Legal framework other issues of relevance

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participation inorganized criminal group.

Organized criminal group aiming on the importation of cocaine from Argentina to Spain through several different ports.



-Spanish Criminal and Procedural Code.

-Bilateral Agreements between Argentina and Brazil.

- UNTOC.


Practices:

- Special Investigative techniques – Article 20 UNTOC: Electronic or other forms of surveillance; use of Interpol database; tracking systems, wire-taps, vehicles for listening and recording.

- Mutual Legal Assistance, Cooperation with Law Enforcement authorities and Witness and Victim Protection– Articles 18, 27 and 24 UNTOC: international cooperation between Spanish, Brazilian and Argentinean police forces in order to seize the drug trafficking from the country of origin; exchange of database between countries; executing searches, seizures and freezing; identifying, locating and tracing proceeds of crime. International cooperation between international police and judicial authorities, in the case the main contribution regarded Europol.

- All countries should establish special drug trafficking units, with specifically trained professional in order to pursue a more effective investigation and prosecution of the accused.



SPA 2

Destello Operation.

Drug Trafficking and participation in organized criminal group.

Organized criminal group aiming on the distribution of cocaine between Colombia, Venezuela, Spain, Morocco and Portuga.



- Articles 368-378 and 563-564 of the Spanish Criminal Code.
- Articles 545 and 579 of the Spanish Procedural Code.



Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: Electronic or other forms of surveillance, specially telephone taps; confiscation of computers; cooperation of SOCA channel; extradition of accused, due to bilateral agreement, involving the Interpol and Diplomatic Channels.

- Mutual Legal Assistance – Article 18 UNTOC: Executing searches and seizures and freezing, using bilateral agreements. The complexity of the criminal organization had set the need for international cooperation between these countries in order to arrest the perpetrators involved in the operation.

Difficulties:

- Complex and huge dimension of the case, involving 36 accused, where 31 were convicted. The extend appeal resources determined by the Spanish legal system, contributed against the effectiveness of the case.




SPA 3

Petrolero Operation.

Smuggling of migrants.

This case involves the use of an oil tanker as a vessel to transport over 150 citizens of sub-Saharan origin from Freetown, in Sierra Leone, to Holland, under a fee of 1.000 Euros. The process was unsuccessful as the oil tanker was intercepted by Spanish authorities near the Canary islands. Transnational scope, as the jurisdiction of the Spanish Courts has been questioned considering that the oil tanker has been intercepted in international waters and there were no Spanish victims to be found in the ship. The Spanish Supreme Court decided positively on the jurisdiction of the Spanish Courts, citing the Protocol against the Smuggling of Migrants by Land, Sea and Air.


- Article 318 bis of the Spanish Criminal Code.



Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: Interception of ship in international waters and transfer to Spain; possibility to address and register a ship without judicial authorization.

- Mutual Legal Assistance – Article 18 of UNTOC: International cooperation was essential in order for the success of the operation.

Difficulties:

- The Tribunals in Spain apply directly the Palermo Convention, as in the time there wasn't any change in the Spanish legal system regarding the prosecution of crimes occurred outside the boundaries of Spain.



SPA 4

Trufas Operation.

Trafficking in persons.

This case involves the recruitment and transportation of victims from Ukraine for sexual exploitation in Spain. Transnational scope, considering the routes used by the criminal organization were: (i) Slovakia- Austria, Italy, France and Spain; (ii) Czech Republic, Prague, Poland, Germany and France.


- Article 27 of the Council Decision 2002/187/JAI 2002.

- Article 26 bis and 27 of the Council Decision 2008/187/JAI 2008.

- UNTOC and Protocols thereto.


Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: investigation carried out by the National Police of Malaga with the cooperation of Eurojust; wire-tapping; surveillance of boarders; and international coordination meetings.

- Mutual Legal Assistance, Cooperation with Law Enforcement authorities and Witness and Victim Protection– Articles 18, 27 and 24 UNTOC: cooperation of international police unit SIRENE for border surveillance in France and Italy, authorized by the magistrate of justice of the French judicial police; coordination meetings at the headquarters of Eurojust.

Difficulties:

- International character of the organization and the need to perform tests outside of the Spanish border.

- Should emphasize the relevant data collection in order to avoid double effort by the international scenario.


SPA 5

Chicago Operation.

Drug Trafficking and participation in organized criminal group.

Organized criminal group aiming on the shipment of 300 kg of cocaine from Colombia do Spain, with a layover in an American city. The process was unsuccessful due to the communication of the event from U.S. Drug Enforcement Administration to the Spanish authorities

Transnational scope, considering the drug trafficking operation was distributed between Colombia, USA and Spain.




- Articles 368-378, 390-392 and 563-564 of the Spanish Criminal Code.

- Articles 282 bis, 263 bis, 545 and 579 of the Spanish Procedural Code.

- Witness Protection Legislation No. 19/94.

- Mutual Assistance Treaty between USA and Spain 1990.




Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: Wire-taps, entries and searches of homes, national and international controlled delivery, undercover agent, surveillance cameras.

- Mutual Legal Assistance, Cooperation with Law Enforcement authorities and Witness and Victim Protection– Articles 18, 27 and 24 UNTOC: cooperation of the DEA and other international authorities. International judicial cooperation and mutual assistance between the United States and Spain authorities in order to arrest the perpetrators.

Difficulties:

- For tactical reasons it was not possible to analyse the structure of the Spanish organization.



SPA 6

Shovel Operation.

Family Organized Criminal Group setting a corporate structure dedicated to Money Laundering, Drug Trafficking and Trafficking of Firearms and Ammunitions.

Transnational scope, considering the criminal group operated between the United Kingdom, Ireland, Holland and Spain.


- Spanish Criminal and Procedural Code.

- UNTOC and Protocols thereto.



Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: electronic and other forms of surveillance, use of Interpol, Europol and Eurojust data base; tracing, seizure and freezing; exchange of information between authorities.

- Mutual Legal Assistance, Cooperation with Law Enforcement authorities and Witness and Victim Protection– Articles 18, 27 and 24 UNTOC: international cooperation between the National Police, Interpol, Europol and Eurojust, through periodic meetings.

Difficulties:

- The processing and sharing of information between the international authorities took a long time to be sent to the recipient.

- The harmonization of European and international legislation should be pursued, in order to achieve a more effective prosecution of the accused.

- All countries should establish division units on money-laundering, Assets Recovery Offices and Assets Management Offices, in order to simplify and stimulate a more effective role for investigation.



SPA 7

Clubs Operation.

Trafficking in Persons, Smuggling of Migrants and Prostitution.

Organized criminal group aiming on sexual exploitation of women in Spain from foreign countries to which required payment of a debt. The organization had four clubs in Spain in which they engaged in prostitution. The organization had branches in Paraguay and often travelled to Eastern Europe for the recruitment of women.

- Immigration crime 318 bis of the Penal Code (PC).

- Member crime of conspiracy in connection CP 515 with CP 517.

- CP 188 prostitution offenses.

- Crime of sexual abuse 178, 179 and 180 CP.

- The Court applied the Joint Action 97/154/JHA of February 24, 1997, adopted by the Council, according to Artcile 3 of the European Union Treaty, on the fight against human trafficking and sexual exploitation of children.


Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: wiretapping and registration of clubs forming a data base.

- Mutual Legal Assistance, Cooperation with Law Enforcement authorities and Witness and Victim Protection– Articles 18, 27 and 24 UNTOC.


19

Switzerland

SWI 1

Drug Trafficking Case.

Laundering of proceeds of crime, drug trafficking and organized criminal group.

The organisation was a major heroin supplier to Western Europe. There was evidence of deliveries, confirmed deliveries and seizures of heroin that could be linked to the organisation in the following countries: Italy, Germany, Spain, France, Slovenia and Hungary. The group was controlled primarily from Kosovo.

- Articles 72, 260ter and 305bis of the Swiss Criminal Code.

- Articles 13, 14, 15, 16, 18 and 21 of the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).

- Article 20 of the European Convention on Mutual Assistance in Criminal Matters.

- Articles 2, 3, 5, 6, 7 and 12 UNTOC.



Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: wire-tapping, electronic and other forms of surveillance, database exchange, drug profiling, tracing, freezing, seizure and confiscation of assets, and undercover operations.

- Mutual Legal Assistance and Cooperation with Law Enforcement authorities - Articles 18 and 27 UNTOC: international cooperation with Interpol channels, UMNIK, Diplomatic channels and Central Authority.

Difficulties:

- The greatest challenge was gathering proof of participation in a criminal organisation according to Art. 260ter SCC.




SWI 2

Drug Trafficking Case 2.

Drug Trafficking, Laundering of Proceeds of Crime and Organized Criminal Group.

OCG composed of two Columbians (L and M) and a Spanish national (N), which were connected to a criminal organization active in the production of cocaine. In addition, L had contacts to FARC.

- No. I of the Federal Act of 18 March 1994.

- No. II 2 of the Federal Act of 13 Dec. 2002.



Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: electronic surveillance, undercover operations and controlled delivery.

- Mutual Legal Assistance and Cooperation with Law Enforcement authorities - Articles 18 and 27 UNTOC: - International cooperation was extremely difficult. Information procurement was too complicated and cumbersome. While the countries repeatedly expressed their willingness to cooperate, concrete assistance was not satisfactory.

Difficulties:

- Switzerland had difficulties in connection with the protection of witnesses. A witness protection program did not exist.




SWI 3

Organized Criminal Group Case.

Organized Criminal Group.

The criminal organization consisted of a world-wide network of financial enterprises and other companies. This enabled the organization – e.g. by means of deals with stolen works of art or drugs – to launder illegally gained assets. The network spans from Poland, Hungary, Bulgaria and Austria to France and Great Britain and to the United States of America, Argentina, Peru and Costa Rica.

- No. I of the Federal Act of 18 March 1994.

- No. II 2 of the Federal Act of 13 Dec. 2002.



Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: electronic surveillance and other forms of surveillance.

- Mutual Legal Assistance and Cooperation with Law Enforcement authorities - Articles 18 and 27 UNTOC: Legal assistance from Spain and Luxembourg.


20

Ukraine

UKR 1

Not specified.

Organized crime report on the situation of Ukraine.

Very brief report provided by the PM describing three different case scenarios:

(1) The Ukrainian law enforcement body identifies a criminal organization that dealt with human trafficking and smuggling of migrants from south east Asia to the EU;

(2) The law enforcement body identified, in a specific area of Ukraine, cases of documents fraud where Vietnamese citizen were awarded Ukrainian citizenship on the base of fake permanent visa and work documents;

(3) Organised criminal groups, aiming on the smuggling of people through the Ukrainian border with fake documents to enter the country (Chinese migrants).



- Art. 332, chapter 2, Criminal Code.

- Not specified.


21

United Kingdom



UKG 1

Clostern Operation

Drug Trafficking and participation in organized criminal group.

Organized criminal group aiming on the importation of cocaine to the United Kingdom from the West Indies, with repeated trips to Trinidad, Tobago, Barbados and Granado. Transnational scope of the case, considering the importation of cocaine from several different countries.

Note: Missing national and international legal framework used I the case.

Practices:

- Mutual Legal Assistance – Article 18 UNTOC: Officers from relevant law enforcement agencies arranged for MPS officers to interview witnesses and take statements from them. Also obtained a search warrant for a yacht belonging to one of the subjects. International and internal cooperation between the Metropolitan Police and the Serious Organized Crime Agency (SOCA).



Difficulties:

- Arrest phase of the operation.

- Arrest occurred in international waters, at what point were the accused subject to PACE? Consensus was in the point they left international waters and entered water between two points of land on the UK mainland.

- Evidential preservation in countries visited during the operation was very different than the standards expected in the UK Courts.



UKG 2

Chappel Operation

Drug Trafficking and participation in organized criminal group.

Organised Criminal Network, where the perpetrators would work independently or as members of a fluid OCN with links in Spain, Holland and UK, aiming on the trafficking of cocaine to the UK.

Note: Missing national and international legal framework used I the case.

Practices:

- Special measures and Investigative techniques – Article 20 UNTOC: wire-tapping, electronic and other forms of surveillance.



Difficulties:

- It is very difficult to use intercept material as evidence in the UK.



OBS: No data on MLA and poor description on special investigative techniques.

22

United States

USA 1

United States v. Pavel Ivanovich Lazarenko.

Laundering of proceeds of crime, conspiracy to commit money laundering, fraud and transportation of stolen property

First US prosecution of a former foreign head of State for money laundering. It is also an important precedent for the prosecution theory that a US crime is committed by the domestic laundering of the proceeds of foreign crimes, in this case extortion and fraud.

- Title 18 of the United States Code, Section 1956. - Title 18 USC 1343 and 1346.

- Title 18 USC 2314.

- UNTOC.


Practices:

- Special measures and Investigative techniques: publicly disclosed consisted of a “trash cover” by the FBI Use of this technique for many months resulted in identification of many of the financial institutions and entities involved in the chain of money transfers.

- Mutual Legal Assistance and Cooperation with Law Enforcement authorities - Articles 18 and 27 UNTOC: included mutual legal assistance between the Ukraine, Switzerland, the US and other countries to secure witnesses and financial records.

- Extraterritorial jurisdiction. Criminal Division (Asset Forfeiture and Money Laundering Section) (AFMLS) approval is required before the commencement of any investigation where jurisdiction to prosecute is based solely on the extraterritorial jurisdiction provisions of Sections 1956 and 1957.

- Extradition: The Swiss authorities also charged the offenders, with money laundering, and requested their extradition from the United States, which has not been granted to date in view of US prosecutorial action.

- Confiscation: Because of the amounts of money involved, the legal proceedings involving restitution confiscation have been complex and lengthy.




USA 2

Smoking Dragon and Royal Charm Operations.

Participation in an organized criminal group, laundering of proceeds of crime, Trafficking of firearms and ammunition and Currency counterfeiting.

OCG aiming on the smuggling of massive quantities of counterfeit money, weapons, drugs, cigarettes and other contraband into the United States.

- Not specified.

Practices:

- Special measures and Investigative techniques – art. 20 UNTOC: undercover operations.

- Mutual Legal Assistance and Cooperation with Law Enforcement authorities - Articles 18 and 27 UNTOC: Not needed.

- Extradition: Not needed. As many of the defendants came to the United States voluntarily based on an invitation to a “wedding” sent by one of the undercover agents.

- Confiscation: $4.5 million in counterfeit currency was seized, along with more than $40 million worth of counterfeit cigarettes, drugs, and other real and phony items.


USA 3

Pletnyov Operation.

Cybercrime and laundering of proceeds of crime.

Individuals participated in a money laundering and wire fraud conspiracy as part of a transnational criminal group which targeted US and other nationals with online fraud.

- Not specified.

Practices:

- Special measures and Investigative techniques – art. 20 UNTOC: This investigation was conducted by the FBI – Hungarian National Bureau of Investigation (HNBI) Organized Crime Task Force located in Budapest, Hungary (Budapest Task Force). witness interviews and analysis of bank/wire transactions which were critical to the success of the case.

- Mutual Legal Assistance and Cooperation with Law Enforcement authorities - Articles 18 and 27 UNTOC: cooperation among law enforcement agencies in various countries compiled the documentary evidence that supported the convictions.

- Extradition: All but one defendant had to be extradited to the United States.




USA 4

USA v. Viktor Bout and others.

Conspiracy to kill USA nationals, officers and employees; acquire and use US anti-aircraft missiles; material support to Terrorist organization; and forfeiture.

Not useful for the Digest.







USA 5

Terrorism Case

Conspiracy to kill USA nationals, officers and employees; acquire and use US anti-aircraft missiles; material support to Terrorist organization; money-laundering and forfeiture.

Not useful for the Digest.







23

Venezuela

VEN 1

Seizure Case.

Laundering of proceeds of crime and participation in a criminal organization.

OCG aiming on the smuggling of foreign currencies, dollars and euros, alleged proceeds of international drug trafficking from Europe to Venezuela. The types of crimes involved were money laundering and conspiracy

- Article 4 and 6 of the Organic Law against Organized Crime and Conspiracy.

- Article 3 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.

- Article 373 of the Penal Code of Venezuela.

- Article 108 paragraphs 1 and 2 of the Criminal Procedure Code of Venezuela.




Practices:

- Mutual Legal Assistance and Cooperation with Law Enforcement authorities - Articles 18 and 27 UNTOC: Mutual Assistance in Criminal Matters requested the authorities of Spain, which usually arrive after the expiration of the legal period of the investigation and the delay in the responses of the various steps required of the Banking and Financial. The same fate applies to the Autonomous Service of Registration and Notary (SAREN). Were issued all the preventive measures and assurance of the case, as the freezing of bank accounts and ensuring all movable and immovable property of the people involved.

- Confiscation: Seizure request of all movable and immovable property and bank accounts involved in this investigation under the cited law on drugs.


VEN 2

Ana Mercedes Ocanto Case

Laundering of proceeds of crime and participation in a criminal organization.

The Guajira Cartel, a criminal organization dedicated to international drug trafficking and laundering money through the livestock industry.

- Article 4 and 6 of the Organic Law against Organized Crime and Conspiracy.

- - Articles 551, 280, 281, 282 and 283 of the Criminal Procedure Code of Venezuela.




Practices:

- Mutual Legal Assistance and Cooperation with Law Enforcement authorities - Articles 18 and 27 UNTOC: MLA request,, pursuant to the authority conferred by Article 108, paragraph 17 of the Code of Criminal Procedure, to the authorities in Switzerland, Germany, Panama, United States, China, Spain, Italy, Aruba and Colombia.



- Confiscation: Forfeiture of shares owned companies where, communications center, franchise CANTV, vehicle, bank accounts. prohibition to alienate and encumber movable and immovable property as well as blocking and freezing of bank accounts.






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