Kingdom, France, Belgium and the Netherlands ties in with the Euroregion which was formed by the Départements Nord/Pas-de-Calais, West/East Flanders, Wallonia, and Brussels-Capital (Conseil Regional Nord/Pas-de-Calais, 1991). Kent County Council is also partner of two other regions, namely the Transmanche Region and the Arc Manche grouping which exists between six counties in the south of England and five regions in the North of France which border the coast of the Channel.32
1.5 General Findings and Conclusions Trust: An Essential Prerequisite One of the predominant general findings throughout the reports is that crossborder police and law enforcement cooperation capitalises on trust built in a region over a period of several years. For instance, in the investigation into the deaths of 58 Chinese nationals within a freight container was effected immediately after the terrible discovery. Johnson reports that "Within hours and 30 31 32
See: http://www.infobest.org/. Statistics from Table 1, Nogala 2001. More extensive information about the history of Cross-Channel co-operation can be found in a PhD by Dr. Frank Gallagher.
25
under the direction of the Rotterdam Investigating Magistrate a team of over 40 people had been formed and the same evening searches were being carried out." Trust has been instructive, for instance in piecing together valuable (DNA, dactyloscopic and material) evidence. From some of the reports, it has appeared that linguistic knowledge may be an essential prerequisite for mutual trust between law enforcement agencies. This is not only demonstrated in the Operation Mallard case, but also in the Danish/German case which concerned man-smuggling, in which a German investigator of the Bundesgrenzschutz had active competence of the Danish language. A History of Networking and Personal Contacts Networking and personal contacts are an essential dimension of cross-border law enforcement cooperation, be it mostly relevant during the phase of the investigation in which information is exchanged in a predominantly informal manner. Networking activities are continuous and build on quick visits across the border. During investigations the (informal) information exchange has to be succeeded by a formal procedure, for instance in the framework of an official request for mutual (legal) assistance. In some cases, such as in SønderjyllandSchleswig Holstein and in the Euroregion Maas-Rhine, the judicial authorities were involved in an early stage of the investigation, particularly when they had to give authorisation for the employment of special investigation methods, such as the interception of telephone calls. In Operation Mallard, which investigated the death of 58 Chinese nationals, personal contacts were regarded as valuable in view of the coordination of investigations by liaison officers, good communications, coordinated analysis and comparison of evidence. International Legal Frameworks Not all cases in the European border regions were carried out in the context of an existing legal framework: especially Operation Mallard, which predominantly involved the co-operation between law enforcement authorities in the United Kingdom, the Netherlands, and Belgium, did not take place against the background of an international agreeement. Official procedural rules regarding mutual legal assistance did however apply. The cooperation between the Danish National Task Force and the German Bundesgrenzschutz took place according to the Council of Europe Convention on Mutual Assistance in Judicial Matters from 20th April 1959.
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Subsidiarity: The Distribution of Responsibility between the Central and the Decentral Level The cases which were selected for further analysis were not always merely handled by local or regional law enforcement teams. The availability of expertise at the national level occasionally makes it possible to pull in (members of) a national team of investigators, as happened in the monitoring of the mansmuggling case in Sønderjylland-Schleswig Holstein. This demonstrates that the rationale behind the choice for central or sub-central facilities depends on the availability of facilities, expertise and other resources at the (Euro-)regional level. The interpretation of the principle of subsidiarity is by no means rulebound, but depends to a great extent on circumstances, such as the organisational structure of the police. It was striking that in none of the investigations Europol was asked to take over the investigation (let alone to coordinate it). The main reason which was stated for this was pragmatism. As Kruize and Langhoff write in their report: “When it is possible to do business in a bilateral way, the need for involving Europol is not felt.” It is however misleading to create the impression that centralised channels of international law enforcement co-operation tend to be completely marginalised. Rather, as Johnson suggests in his report on the Cross-Channel co-operation, cross-border co-operation in the region can be perfectly complementary to – for instance – the international work of Interpol. The co-existence of “vertical” and “horizontal” police co-operation seems a key to successful international investigations. Incentives for Investigations in Border Regions Investigations within border regions are prompted by a variety of incentives. In Denmark, an investigation into a man-smuggling case was triggered by an information-exchange between the national units of the German Bundesgrenzschutz, and the Danish National Task Force. In South-Limburg, the Netherlands, a series was investigations was pulled off because of frequent visibility of a certain suspect, and the fact that tactical information led to believe that this suspect was involved in various criminal coalitions which were active on different crime-markets. The Way in which Law Enforcement Co-operation is Embedded in Administrative Structures Even though the majority of the Euroregions provides some level of administrative structuring, law enforcement cooperation across borders fails to fit within these delineations. Instead, what emerges from the case reports is a 27
cooperation driven by ad hoc needs, which is case-oriented and predominantly practical, embedded within and facilitated by networks of privileged contacts. Also, in only two of the European border regions which were investigated (Kent and South-Limburg/Maas-Rhine), law enforcement cooperation is officially acknowledged within the register of cross-border alliances. Legal and Cultural Differences between Criminal Justice Systems The differences between the countries involved concerning legal principles and provisions33, the organisation of law enforcement agencies34, cultural views, and administrative competences can be confusing in daily cross-border cooperation. From the Danish/German case for instance it appeared that the coordinated investigation into man-smuggling became more complex from the Danish perspective, because German legislation demands the identity of persons who are smuggled to be clarified, whereas Danish law does not. This problem was solved by a calculated co-ordination of the arrest of the suspects on both sides. But between Sweden and Denmark, there was a certain level of irritation with the fact that the former does not allow a controlled delivery of human beings, and as such a request to this extent from the Danish side had to be turned down. In his report on Operation Mallard, Johnson notes that there are differences between the UK and the Netherlands regarding the continuity and safety of evidence, as more is required to be demonstrated in the UK. The Value of Euroregional Law Enforcement Co-operation Euroregional law enforcement cooperation takes place at several mutually reinforcing dimensions. One dimension concerns the policy dimension, where chief police officers seem to be the leading actors in building strategic alliances across the border. A completely different dimension is the dimension of crossborder investigations, where the actors are predominantly police detectives in cooperation with agents from the prosecution service.
33
34
28
E.g. the difference between the Dutch principle of opportunity (which allows the Public prosecution authorities to waive prosecution in well-argued cases), and the German principle of “legality” (which implies that police are under the obligation to notify criminal offences and that the prosecution authorities have to prosecute criminal offences compulsorily). See Van Twuyver and Soeters, 1999. E.g. the difference between the role of the mayor of the largest town in a Dutch police region (who leads the regional police force administratively) and the role of mayors in Germany (who carry no police competences); or the difference between the German Schutzpolizei and the Kriminalpolizei, which does not exist in the Netherlands. See Van Twuyver and Soeters, 1999.
1.6 Future Research Questions For the future, it is very hard to predict whether Euroregions will ever assume an official mandate in cross-border law enforcement cooperation, let alone in the fight against high-profile crime such as organised crime and terrorism. Although currently practices of cross-border law enforcement cooperation within Euroregions are rather informal and ad hoc, and thus are substandard in terms of accountability, more institutionalisation and regulation would not necessarily mend this situation. Legal rules, such as provided by the Schengen Implementing Convention, certainly help to clarify the distribution of competences in certain situations, but they may also constitute undesirable obstacles against practices of informal cooperation. Furthermore, institutions are not a guarantee for intensive cooperation (Spoormans et al., 1999: 295).
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2
Case Report “Operation Mallard” from the Cross Channel Euroregion35 By Edward Johnson36
2.1 Description of the selected Criminal Investigation Summary: During the early part of the month of June 2000, sixty Chinese persons were distributed in safe houses in Rotterdam. They were destined to travel to Dover, by ferry from Zeebrugge. 58 of them were to die during the course of that journey. They suffocated in the airtight container in which they were travelling on June 18th 2000. Only two survived the ordeal. This tragic event came about as a result of the activities of criminal organisations such as the Snakeheads, based in China. These organisations are involved in the clandestine movement of persons seeking prosperity in Europe. Travelling without papers, by-passing immigration controls and prepared to put forward false claims for political asylum on the grounds of persecution in their countries of origin such persons purchase assistance from the criminal gangs. In
35
Case Report from the Cross Channel Region: The investigation into the deaths of 58 Chinese Nationals within a freight container during transit from Rotterdam (Neth.) to Dover(UK) via Zeebrugge(Bel.) on June 18th.2000 and the subsequent prosecutions.
36
Fellow of Wolfson College, University of Cambridge
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doing so they expose themselves to considerable risk as was born out on this occasion. The gains sought by the criminal organisations are immense. The price demanded by the traffickers of each person can be between Euro 30,000 and Euro 45,000. Such a price often results in huge, high interest, debts upon the funding family or community. Those debts result in continuing control of the persons smuggled and threats to relatives in the country of origin. The eventual prosecution in the United Kingdom stemming from this event concerned two individuals: Perry W., the lorry driver also played a full part in selecting and purchasing the lorry and trailer used to transport the Chinese. He bought a quantity of tomatoes from a wholesaler to provide cover at the rear of the lorry and helped build within the container the woodwork supporting the load. He drove the vehicle used to transport the Chinese. Ying G., an interpreter was on hand to assist the process of entry should Customs/Immigration discover the illegal immigrants. Her assistance was centred on lodging false asylum claims within the UK. Operation Mallard, Sources: It is the investigations leading up to the prosecution of these two individuals carried out by the Kent County Constabulary under the title “Operation Mallard” in collaboration with counterparts in the Netherlands and with the Belgian National Police which forms the basis of this report. Reference is also made to the prosecution in the Netherlands of possible accomplices of the two aforementioned individuals details of which have been abstracted from the Prosecutor’s closing speech (April 2001). The support of Detective Superintendent Dennis McGookin (Operation Mallard Identification Commissioner) and the assistance given by Detective Supt. Robert Nelson, (Kent County Constabulary, Senior Investigating Officer, Operation Mallard) is greatly appreciated. Interviews with Mr Nelson carried out in the latter half of 2001 and source material provided was of inestimable value in piecing together the detail for this report.
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2.2 Description of the Euroregion Although it is evident that a series of criminal acts leading to this tragic event were performed over a period of time and in a number of countries, the actual and ghastly consequences were discovered at Dover in the County of Kent. The Euroregion is therefore characterised here from the perspective of the County of Kent and its Constabulary. Kent County Council is a partner in three geographically and economically defined regions. Firstly, Kent forms part of the Transmanche Region together with the Départements of the Nord/Pas-de-Calais. Secondly, Kent forms part of the EuroRegion together with the Nord/Pas-de-Calais, West/East Flanders, Wallonia, and Brussels-Capital (Conseil Regional Nord/Pas-de-Calais, 1991). In the third instance Kent County Council is part of the Arc Manche grouping of six Counties in the south of England and five Regions in the north of France which border the coast of the Channel Police cooperation in the Region, police organisation in the United Kingdom and the concept of the “office of constable” No document dealing with European police cooperation would be complete without reference to the special character of police organisation in the United Kingdom a short summary is therefore provided here. The British Police system is based on autonomous, territorially-based forces, each of which has responsibility for the full range of policing activities within its clearly defined geographical area. There are 43 local forces (constabularies) in England and Wales (Northern Ireland and Scotland have separate systems). The local forces, whilst retaining their independence, are supported by a number of central services under the Home Office, which assist in coordinating policy and maintaining common standards in such areas as: • training; • national computer indices and criminal records; • inter-force criminal investigations; • equipment; • national research projects. From a national perspective, this organization can appear fragmented, and is criticized by some observers as being incapable of providing a common national response to policing issues, and as leading to duplication and inefficiency in 33
areas such as research and the procurement of equipment. On a practical operational level, however, the organizational structure of the British Police causes few problems, as the areas of responsibility are clearly defined and understood by police and public alike. In addition, there is a long tradition of inter-force co-operation, which in the main avoids disputes and rivalries, and requests for assistance and information from other constabularies are treated in the same way as those from within the local force. The Home Office exercises considerable influence on the long-term national policy and strategies for the police through the provision of the central services and 51% of the police budget, but the British system is characterized by decentralization and independence of political control. This independence stems from the relationship between the local chief constable and his police authority. The police authority, comprising local politicians and magistrates, appoints the chief constable, a career officer, who is then entirely responsible for operational policing within his area. The chief constable is obliged to report to the authority on policy and policing activities, but the authority has no power to direct him to pursue any particular policy or line of action. The authority is, however, responsible for providing resources essential to maintain an “adequate and efficient Police Force”. All police officers hold their legal powers by virtue of their appointment to the office of constable: the various ranks are merely administrative distinctions within the service. This appointment gives each officer full legal privileges, responsibilities and powers of arrest. The Royal Commission on the Police, 1962, affirmed the “peculiarly personal nature of the constable’s responsibility” by citing an earlier ruling of the judicial committee of the Privy Council. The constable’s position was described as that of an officer: whose authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract.
The Commission stressed the need for the constable to be: manifestly impartial and uninfluenced by external pressures. For much of the time he is not acting under orders and must rely on his own discretion and knowledge of the law.
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The Commission acknowledged the constable’s position as a member of a disciplined body and therefore subject to the requirement to obey lawful orders, but concluded that: the constable is unique amongst subordinates in the nature and degree of the responsibilities he is required to exercise.
2.3 Police cooperation in the Region, Cross Channel Intelligence Conference Kent Constabulary has had, of necessity, an interesting recent history of cross border police cooperation with its Dutch, Belgian and French immediate neighbours. A prominent part of this history is an established cross border forum for and medium of cooperation known as the Cross Channel Intelligence Conference (CCIC) of which the Kent Constabulary was a progenitor. Gallagher (1998) covers the 30-year growth and effect of this initiative, in his PhD thesis37. The significance of CCIC here is that it exemplifies the degree to which cross border cooperation has evolved in this region over the past four decades. The investigation known as “Operation Mallard” was able to capitalise upon trusted cross border police and judicial contacts and procedures which had been built up in the region over these years. In consequence, practical and direct cross border police cooperation was effected immediately the contents of the lorry carrying the Chinese were revealed at Dover on June 18th 2000. One of Gallagher’s comments about the very first Cross Channel Intelligence Conference held in 1968 (Gallagher 1998 p.138) provides a telling benchmark against which to measure progress since that time. “……… it was clear that both the Belgians and the French Police were finding it very difficult to work constantly on an informal basis when Interpol had dominated their trans-frontier co-operation for such a long period of their history. The May ‘68 Conference launched itself into the unknown with the aim of finding alternatives to the formalised international Interpol system so that practical regional liaison could be
37
Gallagher Derek F. European police co-operation:its development and impact between 19671997 in an Anglo/French trans-frontier setting. Thesis submitted for the Degree of Doctor of Philosophy University of Southampton Faculty of Social Sciences Department of Politics June 1998
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developed as soon as possible and a realistic framework for future conferences be determined.”
The comment suggests that very little close quarters operational liaison in this region was taking place in 1968. International police cooperation of any sort was seen as the diplomatic province of centralised bodies within sovereign nations. Interpol was seen as the primary, if not sole, mediator of international police communication. Gallagher’s description of the evolution of CCIC is an salutary record of the struggle and achievement of enlightened, practical individuals determined to move with the times and prompt change to meet changing circumstances. Indeed in many respects CCIC has proposed changes far ahead of its time. Cross border surveillance for example, now firmly enshrined in the Schengen Accord, was first mooted at a CCIC meeting at Rouen in 1972. Dutch delegates (from Rotterdam City Police) joined the Conference in 1970 and it is evident that a strong rationale existed from an early stage. Gallagher’s inclusion of comments made a few years later is significant: “Mr Blaauw, Commissioner of Rotterdam City Police, was increasingly frustrated by the bureaucratic procedures required by Interpol and those forces especially influenced by the power of individual B.C.N's (Interview with Mr Jon Blaauw, 1997). Rather than a radiogram for urgent cases or a letter for the not so urgent cases, Blaauw still felt that 'We have to find ways whereby operational police officers get together and exchange intelligence, as recent experience in several murder cases has proved again and again...Letters couldn't be helpful to anyone who wants to get an overall picture of crime committed' (C.C.I. Conference, Bruges, 11/12 May, 1976, item 10). Blaauw persisted ……..”
A continuing passion of the CCIC has been to draw attention to the need for immediate and intimate cross border police cooperation in the Region as a complement to the international work of Interpol and to promote practical measures to bring this about. Over the past 30 years CCIC has largely achieved this. Cooperation between the police forces which constitute the membership is strong. Despite early concerns, Interpol has been both realistic and constructive. Interpol delegates have participated since the early days and by so doing have continued to contribute to the development of what is now a sophisticated yet effective reciprocal arrangement. Gallagher cites comments made by the
36
Deputy of the Secretary General of Interpol in 1978 (C.C.I. Conference Minutes, 23-24 May, 1978, Le Touquet, p.10/11): “ The last word, at this stage, was left to the Deputy of the Secretary General of Interpol (still located in St. Cloud, Paris at that time) who was, exceptionally, in attendance himself that year when he declared: 'The Interpol Secretary General considered that the basic aims of the Conference had been clearly defined. Interpol fully accepted the principle of border contacts which should, however fit in harmoniously with the general framework of co-operation organised by Interpol.”
The Full Conference still meets annually every May. The venue alternates between one of the Forces in the South-East of England and Continental Forces of either France, Belgium or The Netherlands. The Chairmanship of the Conference rotates from country to country and it is the Chair country which hosts regular meetings (at least 4 per year) of a CCIC working group. Delegates from other European regions are frequently in attendance at both the full Conference and meetings of the working group. According to Gallagher CCIC remains unique amongst any other European convocation concerned with trans-frontier police co-operation. The following organisations were represented at the Cross Channel Intelligence Conference in May 200138: • Bureau Nationaal Rapporteur Mensenhandel Netherlands (guest) • Dutch National Police Agency • Essex Police • Federal Police Brussels • Gerechtelijke Politie Gent • Hampshire Constabulary • Home Office Policing Organised Crime Unit • Kent County Constabulary • KLPD/International Relations Service • National Crime Squad • National Criminal Intelligence Service • Police Aux Frontières • Politie Rotterdam Rijnmond • Politie Zeeland • Préfecture de Lille • Suffolk Constabulary 38
Extracted from the minutes of the Conference
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• •
Sussex Police UK Immigration Service
Police cooperation in the Region, the Channel Tunnel and the Kent European Liaison Unit Another unique feature of this region is the phenomenon of the Channel Tunnel which in the space of five years converted a maritime frontier into what is now, effectively, a land frontier. This project stimulated an unprecedented degree of cross border cooperation between police and emergency services extending to the juxtaposition of French and United Kingdom border controls at the Tunnel itself. According to Gallagher it also helped to stabilise a formal office specialised in cross border police liaison, namely the Kent European Liaison Unit (ELU). Much of this cooperation was built upon the working contacts already in place as a result of CCIC and other initiatives. The turning point was a treaty known as the Sangatte Protocol (1991) drawn up to provide for permanent liaison measures between the competent authorities of the United Kingdom and France. Gallagher (1998) gives a good account of the Channel Tunnel development and a detailed treatment of the communications, administrative and language issues can be found in the report of the PoliceSpeak project (Johnson et.al. 1993a)39. Police cooperation in the Region, the cross border multilingual communications system LinguaNet A subsequent research project the Intacom project40 which addressed the problems of multi-agency communications at the Channel Tunnel (Johnson et.al. 1995a) is also relevant since it gave rise to yet another feature of police cooperation in this region; the development and installation of the world’s first direct cross border multilingual police communication system: Linguanet41. 39
Johnson, E., Garner, M., Hick S., Matthews D., (1993a) PoliceSpeak - Police Communications and Language and the Channel Tunnel - Research Report .Cambridge, PoliceSpeak Publications.
40
Johnson, E., Garner, M., Hick S., Matthews D., (1993c) PoliceSpeak - Police Communications and Language - Speech and Text Recommendations, Cambridge, PoliceSpeak Publications. See also (1993) PoliceSpeak: Evaluation Report and (1994) Binat Messaging-Telematics for Combined Major Incident Operations. (unpublished reports for Chief Constable of Kent) Johnson, E., Garner, M., Hick S., Matthews D. (1995a) INTACOM - Inter-Agency Communications - Report and Recommendations (Volume 1) Cambridge, PoliceSpeak Publications.
41
Prolingua Ltd. (1999) LinguaNet: Police and Emergency Services Communication software. Cambridge, Prolingua Ltd http://www.Prolingua.co.uk
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Born in this region as a prototype in 1991 the system was later adapted for Channel Tunnel use and then with the support of the European Commission under a six nation DGX111 project entitled “Test-bed LinguaNet” expanded to police units throughout the Region. Running now in eight languages LinguaNet is currently at frontier police units in nine European countries. The history of the CCIC sketched here and the other illustrations given should demonstrate that the investigation known as Operation Mallard was launched in a region already well practised in cross border police cooperation. Indeed, the Memorandum of Understanding (M.O.U.) signed in Rotterdam on July 2nd 1999 between the Central Operations of the Kent County Constabulary and the Regional Criminal Investigation Unit of the Rotterdam –Rijnmond Police is both indicative of the spirit of cooperation and geographically significant to the case in question here. The strategic police commanders on both sides were well aware of the existence of this document and as a consequence strategic support was assumed.
2.4 Operation Mallard: Background In his closing speech at the trial of the conspirators arrested in the Netherlands, the Dutch prosecutor described the criminal case as unprecedented; internationally abhorred. He described the actions of the human smugglers as degrading. He illustrated for the benefit of the court the huge sums of money involved in the operation and the profits gained by the perpetrators. He made the point that such (clandestine) operations can only be accomplished in the context of organised crime operating on a world scale. The point is well made since it is unlikely that suspects like Hadjin D. and Gursel O., standing trial on that day were major players in the overall conspiracy. Nevertheless, the level of detail pursued by the police in this case and the level of cooperation between the agencies of two nations required to bring the evidence together is indicative of the complementarity of regional investigations and those carried out at a global level. The prosecutor took pains to draw attention to the closeness of cooperation between the Dutch and British Police and Judicial authorities exercised in this instance by means of mutual
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Requests for Judicial Assistance42. Within 24 hours of the discovery of the bodies a meeting was in progress between the Kent County Constabulary, the Crown Prosecution Service, the Dutch Prosecutor and the Dutch National Police Force, North East Netherlands. The results of police and judicial investigations were exchanged between the two countries and requests for specific investigative activities carried out by both sides. Liaison officers from both sides closely followed investigations in both countries. 3 officers of the Dutch police were in attendance in the UK for several weeks and teams of UK officers made regular visits to the Netherlands bearing UK statement forms on laptop computers. This is a good example to support commanders’ reports of a reinforcement of bilateral relationships as a direct consequence of the investigation. The criminal investigation in the Netherlands was begun immediately following the discovery of the “fatal transport” in the UK. Within hours and under the direction of the Rotterdam Investigating Magistrate a team of over 40 people had been formed and the same evening searches were being carried out. In Kent, a major incident room was established by the Major Crime Department on the morning of June 19th. The investigation involved more than 50 Detective Constables. On day one the strategic commanders of both countries were in direct contact. The existence of an already running investigation in the Netherlands into the activities of one of the suspects (Gursel O.) was fortuitous. The Dutch prosecutor provided a summary in court of the events leading up to the tragedy on the 18th of June which referred to previous transports of illegal immigrants carried out by Leo N. The second of these resulted in the impounding of a vehicle and a heavy fine. This event appeared to have deprived the smugglers of their means of transport and, it was alleged, precipitated the next chain of events leading to the deaths of 58 people in a vehicle bought specially for the purpose of transporting humans illegally.
42
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The Belgian National Police provided Mutual Legal Assistance and were active from the very first day. CCTV tapes were secured in an acceptable manner from the route taken by the transport; an aerial film of the route, taken from helicopter, was provided; facilitating judicial authorities conducted interviews with Zebrugge port and ferry personnel.
Operation Mallard. Cooperation between Kent Constabulary and the police and judicial authorities in the Netherlands leading to the conviction of Perry W. and Ying G.43. Cooperation between the Kent Constabulary and the authorities in the Netherlands is here identified by means of the evidence presented in court at the prosecution of Perry W. and Ying G. The UK trial started on 26th. February 2001 and included oral evidence from Dutch civilian and police witnesses. On 5th April 2001 W. and G. were convicted and sentenced. Perry W. was sentenced to consecutive terms of 8 years imprisonment for conspiracy to facilitate entry of illegal immigrants and 6 years imprisonment for manslaughter of each of the 58 deceased (concurrent): a total of 14 years. Ying G. was sentenced to 6 years. Since that time Perry W. has been given leave to appeal against his conviction for manslaughter. For the prosecution to succeed it was necessary to establish several things, amongst which: • Perry W.’s full involvement in a conspiracy with other persons in the Netherlands to transport the Chinese; • prior knowledge of the presence of the Chinese in the lorry he was driving; • awareness of the risks to life posed by the closing of the air vent to the container; • G.’s involvement in the same conspiracy though prior knowledge of the pending arrival of the transport; • direct links between Ying G. and the Chinese victims. In the event, evidence gathered in the UK and in the Netherlands was presented in court sufficient to secure prosecutions. The same is true of prosecutions conducted in the Netherlands of the other conspirators backed by evidence gathered both in the United Kingdom and the Netherlands. Evidence presented is of course a consequence of investigations and tends to be a relatively small subset of it. In this case for example the police enquiry in the United Kingdom generated 1,821 actions (or tasks) of which 389 were for enquiries overseas; 797 statements were taken; 3,616 exhibits were assembled of which 1,085 were 43
A presumption in English Criminal Law is that to be prosecuted in England the crime must have been committed in the United Kingdom. There are exceptions to this such as crimes committed on surrounding seas; waterways and on British registered ships. Evidence was required, at the outset and from both sides of the North Sea to establish where the persons actually died. Evidence was also required to guide prosecution decisions e.g. the precise charges to be brought; the optimum location for prosecution (UK or the Netherlands); admissibility of evidence obtained abroad; anticipating differences in disclosure rules and confidentiality between the two jurisdictions.
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documents and 121 were interviews. Investigations in the UK involved HM Customs, HM Immigration, National Crime Squad, National Criminal Intelligence Service, Forensic Science Service, Department of Health, Transport Research Laboratory and other organisations. To illustrate the cooperation and the dependence of the prosecutions’ cases in both countries upon having access to evidence gathered in both countries we will set out some of the (ultimately presented) evidence here: 1.
The two survivors Su Di K. and Shi Guang K.: Investigations by the Kent police involved interviews with these survivors. Their statements helped establish or confirm parts of the sequence of preparatory activities conducted in Rotterdam and at the depot at the Waalhaven Docks where the Chinese were loaded.44
2.
The identification of persons in the Netherlands who played a part in the preparation of the transport: Investigations by the Dutch police provided the evidence to support links to conspirators in Rotterdam (Hadjin D., Gursel O. and Leo N.) such that these persons could be named and their activities presented early in the Perry W./Ying G. court hearings in the United Kingdom. These links and the evidence to support W.’s close involvement with the other conspirators during the preparations were used to demonstrate that Perry W. was fully involved. Not a last minute naïve recruit. Evidence gathered by Dutch authorities was used to demonstrate Perry W.’s role (with Leo N.) in selecting and purchasing the lorry used and in purchasing the “cover” cargo of tomatoes.
3.
Identification of W. at an ID parade in the United Kingdom (28th Sept 2000). Here W. was identified as the person who took delivery of the tomatoes in Barendrecht on June 16th. The UK and Dutch evidence is brought together when photographs (of Perry W.) taken at Dover were compared in court with CCTV footage taken at the tomato wholesalers. Further evidence from Dutch police sources (mobile telephone analysis) was presented in court to demonstrate that W. has used a particular
44
An Identification Commission was set up to report to Her Majesty’s Coroner to determine the identity of the 58 deceased. 27 police officers, headed by Detective Superintendent McGookin, were involved in this task. Government to Government enquiries with China ensued and a team travelled to China to obtain samples from relatives. All were eventually identified.
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telephone repeatedly in Barendrecht on the afternoon of June 16th. And later used the telephone at Waalhaven. Dutch CCTV stills were used to support this point. 4.
Combined Dutch and Kent evidence used to prove that Perry W. helped build a wooden framework, used to support the tomatoes, inside the container. Dutch police identified Perry W.’s car and provided a preparatory sketch for a wooden framework found in W.’s car. Also provided was an exhibit found by Dutch police at Perry W.’s home containing practice signatures. This was compared with and linked to a transport document relating to the load.
5.
Dutch and UK DNA evidence used to identify Waalhaven as the preparation point in Rotterdam. Intensive searches of the warehouse at Waalhaven by Dutch police produced a number of evidential items which helped build the picture of the events leading up to the departure of the transport. Shoemarks were photographed and analysed and matched to shoes in the UK worn by deceased persons in the container. Tomato stalks were recovered by the Dutch police, DNA profiles were developed in the Netherlands from these stalks and compared with profiles from suspects in the Netherlands and in the United Kingdom. Profiles from the 58 deceased were also developed. A positive match was achieved with two of the deceased Chinese. It is important to note that DNA scientists of both countries were in contact with each other. Profiles, not exhibits, were exchanged.
6.
Dutch and UK DNA evidence used to demonstrate the presence of Perry W. at Waalhaven. Cigarette butts found at Waalhaven were subjected to DNA profiling and matched to Perry W.’s DNA profile developed from a sample taken at the time of his arrest in the United Kingdom.
7.
Physical evidence from the Netherlands and the United Kingdom brought together to demonstrate Perry W.’s involvement in the building of the wooden framework used to bear the load of tomatoes used to hide the Chinese. It also linked other Dutch conspirators to the lorry in the United Kingdom. Dutch police found various off cuts of wood at Waalhaven. Several bore Perry W.’s fingerprints. The fingerprints of Leo N., Hadjin D. and Gursel O. were also found on this 43
material. The material was compared with timber found in the container. It was discovered that one of the Waalhaven pieces and one from the container had once formed a single piece. Perry W.’s fingerprints were on both of these and on several other pieces in the container. Examination of the tomato boxes in the container by the Kent police revealed the fingerprints of both Hadjin D. and Leo N.. 8.
Evidence from the Netherlands and the United Kingdom used to reconstruct the movements of the transport from Waalhaven to Zeebrugge. The lorry used by Perry W. was fitted with a Tachograph. This records speeds, stationary periods and journey times. Using this record in combination with witness statements from the two survivors and local enquiries made by Dutch and Belgian police along the route and at the docks in Zeebrugge it was possible to reconstruct the journey taken.
9.
Investigations by the Kent police into the role of the facilitator Ying G.. These investigations had a bearing on the prosecutions in the Netherlands which arose from this event. They linked Ying G. to Perry W. and the Dutch conspirators who provided the Chinese with Ying G.’s telephone number prior to their departure. The telephone number was discovered on notes and on the clothes of the victims.
10. UK post mortem reports. These revealed that the victims died of irreversible cerebral anoxia. Evidence for both the UK and Dutch prosecutions. 11. UK and Dutch investigations into a prior event (cargo of Chinese found on a lorry driven by Leo N. on 5th. April) This prior event which did not lead to a prosecution was aborted by the driver Leo N. because the Chinese appeared to be suffering from lack of air. The event was presented in court to demonstrate Perry W.’s prior knowledge via his friend Leo N. of the risks of closing the air vent. Fingerprint evidence was presented by the prosecution which linked Perry W. to this earlier transport. 12. UK interviews with Perry W. provided links with Van Der S. which aided the subsequent Dutch prosecutions.
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Operation Mallard: Cooperation between Kent Constabulary and the police and judicial authorities in the Netherlands in the prosecution of other members of the conspiracy. The simultaneous investigation in the Netherlands led to the prosecution of nine defendants for their part in the conspiracy. The trial began on the 19th April 2001 and was concluded on April 27th. Seven of the defendants were convicted. Prison sentences ranging from 9 years in the case of Gursel O. and Hadjin D. to 30 months in the case of other suspects were imposed. The prosecutor’s statement indicates a highly complex and technical investigation in the Netherlands. He described it as a classic criminal investigation, a reactive investigation. The investigation concerns the movements and activities of a number of people over a period of some ten months (December 1999 to September 2000). The Dutch evidence covers a comprehensive catalogue of crime involving several illegal transports of human beings to England by the same gang in the period prior to June 18th 2000. We may conclude, aside from the actual evidence from Dutch sources presented at court by the prosecution in the United Kingdom, that the Dutch investigations were of great value to the Kent police in piecing together the overall picture. That value persists. The investigation influenced national priorities. The prosecutor’s summary of the evidence refers to material (witness statements, forensic evidence and relevant suspect’s statements) presented in six, interrelated, dossiers each matching a particular incident involving three or more of the persons charged. The dossiers are as follows: Dossier A concerning the smuggling of 20 persons from the Netherlands to Belgium and England carried out on the 6th and 7th December 1999. (charged: Leo N.,Hadjin D.,and Gursel O.) Dossier B concerning the smuggling of 50 persons from the Netherlands to Belgium carried out on the 4th and 5th April 2000. (charged: Leo N.,Hadjin D.,and Gursel O.) Dossier C concerning the smuggling of 60 Chinese persons in the weekend of 18th June 2000. (Charged: Leo N.,Hadjin D., Gursel O., and five other suspects).
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Dossier D concerning the document fraud with respect to the registering of a tractor unit and trailer in the name of Van der S. committed on 15th June 2000 in Rotterdam. (charged: Van der S., and two other suspects.) Dossier E concerning the participation in a criminal organisation. A criminal organisation with the criminal intent to commit human smuggling and forgery of documents in the period 1st September 1999 up to and including 20th June 2000. (charged: Leo N.,Hadjin D., Gursel O., and five other suspects) Dossier F concerning the manslaughter of 58 people (Charged: Leo N.,Hadjin D., Gursel O., and five other suspects) The type of evidence presented It is not necessary here to relate the evidential content of these dossiers in detail. It is sufficient to list the types of evidence revealed by the investigation from these sources. The list is as follows: • Suspect statements • Witness statements including the two survivors’ statements • Psychiatric report • Forensic and technical evidence including: fingerprints45 and other traces such as shoemarks; DNA profiles; mobile and land line telephone (itemised billing) records including, in the case of mobiles, location information derived from base station identification; photographs; physical evidential items (e.g. wood off cuts from the Waalhaven warehouse and from Dover); records of a vehicle tracking beacon attached to a car used by Gursel O.; CCTV records; heavy goods vehicle tachograph records; expert witness statements; 45
46
Fingerprint investigations were extensive. The UK figures reveal 700,000 fingerprint comparisons were made (KCC estimate) These include comparisons on the 58 deceased, 2 British suspects, elimination prints and the comparisons with the prints from the Dutch investigation. The volume of work exceeded the capacity of the Constabulary and the facilities of a neighbouring force (Essex) were utilised for examinations of the 550 tomato boxes.
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documents and absence of documents; police observations from surveillance operations; computer records (from the UK); purchase receipts and shop records; reports from UK customs, immigration and police authorities; ferry company records of sailings; bank records and insurance company records; results of examination of the vehicle and container in the UK.
Aside from evidence gathered in the UK in respect of the earlier transports which did not lead to charges being brought, the UK, contributions to the Dutch investigations concerning the June 18th transport derived from Dutch court records largely comprise the following: comments made by W. himself; evidence gained from the lorry, container and (inanimate) contents used in the transport; witness statements from the two survivors; evidence gleaned from the bodies of the victims and their clothing; post mortem reports and evidence arising from the investigation in the UK of the facilitator Ying G.. It is important to stress the coordination and cooperation required in evidence gathering in this two-country investigation46. There are differences between the United Kingdom and the Netherlands regarding continuity and safety of evidence. More is required to be demonstrated in the United Kingdom in respect of these matters whereas in the Netherlands all things are evidence from the moment of seizure. A protocol for cross border intelligence exchange may be useful in this regard but when this was put to them, investigators expressed concern about any measures which might undermine the validity of evidence collected. Consider the examination of the wood recovered from the warehouse at Waalhaven and from the rear of the vehicle used for the transport. The wood and the bar codes were researched first, footprints were checked in the UK and in the Netherlands before the material could be submitted for wood grain analysis. Only when this result had been obtained could the wood be treated for fingerprints. This proved to be a awkward and time consuming process and had to be completed in conjunction with the Dutch authorities who were using the same wood for their own prosecution. A UK police officer was present at the Waalhaven warehouse to ensure the securing of evidence in accordance with UK requirements. 46
In reply to a direct question concerning the possibility of an institutionalised form of judicial cooperation (in the form of Eurojust). Commanders expressed the view that a measure to identify a matrix of requirements would be of great value.
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The result of the investigations carried out by the police and judicial authorities on both sides of the North Sea; the coordination of those investigations by means of liaison officers; the good communications and coordinated analysis and comparison was that an extremely detailed and convincing picture of the activities of the accused was built up. Personal contacts were regarded by the investigating teams on both sides as essential to achieving this. To set out the entire picture is unnecessary. Instead the level of detail provided for the courts through the efforts of neighbouring forces is illustrated here by providing two short extracts from the United Kingdom (1) and Dutch court proceedings (2): (1)
“On 16th June 2000 a person who was working as a warehouseman for a company of wholesale fruit and vegetable merchants in Barendrecht was informed that 700 boxes of tomatoes were arriving that day from a supplier called Norfresh. They were to be collected by a haulier called Van Der S. There was a delay in the delivery. During the day two men, prosecution say, Perry W. and his friend and accomplice Leo N., arrived on behalf of Van Der S. to collect the tomatoes at about 1pm. In fact, because of the delay, they were not able to collect the tomatoes until after 6pm. Significantly, both men were seen to be waiting for part of the time in a Green Audi convertible. [Perry W. owned such a car.] After the pallets of tomatoes had been delivered the warehouseman noticed they were loaded into the rear of a container lorry which was then driven off by the elder of the two men. He noticed that the lorry comprised a tractor unit complete with a chassis on which a very old refrigerated container had been placed. Significance of these matters (a) At an identification parade held at Rainham on 28th September 2000 the wharehouseman identified Perry W. as one of the men who had collected the tomatoes in Barendrecht on 16th June.”
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(2)
The confessing statements of the suspects Van K., N., Van der S., O. and M. have been decisive for the evidence in this dossier. Apart from that four of the suspects and even Gursel O. have confirmed the stories of their co-offenders on some elements, although they deny having been involved in human smuggling. Naturally the statements of the survivors of the smuggle trip and other witnesses are of substantial importance as well. The statements of the confessing suspects regularly complement each other on essential subjects and confirm each other on details. Observations were carried out that confirm contacts on crucial moments between the several suspects, as mentioned in their statements I refer here to especially the observations on 11 May and 15 June. Finally, there is important forensic evidence in the DNA traces, fingerprints, forensic evidence from the beacon under Gursel O.’s car and the telecom investigation. This evidence, too, supports the facts mentioned in the statements made. Thus, DNA traces were found on material taken from the shed of five suspects, including Perry W. and Leo N., and two of the Chinese victims. On pieces of timber found in the shed fingerprints were found of: Hadjin D., Perry W. and Gursel O.. And in the British forensic investigation fingerprints were found of: Hadjin D. (on a tomato box, the lorry and the container), Leo N. (on a tomato box and the container). And also from another suspect some fingerprints were found in England. An analysis was made of the telecommunication and the beacon under Gursel O.’s car. This analysis shows on which places and at what times the phones used by the different suspects were used from Friday 16 up to and including Sunday 18 June. From this analysis, combined with the statements made, the following conclusion can be drawn: On 16 June: Gursel O. was at the shed at the Waalhaven from 10.00 -12.00 hrs and Hadjin D. from 10.00 – 13.40 hrs Leo N. and Perry W. spent quite some time together at the auction in Barendrecht and Gursel O. was with them from 16.17 to at least 16.34 hrs. Perry W. was in the shed early in the evening.
2.5 Conclusion The efficiency of the investigations by the United Kingdom, Dutch and Belgian authorities sparked off by the tragic discovery made on June 18th 2000 illustrates the importance of direct police cooperation in reactive investigations in dynamic frontier zones which function to all intents and purposes as regions in their own right, irrespective of national boundaries. The same is true of 49
frontier regions through which run one or more of Europe’s arterial transport systems. At the same time crimes such as these which operate on a global scale require the global perspective available to national centre organisations and supranational bodies. Effective policing in the European Union will require a sophisticated model to benefit from the necessary coexistence of both forms of cooperation. It appears from the successful outcome of this investigation that politicaladministrative embedding of cross-border law enforcement cooperation is not a precondition for successful investigations. The currently available regulatory frameworks worked well in this instance. It must be the case nevertheless that measures which serve to strengthen the existing regulatory frameworks without blunting the instruments used or undermining the directness of cross border cooperation, would be welcomed. The UK commander implied this from a reverse perspective. “ Without political will an investigation could be impeded…… The watchword for now is harmony.”
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Case report on the Euroregion Meuse–Rhein By Toine C. Spapens47
3.1 Introduction This case study report concerns the cooperation between police and judicial authorities in the Euroregion Meuse-Rhein. In this report, two criminal investigation cases are described. Both cases are exemplary for cross-border cooperation between the police and judicial authorities in the Euroregion Meuse-Rhein in recent years. The first investigation case (codename Hammer) was focused on a criminal group based in Belgium. This group had been responsible for robbing banks in the Netherlands, Germany, and Belgium. The second investigation case (codename Alphabet) concerned a criminal group which operated from the Netherlands. The criminal activities of this group mainly related to the manufacturing of synthetic drugs and trafficking those to several European countries. Description of the Euroregion The Euroregion Meuse-Rhein comprises the Netherlands, Belgium, and Germany. About two million people inhabit the region, which is made up of five sub-regions: Hasselt (Belgium), Maastricht (Netherlands), Aachen (Germany), Liège (Belgium), and Eupen-Malmédy (Belgium). Three different languages are spoken and the region contains densely populated areas (e.g. the
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Senior-Researcher at IVA Tilburg, Institute for Policy Research, attached to Tilburg University.
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city triangle of Maastricht-Aachen-Kerkrade/Herzogenrath) as well as extensive rural areas (e.g., the Hoge Venen/Hohes Venn/Vor-Eifel national park). Border regions have often been the subject of rivalry between nation-states. The Euroregion Meuse-Rhein has had a particularly turbulent history, as the borders between the sub-regions have shifted regularly over the years. For example, the Eupen-Malmédy area belonged to Germany until the end of the first World War. The region became part of Belgium following the treaty of Versailles in 1918. During the German occupation of Belgium in the second World War, the region was once again annexed to Germany. This meant that male inhabitants of the region were obliged to serve in the German army. After 1945, the Eupen-Malmédy area was once again part of Belgium. Between 1816 and 1919, even a fourth sovereign state existed in the region: Neutral Moresnet. This very small 'independent' area was situated just south of the place where the countries of the Netherlands, Belgium, and Germany meet. Border regions can traditionally also be regarded as peripheral areas. The wars that succeeded each other in Europe in the past centuries had the result that people preferred to live in the safer parts of the countries, which often meant further away from the disputed border regions. The result of this has been that economical, cultural, and infrastructural development in Europe shifted towards the more central areas of countries, which were less threatened by hostile actions from abroad. 'In many cases the border regions became structurally weak economically and difficult to access due to the lack of infrastructure'.48 This perspective gradually changed after 1992. Especially for the Euroregion Meuse-Rhein intensified cross-border co-operation and the bundling of economic power has lead to this particular regio acquiring a more central position. The cultural similarities in these parts of Belgium, the Netherlands and Germany, especially in the areas where the Dutch and German languages are spoken, have enhanced this development. Furthermore, several vital transportation routes in an East-West direction run through the Euroregion Meuse-Rhein. Hence, since the second World War, the Euroregion has been of major importance for international road transport.
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Information included on the internet site Euroregion Meuse-Rhein.
Organisation of the police and legal institutions Netherlands The Dutch police service is organised into 25 fairly independent regional forces. The judicial system is organised into ten districts (Arrondissementen). Organised crime is investigated at national, supra-regional, and regional level. Three investigation teams are responsible for the tactical investigation of organised crime at national level. The first is the National Criminal Investigation Team (Landelijk Rechercheteam, LRT). This team is specialized in investigating financial crimes and is also reponsible for the handling of specific (i.e., highly complex) requests for mutual legal assistance filed to the Netherlands by a foreign country. The second is the Unit Synthetic Drugs (USD), which focuses on the production and illicit trafficking of synthetic drugs, in which Dutch criminal groups play an important role on a global scale. The third team that operates nationally is the Illegal Trafficking of Human Beings Unit (Unit Mensensmokkel). This team is responsible for the tackling of criminal groups involved in the smuggling of human beings. Secondly, six Kernteams (core teams) were formed at supra-regional level in the mid-nineties. These teams are responsible for the investigation of highly complex criminal groups, or organisations which have a strong detrimental effect on the legal order of the country . The seriousness of criminal activities is measured by the possible destabilising effects on Dutch society as a whole. The Kernteams are comprised of policemen from different regional police forces. Each team focuses on specific subjects, for example, South America (mainly concerning cocaine), Dutch networks (mainly concerning the largescale trafficking of soft-drugs), Eastern Europe and Turkey (concerning Russian organised crime and trafficking of heroin). The Kernteams can be viewed as a compromise between the establishment of a national department for the investigation of organized crime and a strictly regional approach.49
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The Dutch government has recently (June 2002) decided to integrate the Kernteams into one new department for the investigation of organized crime.
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Thirdly, most regional police forces use an independent unit for the investigation of organized crime. These units are responsible for the investigation of organized crime groups which are active primarily in the police region involved as well as for the investigation of criminal organizations whose activities are less complex or serious than those investigated by the Kernteams. In practice, differences between the criminal groups which are investigated by the regional criminal investigation units and the Kernteams are sometimes small. Both cases which are described in this report were investigated by the Unit Organized Crime (GC) of the Regionale Recherche (RR), of the police region of Limburg-South. This unit is divided up into two investigation teams. Both are multi-discipinary teams, which employ detectives as well as supporting personnel. Besides this, specialized units such as observation teams, technical units and intelligence units, are brought into action whenever this is deemed necessary. The Unit Organized Crime of the police region LimburgSouth performs about eight criminal investigations each year. The responsibility of the Unit Organized Crime is to perfom tactical investigations. The gathering of intelligence with regard to organized crime is the responsibility of a specialised unit, the Regional Criminal Intelligence Unit (RCIE). The RCIE will gather intelligence, for instance, by running informers or employing infiltrants. International co-operation in the Euroregion Meuse-Rhein International cooperation in the Euroregion Meuse-Rhein involves the Netherlands, Germany, and Belgium. Furthermore, with regard to cross-border co-operation, the Flemish-speaking part of Belgium is to be distinguished from the French-speaking part. The police and judicial systems of the Netherlands and Germany are similar in many respects. In both countries, the sub-national level (police regions (Netherlands) or Länder (Germany)) is prominent, and the involvement of national authorities in criminal investigation cases is limited. Furthermore, the language differences between Germany and the Netherlands pose no problem, because most Dutch people who live in this region are able to understand, speak, and read the German language. People who live close to the border even share the same dialect. Co-operation between the Netherlands and the Flemishspeaking parts of Belgium is also favoured by the fact that the same language is spoken. Formal as well as informal contacts are upheld by the Belgian and Dutch police. However, relations between the Dutch police and judicial 54
authorities in Belgium aren't always easy, mainly because the Dutch are inclined to pay little attention to protocol. Although, in Belgium, the subnational level is also prominent with regard to the investigation of organised crime, national authorities are responsible for specific tasks such as the deployment of technical equipment or observation units. In this particular Euroregion, the largest 'cultural distance' is in co-operation between the Netherlands and the French-speaking parts of Belgium. The main reason for this is the fact that most Dutch people do not speak French, and most French-speaking Belgians do not speak or understand Dutch, German, or English well enough to allow for easy communication. Secondly, the rather informal attitude of the Dutch police, as well as the judicial authorities, does not combine well with the working methods of the Belgian judicial authorities, particularly in the French-speaking parts of the Euroregion.
3.2 Summary of the Hammer and Alphabet criminal investigation cases Both cases which are described in this report were investigated by the Unit Organized Crime of the police region of Limburg-South. These criminal investigations were codenamed 'Hammer' and 'Alphabet'. The first investigation focused on a criminal group suspected of being responsible for a number of violent bank-robberies in the border region of Belgium, the Netherlands, and Germany. The investigation was started in 1997 and concluded in 1998. During this investigation, the police and judicial authorities of the three countries mentioned worked together.The criminal investigation codenamed 'Alphabet' was started in 1998. The criminal group which was investigated was thought to be responsible for a range of activities with regard to the manufacturing and smuggling of synthetic drugs (see diagram).
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Diagram 1: The Alphabet network
Criminal investigation case Hammer The criminal investigation which was codenamed Hammer started as a response to a series of robberies of banks in the police region of Limburg-South in the Netherlands. This case was named after the working methods of the perpetrators. They entered a bank wearing masks, and broke down the bulletproof glass protecting the employees using sledgehammers. At the start of the criminal investigation, there were no known suspects, which made this investigation atypical for the detectives involved. Usually, the investigation of a criminal group is started once possible suspects have been identified, for instance, because they are incriminated by intelligence or by information that has been gathered during other investigation cases at home or abroad. Thus the Hammer Team had to start by trying to identify possible suspects. Enquiries were made in Belgium and Germany as to whether bank-robberies had occurred in those countries during which comparable methods of operation had been used by the perpetrators, and it appeared that 20 or 23 similar robberies had taken place which could be further investigated. These cases were mapped and compared, and a set of criteria was formulated in order to evaluate if the same criminal group had been at work. Subsequently, all information about these 56
robberies was collected and reviewed and witnesses and victims were, when possible, questioned again. Finally, banks and other money institutions throughout the Netherlands were asked to inform the police about any suspicious situations they might encounter. In order to conceal the fact that a criminal investigation was in progress, this request was forwarded through the Central Investigation Information Service (Centrale Recherche Informatiedienst, CRI) at national level. After several months, the Hammer Team received information from the Belgian authorities via the Sectie Criminele Inlichtingen of Genk (SCI or Section Criminal Intelligence) about a criminal group, which operated from Maasmechelen (B), which might possibly have been involved in the robberies which were under investigation. The members of the group were of Moroccan descent, and only the main suspect held Belgian nationality. The investigation could now focus on this particular criminal group. This also meant that the usual tactics for gathering information could now be employed, for example, the interception of communications and the observation of the activities of the suspects. At the same time, the ‘hammer method’ also emerged during robberies in Germany, involving the same criminal group from Belgium. The reason for this was partly that measures had been taken to strengthen the safety glass protecting the employees at banking institutions in the Netherlands and Belgium. The criminal group had already experienced this on one occasion, when they were not able to break the safety glass. However, comparable measures had not yet been taken in Germany. Because robberies in which the Hammer method was used were thought to be a considerable threat to the German legal order, the authorities decided to start a separate criminal investigation which was to be performed by the Kriminal Kommisariat 24 at Aachen. The Kommisariat was soon informed through informal channels about the investigation which was under way in the Netherlands. The Germans filed an official request for mutual legal assistance, in order be able obtain information that the Dutch had already gathered. From then on, information was exchanged between Germany and the Netherlands on a regular basis. Eventually the Hammer Team gathered enough information about the criminal group and its working methods to be able to take the case to court. Hence, several attempts to catch the perpetrators in the act were made. These attempts failed for different reasons. On one occasion, preparations made by the Hammer gang did not result in an actual robbery. A second attempt was blocked by the fact that valuable private property might have been damaged. These attempts will be described in more detail later on. Events were accelerated by the fact that one of the main suspects became involved in a case of manslaughter in the Netherlands in the city of Tiel, in the police region of 57
Gelderland-Midden. The team that was formed by the police at Tiel to investigate this case was able to track the perpetrator within a few days and was also able to collect enough evidence for the suspect to be apprehended. Because of this, the strategy of the Hammer Team of trying to catch the perpetrators in the act of committing a robbery was abandoned. Instead, it was decided to make a pre-planned arrest, preferably in the Netherlands. This was decided upon for two reasons. First, the police of Tiel possessed hard evidence in a serious criminal case (manslaughter). Second, if the arrest was made in Belgium, the suspect could not be extradited to the Netherlands, because he held Belgian nationality. Apprehending the suspect in the Netherlands meant that he could be tried for manslaughter as well as for robberies committed inside the Netherlands. Then he could be extradited to Germany to stand trial for robbery as well. Extradition to Belgium would follow, where he could be tried for robberies committed in Belgium. At this point in time, the main suspect is still imprisoned in the Netherlands, being convicted for manslaughter and for several robberies on Dutch territory. Criminal investigation case ‘Alphabet’ The criminal investigation case ‘Alphabet’ started in 1998, when the severely maimed body of a murdered person was discovered floating in the river Meuse. Evidence pointed to possible suspects in the Netherlands and Belgium and a request for mutual legal assistance was filed to the Belgian authorities, to intercept communications by telephone, involving these suspects. Soon afterwards, detectives of the Dutch police in the police region of Limburg-Zuid (Limburg-South) received information from the Belgian police that a Dutchman might be involved. Based upon the information that had been gathered, the Belgian authorities also decided to start a criminal investigation (codenamed GINO). In the Netherlands, the homicide-investigation had grinded to a halt. The GINO-investigation however, soon rendered information about a Dutchman. This person was a member of a criminal group which was involved in the manufacturing and illicit trafficking of synthetic drugs. The Counsel for the Prosecution at Maastricht hereupon ordered a criminal investigation to be started against this group. Because this group was active in the Netherlands as well as in Belgium, it was decided that the Belgian and Dutch police should cooperate very closely during the investigation. At first the Alphabet Team focused on three main suspects: Mario A., Jan B. and Marcel C.50 After consultation with the Belgian authorities, it was decided 50
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The codename 'Alphabet' was chosen because the surnames of the main suspects started with A,B, and C.
that the Dutch team would concentrate its efforts on Mario A. and Jan B. Several months later, Ger M. came into focus, who co-operated closely with Jan B.. It was also clear from the start of the investigation that criminal groups in the Netherlands co-operated with counterparts in Belgium. The Belgian authorities had already commissioned a criminal investigation of these activities, codenamed GINO. Thus, the Alphabet investigation was intertwined with a criminal investigation in Belgium. Because of the complexity of the criminal group, the Alphabet Team also co-operated closely with detectives working in other police-regions, especially the police region of RotterdamRijnmond. The criminal investigation was focused on the activities of the perpetrators related to synthetic drugs. Besides the production and smuggling of synthetic drugs, the three main suspects also maintained contact with persons who were suspected of trafficking firearms, of counterfeiting and laundering money, and of settling criminal disputes by using violence, including murder. These other activities were only partly investigated by the Alphabet Team. Even the activities concerning synthetic drugs can not all be discussed in full detail, because of the diversity of the criminal activities that have been investigated. However, to provide the reader with some idea of the circumstances in which international criminal groups operate, two parts of the investigation of the Alphabet case will be described. The trafficking of synthetic drugs from the Netherlands to Slovenia (Case 1) The first example of the criminal activities of this particular group concerns the shipment of synthetic drugs (XTC) from the Netherlands to Slovenia. This shipment was organized fairly independently by a secondary suspect, Pano K., and a person living in Slovenia who was to be the recipient of the pills (Mladenko B.). The police, however, suspected that Ger M. and Jan B. had been responsible for delivering the drugs to Pano K. Mladenko B., the bussiness associate of Pano K., was a Slovenian national, who had lived in the Netherlands for a while but had returned to his home country. B. was also believed to be involved in the illicit trafficking of firearms from the former Yugoslavia to the Netherlands. As he did not wanted to risk being apprehended while smuggling XTC pills, he asked an acquaintance to be the courier. At first the acquaintance complied, but in the end he asked two other Slovenians if they would be interested in making some 'easy money'. As both of them were having financial troubles, they agreed. Later on, it turned out that they were to receive half the sum which the organizer of the shipment had offered to the first person who had been asked to act as a courier. 59
The couriers were instructed to drive to the Netherlands in their own car, and to report at a hotel in Maastricht. There they would meet Pano K. and the Slovenian by whom they had been recruited, who had driven to the Netherlands too. The latter had also invited his girlfriend to fly to the Netherlands to do some shopping in Munich after the shipment was well under way. During the first part of the journey they were to supervise the couriers, in order to prevent them from stealing the drugs, or delivering them elsewhere. The XTC pills would be hidden in a fake spare wheel. This was to be exchanged for the genuine spare wheel of the car owned by the courier. To ensure that this exchange could be carried out swiftly, Pano K. was informed beforehand about the type of car that would be driven by the courier. The couriers were then to drive back to Slovenia, travelling through Germany and Austria, and to deliver the wheel and its contents at a designated place. The couriers were also provided with a complicated story to tell the police in case they were caught in order to protect the identity of the persons who had organized the shipment. In case of being apprehended, they were to tell the police that they were instructed to park their car at a designated place and leave it unlocked. Then they were to take a walk for about half an hour, during which time the supplier would be able exchange the spare tires. The same procedure was to be repeated in Slovenia. In fact, these exchanges were made inside the garage of a safe house used by the criminal group, in the presence of Pano K., the Slovenian, and his girlfriend. Moreover, Jan B. and Ger M. remotely monitered these proceedings by telephone, by asking regularly how things were going. An observation team of the police was present to watch the activities of the persons involved, although they were not able to see what was going on inside the house. At that time, it was not yet known by the police that two couriers were involved and that one of them had already left for Slovenia. Furthermore, the observation team focused on the couple who were to supervise the shipment, instead of concentrating on the actual courier. However, after leaving the safe house, both were followed by the police. The supervisors were apprehended on Dutch territory, after which it soon became clear that they didn't have any drugs in their car. In the meantime, the actual courier had already crossed the border and was driving into Germany, while still being followed by the Dutch police. The Alphabet Team informed the Germans authorities that an observation team had crossed their border. Within a quarter of an hour, the observation was taken over by the Autbahnpolizei Eschweiler, who stopped the car a little while later. The fake wheel containing 10 kilograms of XTC was found almost immediately. Hence, the courier was apprehended by the German police. The Dutch detective who had carried out the observation of the suspect went to 60
Germany to verify that the suspect who had been apprehended was the one who had been observed by the Dutch police earlier that day. Dismantling of a facility for the production of synthetic drugs in Belgium (Case 3) Another part of the activities of the criminal group targeted by the Alphabet Team was the manufacturing of synthetic drugs. Here, we describe the investigation and dismantling of a production facility for XTC in the town of Hombourg in Belgium. Completion of this part of the Alphabet investigation took about four months, from 8th November 1999 to 24th March 2000. The production of XTC requires specific chemicals, which were delivered by a company based in Delft (Netherlands). These chemicals were transported to Rotterdam and from there on to Hombourg. These shipments were the responsibility of a criminal group led by a secondary suspect. Jan B. and Ger M. were thought by the police to be responsible for commissioning these transports. An observation unit of the police-region of Rotterdam-Rijnmond saw a shipment of chemicals being transferred from one vehicle to another at a parking lot in Delft. These chemicals were provided by a legitimate company. Following this, the chemicals were stored in a garage in Rotterdam. After a few days, the chemicals were collected by the criminal group, loaded into a small van (or MPV) and driven to the production facility at Hombourg (after being transferred once again, to a second vehicle, at Stein in Limburg). To avoid unexpected checks by the police, a sportscar was sent ahead to perform reconnaissance. These shipments were made regularly over a period of several weeks. The first shipment was observed by the police of RotterdamRijnmond and followed into Belgium. The Belgian police (BOB Genk) were then informed about this observation and about the destination of the chemicals, which was the possible location of a laboratory for the production of XTC. The Alphabet Team was also notified, as was the national guard (Rijkswacht) at Verviers, in the French-speaking part of Belgium. In the weeks that followed these police units co-operated to observe three shipments of chemicals from Rotterdam to Hombourg. At that point, it was decided by the Dutch and Belgian authorities that the production facility should be raided and the suspects responsible for these shipments be apprehended. However, when the site at Hombourg was entered, the laboratory had already been dismantled by the criminal group. However, traces of PMK and MDMA (raw materials for XTC and Speed) were discovered. The Belgian police were able to apprehend three suspects, but the technicians who were responsible for the production of the synthetic drugs had already left the country. Some time later, they were 61
apprehended at a production facility in Friesland (Netherlands), where they were also fabricating synthetic drugs. These examples illustrate the range of both domestic and foreign parties involved in the investigation of criminal groups operating in several countries. They also show that continuous fine-tuning and exchange of information between the police and judicial authorities within a single country and between different countries is essential to achieving succes.
3.3 The Starting Phase of the Criminal Investigation The decision to start the Hammer and Alphabet criminal investigation cases was taken by a committee comprised of the police (police region Limburg-South) and the judicial authorities of the Maastricht District (Netherlands). At first, these investigations were focused on criminal activities in the Netherlands. During the Hammer case, it was several months before it became clear that the activities of the criminal group involved were international in nature. However, during the Alphabet case, it was clear almost immediately that possible suspects in both Belgium and the Netherlands were involved. Informal networks of police played an important role with regard to the exchange of information which proved to be useful for the ongoing criminal investigations. In the Euroregion Meuse-Rhein (the Netherlands, Belgium, Germany), this network of detectives is very tight, based on personal relations, mutual trust, and frequent contacts because of the international nature of most criminal acts which are committed in this region. Hence, policemen from the Netherlands, Belgium, and Germany very regularly need to contact each other. The principle of ‘one good turn deserves another’ plays an important role in these relations. For instance, if a Dutch detective wants to ask his German colleague a question today, he is certain that he will be asked to return the favour tomorrow. Cooperation is swift and adequate because these requests are handled informally. One detective explained that 'if we have any questions we will visit our colleagues on the other side of the border to exchange information, or to take a look at files or reports they have compiled. When certain information could be useful to our own investigation, a request for mutual legal assistance is filed. Thus the exchange of information becomes official and it can be used in court later on. All of this is much more efficient than filing a request for mutual legal assistance first, without knowing if something useful is at hand abroad’. The latter path is followed when no personal contacts are available or when the 62
political situation in the country involved is unstable, or when the integrity of the police and judicial authorities is not guaranteed. In those situations, contacts are established through Interpol or, when available, by Dutch Liaison-Officers based in these countries. Once Interpol or Liaison-Officers have established contact, the investigation team will usually send a delegation to the country, to explain the request for mutual legal assistance to the authorities. During the Hammer investigation Europol was not consulted. During the Alphabet investigation, Europol was used to establish contact with the authorities of Slovenia, Bosnia, France, Switzerland, Hungary, Austria and Spain. However, Interpol and Europol only acted to establish these first contacts, and were not involved further during the investigation. The Hammer Team established contact with the Belgian police itself. This involved the Criminal Investigation Unit of the police region of Limburg-South and the BOB Genk, now called Judicial Decentralised Service (Gerechtelijke Gedecentraliseerde Dienst, GGD). Judicial co-operation concerned the Counsel for the Public Prosecution of Maastricht (Netherlands) and Tongeren (Belgium). The Netherlands was the first country to start an investigation of the criminal group responsible for robbing banking institutions. Cooperation with the Belgian authorities was based on requests for mutual legal assistance. This meant that for every piece of information, a seperate request needed to be filed, adding up to a total of more than 150 requests during the investigation. It took some time for the Dutch police to grow accustomed to the common working methods in Belgium, especially with regard to contacts between the police and the Counsel for the Prosecution. In Belgium, these contacts tend to be rather formal when compared to the Netherlands. Relations between the Dutch and Belgian police are, however, friendly and informal. Belgian detectives proved to be willing to check the requests for mutual legal assistance filed by the Dutch, beforehand, so as to make sure no breach of formalities had been made. They could also inform the judicial authorities that a request was forthcoming, so there would be no surprises. The experiences during the Hammer investigation provided valuable lessons which largely favoured the Alphabet case. By the time the Alphabet investigation was started up, excellent relations had been established with the Counsel for the Prosecution at Tongeren as well as with the Special Investigation Service (BOB) at Genk. While the Genk BOB was already investigating some suspects in the GINO case who were involved with the criminal group that was thought to be led by Mario A. and Jan B., the responsible authorities agreed upon a very close co-operation between the GINO Team and the Alphabet Team. In practice, both investigations were 63
merged into a joint operation with the same goal. It was also decided that the Counsels for the Prosecution at Tongeren and Maastricht would be sharing responsibility for both investigation cases; of course, with acknowledgment of regulations in the Netherlands as well as in Belgium. As a result of this agreement, cross-border application of the investigation methods that were most commonly used, such as the interception of communications, and observation of suspects, could be formalised in a framework contract. This framework contract meant that a specified range of activities by the Dutch and Belgian police in each other's countries no longer required the filing of seperate requests for mutual legal assistance, which saved a lot of paperwork. It was agreed that, every two months, proceedings had to be reported to the judicial authorities by the acting heads of the Alphabet Team and the GINO Team. The following aspects were agreed upon by means of this framework contract: 1. Exchange of data, meaning: • All data that had already been gathered during the GINO investigation. • Verbatim reports (Processen-Verbaal) recorded by the Belgian police. • Photographic images of the suspects under investigation. • Data of both incoming and outgoing conversations recorded by Belgian telecommunication providers. 2. Cooperation, meaning: • Exhanging members of the Alphabet Team with the GINO Team when deemed necessary. • Allowing the presence of members of the Alphabet Team at hearings of witnesses and suspects in Belgium. • Allowing the presence of members of the Alphabet Team while telephone conversations were being intercepted in Belgium whenever this was deemed useful to the investigation. 3. Application of the following special investigation methods by The Alphabet Team in Belgium: • Camera observation. • The installation and use of tracking devices. • Continuation of the observation of suspects on Belgian territory, performed by members of the Alphabet Team charged with observation duties. • Observation of suspects starting on Belgian territory, performed by members of the Alphabet Team charged with observation duties, under supervision of members of the Belgian police.
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•
The making available of ten sets of Belgian license plates (through CBO Brussels) for the duration of the investigation. These plates were only to be used within the investigation mentioned, for no more than the time required, and limited to purposes of observation by the Alphabet Team on Belgian territory.
This framework contract did not include other methods of investigation, for example, house searches or the controlled delivery of commodities that were smuggled across the border. These proceedings required a seperate request for mutual legal assistance.51 The framework contract was formally agreed upon by the judicial authorities at Tongeren on 24th November 1998. Unusually, no time period was set for the duration of this contract, but instead it would be reviewed regularly by the judicial authorities to decide whether modification or termination of the contract would be required. The immediate result of this contract was that, during the entire Alphabet investigation, which took about two years in total, only 35 requests for mutual legal assistance needed to be filed, of which a mere 14 concerned Belgium, the most important partner during this investigation.52 Most requests for mutual legal assistance were filed at the end of the investigation and concerned permission for Dutch detectives to be present at house searches in Belgium, requests to the Belgian authorities to apprehend a suspect on Belgian territory, requests for the exhange of samples of confiscated goods, and requests for the extradition of suspects who had been apprehended abroad.
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This request was made by the officer of justice in Maastricht, with as appendix the report of offence (proces verbaal), an explanation of the sections of the law under which the suspect was suspected, as well as a further description of the punishable acts. In the request, an appeal was made to the Benelux treaty, concerning the extradition and legal aid in criminal cases (Brussels, June 27 1962) and the Schengen Agreement (Schengen, June 19 1990). By comparison one of the detectives of the Criminal Investigation Unit of the police-region Limburg-South mentioned a recent investigation of a murder case, during which it had been necessary to co-operate with a Counsel for the Prosecution in Belgium which hadn't been worked with before. This Counsel refused to agree upon a framework contract comparable to the one that was drawn up during the Alphabet-investigation. Hence 21 requests for mutual legal assistance had to be filed over a period of a few weeks, even though the case could be solved it relative ease.
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3.4
Gathering the facts
Here, the methods are described which were used to gather information about the criminal groups under investigation, especially with regard to cross-border application of these methods. During the Hammer and Alphabet investigations, interception of communications and observation were the methods most commonly used to gather information about the activities of the suspects. Criminal investigation teams in the Netherlands relied to a large extent on intercepting telephone conversations and on dynamic as well as static observations of the activities of the suspects. Because Dutch investigation teams usually have limited numbers of personnel available, technical aids such as tracking devices and remotely operated cameras are widely used.53 Tactics are aimed at combining different methods of investigation, to present a credible time-line before the court with regard to a specific criminal act. For example, an observation camera records a subject while he leaves his house at a specific time. Then a second camera records him loading a number of drums (contents unknown) from a garage into his van. While driving towards its destination, this vehicle is followed by an observation team. Meanwhile, all communications by mobile phone made by the suspect are intercepted. When combined afterwards, a complete picture can be drawn of the activities of the suspect with regard to shipping these goods. However, to be able to apply these tactics succesfully, the investigation team is very much dependent on swift communications. For example, immediately after a telephone call is intercepted providing the information that certain suspects have arranged a meeting in half an hour at a specific location, an observation team will have to be made available immediately. It also means that the equipment which is used to intercept communications by telephone has to allow for the immediate use of the information that is received. It is clear that these methods also require specific procedures and technical capabilities which do not have to concur with the working methods, regulations, personnel, or technical equipment available in neighbouring countries. Practical problems which occur with regard to cooperation are mainly due to the differences mentioned above. For example, at the time of the Hammer investigation, the Belgian detectives were not allowed to hear information directly after it had been intercepted. Instead, specialized personnel had to record all conversations that had been intercepted on paper, after which the judicial authorities would decide which information could be 53
In 2001, the Dutch government decided to significantly expand the number of detectives for the purpose of investigation of organized crime.
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forwarded to the investigation team. This procedure was time-consuming and incompatible with the working methods of the Dutch. However, some of those differences provided opportunities as well. For instance, because the Dutch possessed modern technical equipment, while the Belgians had more personnel available, these assests could be exchanged or used jointly, as the Alphabet Team and the GINO Team were allowed to co-operate very closely. The Dutch police for instance provided computers and network-equipment to the Belgians, and Belgian detectives worked together with the Dutch. During the Hammer investigation, a specific problem occurred with regard to dynamic observation. As the main suspect lived in Maasmechelen (B), at only a five minutes drive from the Dutch frontier, it proved to be very difficult for Belgian observation teams to arrive at the scene in time whenever the Dutch police intercepted information that the suspect was planning to leave his house, for instance, to meet one of his accomplishes, or to prepare a criminal act. In Belgium, at the time of the investigation, observation units were organized at national level, and stationed at only five locations throughout the country.54 Although the Schengen treaty allows for observation to be continued abroad when a suspect crosses the border, it does not allow for observation activities to be started abroad. However, as the Belgian observation team nearest to Maasmechelen was based at Antwerp, it was inefficient for them to be summoned just to follow the suspect from Maasmechelen to the Dutch border. Furthermore, on most occasions, it was likely that they would not be able to arrive in time to pick up the suspect anyway. To circumvent this problem, it was agreed that a Dutch team could carry out observations starting on Belgian territory, provided that a competent Belgian official would be able to supervise these activities. The Dutch observation unit used to pick up this official at a parking-lot just across the Belgian border, to be present in the car which was following the suspect. These proceedings had to be authorised by the Belgian judicial authorities afterwards. The financial costs of a criminal investigation turned out to be another point of interest. Financial aspects are strictly regulated, both in the Netherlands and in Belgium. This meant, for instance, that certain technical facilities could not be deployed for more than short periods of time, because this was deemed to be 54
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By comparison, all Dutch police regions have independent observation teams. Furthermore, Kernteams also have seperate observation units, and five so-called ' Schengen Observation Teams' are available at the national level specifically for carrying out observations that have been requested from abroad.
too costly. Sometimes, these problems were circumvented by filing a request for mutual legal assistance, as activities resulting from such a request were not charged to the budget of the investigation unit involved. In the Netherlands, these costs are compensated for at regional level (judicial), in Belgium even at national level.
3.5 Apprehension of the suspects A criminal investigation team will usually apprehend the suspects once the goals that were agreed upon for the investigation have been reached and enough information has been gathered to succesfully take the case to court. With regard to organized criminal groups, apprehension is usually planned ahead, especially if arrests have to be made in different countries at the same time. However, during the Hammer investigation, the investigation team tried to catch the perpetrators in the act (flagrante delito) on several ocassions. While several countries were involved specific difficulties arose while undertaking these attempts, practical difficulties as well as difficulties resulting from different rules and regulations. The first attempt occurred when the Hammer Team had been able to determine that preparations for robbing a bank at a specific date were in progress. An expensive car had been stolen by the suspects and was parked in a car park in Liège to be used the next day. The Hammer Team would have liked to use this opportunity to try to apprehend the robbers in the act. This was blocked by the Counsel for the Prosecution at Liège, which ordered that the car be confiscated immediately, based on Belgian regulations that valuable stolen cars are to be retrieved as soon as the police has information about their whereabouts, to prevent financial claims based on the fact that the authorities might have been able to prevent the car being damaged. It was likely that this particular car would indeed have been damaged if the authorities had agreed to it being used for committing a robbery, or it may have been damaged while the police were trying to apprehend the suspects. On a second occasion, intelligence had been received that a robbery would be attempted on a certain date. However, it was unknown in which country this attempt would be made. Thus, a joint command centre was set up in the Netherlands and apprehension teams were summoned in the Netherlands, Belgium, and Germany. The operational procedures turned out to be quite different: whereas the Dutch and Belgian teams each had about twenty policemen, the Germans had flown in over 600 policemen to the region, from all over the country. However, intelligence turned out to be flawed, as no 69
robbery took place that day, much to the dissapointment of the German authorities: 'Die waren uns nie entkommen!' (‘They would never have been able to escape us!’) Whenever the apprehension of suspects is pre-planned, it must be decided in which country a particular suspect should be apprehended. First, it will be taken into account which country has the 'strongest case' against the suspect. Usually, this will be the country which has been leading a particular investigation. Second, the rules of extradition play an important part. This was the case during the Hammer investigation, as the main suspect was a Belgian national who had committed most of his crimes (including manslaughter) abroad. Had he been apprehended in Belgium, it would have been very difficult to have this person extradited to the Netherlands. Thus, it was decided to apprehend the suspect on Dutch territory, to guarantee that he would stand trial for manslaughter and robbery in the Netherlands, after which he could be extradited to Germany to be tried for robbery, and, following this procedure, the suspect would finally be extradited to Belgium. Third, ethical questions sometimes play a part, for example, when punishment for the same crime differs greatly in the countries involved. An example of this occurred during the Alphabet case when synthetic drugs were smuggled from the Netherlands to Slovenia. Punishment for this crime ranges from two years of imprisonment in the Netherlands, and seven years in Germany, to imprisonment for life in Slovenia. Because of these differences the Alphabet Team chose not to file a request for the apprehension of one of the couriers in Slovenia, who had been able to escape his arrest in the Netherlands. Fourth, different countries apply different rules with regard to the apprehension of suspects, especially with regard to attempting to catch perpetrators in the act. The pre-planned apprehension of suspects, carried out at the same time with the involvement of different countries, needs to be fine-tuned by the authorities involved. During the Hammer investigation, a joint command-post was set up to co-ordinate these proceedings, for instance, to make sure that house searches would be performed in Belgium immediately after the main suspect had been apprehended in the Netherlands. Unforeseen complications are always a possibility. In this case, one suspect had to be followed for many hours before he finally crossed the border into the Netherlands and could be apprehended. Furthermore, by coincidence, the apprehension of the suspect was seen by an acquintance, who immediately informed other members of the criminal group in Belgium. However, because the Belgians were ready to apprehend these 70
suspects, they were not able to escape arrest, or to discard or re-locate evidence.
3.6 Aftermath Co-operation between the police and judicial authorities of the countries involved does not end after the suspects have been apprehended, as all the evidence that has been gathered in the different countries needs to be exchanged to complete the files which are to be sent to the court. The exchange of evidence concerns for instance samples of substances that have been confiscated abroad, copies of verbatim reports, or DNA material. Requests for mutual legal assistance are filed in order to receive all information that is deemed useful from abroad. If difficulties occur, these are mainly due to procedure (it takes time to receive specific material) and technical differences. DNA profiles made in Belgium, for example, could, at the time of these investigations, not be read by the equipment used in the Netherlands. Specific regulations can also be different in different countries, for example as regards how sniffing-dogs can be used with regard to scent samples. In the Netherlands, limitations exist as to the number of times a dog can be used to identify the scent of the same suspect, as it is believed that the dog might become prejudiced. As the number of qualified dogs is limited, problems arise when a great many scent samples need to be checked in a short period of time. As the activities of groups involved in organized crime are often complex, an investigation team is not usually able to investigate all of these activities extensively. For instance, the Alphabet Team limited itself mainly to the activities of the criminal group of Jan B. and Ger M. with regard to synthetic drugs. Other suspects about whom information was gathered in this particular case were also involved in car-theft and violent crime (for instance, the staging of threats to criminal competitors and even murder) as well as in smuggling cocaine, firearms, and liquor. Information about these criminal activities or about other criminal groups with whom the suspects had been co-operating often provides the starting-point for a new investigation at home as well as abroad. Part of the strategy of the Alphabet team was to provide the police and judicial authorities with information which could be used to start seperate investigations. The information that would result from these investigations could then be used to strengthen the case as a whole.
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4
Case report on the Euroregion Rhein-Waal By Toine C. Spapens
4.1 Introduction This case report deals with the cooperation of the police and judicial authorities in the Euroregion Rhein-Waal. The criminal investigation case described in this report concerns a criminal group involved in the production of synthetic drugs and the subsequent smuggling of hard drugs from the Netherlands to Germany and other countries. The investigation, in which the police and judicial authorities of a number of European countries co-operated covered the period from 1995 to 2000. Description of the Euroregion Rhein-Waal The Euroregion Rhein-Waal comprises Germany and the Netherlands. The area is roughly bounded west and east by Eindhoven and Oberhausen, and from north and south by Arnhem and Venlo/Krefeld. The E3 motorway, a very important European transportation route running in an East-West direction, runs directly through the area, connecting the ports of Antwerp and Rotterdam to the Ruhrgebiet. Many Germans regularly visit the Dutch cities of Venlo and Arnhem to shop. Legal as well as illegal goods are bought in the Netherlands. The latter are (soft)drugs purchased by so-called drug tourists. The availability of soft drugs at coffeeshops, which are tolerated by the Dutch police and judicial authorities, proves attractive for many Germans. Bonds between Dutch and German families, living on either side of the border, are common, especially among members of ethnic (mainly Turkish) minorities. Since the 73
seventies, Turkish communities have developed in the Rurhgebiet as well as in the Dutch cities of Arnhem and Venlo. Investigation of organised crime The criminal investigation case described in this report was given the codename 'Foxtrot' by the Dutch police. The investigation took place between November 1999 and September 2000 and was carried out by the Regional Criminal Investigation Department (RR) of the police region of Limburg-North. This criminal investigation followed the apprehension of two suspects by the German police in 1997, who were responsible for the smuggling of drugs into Germany. A part of these drugs had been delivered to them by a Dutchman. He and the people with whom he worked became subject to investigation by the Foxtrot team in 1999. On average, the investigation employed eight detectives, but occasionally the team was extended to include sixteen detectives. In addition, specialised units assisted the Foxtrot team, most importantly, observation teams (OT’s) and the technical support unit of the police region (STO). The first was responsible for following and observing suspects (dynamic observation), the latter carried out the installation of tracking devices, observation cameras and other technical aids. The Foxtrot team used the observation team attached to the police region of Limburg-North, as well as teams that belonged to other police regions55. To investigate financial aspects, support was offered by the Bureau of Financial Support (BFO), which also operates at a regional level. Finally, information was used that had been gathered by the criminal intelligence unit of the police region of Limburg-North (CIE)56. The investigation team was lead by an acting team leader and his replacement. The latter was also in charge of filing the investigation records, with the support of an administrator. Responsibility for specific tasks was divided up between members of the investigation team, e.g., the interception of communications, the analysis of the structure of the criminal group under investigation, the investigation of the different criminal activities of the criminal group (e.g., car theft, production of drugs, smuggling), the organisation of the 55
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When the use of an observation team in a city outside the region is needed, it’s possible, for example, to directly contact the criminal investigation department there, to ask for an observation team. If necessary, the information that the team needs (license plate numbers, pictures of suspects, etcetera) can be sent directly by e-mail or fax. These units were previously called CID (Criminele Inlichtingendienst), or criminal intelligence service.
financial aspects of the investigation, and the management of operational contacts with the police and judicial institutions with whom the team cooperated. International cooperation in the Euroregion Rhein-Waal It is very common for the RR of the police region of Limburg-North to cooperate with the police and judicial authorities in other countries. During the Foxtrot investigation specific contacts were established with Germany, Spain, France, and Belgium. Besides this, there are informal and formal contacts between the Dutch and German police in the Euroregion Rhein-Waal on an almost daily basis. The reason for this is the intensity of border traffic in this region and the drug-tourism, mainly with regard to the city of Venlo. Many Dutch policemen also maintain personal contacts with their colleagues in Germany. The Kriminalpolizei of Krefeld, Duisburg, and Aachen are the units that most often co-operate with the Criminal Investigation Department of the police region of Limburg-North. The exchange of information concerns facts that can be useful to ongoing criminal investigations on both sides of the border, and facts that can provide starting points for new investigations. This regional network of informal contacts is also put to use when co-operation with the police or judicial authorities elsewhere in Germany is needed. For example, a Dutch detective who needs a contact in Munich for the investigation of trafficking of synthetic drugs will ask his colleague at Krefeld, with whom he has frequent contact, which desk at Munich he needs to contact. To smoothen these contacts, his colleague in Krefeld will usually inform his colleague in Munich about this, so the Dutch detective can be helped swiftly and effectively. Sometimes, he will even handle the request on behalf of his Dutch colleague. The formal paths for international cooperation are set in motion if bilateral contacts have shown that the information which is available in one country is indeed valuable to the other party. If it is intended to use this information before the court, the exchange will be formalised by means of a request for mutual legal assistance. The amount of information that is exchanged across the borders is, therefore, much larger than a study of filed requests for mutual legal assistance would indicate. Sometimes, these formal and informal paths run parallel. While the information is being exchanged informally, a request for legal assistance is being also filed. While the formalities of such a request are being handled, the information is already available and can be used to make all necessary preparations, for instance, to make sure the necessary personnel and
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equipment will be available and so on, so no time is lost as soon as the request has been formally granted. The informal exhange of information between the police and judicial institutions in different countries is to a large extent dependent on the principle of reciprocity. The rules of the game imply that a request for information is handled as swiftly as possible within the boundaries of legislation. Small requests (like checking a name or a licence plate number) are almost instantly replied to. If a request for legal assistance is received that requires more resources, the person to whom this request is made is expected to make every effort to comply, even if financial or personnel problems occur. To begin with, there are budgetary constraints which mean that only 5 percent of the total number of hours available is earmarked to fulfil requests for legal assistance from abroad. If this percentage turns out to be higher, it will be necessary to cut back on 'own' investigations or to accept the costs of the overtime the detectives put in. These problems are enlarged by the fact that many regional criminal investigation units are understaffed. The handling of requests for mutual legal assistance, thus, puts considerable pressure on the investigation teams. The informal network of contacts seems to be correlated with the amount of ‘cultural distance’ between the countries involved. Detectives working in the police region of Limburg-North indicate that the culture, working methods, and mentality of the police in Germany are highly comparable to those of the Dutch police. This is also the case where cooperation with the (Flemish) Belgian police is concerned. Other countries with a relatively small cultural distance in relation to the Netherlands, as perceived by the Dutch police, are the Scandinavian countries and Great Britain. These perceived distances are larger where Southern-European countries are concerned. A first explanation for this is the language barrier between the Netherlands and, for instance, the French-, Italian- or Spanish-speaking countries, as most Dutch policemen do not speak these languages and the English language is not generally spoken by policemen in Southern-European countries. A second important factor is the different working methods of the police and especially the judicial institutions in Southern-European countries, which tend to be more formal and centralised than those in the Netherlands. Formalities often prohibit the swift establishment of informal contacts and the exhange of information with officials from Southern-European countries.
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4.2 Summary of the criminal investigation case ‘Foxtrot’ The criminal investigation case ‘Foxtrot’ was started in 1999 by the regional criminal investigation unit of the Police Region of Limburg-North. The Foxtrot case followed upon an investigation by the German police, which involved two Germans who had been co-operating closely with one of the main suspects, Theo X. The investigation in Germany was concluded in 1997. The German operation 1995-1997 Co-operation between the Dutch and German suspects involved in this case started in 1993 when two of the suspects met in a German jail and became friends. The German, Hannes A., had been convicted for arson whereas the Dutchman, Theo X., had been involved in a drug case. A. was released in 1995 and kept in contact with Theo X. Soon after his release, A. met Ariel S., the person who became the primary suspect with regard to the 'German operation'. Ari S. is a man with a remarkable history. He was born in South America, the son of a German businessman, and spent most of his childhood there. At the age of 21 he returned to Germany. At the end of the seventies, he started to deal in drugs (cocaine) and he was also responsible for the trafficking of cocaine from the Netherlands to Germany. He allegedly provided some worldfamous rock bands with cocaine in that period. Because of these activities, he was arrested at the beginning of the eighties and put behind bars for an unknown period of time. Hannes A. and Ari S. met each other in 1995 during a visit to a mutual friend from prison. Ari S. and his friends were regular users of cocaine, and thus he was interested in finding providers of this drug. Hannes A. remembered his old prison mate, Theo X., and assumed that he might have useful contacts in the Netherlands. They visited the residence of X. in Venlo, and this assumption proved to be justified. The result of this visit was that small amounts of cocaine were delivered to Ari S. and subsequently smuggled to Germany, although mainly to cover his own needs and those of his friends. This situation changed at the beginning of 1996, when S. came in contact with representatives of a Russian organised crime group, who wanted to obtain synthetic drugs in order to sell them on the Russian market. Hannes A. and Ari S. once again travelled to Venlo and asked if Theo X. would also be able to deliver synthetic drugs, preferably XTC, which he was. These contacts resulted in regular shipments of XTC pills from the Netherlands to Russia. In the beginning, Ari S. acted as an intermediary between the Russians and Theo X., but later on these services 77
were no longer required because the Russians started to pick up the pills directly from Theo X. in the Netherlands. Theo X. himself obtained the synthetic drugs from other criminal groups in the Netherlands who were involved in the production of synthetic drugs. Other groups were also responsible for the import of cocaine from South America. These criminal groups were not investigated by the Foxtrot team, but by other Dutch criminal investigation teams. However, X. was searching for opportunities to improve his status by importing cocaine himself. Ari S. seemed to be a suitable partner for this purpose because of his upbringing in South America and his fluency in the Spanish language. Theo X. suggested that Ari S. should explore the possibility of establishing contact with Columbian producers of cocaine in Spain, a major point of entry for South-American cocaine in Europe, and also a country where Ari S. already had some useful contacts. Ari S. left for Spain in June 1996 and was indeed able to establish contact with representatives of a Columbian criminal group involved in the production and trafficking of cocaine. Theo X. was informed about this and he immediately left for Spain to negotiate about the acquisition of 10 kilograms of cocaine. However, this deal was not concluded succesfully because the Columbians did not want to deliver the drugs to the Netherlands, and X. did not want to risk smuggling this amount of cocaine himself. After this, Ari S. decided to stay in Spain for a while and it soon became clear to him that a substantial demand for XTC existed in Spain. Thus, in the summer of 1996, he bought 13,000 XTC pills from Theo X. with the intention of selling them on the Spanish market. The acquisition of these pills was financed by the Russian criminal group mentioned earlier, because Ari S. did not possess the necessary money at the time. But Ari S. soon found himself in an awkward predicament, because the quality of the pills that were delivered to him by Theo X. turned out to be substandard. Hence, sales were marginal and S. was unable to repay his debt to the Russians. To save the situation, he proposed to pay his debts to the Russians by delivering an amount of cocaine to them, which he was able to buy through his Columbian contacts in Spain. The Russians accepted this offer. Ari S. was able to finance the acquisition of one kilogram of cocaine (at wholesale price) from the little money that remained of his flawed XTC trade. First, he had to sell one kilogram of cocaine for the Columbians in Spain, to prove that he was thrustworthy. He passed this test without much difficulty by selling the cocaine in a Spanish port. Local demand was at a temporary high because an American aircraft carrier was stationed there at the time, as Hannes A. stated to the German police after being 78
apprehended. In October 1996, the Columbians provided a kilogram of cocaine, which was smuggled to Germany. Ari S. handed over half of this amount to the Russians in order to settle his debt. He sold the other half, minus 200 grams that were used up by himself and his friends in order to celebrate this result, on the German market. Ari S. then decided to repeat the same procedure, i.e. XTC destined for Spain for cocaine to be smuggled to Russia. In December 1996, he made a new shipment of 11,000 XTC pills, which were also delivered by Theo X. Once again, there were complaints about the quality of the pills. Annoyed at this, Ari S. decided to find a new supplier of XTC pills and he managed to do so quickly. The first shipment of 20,000 XTC pills, provided by a new supplier, was made in January 1997. When Ari S. was busy preparing the trafficking of 95,000 pills several months later, things went wrong. Part of the criminal group that had delivered the pills was apprehended by the German police and, in due course, Hannes A. and Ari S. were also arrested. Hannes A., who had played a modest role as a handyman and a courier, acted as a crown witness for the German Justice. By now, he has been adopted in a witness protection program (Zeugenschutzprogramm).
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1995 - 2000
Supply of XTC pills and/or powder to main suspects NL
Netherlands
1995 - 2000
Supply of cocaine to main suspects NL
Netherlands/Colombia
Investigated by other teams Nl (1995 -2000)
1995- 2000
Trafficking of XTC, cocaine, and soft drugs to Germany
Germany
1999 -2000
Poland
2000
Contacts regarding women to be smuggled to the Netherlands for prositution
1999- 2000
Trafficking of XTC to Spain
Spain
Production of XTC pills Production of soft drugs
Main Suspects Netherlands Theo X. and Andy W.
Theft of duty- free Whisky to be illicitely trafficked to Germany
Belgium
2000
Trafficking of cocaine to Italy
Italy
1995- 2000
Laundering of money
Belgium/Luxembourg
Investigation Netherlands (1999 -2000)
1996- 1997
Trafficking of XTC to Spain Trafficking of cocaine to Netherlands/Russia
Spain
Secondary suspect Hannes A.
Main Suspect Germany Ari S.
1996- 1997
Trafficking of XTC and cocaine to ROC Financing of trafficking XTC/cocaine by ROC
Russia
Investigation Germany (1996 -1997)
The Dutch operation 1995-2000 Theo X. and his companion, Andy W. (who had not been involved in the contacts with Ari S.), actively trafficked synthetic drugs, cocaine, and soft drugs from the Netherlands to Germany from 1995 onwards. They were also involved in other criminal activities, such as the production of XTC pills from XTC powder (the final stage of the production process), the production of soft drugs on their own hemp farm, theft (Viagra pills, a motorboat), and the fencing of stolen goods (whisky, coffee). At the time when he was finally apprehended, Andy W. was also negotiating the purchase of a sex club in Germany and he was in contact with a Polish criminal group which would provide the (Eastern European) women who were supposed to work there as prostitutes. The drugs that were trafficked by the criminal group of Theo X. and Andy W. were shipped mainly to Germany and Spain. It was assumed by the police that Theo X. had been able to maintain contact with the Columbians after Ari S. had been apprehended. Instead of Spain, the port of Antwerp, where the Columbians also possessed a wharehouse, was used as an entry point for cocaine that was smuggled from South America. However, the Foxtrot team concentrated mainly on the activities of Theo X. and Andy W. with regard to synthetic drugs. An acquaintance of Theo X. had settled in the Spanish city of Tarragona and took care of the selling of the XTC pills to Spanish dealers. Several couriers were used to smuggle the drugs from the Netherlands to Spain. One was a truck driver who frequently travelled to Spain. Other couriers were an elderly couple who regularly travelled to Spain with a mobile home, which had been fitted out with a concealed compartment for trafficking drugs. The driver of a touring-car was also approached to smuggle drugs but he refused the offer. The police believed that seven shipments of synthetic drugs were made from the Netherlands to Spain between January and June 2000. The proceeds of this XTC trade were deposited in banks in Belgium and Luxembourg. Over a period of seven months the earnings amounted to 35 million pesetas (€ 2.1 million). Theo X. and Andy W. were also in contact with an Italian criminal group. This relationship was established by a native Italian, who was an acqaintance of Theo X. and Andy W. and had been extradited from the Netherlands in 2000. Back in Italy, this person came into contact with a native criminal group which took an interest in cocaine. In August 2000, he organised the shipment of an unknown quantity of cocaine from the Netherlands to Italy. The actual 81
smuggling was done by a group of Italians who were living in Germany. This group had already attracted the attention of the German police. The Germans wanted to start a separate criminal investigation of this German-based Italian group and, therefore, these particular criminal activities were not pursued further by the Foxtrot team. A final international activity of the criminal group was mainly the responsibility of Andy W. He was negotiating the acquisition of a sex club and the smuggling of Eastern-European women who were supposed to work there. He had established contact with a Polish criminal group through a friend he met in Germany, who was a Polish national. This Pole had lived in Germany for a while, but he had fled to Poland after failing to return to prison while on leave. In Poland, he met some people who were active in providing women for prostitution. He decided to phone his old friend, Andy W., to find out if he might be interested in these women. This was the case, as Andy W. knew of a sex club that was for sale. However, negotiations for the purchase of this club took up much time and were not yet concluded when Andy W. was arrested by the Foxtrot team. Andy W., Theo X., and other members of the criminal group were apprehended in September 2000. At that point in time the Foxtrot team had gathered enough evidence to be able to take the case to court. Andy W. was caught when he was actually busy fabricating XTC pills. 'The powder was still sticking on his hands', as one of the detectives stated. Both Theo X. and Andy W. were sentenced to six years in prison. A number of other suspects were also given prison sentences.
4.3 The starting phase of the investigation The Foxtrot criminal investigation case is exemplary for the working methods of organised crime groups in the Netherlands because of the diversity of the activities of the main suspects and their multinational character. Several of these activities were starting points for criminal investigations in other countries later on. The Foxtrot investigation itself was also, at least partly, the result of information that had been gathered abroad, in this case by the German police. The Dutch police were informed by the German police about the activities of Theo X. as early as September 1997. In turn, a request for international legal assistance was filed by the Dutch police to obtain the statements that were made 82
by Hannes A. and Ari S. with regard to Theo X., and also to be able to interrogate them again to gather further information. These interrogations took place in April 1998 and the statements that they had made earlier were confirmed by Hannes A. and Ari S.. The Dutch Counsel for the Prosecution then formally ordered a criminal investigation or a Gerechtelijk Vooronderzoek (GVO) to be started against Theo X. Hence, a criminal investigation case could have been started by the Dutch police as early 1998. However, the Dutch police were not able to form an investigation team due to an internal reorganisation of the Criminal Investigation Department of the Police Region of Limburg-North which took place at that time, and lack of personnel. This situation did not change until the end of 1999. At that time, new information was received by the Criminal Intelligence Unit (Regionale Criminele Inlichtingendienst, RCID) of the police region of Limburg-North, pointing towards the criminal activities of Theo X. and Andy W. For the second time, a GVO was ordered against Theo X., and this time the Foxtrot team was formed. The team started with an analysis of the criminal information with regard to the two main suspects that was already available to the police. The detectives also decided to pay a visit to the Kriminalpolizei at Aachen. Here, they were firmly lectured by the Kommisar who had informed the Dutch police about Theo X. in 1997. 'Why was nothing done with the information supplied by the Kriminalpolizei Aachen to the Dutch in 1998?' The Germans were especially enraged because Germany was an important destination for the drugs that were trafficked by the criminal group of Theo X. The Dutch detectives had to make apologies and were excused mainly by the fact that they had had nothing to do with the events that took place earlier. They were lucky: 'Sonst hätte ich Ihnen gleich rausgesmissen' ('Otherwise I would have kicked you out immediately'), their German counterpart told them. Unfortunately, the information that had been provided by the Germans in 1997 was no longer of immediate tactical value for the Foxtrot investigation. This meant that the detectives had to make a new start and could rely on new information only57. The main purpose of the Foxtrot team was to pursue the activities of the criminal group of Theo X. and Andy W. with regard to the production and smuggling of synthetic drugs. Related criminal activities were investigated by other criminal investigation teams in the Netherlands (for instance, the production of XTC powder by other criminal groups in the Netherlands). Other activities led to separate criminal investigations, for instance, in Germany and 57
The statements made by Hannes A. and Ari S. were, however, added to the criminal files that were sent to the court, to provide background material for the judges.
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Belgium, and were 'cut-off' from the Foxtrot investigation. This led to 'compartmentalization', in other words, ongoing consideration of which criminal activities the investigation team should focus on, which parts were to be delegated to other teams or other countries, and which parts were to be (temporarily) pursued no further. From the beginning of the Foxtrot investigation, it was evident that the criminal group under investigation operated internationally. However, it was not considered necessary to mount a joint international investigation, for instance, together with the German police. Instead, the Foxtrot team concentrated on those criminal activities of Theo X. and Andy W. which were carried out inside the Netherlands.
4.4 Gathering the facts The investigation team used several methods to gather information about the activities of the criminal group of Theo X. and Andy W. The interception of telephone communications played an important part, as did the observation of the activities of the suspects involved. Dynamic observations (by means of mobile observation teams) as well as static observations (by means of remotely operated cameras) were carried out by the Dutch police. Tracking devices were used to gather information about the routes followed by vehicles. The police also regularly received information from an unknown person (or persons) who seemed to dislike the activities of Theo X. and Andy W. During the investigation, the Foxtrot team co-operated with police and judicial authorities in Germany, Belgium, Spain, and Luxembourg. This co-operation concerned • the application of investigation methods (e.g., cross-border observations); • reports of unusual financial transactions made by the suspects (so-called 'MOT reports'); • the exchange of information which was gathered during the investigation (both formally and informally), e.g., the results of the interrogation of suspects. • the verification of the identity of a suspect, e.g., by means of the license plate of a vehicle.
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Informal contact Informal contact
Formal contact
Formal contact
Luxembourg Judicial authorities National level
Spain Police National level
Formal contact
Police and judicial authorities
Netherlands regional level
Police and judicial authorities: Regional level
Netherlands National level
Formal contact
LCGO
Netherlands National level
Netherlands
Liaison Madrid
Formal contact
Police and judicial authorities: Länder
Germany
Police and judicial authorities: Sub-national level
Belgium
Nationale magistratuur
Belgium National level
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Contacts with Germany During the Foxtrot case, contacts between the German police and the Dutch investigation team were formal as well as informal in character. Formal exhange of information, for instance, concerned the handing over of the records of the interrogation of Hannes A. and Ari S., receiving permission to perform cross border observations, the exhange of facts gathered during the Foxtrotinvestigation that might be useful to either the German or the Dutch authorities, and consultation about the starting of separate criminal investigations in Germany with regard to other criminal groups about which information had been gathered by the Foxtrot team. The exchange of information started with the results of the interrogation of Hannes A. and Ari S. in 1997. First, the Dutch police were told informally that information about the criminal activities of a Dutch resident, Theo X., had been provided by the two suspects named earlier. Second, the Dutch Counsel for the Prosecution filed a request for mutual legal assistance to obtain this information and to be able to further interrogate Hannes A. and Ari S. specifically about the activities of Theo X. These interrogations were carried out in April 1998. At the end of 1999, once the criminal investigation by the Foxtrot team had actually been started, the German police were again contacted by the Dutch police, to inquire if any additional information had come up in the meantime. At the start of the Foxtrot criminal investigation case, it was already clear that the main suspects were involved in criminal activities in several countries. Hence, a request for mutual legal assistance was filed to receive permission to perform (dynamic) observations across the Dutch-German border. The first request was made in December 1999, and was granted by the German authorities for a period of four weeks. This permit was renewed a number of times. The German authorities allowed these cross-border observations for specific periods of time, usually two or three months. This permit finally ended in July 2000, after the investigation had been concluded. The request for mutual legal assistance was motivated by specifying the aim of the criminal investigation, the persons on whom the investigation was focused, and the fact that it could not be ruled out that the subjects would travel from the Netherlands to Germany while under observation. 'For now it is not yet known where, when, and how often this will happen', as it was stated in the request. The request also mentions the fact that the Dutch judicial authorities had already granted persmission for the observation of the suspects involved. The observations were aimed at determining the working methods of the suspects, 86
and the identities of persons with whom they were in contact abroad, and also at gathering information about the banks (or other money institutions) which were used by the suspects to deposit or exchange money. Whenever it was observed that suspects crossed the border and the observation by the Dutch police needed to be continued, these proceedings were reported to the Dutch authorities at national level. The authority responsible for the coordination of cross-border observations is the National Contact for CrossBorder Observations or LCGO (‘Landelijk Contact Grensoverschrijdende Observatie)’. Besides these formal contacts, the Dutch and German detectives also exhanged information informally whenever it was deemed useful to bring new facts to the attention of a counterpart abroad. Usually, this concerned information about activities of the suspects abroad. For instance, the Dutch detectives were able to gather information about German buyers of narcotics who had been supplied by Theo X. and also about his attempt to sell a truckload of stolen whisky to persons in Germany. Whenever these bits of information turned out to be useful for (ongoing) criminal investigation operations in either Germany or the Netherlands, the exchange of information would be formalised by means of a request for mutual legal assistance. As most organized criminal groups are in frequent contact with other groups both in their countries of origin and abroad, it is possible that some of these activities are already being investigated by other teams. This was the case during the Foxtrot investigation. Information about an Italian group, which operated from Germany, was gathered. As the German police were willing to incorporate this information in a separate investigation, the Dutch and German authorities agreed to transfer the investigation of this group to the German police. This meant that the Italian connection was no longer pursued by the Foxtrot team. All relevant information was handed over to the German authorities, after they had filed a request for mutual legal assistance with regard to this matter. Contacts with Belgium and Luxembourg During the Foxtrot investigation contacts also developed between the police and judicial authorities in the Netherlands and those in Belgium and Luxembourg. In 1999, a request for mutual legal assistance was filed to obtain information about possible unusual financial transactions (MOT reports) made by the suspects in Belgium or Luxembourg and also to receive permission for the 87
observation of suspects across the Dutch border. Later, it became clear that the brother of Theo X., who lived in Belgium, was also involved in criminal activities, which were partly linked with those of Theo X. The activities of X.'s brother were already being investigated by the Belgian police and led to his apprehension in March 2000. The Belgian and Dutch police exchanged information about these proceedings. A request for legal assistance to receive information about unusual financial transactions made by the main suspects was filed as early as November 1999, hence before the actual (tactical) investigation had started. The reason for this is that it very quickly became clear that the main suspects frequently travelled to Belgium and Luxembourg to deposit money in banks in those countries. For the same reason, permission was asked to be able to continue the observation of the suspects whenever they crossed the Belgian or Luxembourg borders. Another request for mutual legal assistance was filed for this purpose. Like Germany, the Belgian authorities granted this request for specific periods of time (two months), after which the permit had to be extended. This was done a number of times, by means of filing seperate requests for mutual legal assistance. At the beginning of 2000, it became clear that Theo X.'s brother was involved in the theft and fencing of stolen vehicles and the altering of registration numbers on vehicles, engines, or other specific parts, to prevent these stolen vehicles from being tracked by the police. He also turned out to be involved in the laundering of money on behalf of the criminal group of Theo X. The Special Investigation Squad or BOB (Bijzondere Opsporingsbrigade) of Maaseik in Belgium was investigating these activities. One of the detectives employed at the Foxtrot team had earlier worked in Weert (Netherlands). As Weert is close to Maaseik he had developed regular contacts with his colleagues in Belgium, which he maintained after being transferred to the Criminal Investigation Department based at Venlo. Through these contacts, he was informally told about the investigation of X.'s brother by the BOB. In turn, he informed the Belgian police about the Foxtrot investigation. After this, information was exchanged regularly between the Foxtrot team and the Belgian police. This ended in March 2000, when the Belgians apprehended Theo X.'s brother. While his brother was in prison, Theo X. supported his girlfriend and she acted as a courier for Theo X. and deposited money on his behalf in banking institutions in Belgium and Luxembourg.
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In August 2000, the Judicial Police (Gerechtelijke Politie) of Antwerpen independently started a criminal investigation with regard to unusual financial transactions made in Belgium by Theo X. and Andy W. The Dutch authorities were informed about this investigation and this information was forwarded to the Foxtrot team. In return, the Belgians were informed about the ongoing criminal investigation with regard to Theo X. and Andy W. The Foxtrot team contacted its Belgian colleagues to exchange information about the facts that had been gathered in both countries up until that point. This exchange of information was formalised in a verbatim report (Proces-Verbaal or PV) by the Dutch detectives. The fact that information about the criminal investigation had been exchanged was recorded, and it was also stated that the Dutch police and judicial authorities were interested in transferring the criminal case to the Netherlands in due course. This was forwarded as a formal request to the Public Prosecutor (Officier van Justitie) of Roermond by the Foxtrot team. The Dutch Public Prosecutor filed a request for mutual legal assistance to the Public Prosecutor (Procureur des Konings) of Antwerp in August 2000 to enable these proceedings. The Belgians were asked to make further enquiries concerning all unusual or suspect financial transactions of Theo X. and Andy W. (among other suspects) at Belgian banking institutions. The Belgian authorities were also asked to make enquiries at the banking institutions involved to verify the identities of the persons who made these transactions, by means of • interrogation of banking personnel or other witnesses; • showing photographs of the suspects involved to banking personnel in order to confirm their identity; • to hand over copies to the Dutch police of any relevant documents available at banking institutions; • allowing the presence of Dutch criminal investigators at the banking institutions while these enquiries were made, because of the nature and complexity of the case, and allowing them to ask further questions when this was deemed useful. Contacts with Spain After it became clear that Theo X. and Andy W. were involved in the trafficking of synthetic drugs (XTC) from the Netherlands to Spain, the investigation team established contacts with the Spanish police and judicial authorities. These drugs were delivered by the criminal group of Theo X. and Andy W. to a Dutchman who lived in Spain for a part of the year. This person 89
was responsible for the selling of the smuggled pills to Spanish dealers. The Foxtrot team contacted the Spanish authorities to ask whether they would be able to investigate further the activities of this Dutchman in Spain. The necessary contacts were established in June 2000 through formal channels, involving the Dutch liaison-officer at Madrid. He also took care of translating the necessary documents into Spanish. Members of the Foxtrot team travelled to Madrid in June 2000, in order to exchange information about the activities of the criminal group in Spain.The first objective of these contacts was to inform the Spanish authorities about the trafficking of XTC from the Netherlands to Spain by this particular criminal group, but the Foxtrot team also hoped that the Spanish police would be able to provide additional information about the XTC trade of the acqaintance of Theo X. in Spain, which might have been useful for the criminal investigation case as a whole. However, no additional information was available in Spain about the type of XTC pills (determined by the logos that were used) which had been smuggled by the criminal group of Theo X. and Andy W. The Dutch authorities also asked the Spanish authorities to investigate the Dutchman who seemed to be receiving the XTC. These activities were limited to the verification of the fact that a car had been rented at a specific date by the Dutch suspect. This information was sent to the Foxtrot team through Interpol channels. Contacts with Poland On 8th June 2000, the investigation team intercepted a telephone call in which Andy W. made an appointment with a Polish national. The conversation was about the possibility of trafficking women from Poland. As mentioned earlier, these negotiations went on for several months but they could not be concluded by Andy W. because he was apprehended by the Dutch police in September 2000. If a deal had materialised, the Foxtrot team would have informed the Polish authorities through the Dutch Liaison-officer based at Warsaw.
4.5 Apprehension of the suspects It took about ten months before the police and judicial authorities involved in the case decided that enough evidence had been gathered to conclude the investigation and apprehend the suspects. Usually, the apprehension of suspects is carefully planned. If possible, the police aim to catch the suspects in the act. Otherwise, the suspects are apprehended at a suitable moment. Especially when 90
a criminal group is active in different countries, the authorities need to plan where and when the suspects are to be apprehended. It is necessary to ensure that house searches take place at the same time in different countries, for instance, to prevent suspects from erasing evidence, or transferring money at the last minute. On many occasions, an official request for mutual legal assistance can not be filed beforehand, but has to be done by telephone or fax on the day the apprehension of the suspects is to take place. Usually, these proceedings are carried out without trouble. However, on one occasion, an Examining Judge in Luxembourg proved to be somewhat reluctant because, in his opinion, the Dutch authorities did not act very swiftly to his own requests. The main suspects of the Foxtrot investigation were all apprehended in the Netherlands on 8th September 2000. Andy W. and some other suspects were apprehended in a XTC production facility at Tienray, while they were busy fabricating XTC pills. Theo X. was apprehended in the neighbourhood of this facility.
4.6 Aftermath The description of the Foxtrot case shows the complexity of the illegal activities of criminal groups which operate internationally. Cross-border illegal activities can be mounted very quickly if a person is involved who is trusted by criminal groups in two or more countries. Ari S., for instance, was able to establish a route for trafficking cocaine from Spain to Russia, because he was able to do bussiness with Russian organised criminal groups as well as with Columbian cocaine dealers. For the police and judicial authorities in different countries, these (frequent) contacts between criminal groups often provide the first insight into criminal activities inside their own country. Requests for mutual legal assistance, thus, are an extremely valuable source of 'starting information' for criminal investigation. Not all information is pursued because of practical aspects such as the availability of personnel and equipment, but also because of the priorities set by the judicial authorities or political decision-makers. The Foxtrot case is an example of a criminal investigation that could not be started immediately after relevant information had been made available by the German authorities. For Theo X., the apprehension of Ari S., therefore, had few consequences. He was able to set up his own route for trafficking XTC from the Netherlands to Spain very quickly, based on the contacts that had already been established by 91
Ari S. This raises the question of whether complex international investigations should not be coordinated more closely between different EU countries in order to 'attack bridges between criminal groups from both sides'. Now these decisions are made ad hoc. During the Foxtrot case, the German authorities immediately put to use information about an (German based) Italian group involved in the illegal trafficking of cocaine. It took about eighteen months before the German information about the criminal activities of Theo X. led to the start of a criminal investigation by the Dutch police. The Foxtrot case provided information for the Spanish and Belgian authorities with regard to the dealing of XTC and the theft of a truck loaded with whisky. The latter case was picked up by the Belgian police.
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5
Case report on the EuroregionSønderjylland (DK) – Schleswig Holstein (G) By Peter Kruize and Erik Langhoff58
5.1 Introduction Description of the region Euroregion Sønderjylland (South Jutland) is distinct compared to other regions in Denmark since it borders directly to Schleswig Holstein, Germany. Ever since World War II the regions have come closer, political and cultural, and in 1977 the political Danish-German Forum (Dansk-Tysk Forum) was established. The purpose of the forum was for the politicians and officials to meet once a year and to discuss subjects of mutual interest.
58
Dr. Peter Kruize is assisting professor at the University of Copenhagen, Institute of Legal Science, Denmark. Erik Langhoff is head of the Analytical Unit, National Commissioner of Police, Department A, Denmark.
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Figure 1: Map of various places relevant for the case.
Halde
Helsingborg Helsingør Sandholm Sønderjylland
Slagels Flensbo
Schleswig / Holstein
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Ten years later this co-operation was intensified when a joint application concerning economical support in a number of projects was sent to the European Commission. The Commission granted the application and in 1989 they launched the first INTERREG program with support for the border regions, later referred to as Euroregions59. Historical conditions have shaped the composition of the population and the business structure of the region. Danish and German speaking minorities exist on both sides of the border, and German is widely spoken throughout the region60. Sønderjylland may be characterised as a rural area. No large cities are found in this region, but as major cities may be mentioned Haderslev (32,000 inhabitants), Sønderborg (29,000 inhabitants) and Aabenraa (22,000 inhabitants). Sønderjylland spans 3,938 km2 (9.2% of the total area of Denmark), while about a quarter of a million people (4.8% of the Danish population) live in this region. The German part of the Euregion is about the same seize (4,177 km2), but is more populated (438,014 inhabitants). Flensburg (87,000 inhabitants) is Schleswig Holstein’s major city61. The crime pattern of the region Sønderjylland is in line with the population size. As stated the region houses 4.8% of the Danish population. Of the half a million registered Penal Code violations in 1999, 3.6% is recorded in the region Sønderjylland. The clearance rate (defined as linking at least one suspect to a reported crime) is slightly higher than the national average: 21.9% versus 19.5%62. Organisation of law enforcement agencies in Denmark63 Denmark has a national police force and the country is divided in 54 police districts. The Danish police consisted of 12.980 employees, as of 1 January 2001, of which 10.413 were trained police officers, 427 lawyers and 2.140 were employees who had not had legal or police-related training (administrative personnel). In Denmark only the police have the competence to investigate criminal activities. The tax and customs services do not have these powers.
59 60 61 62 63
Institut for grænseregionsforskning, Sønderjyllands Amt, Sønderjylland på vej mod det 21. Århundrede, 1998 http://www.sjec.dk/sjec_gb.htm (Accessed December 12, 2001) Statistical Yearbook of Denmark, 1997. Statistical Yearbook of Germany, 1997. Available from: http://boreas.ifg.dk/norden/soenderj-slesvig/statistics/staistik_soenderj-slesvig.htm (Accessed December 12, 2001) Rigspolitichefen (2000) Politiets Årsberetning 1999, København. This paragraph is mainly based on: Peter Kruize, Country Report Denmark, in: Monica den Boer and Patrick Doelle (eds.) Controlling Organised Crime: Organisational Changes in the Law Enforcement and Prosecution Services of the EU Member States, EIPA (Research Project 98/FAL/145).
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The duties of the police are laid down in the Administration of Justice Act (retsplejeloven). These duties are 1) the maintenance of security, peace and order, 2) ensuring that laws and regulations are complied with, 3) taking the necessary steps to prevent crime, and 4) carrying out necessary investigation of crime and prosecuting offenders. The head of a police district is a Chief Constable (politimester). A Danish Chief Constable is a lawyer by training, because the appointed is not only head of the (district) police, but also head of the local prosecution service. The responsibilities and powers of the National Commissioner (rigspolitichefen) are defined in the Administration of Justice Act. This act gives the National Commissioner two major areas of responsibility – the administration of personnel and finances. The National Commissioner’s Office consists of eight departments (A to H), each responsible for special fields of duties. Department E – The Aliens Division – is the most important in relation to the case study. The Aliens Division includes police work in regard to the asylum centre Sandholm and a Task Force. On request the Task Force is offering investigative assistance to Danish police districts throughout the country in matters concerning illegal immigration and trafficking in human beings. The number of personnel of the Task Force is 14. The National Commissioner is not only responsible for the eight departments, but is also empowered to supervise and establish guidelines for the general organisation, administration and performance of duties. The National Commissioner may not, however, interfere with concrete law enforcement activities in the districts. The Chief Constables are responsible for the management and discharge of police duties. The Danish part of the Euregion Sønderjylland – Schleswig Holstein spans four police districts: Sønderborg, Gråsten, Tønder and Haderslev. To ensure assistance across district boundaries, the country is divided in seven police regions. The Chief Constable of one of the districts in the region – usually the largest – is head of the region as well. The head of the region Sønderjylland is Chief Constable in the police districts of Haderslev. The four police districts employ 16 lawyers (chief constables and prosecutors), 380 uniformed police officers, 49 detectives and clerical support of 70 persons. All together 515 persons, which corresponds with 4.1% of the Danish police (including clerical support)64. Since Denmark joined the Schengen co-operation two flying squads are founded. One squad in the area of Lolland-Falster and the other one in Sønderjylland. These two squads operate under the authority of the local Chief
64
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`Rigspolitichefen (2000) Politiets Årsberetning 1999, København.
Constable and may be assisted by the National Task Force on organised smuggling of human beings (National Commissioner’s Department E). Organisation of law enforcement agencies in Germany65 The German police are basically organised at the level of Länder (states). The Federal Republic consists of 16 Länder. Schleswig-Holstein is one of these. At the federal level exists the Bundeskriminalamt (BKA) which mainly delivers scientific support to criminal investigations in the Länder. In cases of organised crime BKA has a primary competence for investigation. Another federal police agency is Bundesgrenzschutz (BGS) which consists of 18 Bundesgrenzschutzämter. The BGS performs police functions in terms of border protection and in close co-operation with the police security control at the airports. One of the main tasks is for instance the trafficking in human beings, illegal immigration and the fight against drugs trafficking. Specifically the work and the fight with organised trafficking in human beings has since 1999 been intensified with the introduction of the above mentioned Bundesgrenzschutzämter and their co-operation with Landespolizei and others in joint investigation teams (Gemeinsamen Ermittlungsgruppen). According to a supplementary decision in September 1998 the BGS authority was expanded to beyond the 30-kilometre line from the border (in Germany) to search for persons. By this BGS will have better instruments and better possibilities to prevent illegal immigration and improve the fight against trafficking in human beings66. The Bundesgrenzschutzamt Flensburg performs the control at the 69km long border between Schleswig-Holstein and Sønderjylland. This unit of BGS employs about 800 persons.
5.2 Research methods The case study is focusing on the Danish part of a criminal investigation. This choice is made for practical reasons. In the selection procedure first of all the perspective of the research project is considered. The case had to fulfil four conditions. It had to be: 1. Initiated in the euregion. 65
66
`This paragraph is partly based on: Hans-Heiner Kühne, Country Report Germany, in: Monica den Boer and Patrick Doelle (eds.) Controlling Organised Crime: Organisational Changes in the Law Enforcement and Prosecution Services of the EU Member States, EIPA (Research Project 98/FAL/145). Jahresberichte des BGS, 2000, [Internet]. Bundesgrenzschutz. Available from: http://www.bundesgrenzschutz.de/allgem/oep_arbeit/jahresberichte/jbericht00/t21.html (Accessed November 16, 2001).
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2. 3. 4.
International police co-operation. Organised crime. A closed case.
The third condition – organised crime – may cause some definition problems. What is considered as organised crime may vary from region (country) to region (country). In this case study the Danish definition has been the guideline. Denmark has no legal definition of organised crime, but uses the EU-criteria to define the phenomenon. No further criteria for selection are defined. First of all we decided the case should deal with organised smuggling of human beings. The reason for this choice is two-sided. On the one side this type of crime is per definition international and is considered as organised crime in Denmark. On the other side smuggling of human beings has our professional interest. The next step was to contact The Aliens Division (Den Centrale Politiafdeling - DCP) of the National Commissioner’s Office whether they could point out an interesting case. They suggested the so-called Slagelse case. Slagelse refers to the competent police district. The suspects had been convicted by the District Court (Byret) in Slagelse. The case sounded interesting, but why was the case prosecuted in Slagelse – a town in West Zealand (Vestsjælland) – and not in Sønderjylland? This has to do with prosecution practice in Denmark. A criminal case is prosecuted in the district where the suspect has his/her domicile. The main suspect in this case lived in Korsør, belonging to the district of Slagelse. The Slagelse case concerned an international network of Palestinian immigrants who transported mainly Iraq Kurds illegally through Germany, Denmark and Sweden to Norway. At the time of the investigation (autumn 1999) Kurds had better chances of obtaining asylum in Norway than in Denmark or Sweden. The suspects in Denmark smuggled the immigrants from Denmark to Sweden. Just before the planned start of the case study we were informed that the suspects had appealed their sentence. Later we received permission to study the case, nevertheless. The interviews with the central detective of the case were conducted on 11th October and 19th December 2001. The appeal of the main suspect in the High Court (Landsret) took place on 15th October 2001. We attended this court session. The appeal case of the second suspect stretched over a longer period, because he – contrary to the other suspect – still denied guilt. We attended this court session for only one day (14th November 2001). On this day witnesses from Sweden and Norway should have 98
been questioned by the public prosecutor. This was cancelled at the last moment and instead the prosecutor referred to statements of these witnesses made on the District Court. For the purposes of this research project we got access to transcription of these statements in the case file.
5.3 Description of the case In October 1999 Bundesgrenzschutz (BGS) was investigating a network of professional smugglers of human beings. One of the main suspects was a Palestinian man who lived in Flensburg (Schleswig Holstein). BGS was tapping the suspect’s telephone and during one of the conversations a Danish telephone number was mentioned. The owner of this telephone- number could help the immigrants further into Denmark. BGS contacted the Danish National Commissioner’s Office, i.e. the Task Force on organised smuggling of human beings. At the same time the border control in Sønderjylland (in autumn 1999 Denmark had not yet joined the Schengen co-operation) had found a card with the same telephone number belonging to a person who tried to enter Denmark illegally. On this card the name of the town Korsør was printed as well. The third piece of information was about the border crossing of a German woman and a Arab man. After they have crossed the border for the third time, they were stopped, checked and an illegal immigrant was detected in the baggage compartment. The two smugglers of human beings were arrested and placed in pre-trial detention. During the interrogation they confessed about their contact in Flensburg. All the information about illegal trafficking and smuggling of human beings is sent to the Aliens Division of the National Commissioner’s Office. The analysis unit had linked the three pieces of intelligence and handed it over to the Task Force. The Task Force contacted the Chief Constable of Slagelse (Korsør belongs to this police district) who accepted that a criminal investigation was initiated. On the basis of this information the Task Force wanted to tap the mobile telephone number mentioned above. A judge of the District Court of Korsør gave the permission on request of the prosecutor of Slagelse police district. In Denmark a telephone tap is allowed according the Administration of Justice Act in cases where, as a general rule, the maximum penalty for the particular offence is more than 6 years of imprisonment. Some amendments, however, make it possible to tap a telephone in various cases in the Penal Code and the Aliens Act, even though the requirement of 6 years imprisonment is not
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fulfilled. Investigations concerning organised smuggling of human beings are one example. The tapped telephone number belonged to a so-called prepaid mobile phone. In Denmark such a telephone may be bought without the registration of name and address of the customer. So the police did not know to whom the telephone belonged. After a fortnight the suspect was identified, because he called his wife using his house number. The main suspect was considered the organiser/leader of the network. He was working closely together with another Palestinian. The police and the prosecutor saw these two men as the heart of the organisation in Denmark. They were sentenced at the District Court to 3.5 and 3 years of imprisonment respectively, expulsion from Denmark after serving their sentence and confiscation of the criminal revenues. Besides these two main men of the network the police identified about 10 assistants. Two of them are sentenced lenient; one is expelled from Denmark after serving prison sentence. The network was smuggling immigrants from Denmark to Sweden. From Germany these persons were smuggled to Denmark by passing the border in Sønderjylland. Sometimes this was done by car, sometimes by train. The immigrants were instructed to travel to Copenhagen or to the asylum centre Sandholm. Copenhagen as well as Sandholm are situated on Zealand (Sjælland). The immigrants received the telephone number of the main suspect who arranged a meeting in Copenhagen or Sandholm. From there the immigrants were transported to the ferry in Helsingør (Denmark) and shipped to Helsingborg (Sweden). Many of the immigrants were stopped by the Swedish passport control and sent back to Denmark. Then they later tried to cross the border again or they decided to apply for asylum in Denmark. The police in Denmark observed the network of smugglers of human beings for four months. During these four months the police registered 69 cases of (attempted) smuggling of human beings corresponding with 134 smuggled persons. In co-operation with the authorities in Germany the suspects in Denmark as well as Germany were arrested more or less at the same time.
5.4 National Police Co-operation Beginning the investigation focused on smuggling of human beings at the border between Germany and Denmark (Schleswig Holstein – Sønderjylland). Later the Danish part of the investigation concentrated on smuggling of human beings at the border between Denmark and Sweden (the ferry from Helsingør to 100
Helsingborg). The chief constable of Slagelse had the formal investigative competence, but the investigation was actually performed by the National Task Force. The Task Force employs 14 police officers. One police officer was coordinating the investigation. At the start two police officers were working on the case, but later the team was diminished to seven officers (half of the Task Force’s capacity). About 150 and 180 telephone calls per 24 hours had to be taped and typed. Since the suspects were speaking Arab, a translator had to transcribe the tapes. In case of smuggling of human beings in Denmark the suspects were shadowed by the police. Formally the public prosecutor is responsible for the police investigation as laid down in the Administration of Justice Act, but in practice it is often police officers who takes the responsibility. In this particular case the public prosecutor was involved from the very beginning. She was to get permission to tap the suspect’s mobile phone, and at the end she had to prepare the court trial. During the process of investigation the prosecutor was not interfering. Logically the prosecutor did not have any contact with the public prosecutors in the other countries involved. Besides the fact that the Task Force had to investigate the case under the authority of a local police chief, the Task Force is also dependent of cooperation and support of local police officers. The case co-ordinator thus exchanged information with the Border Police Department in Sønderjylland on a weekly basis and there was also an even closer co-operation with the police district of Helsingør. Reports were made when an illegal immigrant was returned from Sweden due to illegal entry.
5.5 International Police Co-operation Denmark – Germany As described the Danish Task Force was informed by BGS of the telephone number in relation to smuggling of human beings. BGS provided the Task Force directly with the information (intelligence). This is possible on the basis of the Europol Convention based on Article K.3 of the treaty on European Union. The Convention stipulates “…with the objective to improve the effectiveness and co-operation of the competent authorities to facilitate the exchange of information between the Member States. The information shall [normally] be transmitted via the national units”67. 67
Europol Convention, July 1995 (Applied in Denmark via Bekendtgørelse nr. 508 of 23rd July 1999 based on Law 415 of 10th June 1997).
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During the investigation the Task Force and BGS were co-operating. The operational co-operation had to be formalised. This was done through the formal channels – in Denmark via the Ministry of Justice and the Ministry of Foreign Affairs – and directly to BGS through Interpol Denmark and Interpol Germany according to the convention on Mutual Assistance in Judicial Matters from 20th April 1959. On an operational level the first meeting between the Task Force and BGS was in presence of the management. During the other meetings only the investigators were present. In total, Danish police officers have visited BGS three times and German officers have visited Denmark two times. Besides the visits the co-ordinators had contact by telephone on a weekly basis. A major advantage of the co-operation – mentioned by the Danish investigator – was the fact that the German investigator of BGS was able to speak Danish. BGS shared information/intelligence about the network with the Task Force. For example, at a certain moment the main suspect replaced his mobile phone. He had apparently become afraid of being traced by the authorities when using the same telephone number too long. He called his companion in Flensburg to inform him about his new number. But BGS was tapping the telephone of the suspect in Germany, therefore they could inform the Task Force about this new telephone number. BGS shared information about actually illegal immigration with the border control in Sønderjylland. In Germany the smuggled persons have to be identified in order to have a legal case. Danish legislation does not demand the identity of the persons smuggled. This difference in legislation made the investigation – seen from a Danish perspective – more complex in the sense that the illegal immigrants had to be arrested. This had to be done in such a way, that the suspects did not began to suspect the ongoing police investigation. An important pillar under the police co-operation is that the shared information is not used in such a way that is may frustrate the investigation in the other country. This explains why BGS and the task Force had co-ordinated the arrest of the suspects. Denmark – Sweden Historically Denmark is more Scandinavian than European. The Nordic police co-operation is based on the Nordic Police Agreement (1968). Police Officers and prosecutors are allowed to contact their colleagues in other Scandinavian countries without any formal barriers or procedures. Since the criminal network tried to transport refugees from Denmark via Sweden to Norway a joined action of the Danish, Swedish and Norwegian police was appreciated by the Danish 102
Task Force. Illegal immigration is co-ordinated by a working group with representatives of Denmark, Sweden and Norway. At a meeting in Denmark the need for co-operation in this actual case was stressed, but was turned down by the Swedish representatives. The reason for this response was Swedish legislation. In Sweden it is not allowed to “follow the crime”. “Controlled delivery” cannot by used in Sweden in cases of smuggling of human beings in contrast to cases concerning drugs. The lack of co-operation frustrated the investigation to a certain extent. For the Danish Task Force it was important to prove that Norway was the final destination. But how to do this, when it was not allowed to follow the persons smuggled through Sweden? Should the Swedish authorities not be informed in case the Task Force knew about a planned smuggling of human beings into Sweden? And, would the investigation not be exposed by informing the Swedish authorities? The Swedish passport control – a civil part of the Swedish Police – was informed in case the Task Force knew exactly which ferry the persons smuggled would take to enter Sweden. In those cases the Swedish passport control acted as if it was a regular check and sent the refugees back to Denmark. When a Danish ferry is in Swedish waters the Swedish authorities have the right to check the ferry. At the same time Danish police officers are allowed to watch the suspects as long as they are on the ferry. In case the exact ferry crossing was not known in advance, the Norwegian police were informed about the descriptions of the illegal immigrants, in the hope that they could take over the observation. At a certain time the Danish Task Force had information about the person who was transporting the persons smuggled through Sweden to Norway. Later the names of two further persons were known. The central department in Stockholm (Rikskriminalpolisen) and the local police districts of Göteborg and Skåne provided the Task Force with relevant information about the identity of these suspects. Danish and Swedish police officers may exchange this kind of information on the basis of the earlier mentioned Police and Custom Co-operation in Scandinavia (Politi og Told i Norden – PTN). Denmark – Norway The Norwegian police was interested in co-operation, but was also facing a legislative restriction. In Norway it is not allowed to tap a telephone. Therefore a Norwegian court will not accept the evidence collected by the Task Force in Denmark. Telecommunication data are, however, accepted as legitimate evidence. By showing who is calling whom, and at what time, the case could be 103
built up. The Danish Task Force was co-operating with Kriminalpolitisentralen (Kripos) the Norwegian National Criminal Investigation Service (NCIS), a National Unit comparable with the Danish National Commissioner’s Office. At the time when the contact in Sweden was identified, the Norwegian border control was informed. After some time they succeeded to arrest the suspect at the border in Halden (Norway). Even though it was not clear that the person was smuggled by the case suspects through Denmark – the Swedish suspect was also smuggling human beings for other networks – the Danish information could be used at trial, because the suspect admitted having worked for the Danish network.
5.6 Aftermath The core evidence collected in Denmark is stemming from telephone tapping – a total of 10 binders with transcripts – and shadowing. Telephone tapping as well as shadowing are expensive and time consuming instruments. Especially in this case, where the conversations were held in Arab – an interpreter had to translate the conversations. The two main suspects in Denmark were arrested on March 13th 2000 and placed in pre-trial detention. The suspects denied guilt and 9 months later they were sentenced to 3.5 and 3 years of imprisonment respectively, expulsion from Denmark after serving their sentence and confiscation of the criminal revenues by the District Court of Slagelse. The maximum sentence for organised smuggling of human beings is 4 years of imprisonment. Since the suspects declared that they were not guilty the prosecutor had to prove their guilt. Therefore many witnesses were putted to the stand. One of the witnesses is a BGS representative. Three Swedish employees working for the passport control in Helsingborg and the Norwegian police officers of Kripos were also called to the stand. The central detective of the Danish Task Force was called as a witness in connection with the court session in Norway. The two main suspects in Denmark appealed their verdict at the High Court. One of the suspects – the organiser of the network – in the meanwhile changed his statements and pleaded guilty. The other suspect still pleads not guilty. In both cases the verdict of the District Court was supported by the High Court.
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5.7 Conclusions and Discussion On the basis of this case study three main conclusions about international police co-operation in cases of organised crime may be drawn. The first conclusion is that differences in the legal systems of the EU-countries may complicate an investigation. Countries has different legal standards concerning for instance the use of proactive methods, such as controlled delivery. In this case the Swedish legislation demanded an arrest of the illegal immigrants, which potentially damaged the investigation. An arrest was demanded because Swedish legislation do not allow controlled delivery in smuggling of human beings cases. Being aware of the limitations and its consequences a flexible strategy may smoothen the co-operation and may avoid failure. To ensure a not too flexible and creative strategy by police officers the public prosecutor has to take his/her role as ‘controller’ seriously. The second conclusion of this case study is, that international police cooperation to some extent still relies on personal contacts (the old boys network) rather than on formal structures. Especially when these contacts include a mutual linguistic and cultural knowledge. In this case study the German contact of BGS was able to communicate in Danish – a major advantage, according to the Danish representative. In this investigation at least68 four countries were involved. It would have been formally correct (at least as a starting point) to involve Europol – by using the Liaison Officers – to ensure an optimal exchange of information to all countries involved. Europol was probably not involved in the investigation for pragmatic reasons. When it is possible to do business in a bilateral way, the need for involving Europol is not felt. The third and maybe most important conclusion is not directly inducted from the case description, but is found “between the lines” of the interview with one of the investigators. Politically seen many European countries want to reduce the number of asylum seekers. When the Danish police inform the Swedish authorities about illegal immigrants trying to cross the border and Denmark has to house or to expel these persons, the Danish authorities act ethically correct. In this case the Swedish authorities demanded that the illegal immigrants returned to Denmark. Suppose the Danish authorities had the same demand towards Germany? The illegal immigrants were not returned to Germany, unless they were stopped at the border. Would Germany accept that, and would BGS in a future case want to share information with the Danish authorities? 68
Maybe more than four, because it is possible that the German authorities also co-operated in this case with those countries through which the human beings were smuggled to Germany.
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The bottom line is, in our opinion, that effective international police cooperation is only possible when police authorities are relatively independent on national or local political issues, but – of course – act in conformity with the legislation of all countries involved.
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6
Report on Judicial and PoliceCooperation in Saar-Lor-LuxRheinland-Pfalz Region By Judith Lenssen and Peter J. Cullen69
6.1 Introduction: The Euregion Saar-Lor-Lux-Rheinland-Pfalz The Euregion Saar-Lor-Lux-Rheinland-Pfalz comprises the contiguous southwestern parts of Germany, Luxembourg and France. Co-operative relationships have been in place in this "Euregion" for some time. Mostly this co-operation has been concentrated on economic, social and cultural matters: • 13.03.1969: a Government-Commission (Regierungskommission) was founded between Germany, France and Luxembourg dealing with general tasks of regional co-operation; • 1971: foundation of a Regional Commission (Regionalkommission) SaarLor-Lux-Rhineland-Palatinate with working groups caring for different aspects of regional co-operation, e.g. social and society development, economy, environment, traffic, culture; • 17.02.1986: foundation of an Interregional Parlamentarian Council (Interregionaler Parlamentarierrat) between the region of Lorraine, Luxembourg, Saarland, Rhineland-Palatinate and the region of Wallonie. This Council has no right to take binding decisions but it has exercised 69
Based on initial discussions between researchers Peter Cullen and Judith Lenssen of the Academy of European Law, Trier and statements made in official capacity made by Jeff Neuens, Principal Commissioner, Luxembourg Police and on a discussion with Mr. Dupré of the Police in Trier.
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•
considerable political influence on economic, social and cultural cooperation in these regions; 23.01.1996: Karlsruher Abkommen between the governments of Luxembourg, Germany, France and Switzerland about cross-border cooperation between local communities and administrations.
This first summary report is based on the information given by Mr. Jeff Neuens of the Service de Police Judiciaire in Luxembourg in conversation with the researchers Peter Cullen and Judith Lenssen and on information given by Mr. Dupré of the police (“Kriminalpolizei”) in Trier. Additional research findings have been added by the researchers.
6.2 Historical development Luxembourg
of
cross-border
co-operation
in
At the end of the 19th century an economic boom started with the extraordinary expansion of the steel industry; Luxembourg’s prosperity has however since the 1970s increasingly rested on the services sector, particularly banking and finance, which have since guaranteed the prosperity of the country. In the 1970s the banks did not care much about the origin of the money invested with them. Therefore one could be under the impression that Luxembourg did not place great emphasis upon co-operation with border/foreign countries concerning financial crime investigations. But this was not due to a lack of political will but rather due to the fact that in the early 1970s neither the police nor the judicial authorities had the necessary expertise or structures at their disposal to recognize the real impact of financial crime. On the other hand the lobby of the financial sector did not push politics toward a "co-operation policy". This situation slowly changed with the growing importance of the Luxembourg financial sector. Today, going hand in hand with the European integration process, there is a real will to co-operate and to combat fraud, money laundering or other forms of financial crime with which Luxembourg is often associated70.
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see inter alia the „Montebourg-Report“: N° 2311 Rapport d’ information par la mission d’ information commune sur les obstacles au contrôle et à la répression de la délinquance financière et du blanchiment des capitaux en Europe (1); Volume 5 – Le Grand Duché du Luxembourg, from 22 January 2002, http://www.assemblee-nationale.fr/rap-info/i2311-51.asp
The Luxembourg authorities' concern is to strike a balance between two needs: to combat international crime and to preserve the credibility of Luxembourg as a financial centre.
6.3 Bilateral Agreements relating to Policing of the Euregion Over the last few years, bilateral agreements between Luxembourg and Belgium71, Germany72 and France73 have been put into place, enabling police forces to co-operate more closely with one another in cross-border crime cases. But already in 1967 a bilateral agreement between Germany and Luxembourg74 was signed in order to facilitate the free movement of persons in the border regions. In Art. 9 of this agreement, which provides general rules for border crossing by persons, the possibility for police officers and customs officers to cross the border was already provided for. Under this agreement the officers were even allowed to cross the border with their firearms and in uniforms. The use of their firearms was allowed only in case of self-defence. Additionally, a so-called “Mixed Commission” with four members from each state has been established according to Art. 18 of this agreement: it is responsible for decisions which are more far-reaching than the possibilities directly foreseen in the agreement. That means that this commission can suggest suitable measures for the execution of the agreement and for the solution of individual questions coherent with the agreement. In the bilateral agreement between Germany and Luxembourg of 1996, the possibility for direct contacts between the police in Luxembourg and Germany 71
72
73
74
Accord entre le Ministre de la Justice et le Ministre de la Force Publique du Grand-Duché de Luxembourg et le Ministre de l'Intérieur et le Ministre de la Justice du Royaume de Belgique relatif à la Coopération Transfrontalière entre le Royaum de Belgique et le Grand-Duché de Luxembourg du 4 juin 1996. Bekanntmachung der Vereinbarung zwischen dem Bundesminister des Innern der Bundesrepublik Deutschland sowie dem Justizminister und dem Minister der öffentlichen Macht des Großherzogtums Luxemburg über die polizeiliche Zusammenarbeit im Grenzgebiet zwischen der Bundesrepublik Deutschland und dem Großherzogtum Luxemburg Vom 8. Juli 1996 , Bundesgesetzblatt 1996 Teil II Seite 1203. Le 15 octobre 2001 à Luxembourg, Monsieur Luc Frieden, Ministre de la Justice et Monsieur Michel Wolter, Ministre de l'Intérieur, ont signé avec le Ministre français de l'Intérieur, Monsieur Daniel Vaillant, un accord entre le gouvernement de la République française et le gouvernement du Grand-Duché de Luxembourg relatif à la coopération dans leurs zones frontalières entre les autorités de police et les autorités douanières – Fundstelle Abkommen zwischen der Regierung der Bundesrepublik Deutschland und der Regierung des Großherzogtums Luxemburg über persönliche Erleichterungen, BGBl 1967, Teil II, S. 910.
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is established, avoiding the need in every case to go through central national offices. The co-ordination of common police investigations is foreseen, too, as well as the sending of contact police-officers to the neighbouring country (without executive powers). Cross-border observation is regulated in accordance with Art. 40 of the Schengen Convention of 1990 – the same goes for hot pursuit (Art. 41 of the Schengen Convention). Germany allows the Luxembourg police to pursue persons in Germany without any restriction – the German police is allowed to continue pursuit within a 10 km radius of the German border with Luxembourg. According to Art. 9 para. 1 of the bilateral agreement, the heads of police have the possibility to exchange their knowledge and experience and they should inform each other of current training and education possibilities in their country. Concerning technical matters, the states try to reach a great compatibility in order to simplify a co-operation. Another bilateral agreement which was entered into already in 1960 was that between Germany and Belgium75. Under Art. 1 of this agreement a contact/communication service was established between the police authorities in order to inform each other about criminal cases in the border region and about events which require urgent measures. The police of North-Rhine-Westphalia, Rhineland-Palatinate and the German Customs office are affected by this agreement. The co-operation between German and French police authorities is in some cases rather more complicated. On the one hand this may be due to the centralised structure of the French Police – often Paris has to be involved and on the other hand the strict separation of Gendarmerie and Police Nationale causes problems because the communication is more complicated. German Police co-operation with the Netherlands is very good, even if direct borders do not exist in the region of Trier and Schengen is not applicable. The bilateral agreement between Luxembourg and France was signed in October 2001. This comprises the right for police forces to pursue persons by helicopter (the air space is opened for these cases of pursuit – Art. 11 of the Agreement). Another important aspect is the foundation of a common commissariat, which will be installed in Luxembourg. This joint office is 75
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Abkommen über die dienstlichen Beziehungen zwischen deutschen Polizeibehörden im Grenzgebiet, Ministerialblatt 1960, Spalte 795.
und
belgischen
designed to contribute to improved and more direct co-operation between these countries, in particular their police and customs officers. Such an office has already been established in Offenburg under a bilateral agreement between Germany and France76, regulating police and judicial crossborder co-operation in a rather detailed fashion. According to this agreement of 1997, officers of both countries have, since May 1999, been working together in situ in this common centre for German-French police and customs cooperation, and are, thus, able to resolve problems of concrete co-operation in a direct and non-bureaucratic way. The German Bundesgrenzschutz (Federal Border Guard), Zollbehörden (customs offices) and the police of BadenWürttemberg and Rheinland-Pfalz are represented in this office alongside the French Police Nationale, the French Gendarmerie, the French Customs office and the French “Direction centrale de la sécurité publique”. One of the main tasks of the persons delegated to these bodies is to collect data and information concerning cross-border criminality, the ultimate aim being to develop a detailed picture of the crime situation in the border region. The officers concerned work not only on cases of serious crime, but also in fraud, robbery and car theft investigations. The officers working in Offenburg assist crossborder crime cases being handled by the police departments in Freiburg, Karlsruhe, Rheinpfalz, Westpfalz (all Germany) and Département Haut-Rhin, Bas-Rhin and Moselle (all France). As a result of the Law of 27 August 199777 approving the Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters78 , mutual legal assistance is now also guaranteed in tax fraud cases (but not concerning ordinary tax evasion). The former barrier to mutual legal assistance in direct taxation cases has been lifted. This barrier was rooted in Luxembourg’s declaration under Art. 5 of the 1959 Convention79 which linked 76 77
78 79
Abkommen über die Zusammenarbeit der Polizei- und Zollbehörden in den Grenzgebieten, 9 Oktober 1997, BGBl 1998 II, 2479. The deposition of the act took place only in October 2000 and entered into force on 31 December 2000. The reason was that Luxembourg wanted to wait until the August 2000 law was enacted this to avoid the well-known problems that could occur with the old text (multiple appeals). Council of Europe-ETS no. : 099 - signed in Strasbourg on 17 March 1978, Source: http://conventions.coe.int/treaty/en/Treaties/Html/099.htm Declaration contained in a letter from the Permanent Representative to the Council of Europe, dated 16 November 1976 handed to the Secretary General at the time of deposit of the instrument of ratification on 18 November 1976 - The Government of the Grand Duchy of Luxembourg declares that letters rogatory for search or seizure within the Grand Duchy of Luxembourg will not be executed save for extraditable offences within the meaning of the
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mutual legal assistance to extradition. The 1957 Extradition Convention80 refused extradition for fiscal matters except as otherwise stated. In August 2000 a new law81 on mutual legal assistance was introduced in Luxembourg defining mutual legal assistance as a high priority (Art. 7). Since the introduction of the new law on mutual legal assistance the "public prosecutor general" has to take the decision whether assistance will be afforded to the requesting state; the Ministry of Justice is no longer responsible (the position of the executive in the separation of powers has thus been weakened). The prior assessment by the Minister of Justice of the necessity of implementation of letters of request, particularly in financial matters, no longer appeared to be in line with recent trends which favour direct transmission between judicial authorities, as allowed under Article 53 of the Schengen Convention and the Convention on Mutual Assistance in Criminal Matters82. Another positive change in the Luxembourg legislation is that the so-called “recours successifs” (multiple appeals procedure) in cases of requests from foreign countries has been abolished. This allowed the possibility of multiple objections, after rejection of the first one, thus delaying the proceeding. Despite restrictions arising from case law, there used to be serious delays affecting the return of letters of request to the requesting party, since transmission of the outcome of letters of request was suspended until an appeal had been settled. These delays were essentially linked to the fact that in addition to the defendant, any third party able to prove a legitimate personal interest had the right to make use of the appeal procedures. Another problem was that the time allowed for introducing an application for annulment began three days from when the decision was known. The problem was caused by the starting point because appeals were usually made by third parties who were not notified of the enforcement order. In such cases, it was for the public prosecutor to produce
80 81 82
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European Convention on Extradition, and provided that the court has authorised execution in accordance with its municipal law. Period covered: 16/02/77 - The preceding statement concerns Article(s): 5 Source: Treaty Office on http://conventions.coe.int European Convention on Extradition13/12/57, ETS no. : 024, Source: Treaty Office on http://conventions.coe.int Loi du 8 août 2000 sur l ’entraide judiciaire internationale en matière pénale, Memorial – Journal Officiel du Grand-Duché de Luxembourg, Recueil de legislation, A ––N °98 18 septembre 2000, p. 2002. See Evaluation report on Luxembourg with regard to judicial assistance and urgent requests for tracing and freezing or seizure of assets EUROPEAN UNION Brussels, 15 February 1999, Source: http://ue.eu.int/ejn/data/evaluation/5932_99.en.pdfOJ C 197 , 12/07/2000 p. 0003 0023.
proof of the date of receipt of the measure by the third party, something which was very difficult to obtain. In the absence of such proof, the result was that any interested third party had an indefinite right to appeal. As a consequence of the preceding point, the system completely failed to prevent the lodging of a series of successive appeals as an obvious delaying tactic by persons claiming to be able to prove a legitimate personal interest. Now the time for filing an appeal has been extended ( ten days) but this period begins from the issue of the act of enforcement itself rather than from its notification83. Since 1992 a law84 exists in Luxembourg enabling the police to collect "hard information"85 in a database that is generally referred to as the "INGEPOL"86 law and which is still not fully implemented. The reason is that the law contains a lot of obligations related to time limits, which are almost impossible to put into practice. Apart from this the system was not compatible with existing police databases so that it is not possible to buy an existing tool but a private company had to be charged to operate it.
83 84 85
86
Art. 9 (6) of the law „Loi du 8 août 2000 sur l ’entraide judiciaire internationale en matière pénale“, see fn 14 Reglement grand-ducal du 2 octobre 1992 relatif à la création et à l'exploitation d'une banque de données nominatives de police générale. „Hard information” is essentially information that is of a concrete nature so that it produces a police action (for example an arrest or drawing an official report to the attention of the judicial authorities that a criminal offence has been committed). It can also be information collected during an ongoing investigation (for example during a house search).On the other hand “soft information” need not be directly related to a criminal offence. It can be an interesting observation (for example meeting of a well known criminal with people who have no police records, connections between different groups).All information that is interesting to know in a law enforcement context can be considered as „soft information“. Information related to attempted criminal offences where there are not enough elements to allow a concrete police reaction are also considered as “soft information”. This is the reason why databases containing “soft information” are very delicate and that input and especially access to the information must be regulated properly. But they are very important for police work, including crime prevention. Functions of the INGEPOL System: The INGEPOL system has several functions, of which the management of police information could be considered the most fundamental. This includes not only the management of cases but also managing descriptions of persons and objects, be they firearms, jewellery, driving licences, stolen vehicles, banknotes, drugs, or objets d'art, for example. System exploitation is another important function, one aspect of which is the control of persons and objects (operational control). There is also the consultation of persons, including interviews, and information on objects and of cases within the framework relating to a judicial enquiry. Statistics are exploited and combinations of data play a part within the framework of crime prevention. The information system has to be administered, which subsumes validation of the information input. Then there is correctness, with regard to consistency of data and respect for legal provisions. Distribution of the information is an important function where the security of information must be taken into account, including confidentiality, availability, and integrity. Finally there is the management of users and access rights to information.
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However Europol has a data file collecting “soft information”87, too, and due to Article 12 (1) of the data protection law88 in L it is possible to pass on information to this data file. Originally in the Luxembourg INGEPOL project the possibility to collect “soft information” was planned, too, but this option was deliberately dropped in 1992 because it was considered to be an unjustified tool in relation to the criminal situation of that time and there were fears of possible abuse.
6.4 Existing Methods of Police co-operation in cross-border crime cases In most of the cases where information from a bordering country is needed, direct and personal contacts are used in an informal way (frequently between Luxembourg, Belgium, Netherlands, Germany and France ). As the officers in the border regions often have to work together or at least to get in touch with each other, many have established good mutual contacts and in most of the cases they know someone from the other country who can help and give the required information or at least pass the request on to the person who is responsible for dealing with the request. If, after direct and informal contacts and exchange of information, the police has collected enough evidence, the examining magistrate sends a formal request to the country concerned but only if the information is intended to be used in court later on. In Luxembourg the non-formal way is mostly not documented in the files or only by short memo. In Germany the police often contacts the Luxembourg Police in order to clear which modalities and formal requirements will be needed in order to open the formal request. For mutual legal assistance requests, the German and Luxembourg Public Prosecutors are responsible. In the case of examination of suspects in Luxembourg, the German Police is sometimes allowed to attend the examination and to ask questions indirectly through the official examining magistrate. But sometimes problems arise because of the different competences of police officers in Germany and Luxembourg. For example, the German Police officers are allowed to question suspects – a power not enjoyed by the 87 88
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The EUROPOL Convention regulates the information that might be collected and stored. These criteria apply for both hard and soft information. Luxemburg: "Loi réglementant l'utilisation des données nominatives dans les traitements informatiques" of 31 March 1979 changed by the law of 29 May 1998 ,mainly approving (ratifying) the EUROPOL Convention.
Luxembourg Police. Thus the powers of German Police officers go further than those of their Luxembourg colleagues. In Luxembourg the examining magistrate and the prosecutor cooperate without direct involvement of the police. The search tools are very similar in Germany and Luxembourg and the police informs the neighbouring police directly if a search is started in their own country. They have fixed contact persons who can be contacted directly in urgent cases and who are responsible for commencing the search in their own country as well. An advantage enjoyed by the police in Luxembourg is that they do not have language problems with the border countries/neighbouring regions. The German Police offers language courses for the staff ( in the Landespolizeischule in Hahn), in order to facilitate cooperation in the border regions – this is very useful for the cooperation with French-speaking police officers. These courses are language-exchange-seminars which have since 1996 been organised in cooperation with French partner institutions (the Ecole des officiers in Melun and the Gendarmerie Nationale D´Alsace). In the Landespolizeischule international seminars on police cooperation in Europe, on the European area of Freedom Security and Justice and on crossborder control of sexual crimes have also been organised. Additionally the Landespolizeischule supports in context of international police cooperation the Ministry of Interior of Rhineland-Palatinate in cooperation with the police institutions of Belgium, France and Luxembourg. Liaison officers89: In a case of taking of hostages in a Kindergarten in Wasserbillig ( a village in Luxembourg directly behind the German border) a German police officer was present during the whole case in Luxemburg. This liaison officer guaranteed the constant contact to the German Police authorities in order to pass on requests of the Luxembourg Police and to give any required information. Liaison officers are increasingly being posted fromone EU State to another. Another possibility which is practised quite often in this “Euregion” is the exchange of officers in order to obtain mutual information on investigating 89
See also: Joint Action 96/277/JHA of 22 April 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union.
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methods and usual methods of combating crime and investigating crime cases (measures of the police records department, work at the scene of the crime, securing of evidence). Case example of cross-border co-operation from the German perspective Bank robbery, 1997 After a bank robbery occured in Trier, the Trier police directly informed the Police in Luxembourg of this crime case. The perpetrators escaped with a car in direction of Luxembourg. The car was followed by German Police officers in L (hot pursuit) but the perpetrators were eventually able to escape on foot. The car, containing masks and firearms was confiscated by the Luxembourg Police. Later on the Luxembourg police found the two perpetrators in a hotel with a part of the stolen money. Subsequently, the German Police asked the Luxembourg authorities to take both suspects into provisional custody because of the pending extradition request. This request was problematic. The Luxembourg examining magistrate required an arrest warrant. But as it was a weekend the German authorities were not able to get this arrest warrant within the given time (deadline was midnight the same day). The Luxembourg police exceptionally allowed the arrest warrant to be presented in connection with a letter rogatory only the next day, thus preventing the Luyembourg Police from releasing the two suspect persons again. The suspects were German nationals (Russlanddeutsche). From the German point of view this way of proceeding was obviously rather dubious. It was not caused, however, by an unwillingness on the Luxembourg side to cooperate but perhaps due to missing or unclear legal bases. In a reverse case in Germany it would be no problem to arrest the suspects temporarily for up to 72 hours (§§ 112 ff StPO), also without an arrest warrant. After this slightly complicated procedure the suspects were extradited to Germany without further difficulties. The money, the car, and the other pieces of evidence (masks and firearms) were handed over to the German Police. A solution to the above-mentioned problems (no arrest warrant on the same day = no provisional custody) could be the extended possibility of the use of the SIS (Schengen Information System). Issuing an alert is, at present, according to Art. 95 Schengen Convention, only possible with accompanying letters 116
containing the essential information relating to the case which in Germany have first to be sent to the Federal Bureau of Criminal Investigations (Bundeskriminalamt) in Wiesbaden. This means that in urgent cases issuing an alert cannot be done in time because of the complicated formalities. If however there would be the possibility to issue an alert with SIS directly, the problems as described above would not arise. In the above-mentioned case the Luxembourg authorities would have had at least one “official” sign in order to justify a temporary custody. Such direct SIS alert could be limited to three days, requiring that after this period either the justifying accompanying letter would have been passed on to the competent authority or the alert would be removed from the SIS.
6.5 Co-operation with Europol90 a) Luxembourg perspective Summarising the experiences of the Police in Luxembourg with Europol one can state that co-operation is not optimal. The positive effects and changes since the introduction of Europol in the fight against organised crime are not immediately obvious. The general and theoretical idea of Europol as an international institution connecting the national police institutions seems to be good but in practice the transformation of this idea has not yet been achieved. Mostly it is more complicated to work with the help of Europol than to contact directly the country from where information is needed. This applies in particular to the Euregion where, for a long period, cross-border co-operation and personal contacts exist. At the moment the police in Luxembourg is mostly sending its requests to Interpol instead of Europol, even if there is no guarantee of getting an answer (from Interpol). The reason is that there are still some legal problems when cooperating with Europol (see below) and on the other hand contacting EUROPOL does not ensure a higher level of success. It is of course far too soon to be able to judge what EUROPOL's lasting contribution to the combating of organised crime will be, but, as more resources are placed at its disposal, it is legitimate to ask whether the initial impressions of co-operation between national competent authorities and the fledgling European police agency are positive. For the development of co90
Europol Convention . OJ 316 27/11/1995 p. 0002 - 0032
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operation in the future, the workings of the European Information System (EIS)91 will be particularly important. Seven „case“ examples relating to (non-) co-operation with Europol: 1.
Drugs-case, 1994 A person, being a member of a drug trafficking organisation, was arrested in Luxembourg. Further investigations concerning this criminal organisation were undertaken in the Netherlands and France. Europol was asked for information but without results. Later on, the head of the criminal organisation was arrested in the Netherlands but only due to personal and direct contacts between the police in Luxembourg and the Netherlands.
2.
A phone number in Great Britain was needed – successful result because of direct and personal contacts.
3.
Organised crime investigation, 1999/2000 Police in L asked Europol to deliver information from the Netherlands concerning an investigation – no results. Then the police in Luxembourg received the required information by personal contacts.
4.
Car robbery, 1996 Police in Luxembourg sent a request for an analysis to Europol. The police in Luxembourg did its own analysis in the same time with fewer professional resources but nevertheless their own analysis was more helpful than the one they received from Europol. Probable reason: At Europol investigators and analysts are not co-operating directly and analysts probably lack experience of officers on ground.
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Excerpt of Europol annual report 2000: The Europol information system is being developed by a consortium headed by EADS-Sycomore, with DataMat and Saillabs. It will provide for the first time a multilingual European platform to store and retrieve information on criminals, scenes of crimes, criminal organisations and modus operandi which can be accessed by all Member States. It will give the possibility to identify the correct contact point in case more in-depth information is needed. It will enable the law enforcement agencies in the Member States to coordinate their activities quicker and with greater efficiency. And for the first time, it will provide a ‘real time’, up-to date overview on organised crime within and affecting the European Union. Source: http://www.europol.eu.int/content.htm?reports/ar00/en.htm
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5.
Analysis Work File (AWF)92, 1999 EEOC Top 100 (Eastern European Organised Crime Top 100) is a EUROPOL work file collecting data of the Top 100 criminals of Eastern Europe. Luxembourg gave a lot of data and facts to Europol about a Russian criminal living in Luxembourg and playing a decisive role in the Eastern European crime scene. Europol then worked out an analysis about this person and sent it back to Luxembourg. The results were unusable and not helpful.
6.
Drug-case, 2001 Europol passed on a request coming from Italy to the police in Luxembourg concerning a suspected drug-dealer that should be questioned by the Luxembourg police. The Luxembourg police officer found out that this information had already been passed on to the Italian police by Interpol but due to the fact that Europol and Interpol in Italy had no contacts they asked for it twice.
7.
VICTOR Victor is a Europol programme93/ co-ordination project registering stolen cars/ chassis numbers and comparing those numbers all over Europe with new car registrations. This operation has been successfully finished and investigations have arisen with several arrests and seizures of stolen cars in Luxembourg, too.
Problems arising when Luxembourg gets requests from Europol Concerning the exchange of information with Europol, a formal problem exists in Luxembourg due to the powers of the examining magistrate, who strictly oversees the formal investigation. He is in particular obliged to keep the results of the first phase of investigation secret (secret d´instruction). That is why an 92 93
See also: Council Act of 3 November 1998 adopting rules applicable to Europol analysis files, OJ C 26, 30/01/1999 p. 0001 - 0009 excerpt of Europol annual report 1999: 4.6 Illicit Vehicle Trafficking Concerning the criminality related with motor vehicles...Europol started a second-hand car project. In this context, Europol supported two operations... In the first one, Operation Victor, Europol supported and co-ordinated an operation on controlling the registration of imported second-hand cars. Europol assisted Member States, Hungary and Lithuania to schedule and structure their law enforcement activities, supported by exchange of information and intelligence, and by analysis. This operation has been successfully finished and investigations have arisen with several arrests and seizures of stolen cars . Source http://www.europol.eu.int/reports/ar00/ar00_h.htm
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informal and spontaneous exchange of information with Europol is not possible in this phase of the investigation which is the most important and concrete one there is always the need for a formal request in Luxembourg. In contrast an exchange of information in a legal mutual assistance case is possible through OIPC-Interpol due to Art 15 para. 5 of the Strasbourg Convention94 . Another possibility to exchange information is Art. 10 of the Data protection law in Luxembourg95. Art 10 relates to the INGEPOL text and allows communication of data to foreign police services if foreseen in a convention or an intergovernmental agreement, or via Interpol. As this text was written before the creation of EUROPOL, this institution is not mentioned. Therefore the question whether EUROPOL may be considered as a foreign police service is not clear. Art 10 also raises other questions. In principle the INGEPOL database should be feed with information in real time, although this is not stated in the text itself. Again the question of the secrecy of the investigation must be considered. If the database can contain information covered by the secrecy of investigation, and there seems to be no doubt about that, then Art. 10 could be in contradiction with the Luxembourg penal procedure code where the secrecy of investigation principle is enshrined. In Luxembourg a law (the code of criminal procedure) cannot be changed by a Règlement grand ducal (INGEPOL). Consequently either Art. 10 violates the law and thus represents a legislative oversight or the transmission of data to foreign police services is not considered as a violation of the investigation principle. If this is the case, information exchange with EUROPOL should also be possible without any restriction. The idea of Analysis Work Files (AWF) may be good in theory but in practice Luxembourg (like all other police services) has insufficient human resources to deliver all the information to Europol which the latter requires. The Luxembourg police representative suggested it might be worthwhile directing resources to delegate officers of the Luxembourg police to work exclusively with EUROPOL on the AWF for a trial year period, to see what results might be obtained. Another probable problem of the AWF is the fact that the 94 95
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European Convention on Mutual assistance in Criminal Matters, see fn 11; Art. 15 (5): In cases where direct transmission is permitted under this Convention, it may take place through the International Criminal Police Organisation (Interpol). Luxembourg: "Loi réglementant l'utilisation des données nominatives dans les traitements informatiques" of 31 March 1979.
decisions which files are opened are strongly influenced by specific events with international repercussions which may not always be the best choice. Sometimes it can even seem that the files are chosen on a random basis. The system of selection is not always comprehensible for those who should use the results of those files (the national police officers) and therefore the benefit of those files in some cases is doubtful. It would perhaps be better to work on fewer files but concentrate on quality. b) German perspective For the German Police in Trier Europol does not play a role in cross-border cooperation. As for the cooperation with Europol, the Federal level is responsible; the Trier police officers do not have contacts to Europol. The responsibility for this cooperation is based at the BKA (Bundeskriminalamt – Federal Bureau of Criminal Investigations). In the daily work of the police officers in Trier there is no consciousness of the existence of Europol and therefore no discernible improvement as a result of its existence. This may also be due to the fact that Europol is concentrating on intelligence work. In case the Trier Police wants to get information from Europol they have to get in contact with the BKA. The same goes for Interpol.
6.6 Co-operation based on the Schengen Convention a) Luxembourg perspective An advantage of the Schengen Convention96 is that hot pursuit and cross-border observation are now regulated in a formal way. But there is also a currently unresolved question of interpretation concerning cases in which by bilateral agreements the cross-border observation goes farther than allowed in the Schengen Convention. For example, in fraud cases the Luxembourg and Belgian police agree that cross-border observation is allowed even if fraud is not explicitly mentioned in the Schengen Convention. It is a question of interpretation if this approach is legitimate: was the intention of the Schengen Convention to regulate all cases or not? Does the Schengen Convention exhaustively enumerate the cases in which cross-border observation is allowed, or it is flexible enough to allow more options, for example under bilateral agreements?
96
OJ L 239 22/09/00 p 19; OJ L187 10/07/01 p.45; OJ L150 06/06/01 p.4; OJ C 326 21/11/01 p.2.
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Arts. 3997 and 46 of the Convention implementing the Schengen agreement allow the spontaneous exchange of information but those Articles are apparently interpreted in a very restrictive way in Luxembourg. Example from 1995: After a car crash in Germany, where a citizen of Luxembourg was subpoenaed as a witness, the German police asked the Luxembourg police if it would be possible for German police officers to question the Luxembourg witness in Luxembourg. This request was refused. b) German perspective Also for the German police Schengen and its provisions are advantageous. Art. 39 of the Schengen Convention allowing the exchange of first information is very helpful and regularly used. Nevertheless the possibilities of police co-operation according to the Schengen Convention are in some cases only theoretically good because in practice the amount of rules and regulations associated with it can be irritating. In former times for Germany the main/only law regulating mutual assistance in criminal matters was the Gesetz über die internationale Rechtshilfe in Strafsachen (IRG)98 i.e. a single clear legal basis. On the other hand problems such as those experienced in Luxembourg, where the interpretation of the Schengen Convention is uncertain due to other bilateral agreements which go further, do not exist in Germany because the “old” agreements have been superseded.
6.7 European developments in the Justice and Home Affairs field: a practical point of view European Public Prosecutor: This idea should be supported, because it would be advantageous if responsibility in cross-border organised crime cases were centralised and if there were fixed priorities in the fight against organised crime. Additionally, parallel procedures across the European Union could be avoided. 97
98
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Excerpt of Art.39 (3): Where the request cannot be made in good time by the above procedure, it may be addressed by the police authorities of the requesting Contracting Party directly to the competent authorities of the requested Party, which may reply directly. In such cases, the requesting police authority shall as soon as possible inform the central body responsible in the requested Contracting Party for international police co-operation of its direct application. Gesetz über die internationale Rechtshilfe in Strafsachen BGBl I 1994, 1538-1553.
European arrest warrant99: a) Luxembourg perspective The advantages of this new instrument on European level are very doubtful. In practice more problems may now arise than before because the way how to proceed in case of getting an arrest warrant from another country is not regulated in a very detailed way. In the worst case it will now take longer to execute an arrest warrant than before on bilateral level, because it will not be clear who/which institution is getting the request and who is executing it. b) German perspective From a German point of view the European arrest warrant could bring advantages, because at the moment due to bilateral agreements the formalities and modalities regarding extradition vary from country to country - a unification of procedures could thus be advantageous. European Judicial Network100 – the idea in general of creating such a network is very good but in practice this network and the persons working for it on national level are not very well known. There is not enough information about it or the information is not reaching those who could need it.
99
100
COM (2001) 522 final/2, A political agreement was reached on 11 December 2001 at EU level on a European arrest warrant valid for the entire territory of the European Union, and on the surrender procedures between the member states. The European arrest warrant will come into force on 1 January 2004 for all Member States. Six EU governments - the UK, France, Belgium, Portugal, Luxembourg, and Spain - have agreed to implement the European arrest warrant a year ahead of the deadline: by the beginning of next year 2003, rather than 2004. The agreement was reached at the Informal Meeting of Justice and Home Affairs Ministers held in Santiago de Compostela, Spain, from 13 to 15 February 2002. Joint Action of June 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on the creation of a European Judicial Network, OJ L 191, 07/07/1998, p.0004-0007.
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Joint action of 21 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union101: until now only Belgium and Luxembourg102 transposed it into national law. However in Luxembourg it is questionable if in the near future someone will be convicted as a result of this law - it is far-reaching, and probably too innovative. There is as yet no jurisprudence on it.
6.8 Summarising the experience of cross-border cooperation in criminal matters a) Luxembourg perspective Summarising the advantages and disadvantages of European initiatives relating to the combating of organised crime from the perspective of a practitioner wellversed in European cross-border co-operation, the Luxembourg police expert concludes that multi-level regulation of this matter appears counter-productive: it makes it difficult for practitioners to maintain a clear overview of the applicable laws and can hinder rather than enhance co-operation.103 New European tools like EUROPOL have yet to prove their effectiveness. There seems to be a discrepancy between EU-initiatives and practical law enforcement needs. The question arises whether there is really sufficient political will to solve the pressing practical problems in the fight against organised crime as perceived by those involved at "ground level". Unresolved matters requiring 101 102
103
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OJ L 351 , 29/12/1998 p. 0001 – 0003. Bill No 4294 was recently adopted by Luxembourg and was the subject of the law of 11 August 1998 making membership of criminal organisations and money-laundering criminal offences under the Penal Code and amending various special laws. The amendments made by that law can be summarised as follows: (a) extension of the list of predicate money-laundering crimes. The law lays down the following as predicate crimes: drug-trafficking, crimes or offences within the framework of or in connection with an association to commit offences or a criminal organisation, corruption, abduction of minors, procuring, suborning of minors and breaches of the law on weapons and ammunition; (b) extension of the obligation to inform to professions other than those in the financial sector. In addition to credit institutions, other professionals in the finance sector, life assurance undertakings and insurance brokers, the law provides for extension of the obligation to inform to notaries, casinos, gambling establishments and to the profession of auditor; (c) making membership of criminal organisations as defined in the Joint Action a criminal offence under criminal law. That law entered into force on 14 September 1998. For a recent discussion of the complexity of the international legal framework concerning inter alia mutual legal assistance see for example M. Rantala, "A Treaty Labyrinth of Legal Cooperation in Criminal Matters: Can Europe find Ariadne's Thread?, in V. Kronenberger (ed.) The European Union and the International Legal Order: Discord or Harmony? (TMC Asser Press, The Hague, 2001), ch. 23.
regulation at European level include, from a Luxembourg police perspective, schemes for the protection of witnesses and the conduct of undercover police investigations. b) German perspective Summarising the experiences of co-operation from a German point of view, one has to state that cross-border co-operation is still an exception due to the fact that most of the crime cases – even in this region – are only on a national level. This situation has not changed significantly even with the opening of the borders and the abolition of border controls.
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7
The case of the Euroregion Tirol (Austria and Italy) by Sabrina Adamoli∗
7.1 Introduction In recent years significant progress was made in developing European and other international instruments which facilitate cooperation in criminal matters, and in particular in matters related to organised crime. However, little research has yet been done on the level of implementation of such agreements, and most of all on the way best practices have been developed by European Union countries sharing common borders. This paper presents an overview of the co-operation between police forces and judicial authorities in the Tyrol Euregion, covering the common border between Italy and Austria. The report is divided into three parts. The first part (section n. 2) outlines the relevant formal co-operation framework between Italy and Austria, which allows police and judicial co-operation across their common border. The second part (section n. 3) summarises part of a case of international drug trafficking by an organised crime group involving four EU Member States (the ∗
Sabrina Adamoli is Ph.D in criminology and researcher at TRANSCRIME, research centre on transnational crime at the University of Trento (Italy). The author is grateful to Stefano Fumarulo, PhD. candidate in criminology and researcher at TRANSCRIME - University of Trento, for his help in compiling this report.
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Netherlands, Germany, Austria and Italy) as well as Turkey and Switzerland. A part of this case, relevant for the purpose of this report, involved co-operation between the police forces of Austria and Italy. The third and final part (section n. 4) recapitulates the opinions expressed by law enforcement and judiciary personnel who were interviewed about current forms of co-operation and attempts to highlight ‘best practices’ in the cooperation between Austria and Italy which could be exported to other EU Member States sharing common borders. In order to gather the information necessary to compile this report, the researcher contacted the Procura (Public Prosecutor’s Office) in both Trento and Bolzano104, the two Autonomous Provinces into which the Trentino-Alto Adige Region is divided, which share a common border with the Tyrol Region in Austria. Furthermore, significant information as well as the organised crime case outlined in this report were obtained through interviews with personnel at the Questura105 in Bolzano106.
7.2 Formal cross-border law enforcement co-operation frameworks between Italy and Austria The regulation of cross-border law enforcement co-operation between Italy and Austria is generally covered by the Schengen Convention in Article 39. In paragraphs 4 and 5 it is respectively stated that “in border regions, cooperation may be covered by arrangements between the competent ministers of the Contracting Parties”, and that “the provisions of this article shall not preclude more detailed present or future bilateral agreements between Contracting Parties with common borders. The Contracting Parties shall inform each other of such agreements”. Furthermore, with a view to improving the effectiveness of controls and surveillance at borders, Article 7 of the Convention provides for an exchange of all relevant information relating to such controls, with the exception of data of named individuals. 104
105 106
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The author would like to thank dr. Profiti of the Public Prosecutor’s Office in Trento for his help in identifying a contact person in Bolzano, and dr. Tarfusser, head of the Public Prosecutor’s Office in Bolzano for his help in selecting a suitable case and for the opinions expressed. Questure are peripheral bodies of the Ministry of the Interior, constituting the local headquarters of the state police. They operate at the provincial level and have investigative and administrative functions. The author would like to thank dr. Mamani of the Squadra Mobile of the Questura in Bolzano for his precious help in describing the organised crime case used in this report and for the valuable information provided to the author.
Austria and Italy signed three agreements in order to strengthen co-operation regarding their common border: the first agreement was concluded between the Ministries of the two countries in 1986 on co-operation in combating international drug trafficking, international terrorism and international organised crime. The second, dealing with cross-border surveillance and pursuit by customs authorities, and the third, dealing with police co-operation in border regions, were reached in 1997. The analysis that follows is based both on the Schengen Convention and on the bilateral agreements between Austria and Italy and will cover the issues of liaison officers, mutual assistance, regulation of pursuits and that of surveillance. Liaison officers The Austrian Ministry of the Interior, together with the Dipartimento della Pubblica sicurezza, Direzione Centrale della Polizia Stradale, Ferroviaria, di Frontiera e Postale (Italian Public Security Department, the Central Directorate of Traffic, Railway and Postal Police and Customs) are the central authorities, in Austria and Italy, designated by Schengen Convention to manage all relevant information aimed at the effective implementation of controls and surveillance at their common border. This co-operation is carried out by seconding liaison officers to the police or customs authorities of another State. This kind of activity is provided for in three cases regulated by the Schengen Convention: in the context of surveillance of external borders, to exchange information and help harmonise controls as well as organise joint training programmes, as stated in Article 7 (“The Contracting Parties shall as far as possible harmonise the instructions given to the authorities responsible for checks and shall promote the standard training and retraining of officers manning checkpoints. Such cooperation may take the form of an exchange of liaison officers”); in the context of general missions, to provide assistance and advice, as stated in Article 47 (“liaison officers shall have the task of providing advice and assistance. They shall not be competent to take independent police action. They shall supply information and perform their duties in accordance with the instructions given to them by the Contracting Party of origin and by the Contracting Party to which they are seconded”);
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in the context of co-operation between customs authorities, to foster and expedite mutual assistance. Article 125 states that “the secondment of liaison officers shall be for the general purposes of promoting and accelerating cooperation between the Contracting Parties, in particular, within the framework of existing Conventions and Community acts on mutual assistance”. The Contracting Parties have the duty to inform each other of any liaison officers seconded to third countries. Mutual Assistance The above mentioned Article 39 of the Schengen Convention regulates, in its first three paragraphs, the principle of mutual assistance between police authorities for the purposes of preventing and detecting offences. A series of conditions are provided for by this Convention in order to grant requests for mutual assistance. First of all, authorisation must be provided by national legislation. Furthermore, the assistance requested must be within the scope of the powers of the authorities concerned and the competence should not be confined to only judicial authorities. The request or the implementation must not involve the application of measures of constraint by the Contracting Parties. Finally, the written information provided by a Contracting Party may not be used by the requesting Contracting Party as evidence of a criminal offence unless consent is given by the competent judicial authorities of the Contracting Party providing the information. The Italian S.I.RE.N.E. Division (Supplementary Information Request at National Entries) and the Austrian Criminal Police – Interpol Division are, as a rule, the two central authorities responsible for international police co-operation which have the duty to request or to respond to requests for assistance. In emergency cases, requests for assistance may be addressed directly to the competent authorities of the country concerned, who may respond directly. In such cases, the requesting police authority shall at the earliest opportunity inform the central body responsible for international police co-operation in the Contracting Party’s country of its direct request. In order to implement Article 39 of the Schengen Convention, the police forces of the Schengen States may exchange, amongst other things, information regarding the identification of vehicle owners and drivers, the identification of
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persons, the tracing of the origin of goods, particularly weapons and vehicles, and the examination of evidence. Pursuit Article 41 of the Schengen Convention focuses its attention on the regulation of the pursuit of a person. The possibility is granted, for an officer in pursuit of a person, to continue the pursuit on the territory of another Schengen State with which their State shares a common border. This possibility, however, is subject to the following very strict conditions and precise arrangements: • pursuit shall be solely over land borders; • only officers authorised by the individual State may exercise the power of pursuit; • each State has two options for the types of offence allowing the power of pursuit to be exercised: either the list of offences in Article 41 (4) (a) or the extraditable offences listed in Article 41 (4) (b). The Austrian officers authorised to exercise the power of pursuit are the members of the Bundesgendarmerie (federal rural police), the Bundessicherheitswache (federal security guard), the Kriminalbeamtenkorps (criminal investigation service), the officials of the legal department of the security authorities, customs officers responsible for combating illegal drug trafficking, illicit trade in arms and ammunition and illicit transport of toxic and harmful waste. The list of Italian agents authorised to exercise the power of pursuit includes Criminal Investigation Department officials and officers from the State Police and the Carabinieri, the Guardia di Finanza and customs officers. In particular, the Criminal Investigation Department officials from the Guardia di Finanza can be involved in cases involving counterfeit money, the illegal trafficking of drugs and psychotropic substances and arms and explosives trafficking. As regards customs officers, they can be involved in cases involving the illegal trafficking of drugs and psychotropic substances, arms and explosives trafficking and the illegal transportation of toxic and harmful waste. Regarding the offences which entail the power of pursuit, except in cases where the person has escaped, the power of pursuit across the Austrian-Italian border may only be exercised where the person has been caught in the act of committing or participating in an extraditable offence (Article 41 (4) (b) Schengen Convention). 131
In addition to that, pursuit may be exercised in ‘emergencies’ on condition that: • it has not been possible to advise the Contracting Party in whose territory the pursuit is to take place in advance due to particular urgency of the situation; • the authorities were advised but have not been able to take up the pursuit in good time themselves; • if the pursuing officers cross the border they shall, at the earliest time possible, contact the competent authorities of the Contracting Party in whose territory the pursuit is to take place; • the pursuit will cease as soon as the Contracting Party in whose territory the pursuit is taking place so requests. In general terms, each individual State is free to decide whether or not to impose restrictions on the power of pursuit: these restrictions can be territorial (i.e., the authorisation of pursuit may involve either the entire territory or just a certain number of kilometres from the border), temporal (i.e., either a period from the time the border was crossed or without time limits), or concerning the powers of pursuing agents (in some Schengen States they are allowed to stop and question, not in others). As regards the application of these restrictions to the specific cases of Austria and Italy, it needs to be emphasised that pursuit may be carried out only within a 20 km radius of the border on motorways and a 10 km radius on other roads. Furthermore, pursuing agents in Austria do not have the power to stop and question and vice versa, while pursuing agents in Italy do not have the power to arrest the person being pursued. In cases of emergency, the central police authority or the liaison officers of the State concerned will be informed of an ongoing pursuit at the earliest possible time after the border has been crossed. The officer must act in compliance with the national law of the country in which he or she is operating and must follow the instructions of the locally competent authorities, he of she must be in possession of his or her service badge or pass and be easily identifiable. Once the pursuit has been ended, the pursuing officers must appear before the competent local authorities of the country in whose territory they were operating and give an account of their mission. Any persons arrested may only be subjected to a security search in order to bring them before the local authorities.
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During pursuit, the officers are allowed to carry their service weapons. In Austria service weapons are weapons issued to persons by their superiors for the performance of their duties in a public service (truncheons, tear-gas and individual firearms). In Italy the service weapon, a semiautomatic pistol, is the personal weapon issued to each officer for the entire duration of his or her service in the police force. The use of such weapons is generally prohibited, with the only exception of cases of legitimate self-defence. In order to clarify questions of definition, it is useful to analyse the definition of self-defence in the two countries concerned by this report. In Austria, self-defence is legitimate if the following prerequisites are met: • there must be an existing or immediate threat of an unlawful attempt on the life, health, bodily integrity, freedom or property of the official or of another person; • the means deployed to avert the assault and the extent to which they are used must be necessary; • the assaulted party must not have deliberately encouraged or provoked the attack. Article 52 of the Italian Penal Code states that a person is deemed to have acted in self-defence and therefore is not liable to criminal prosecution under the following conditions: • defence is in response to an unwarranted attack on the rights of an individual or that of a third party; • the actual need for defence is real and present; • defence is in proportion to attack. During pursuit, entry into private homes and places not accessible to the public is prohibited. According to Austrian law and the case law of Austrian courts, the inviolability of the home applies to a dwelling and outbuildings to this dwelling that are not accessible to the public. Under Italian law and case law, the inviolability of the home applies to private homes and residences, even temporary (such as caravans, tents, hotel rooms, boat cabins, etc.), and extends to the place in which the person concerned exercises his or her profession and is not accessible to the public.
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Surveillance According to article 40 of the Schengen Convention, “police officers of one of the Contracting Parties who, as part of a criminal investigation, are keeping under surveillance in their country a person who is presumed to have been involved in a criminal offence to which extradition may apply, shall be authorised to continue their surveillance in the territory of another Contracting Party where the latter has authorised cross-border surveillance in response to a request for assistance which has previously been submitted”. This definition covers “ordinary” surveillance, but the Schengen Convention also provides for surveillance in ‘emergencies’, which allows surveillance to be continued in the territory of another State without prior authorisation. This ‘emergency’ surveillance is subject to the following conditions: • prior authorisation could not be requested for particularly urgent reasons; • a judicial inquiry is pending; • the person under surveillance is suspected of having committed one of the extraditable offences mentioned in article 41 (4) (a); • the authorities of the Contracting Parties (only authorised officers), in whose territory the surveillance is to be continued, must be notified immediately that the border has been crossed; • a request for assistance outlining the grounds for crossing the border without prior authorisation shall be submitted without delay. Austrian and Italian agents authorised to exercise the power of surveillance, are those mentioned above who have the authorisation to carry out pursuits, that is: in Austria the members of the Bundesgendarmerie (federal rural police), the Bundessicherheitswache (federal security guard), the Kriminalbeamtenkorps (criminal investigation service), the officials of the legal department of the security authorities, customs officers responsible for combating illegal drug trafficking, illicit trade in arms and ammunition and illicit transport of toxic and harmful waste. In Italy Criminal Investigation Department officials and officers from the State Police and the Carabinieri, the Guardia di Finanza and customs officers. In particular, Criminal Investigation Department officials from the Guardia di Finanza can be involved in cases involving counterfeit money, the illegal trafficking of drugs and psychotropic substances and arms and explosives trafficking. Regarding customs officers, they can be involved in cases involving the illegal trafficking of drugs and psychotropic substances, arms and explosives trafficking and the illegal transportation of toxic and harmful waste.
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7.3 Concrete co-operation on an organised crime case involving Austria and Italy From the interviews conducted, there seem to be few cases of organised crime which implied cross-border co-operation in the Tyrol Euregion. Most of the cases which make cross-border cooperation necessary relate to less serious crimes. However, a recent case of international drug trafficking was identified involving a Nigerian criminal group. In this case investigative and judicial cooperation between Italy and Austria, following the articles of the Schengen Convention outlined in the previous section, was deemed necessary. A summary of the case is reported here. The investigation was part of a larger, transnational operation involving four EU Member States (Germany, the Netherlands, Austria and Italy) as well as Turkey and Switzerland. It was started in January 2001 and concluded in October 2001. The case was started by the Public Prosecutor’s Office in Prato (Italy) and involved other Procure all over the country (namely Padova, Modena. Perugia, Napoli and Caserta). In this case co-operation between Austrian and Italian authorities was deemed necessary, because the criminals involved were suspected of being active in both countries. The case started when an organised crime group of Nigerian origin was suspected by the Public Prosecutor’s Office in Prato (Italy) of international drug trafficking using several airports in Europe. In particular, the attention of the Italian authorities focused on a suspected member of the organisation, of whom only the name was known (ethnic origin and nationality were unknown). He was supposed to have arranged a journey from Italy to Curaçao (a dependency of the Kingdom of the Netherlands in the Caribbean) in order to acquire a certain amount of cocaine to be trafficked to Europe for sale on the Italian market. His return journey was supposed to follow the route Curaçao – Amsterdam – Innsbruck – Italy via the Brenner pass (Austria-Italy border). The Italian public prosecutor believed it was necessary to involve the Austrian law enforcement authorities in order to be able to physically identify the suspect when he left Innsbruck airport and subsequently be able to further investigate his activities and that of the criminal group. For this reason, on 3 May 2001 the Questura in Bolzano was informed of the case and of the possibility that the 135
suspect would be crossing the border within a few days. The Questura in Bolzano immediately informed the Bundespolizei in Innsbruck and an informal agreement on co-operation in the investigation was reached, on the basis of the above mentioned articles of the Schengen Convention and of the law enforcement co-operation agreements between Austria and Italy. Due to the restricted time frame, an ‘emergency’ procedure was used and the relevant investigation was performed by the Austrian police. The Italian counterparts were constantly informed of any relevant information, and decisions concerning the various steps of the investigation in Austria were taken jointly with the Italian authorities. On the basis of the information provided by the Italian police, the suspect was identified when he reached the airport in Innsbruck. It was discovered that he was a Hungarian citizen, and not a Nigerian as originally supposed. Surveillance was started, as he was thought to be headed towards Italy, in order to acquire information on other members of the drug trafficking network. However, through the interception of communications the Austrian authorities discovered he was on his way to Vienna by train rather than to Italy. From Vienna he was heading to Hungary, thus leaving the Schengen area, where he was ordered to wait for instructions as to how smuggle the drugs into Italy through less patrolled borders. It was therefore agreed with Italian law enforcement officers that the suspect would be arrested by the Austrian authorities. The suspect was captured on the train to Vienna and gr. 600 of pure cocaine were seized. He was charged in Austria with the offence of international drug trafficking and convicted. After the suspect had been apprehended by the Austrian police, a more formal exchange of information took place. Part of it concerned the exchange of evidence, and copies of the investigation reports necessary for the continuation of the investigation and of criminal proceedings against the other members of the criminal group in Italy. In order to acquire this information, an official request for international legal assistance was sent. The investigation of this case continued in other Italian Prosecutor’s Offices, until the case was officially concluded in September 2001.107 A total of 38 persons were arrested, the vast 107
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Since the officer in the Squadra Mobile of the Questura in Bolzano, who was in charge of the investigation of this part of the case, was not involved in the remaining investigative activities, he was not able to provide further details in relation to the parts on the case which involved other countries, and the cooperation between them and Italy.
majority of whom were Nigerian, and a total of kg. 20 of pure cocaine were seized. It was discovered that part of the network was also active in Turkey in the trafficking of heroin (in fact kg. 11 of heroin were also seized). Furthermore, alternative trafficking routes were tried by the criminal group, in particular through Switzerland, where one member of the organisation was arrested.
7.4 The ‘practice’ of police and judicial co-operation On the basis of the case of organised crime outlined above, and of the interviews held with prosecutors and members of law enforcement authorities in the Italian part of the Tyrol region, some observations can be made concerning the level of cross-border law enforcement and judicial co-operation between Austria and Italy. The relevance of informal co-operation networks An important finding of this research is that informal networks of colleagues in the police and judiciary play a preponderant role in the exchange of information in the most important phases of the investigation. In this particular case no 'official' correspondence exists regarding the initial exchange of relevant information between the two countries involved. The agreements were made through personal, already established and long-standing contacts rather than through official channels. The existence of this long-standing bilateral cooperation, which in the case of Austria and Italy can be described as very frequent (though, as already mentioned, it was mainly built on non-organised crime cases) is a critical element for the success of an investigation. Significantly one of the police officers interviewed in Bolzano (one of the two Autonomous Provinces of the Trentino Alto-Adige Region) stated that the level of co-operation with the Austrian colleagues in Tyrol (Austria) equals that with the Italian authorities in Trento (the second Autonomous Province of the Trentino Alto-Adige Region). The frequent occurrence of many cases, though not concerning organised crime activities, which involve cross-border investigations, has facilitated the building of contacts subsequently developed in long-standing co-operation. The importance of a ‘common language’ Since the majority of people living in the Autonomous Province of Bolzano are German-speaking, law enforcement and judicial co-operation is significantly 137
facilitated by the absence of linguistic barriers in contacts between Italy and Austria. Interviews confirmed that the law enforcement and judicial authorities in Bolzano serve as a point of contact between Italy and Austria in the vast majority of cases involving not only organised crime handled by various Procure in Italy, because of the personal contacts with their Austrian counterparts and their knowledge of German. The absence of legal and cultural obstacles No obstacles were experienced during the investigation mentioned above, which is also due to the profound knowledge of the relevant legislation by the authorities in the two countries concerned. During the conversation with the officers interviewed, the importance was stressed of personal contacts as well as continuous law enforcement and judicial co-operation in respect to formal requests for co-operation through letters rogatory. These often need to be executed very quickly, which is only possible if the officers involved have a clear knowledge of the authorities to whom they have to be directed, of the procedures to be followed and the necessary linguistic skills. Satisfactory level of co-operation All the officials interviewed agreed that the current regulatory framework regarding cross-border law enforcement and judicial co-operation is satisfactory. However, a proposal was made on how cross-border co-operation could be further improved. As one of the officers interviewed emphasised, the present framework for law enforcement and judicial co-operation is mainly reactive, i.e. can be activated only in specific cases under investigation. The feasibility of agreements on proactive law enforcement co-operation could be explored, such as the possibility of a joint monitoring activity on international trains by teams of police officers from different countries.
7.5 Conclusion Significant progress has been made in recent years to developing and implementing international instruments aimed at strengthening cross-border police and judicial cooperation. It is, however, also widely recognised that existing procedures for mutual legal assistance are not fully effective and efficient when it is necessary to cope with the most modern forms of organised crime, which increasingly uses technology in order to commit cross-border crimes, and that it is necessary to apply modern and sophisticate investigative 138
techniques, including witness protection, to improve cross-border police and judicial cooperation in such cases. In addition to the improvement of international instruments or the creation of new mechanisms, law enforcement and judicial networking is therefore a fundamental tool to enhance the efficiency of existing international cooperation in criminal matters. In this respect, one of the most relevant assets is undoubtedly represented by non-formal, direct contacts between judicial authorities. This can substantially accelerate cooperation, the exchange of information necessary for an investigation, but must be supplemented by formal mutual legal assistance, necessary to obtain evidence to be used in court. This kind of ‘flexible’ cooperation, as shown in the case reported, has proven to be useful between police agencies and should be further expanded between police and prosecutors of different countries. To this purpose, great effort has been placed in the strengthening of the role of Europol and by the creation of the European Judicial Network. For this reason also Eurojust, with its objective of facilitating cooperation between the national prosecuting authorities and improving the co-ordination of criminal investigations and information exchange, should prove an effective tool in improving practical police and judicial cooperation in the long term.
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Appendices
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Appendix 1 RESEARCH PROPOSAL
LAW ENFORCEMENT AND JUDICIAL CO-OPERATION WITH REGARD TO ORGANISED CRIME: A COMPARISON BETWEEN EUROPEAN BORDER REGIONS
Subject of Research The co-operation between law enforcement and the judiciary of the EU Member States operates within variously different frameworks. Europol - with its national units and liaison officers - is very much a construction which allows for vertical information exchange between the law enforcement services in the Member States and the national co-ordination and contact centres. Schengen, which has been integrated into the European Union by virtue of the Amsterdam Treaty, enables direct cross-border information exchange between law enforcement forces and encourages bilateral responses to cross-border crime; as such, it could be called a “horizontal” form of law enforcement co-operation. Recent developments – such as the announced creaton of EUROJUST demonstrate an increased entanglement between law enforcement and judicial activities. Title VI of the Amsterdam Treaty lays the basis for a fusion between vertical and horizontal law enforcement co-operation. This is enacted in several ways: • • •
Joint operational performance between law enforcement services (Article 30, 1(a)) Delivery by Europol of supportive activities in operational activities of joint teams (Article 30, 2 (a)) Reinforced co-operation within the institutional framework of the European Union (Article 40)
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Parallel developments - on investigation methods (draft Convention on Mutual Assistance in Criminal Matters) and the creation of joint investigation teams for the fight against drugs, man-smuggling and terrorism (Tampere) - provide a further stimulus to law enforcement co-operation in European border regions (i.e. more or less formalised co-operation structures between regions in different Member States). Comparative research into cross-border information and intelligence flows tends to be scarce. Hence, the principal objective of this project will be the following: Identifying forms of law enforcement and judicial co-operation concerning organised crime in a number of European border regions, with the objective to describe ‘best practices’, to the benefit of co-operation in this respect between all European Union Member States. In the selected European border regions (see below), the following research activities will be undertaken: • •
• • •
Selection of “closed” organised crime cases (drugs, man-smuggling, organised vehicle crime, etc.). Analysis of cross-border flows of information and intelligence, including the information-exchange with national co-ordination units and contact points regarding these cases. Analysis of the legal-administrative frameworks that apply to these information flows. Analysis of de role of the judiciary and customs organisations in crossborder law enforcement cooperation. Analysis of the investigation methods and competences that are used in handling requests for international legal assistance.
Growing urbanisation of the European border regions culminates in increased opportunities for criminal groups to perform cross-border activities. Criminal groups no longer view internal borders as an obstacle, whereas law enforcement organisations and the judiciary have to take account of them as an expression of legal and territorial national sovereignty. Evaluations of the ‘Turbo Diesel’-case - which concerned Turkish heroin dealers in the region of Maastricht (NL), Hasselt and Genk (BEL) - illustrated these problems very clearly.
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We therefore anticipate a high learning profit for professionals who are involved in cross-border investigations of organised crime (police, customs, judiciary). The research results will be published in a report. Seminars and training modules could be considered as a spin-off, subsequent to this particular project. Nine EU Member States will be included in this research. In each of the following Euregions or co-operation frameworks a single organised crime case will be selected for analysis: • • • • • • •
Euregion Meuse-Rhine (Belgium, Germany and the Netherlands). Euregion Rhein-Waal (Netherlands, Germany) Euregion Transalp (France and Italy) Euregion Saar-Lor-Lux-Rheinland/Pfalz (France, Germany and Luxemburg) Euregion Pyremed/Pirime (France and Spain) Euregion Schleswig-Sønderjylland (Denmark and Germany) Cross-Channel co-operation (Belgium, France, the Netherlands and the United Kingdom).
Academic institutions in the relevant EU Member States will be requested to participate in the research. They will identify and study relevant literature and reports regarding the selected crime cases, based on a template constructed by Tilburg University. Tilburg University will be responsible for the coordination of these activities and the integration of the case reports. Project Schedule We estimate the research project to comprise 12 months in total, which will include the following research activities (in chronological order): • • • • •
Establishing contacts with academic institutions in countries that are part of the research; Selection of organised crime cases; Collection of relevant literature and reports concerning these cases and the legal administrative framework; Development of the framework of analysis by Tilburg University; Analysis of relevant documents by academic institutions in countries that are part of the research, providing abstracts to Tilburg University;
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•
• • •
Research visits to the selected regions, additional collection of information through interviews with relevant representatives of law enforcement and judiciary services concerned; Drafting the reports of selected cases; Drafting the Synthesis Report. Submission to the Commission and co-sponsoring bodies.
Elementary research questions that will be investigated in each regional cooperative framework are: •
• •
• • • •
Which bilateral or multilateral frameworks of co-operation exist between the relevant countries? To what extent are they related to the European Union and/or Schengen? What are the information and intelligence flows concerning organised crime cases in this “Euregion”? Could you provide a network presentation of information and intelligence flows with regard to one concrete organised crime case? What are the relationships with: other law enforcement services (multidisciplinary contacts), national co-ordination units and contact points, local / district judiciary? Should these forms of co-operation be characterised as forms of and ad hoc or a structural co-operation? Is there a benefit in “Euregional” co-operation? What are the roles of the judiciciary and customs organisations in crossborder law enforcement co-operation? What differences are there in investigation methods and competences of law enforcement organisations and judiciary which are used in handling a request for international legal assistance?
Research methods that will be used throughout this project are: • • •
Documentary analysis Screening of relevant literature Interviews with key officials in border regions
Execution of the Project Co-ordination, research and reporting will be jointly undertaken by Dr Monica den Boer, Associate Professor Public Administration at the Centre for Law, Public Administration and Informatisation, Tilburg University (contractor), and 152
Toine Spapens and Jessica Rebel, respectively senior researcher and researcher at IVA (institute for social policy research and consultancy), which is attached to Tilburg University. All three researchers have extensive experience with police research (curricula vitae attached). Professor Dr Cyrille Fijnaut, who conducts international comparative research within the Law Faculty of Tilburg University, will act as a referee in this project.
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Appendix 2 LIST OF RESEARCHERS
Name
Institution
Postal Address
Dr Monica den Boer, Managing Director
(ex-)108 CRBI; EULEC (European Institute for Law Enforcement Co-operation)
P.O. Box 12. B-1050 Elsene 2, Brussels, Belgium
IVA (Institute for Social Policy Research and Consultancy)
P.O. Box 90153, 5000 LE Tilburg, The Netherlands
Drs. Toine Spapens, Senior Researcher
Mr. Peter Cullen
Dr. Andrea Di Nicola and Dr. Sabrina Adamoli
ERA (Europäische Rechtsakadem ie / Academy of European Law), TRANSCRIM E, Università di Trento
Dr. Peter Kruize, Institute of 108
Metzer Allee 4, D-54295 Trier, Germany
Telephone and Fax Tel: 00-32-2643 1060 Fax: 00-322-644 64 11 Mobile: 0031-(0)6-22 94 99 09 Tel: 00-3113-466 84 26
E-mail
[email protected] http://www.eulec.org
[email protected] http://www.iva-tilburg.nl
Fax: 00-3113-466 8477 Mobile: 0031-(0)6-204 29221 Tel: 00-49651-937 37-0 Fax: 00-49651-937 3790 Tel. 00-39 0461 882304
Centro Interdipartiment ale di Ricerca sulla Criminalità Fax: 00-39 Trasnazionale, 0461 882303 Università degli Studi di Trento. Via Inama 5, 38100, Trento, Italy Sankt Tel: 00-45-
[email protected] http://www.era.int
[email protected] [email protected] [email protected] http://www.transcrime.unitn.it
[email protected]
Despite her change of position per 1 February 2002, this research was carried out and completed under the auspices of the Centre for Law, Public Administration and Informatisation, Tilburg University.
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Assistant Professor
Mr. Erik Langhoff, Head Analytical Unit Professor Dr. Ed Johnson
Legal Science, University of Copenhagen National Commissioner of Police, Department A. Wolfson College, Cambridge University
Pedersstraede 19, DK - 1453 Copenhagen, Denmark
35322626 Fax: 00-4535-323334
Barton Road, Tel: 00-44 – Cambridge CB3 1223-276815 9BB, United Kingdom
http://www.jur.ku.dk/english/f acultyoflaw/
[email protected] [email protected] [email protected] (Frank Gallagher)
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Appendix 3 RESEARCH PROTOCOL
Final (Revised) Research Protocol for the Falcone Project “Law Enforcement and Judicial Co-operation with Regard to Organised Crime: A Comparison between European Border Regions109
1.
Introduction
This part of your report presents a very brief description of the the Euregion you have looked at, of the organisation of the police and judicial authorities in the countries involved, and of the bilateral/multilateral agreements on police and judicial cooperation. 1.
Please provide a brief description of the Euregion. e.g. EU member states which are directly involved, number of inhabitants, languages spoken, one or two main historical events concerning the borders between the neighbouring countries, and relevant changes in the position or importance of the region since 1992.
2.
Please provide a very brief description of the organisation of the police and judicial authorities in the countries involved with regard to organised crime on a tactical level110. Points of interest are: -
109 110
the distinction between responsibilities on regional and national level; the organisation of the police and judicial authorities that are responsible for the investigation of organised crime; the organisation of the tactical units involved in the investigation (both on regional and national level). This also concerns the
See case-report Euregion Meuse-Rhein (abstract) forwarded to you in September 2001. This should remain limited to the investigation of organised crime on a tactical level, which is the investigation of subjects with the objective of prosecution.
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deployment of specialised technical or observation units if this was necessary during the investigation. 3.
Please provide an overview of the bilateral and/or multilateral agreements in the domain of police and judicial cooperation in criminal matters, which prevail within the Euregion which has been analysed by you. 111
2.
Description of the criminal investigation case
This part of the report aims at drawing a picture of the cross-border aspects of the criminal investigation case. It concerns the activities of the criminal group involved and the way in which the criminal investigation was undertaken. If the suspects were involved in different criminal activities, attention should be focused on those that propelled cross-border operations. 1.
Please provide a summary of the criminal investigation case involved, giving special attention to the elements concerning cross-border activities of the subjects involved, and a general description of the activities of the police investigation team? (E.g: timeline, criminal activities of the suspects, countries involved, means of operation, proceedings in the investigation, etcetera.)
2.
Who were the main counterparts for the team that conducted the criminal investigation in the neighbouring region in the adjacent EU Member State(s)?
3.
If possible, please draw a network picture of the law enforcement contacts which were operationalised throughout the investigation.
3.
The starting phase of the criminal investigation
In this stage of the investigation, information needs to be exchanged between partners in different countries and contacts need to be formalised. For these 111
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Please make extensive use of the documents which were sent to each of you on an earlier occasion, and in which all bilateral and multilateral agreements have already been listed. It is possible, however, that you’ve come across “informal” arrangements for cross-border cooperation.
reasons the description of this part of the criminal investigation case is of key importance. Important questions in this research are how these contacts were developed, to what extent existing networks of police and judicial authorities were used, on what level (regional or national) the initial contacts were made, etcetera. 1.
Do the police and judicial authorities in the specific region have longstanding experience in cross-border co-operation concerning organised crime?
2.
Can cross-border co-operation on organised crime in the specific region be described as “frequent”? If so, can the police and judicial authorities involved make use of a “network” of frequently used contacts to exchange information?
3.
If a criminal investigation is started, do the police or judiciary check if information on the subjects involved is available in the neighbouring countries? If so, is this done via formal or informal channels? How does the exchange of information take place?
4.
Which country started the investigation? On what information was the investigation based? How was this particular information obtained? At what point in time did it become clear that the subjects under investigation were involved in cross-border criminal activities?
5.
At what point in time were the police and judicial authorities in other countries involved in the criminal investigation case? Which specific agreements were made regarding cross-border co-operation? How were these agreements formalised and on which basis? Which authorities were involved both on a regional and national level?
6.
Did the police or judicial authorities make agreements on how to divide the investigation between the countries involved, or was the investigation led by one specific country (with involvement of the police or judicial authorities in other countries only if this was deemed necessary).
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4.
Gathering the facts
This chapter concerns the phase in the criminal investigation case during which the necessary information about the activities of the suspects involved is gathered. Information can be obtained by different means. If those means need to be applied in different countries, specific agreements are necessary, and practical problems occur which need to be overcome. These are of course of principal interest to this research project. 1.
Which means of gathering information were used during the criminal investigation case? (e.g. interception of communications by telephone or fax, dynamic observation, static observation, use of technical aids, infiltration (aimed at gaining tactical knowledge), other means of gathering information).
2.
Were cross-border competences (in the spirit of Schengen or other agreements) applied throughout the investigation? If so: Which agreements were made to formalise the application of these competences (requests for mutual legal assistance or different agreements (see Alphabet-case)? How were these agreements made? Which authorities were involved (both on a regional and national level), to reach those agreements? Were there any linguistic, cultural or operational obstacles experienced during this investigation? How were these difficulties solved? How did this affect the criminal investigation? Did any practical problems occur caused for instance by differences in resources (e.g. personnel, technical equipment) or regulations in the countries involved? How were these difficulties solved? How did this affect the criminal investigation? Did differences occur between co-operation between the police and judicial authorities inside the Euregion (regional) and outside (e.g. police or judicial authorities in other parts of the country involved, or at national level)?
3.
What was the frequency of contacts between the police and judicial authorities in the countries involved, during the criminal investigation? Did it concern structural contacts (e.g. weekly or monthly meetings) or contacts on an ad hoc basis?
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4.
Did specific “pportunities” occur, resulting from differences between the police and/or judicial authorities in the countries involved? If so, were these made available during the investigation?
5.
Did financial aspects play a role during the investigation (e.g. funding for the application of personnel or technical aids)? If so, did they hamper the investigation in any way, and how were problems solved?
5.
Apprehension of the suspects
In this chapter it is primarily of interest how the apprehension (pre-planned or an attempt at catching the perpetrators in the act) of the suspects is organised when different countries are involved, if it is necessary to apprehend the suspects in different countries. Did the investigation team attempt to apprehend the suspects in the act (flagrante delito)? If so, were the police and judicial authorities in other countries involved and did it prove to be necessary to make specific agreements? Did practical problems occur and how were these solved? 1.
If the apprehension of the suspects was pre-planned, how was this organised in the countries involved? Were specific agreements necessary? Did practical problems occur and how were these solved?
2.
Did at any point in time the question occur in which country the suspects should be apprehended? If so, which considerations were of importance with regard to this choice? To what extent did differences in legal consequences of criminal activities between countries play a part in these considerations?
6.
The aftermath of the criminal investigation case
This chapter concerns the activities of the police and other authorities with regard to the exchange of evidence and information obtained when the suspects are apprehended. This can also concern the hearing of suspects in another country.
161
1.
Was information or evidence exchanged between the countries involved in the criminal investigation case (including hearing of suspects and extradition), after the suspects were apprehended? On what (legal) basis were these exchanges made?
2.
Did practical difficulties occur with regard to the cross-border exchange of information or evidence? If so, how were these difficulties solved?
3.
Did the criminal investigation case provide “spin-off” in terms of information on which new investigation cases could be started (in different countries)?
7.
Opinions and ideas about current and future forms of cooperation
This part of the case-report provides the opportunity to your respondents to express opinions about the general development of cross-border co-operation. 1.
What lessons can be drawn from the experiences with this concrete investigation? Can they be generalised to such an extent that we can formulate “best practices”?
2.
Do the currently available regulatory frameworks in the field of crossborder law enforcement cooperation need to be extended? If so, how and with what kind of instruments?
3.
What is your expectation of the EU Joint Investigation Teams that will be established within the next few years?
4.
What kind of support/expertise/coordination would you expect from Europol in the performance of your investigation? Do you think a “right of initiative” will make a difference?
5.
Will an institutionalised form of judicial cooperation (in the form of Eurojust) benefit the Euregional cross-border cooperation, or do you think the control and supervision of local/regional prosecutors (possibly under the guidance of a national magistrate) would be sufficient?
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6.
Do you think a protocol for cross-border intelligence exchange would be useful for structuring and checking the legal validity of your investigation?
7.
Do you think the political-administrative embedding of cross-border law enforcement cooperation is a precondition for successful investigations? (i.e. do criminal policies need to be harmonised across borders?)
GOOD LUCK!
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