Co-funded by the European Commission [627345]
Co-funded by the European Commission –
Directorate -General Migration and Home Affairs
TRANSNATIONAL CONTROLLED
DELIVERIES IN DRUG TRAFFICKING
INVESTIGATIONS
Manual
JUST/2013/ISEC/DRUGS/AG/6412
“Enhancing the cooperation of European Union
Legal Enforcement Agencies for successful drug
controlled deliveries”
This manual was produced as result of the project
JUST/2013/ISEC/DRUGS/AG/6412 “Enhancing the
cooperation of European Union Legal Enforcement
Agencies for successful drug controlled deliveries”. The
experts that drafted it are: Mr. IGNACIO MIGUEL DE
LUCAS MARTÍN and Mr. Cristian- Eduard ȘTEFAN.
This publication reflects the views of the authors, and
does not reflect the official opinion of the European
Commission. Responsibility for the information and
views expressed in the manual lies entirely with the
authors, the Commission cannot be held responsible for
any use which may be made of the information contained
therein.
This project has been co -funded by the
European Commission – Directorate -General
Migration and Home Affairs.
3 Table of Contents
INTRODUCTION ………………………….. ………………………….. …………………… 7
CHAPTER I: THE INTER NATIONAL CONTEXT OF CONTROLLED
DELIVERIES OF DRUGS ………………………….. ………………………….. ………… 10
1. THE NEED FOR CONTROL LED DELIVERIES IN TH E CONTEXT OF
INTERNATIONAL DRUG T RAFFICKING ………………………….. ……………….. 10
1.1. BACKGROUND ………………………….. ………………………….. ……………. 10
1.2. DRUG ROUTES ………………………….. ………………………….. ……………. 11
1.3. CURRENT CHALLENGES ………………………….. ………………………….. …. 16
1.4. THE IMPORTANCE OF PO LICE AND JUDICIAL CO OPERATION ………… 20
1.5. TRAFFICKING METHODS ………………………….. ………………………….. .. 24
1.6. CONTROLLED DELIVERIE S IN THE CONTEXT OF DRUG
TRAFFICKING ………………………….. ………………………….. …………………….. 26
2. LEGAL REGULATION OF CONTROLLED DELIVERY AT
INTERNATIONAL LEVEL ………………………….. ………………………….. ………. 29
CHAPTER II: NATIONAL REGULATIONS CONCERNI NG CONTROLLED
DELIVERIES WITHIN TH E EU MEMBER STATES ………………………….. …….. 41
1. AUSTRIA ………………………….. ………………………….. ………………………. 41
2. BELGIUM ………………………….. ………………………….. ………………………. 44
3. BULGARIA ………………………….. ………………………….. …………………….. 50
4. CROATIA ………………………….. ………………………….. ………………………. 56
5. CYPRUS ………………………….. ………………………….. …………………………. 58
6. CZECH REPUBLIC ………………………….. ………………………….. …………….. 61
7. DENMARK ………………………….. ………………………….. ……………………… 65
8. ESTONIA ………………………….. ………………………….. ……………………….. 70
9. FINLAND ………………………….. ………………………….. ………………………. 74
10. FRANCE ………………………….. ………………………….. ……………………….. 78
11. GERMANY ………………………….. ………………………….. …………………… 82
4 12. GREECE ………………………….. ………………………….. ………………………. 86
13. HUNGARY ………………………….. ………………………….. ……………………. 89
14. IRELAND ………………………….. ………………………….. ………………………. 93
15. ITALY ………………………….. ………………………….. ………………………….. . 95
16. LATVIA ………………………….. ………………………….. ………………………… 98
17. LITHUANIA ………………………….. ………………………….. ………………… 101
18. LUXEMBOURG ………………………….. ………………………….. ……………. 106
19. MALTA ………………………….. ………………………….. ………………………. 109
20. NETHERLANDS ………………………….. ………………………….. ……………. 111
21. POLAND ………………………….. ………………………….. ……………………. 114
22. PORTUGAL ………………………….. ………………………….. ………………… 118
23. ROMANIA ………………………….. ………………………….. ………………….. 123
24. SLOVAKIA ………………………….. ………………………….. ………………….. 129
25. SLOVENIA ………………………….. ………………………….. ………………….. 132
26. SPAIN ………………………….. ………………………….. ………………………… 134
27. SWEDEN ………………………….. ………………………….. ……………………. 139
28. UNITED KINGDOM ………………………….. ………………………….. ……… 141
CHAPTER II I: THE PRACTICAL ASP ECTS OF TRANSNATIONA L
CONTROLLED DELIVERIE S OF DRUGS ………………………….. ……………….. 145
1. OPERATIONAL OBJECTIV ES AND TYPES OF CONT ROLLED
DELIVERIES ………………………….. ………………………….. ……………………… 145
1.1. OPERATIONAL OBJECTIV ES ………………………….. ………………………. 145
1.2. TYPES OF CONTROLLED DELIVERIES ………………………….. …………… 147
2. PLANNING AND ORGANIZ ATION OF CONTROLLED DELIVERIES ……. 155
3. SPECIAL INVESTIGATIV E TECHNIQUES USED IN THE CONTEXT OF
CONTROLLED DELIVERIE S ………………………….. ………………………….. ….. 162
4. THE OUTCOME OF CONTR OLLE D DELIVERIES. PARALL EL CRIMINAL
INVESTIGATIONS IN CO UNTRIES INVOLVED ………………………….. ………. 173
5 5. OBSTACLES AND DIFFIC ULTIES (LEGAL AND PR ACTICAL) IN THE
FIELD OF CONTROLLED DELIVERIES ………………………….. …………………. 178
5.1. DIFFICULTIES AT INTE RNATIONAL LEVEL . ………………………….. …… 178
5.2. DIFFICULTIES AT EURO PEAN LEVEL . ………………………….. ………….. 181
5.3. SUMMARY OF THE OBSTACLES AND DIFFIC ULTIES …………………… 185
6. THE ROLE OF INTERNAT IONAL AND EUROPEAN I NSTITUTIONS IN
THE COORDINATION AND SUPPORT OF CONTROLLE D DELIVERIES ……. 188
6.1. EUROJUST ………………………….. ………………………….. ………………… 188
6.2. EUROPEAN JUDICIAL NE TWORK IN CRIMINAL MA TTERS …………… 197
6.3. EUROPOL ………………………….. ………………………….. …………………. 198
6.4. SELEC ………………………….. ………………………….. ………………………. 201
6.5. NETWORKS OF PRACTITI ONERS ………………………….. ………………… 201
CHAPTER IV: CONCLUSIONS AND RECOMMENDATIONS ………………….. 203
1. RECOMMENDATIONS IN O RDER TO ACHIEVE THE PROJECT’S
GOALS ………………………….. ………………………….. ………………………….. .. 206
2. COMPLEMENTARY ACTION S TO ENSURE THE EFFE CTIVENESS OF
CDS ………………………….. ………………………….. ………………………….. …… 209
ANNEX I: LIST OF NAT IONAL CONTACT POINTS IN THE FIELD OF CDS … 211
ANNEX II: DRAFT STAN DARD FORM FOR CD PUR POSES …………………… 222
ANNEX III: SCENARIOS (HYPOTHETICAL CASES) PRESENTED AT THE
WORKSHOPS ………………………….. ………………………….. …………………… 223
ANNEX IV: BIBLIOGRAP HY ………………………….. ………………………….. …. 228
6 Abbreviations
CBI – Central Bureau of Investigation
CCP – Container Control Programme
CD – Controlled delivery
CND – Commission on Narcotic Drugs
DIICOT – Directorate for Investigating Organised Crime and
Terrori sm
EAW – European Arrest Warrant
ECHR – European Court of Human Rights
EJN – European Judicial Network
EMCDDA – European Monitoring Centre for Drugs and Drug
Addiction
EU – European Union
JHA – Justice and Home Affairs
HONLEA – Heads of National Drug Law E nforcement
Agencies
LEAs – Legal Enforcement Agencies
MLA – Mutual Legal Assistance
MS – Member State
NCA – National Crime Agency
NEBEK – National Police International Law Enforcement
Cooperation Centre
NPS – New psychoactive substances
SIT – Special inve stigative technique
SODN – Central Anti -Drug Coordination Unit
UK – United Kingdom
UN – United Nations
UNODC – UN Office on Drugs and Crime
US – United States
WCO – World Customs Organization
7
INTRODUCTION
The project JUST/2013/ISEC/DRUGS/AG/6412
“Enhanc ing the cooperation of European Union Legal
Enforcement Agencies for successful controlled deliveries”,
whose main objectives are to encourage LEAs in combating
drug trafficking and to enhance their cooperation in the matter
of controlled deliveries (CDs) , commenced in September 2015
with the first activity – “Theoretical analysis of the current
legal situation in the EU M ember States ”.
To that end , the two experts selected from the EU
MSs in the field of drug trafficking inves tigation and CDs have
carried out a research -based study by gathering data pertaining
to the legal provisions in all 28 MSs related to CDs of drugs .
The experts who drafted th e research report are Mr. Ignacio
Miguel de Lucas Martín (prosecutor at the Spanish Anti -drug
Prosecution Offi ce, Spain ) and Mr. Cri stian -Eduard Ștefan
(Associate Professor at the Police Academy “ Alexandru Ioan
Cuza” in Bucharest, Romania).
The initial report was discussed during the three
Regional Meetings of the project by the two experts and the
participants from the LEAs (Romanian Prosecutor’s Office
attached to the High Court of Cassation and Justice, Office of
the General Prosecutor of the Republic of Estonia and the
Lithuanian Criminal Police Bureau) and practitioners in the
area from other EU Member States (Italy, Belgium, Bulg aria,
Poland, Hungary and Latvia). The experts have added the
findings of each workshop to the manual to be presented at the
final conference of the project.
8 The manual presents both the theor y and practic e
behind CDs of drugs and the instruments for coope ration used
in each of the 28 MSs. The manual also describes the rules and
national legislation applicable to CDs of drugs as well as the
practitioners involved in this field (prosecutors, judges, police,
customs , border guard agencies /border police , etc.).
The methodology used to draft the manual is based on
a scientific analysis of the data collected by the experts during
the first stage of the project, followed by the contribution of the
participants and practitioners who attended the three Regional
Meet ings of the project held in Tallinn (Estonia), Poiana
Brasov (Romania) and Druskininkai (Lithuania). The
validation of data collected at the first stage and the
development of the final manual would not have been possible
without the contribution of the pa rticipants and practitioners in
the field of CDs.
During the Regional Meetings of the project , the
experts drafted and distributed to the participants a
questionnaire in order to identify the main practical challenges,
obstacles and recommendations in drug trafficking
investigations involving CD. In addition , hypothetical cases
(scenarios) were presented to the participants , divided into
groups , in order to ascertain how the participants would use
CDs in the context of drug trafficking investigations .
The manual is divided into four chapters. The first
chapter sets out the international context of CDs of drugs ,
including the need for CDs and the legal regulation of this
special investigative technique (SIT) at international level. The
second chapter describ es the rules and national legislation
applicable to CDs of drugs. The third chapter contains an
analysis of the practical aspects of transnational CDs. It also
includes a discussion of operational objectives and types of
9 CDs, the planning and organis ation of CDs, the SITs used in
the context of CDs, the outcome of CDs, the role of
international and European institutions in this field. The last
chapter presents the final conclusions and recommendations .
The annexes to this report comprise a list of national contact
points for CDs (Annex I), a proposed standard form for CD
purposes (Annex II), the hypothetical cases used for discussion
purposes during the workshops (Annex III) and the
bibliography (Annex IV).
10
CHAPTER I : THE INTERNATIONAL CONTEXT OF
CONTROL LED DELIVERIES OF DRUGS
1. The need for controlled deliveries in the context of
international drug trafficking
1.1. Background
The investigation and prosecution of organised crime
are especially complex endeavours because they usually
require several lines of in vestigation to be run in parallel,
including cross -border investigations conducted by different
authorities and under different legislation. Against this
background, SITs , such as CDs, play a key role in dismantling
organised crime, but properly integratin g them into domestic
legal systems requires national legislators to make a host of
difficult decisions.
International drug trafficking continues to be one of the
biggest challenges for law enforcement agencies worldwide.
This criminal activity is extremely profitable for the drug
trafficking networks, exacerbates threats to the security of the
State s and poses a serious threat to the public health.
According to the data provided by Europol, drug trafficking
was the main area of crime in 2013 and 2014 in ter ms of the
cases initiated and the flow of information. As set out in the
EMCDDA ’s 2016 Report , drugs are estimated to contribute
about one -fifth of global crime proceeds. In Europe, they have
been estimated to account for 0.1 –0.6 % of the gross domestic
product (GDP) of the eight Member States for which published
data are available. It is estimated that the EU retail drug market
was worth at least EUR 24 billion (range EUR 21 to 31 billion)
in 2013, with the cannabis market being the largest, making up
11 abou t 38 % of the total, followed by the heroin (28 %) and
cocaine (24 %) markets .
Most world States have long reali sed the importance of
international cooperation in the fight against this offence ,
trying to find the most effective methods and tools for
preve ntion and control. In the context of i nternational drug
trafficking, S tates on the drug trafficking routes are affected
equally , whether States origin, transit or final destination.
1.2. Drug routes
In the global context, Europe is an important market for
drugs, being supported both by domestic production, and by
the drugs trafficked from other regions. Latin America,
Western Asia and Northern Africa represent important sources
for the drugs arriving in Europe, and some drugs and
precursors of drugs are transit ing through Europe on the way to
the other continents. Europe is also a producer region of
cannabis and synthetic drugs, cannabis being produced in
particular for local consumption, while some synthetic drugs
are produced to be exported to other areas of t he world1.
In addition to the illicit drugs which come from the EU,
there are two main drugs routes through which they enter the
EU. That is the “cocaine route ” (from Latin America through
West Africa in the EU) and the “heroin route ” (from
Afghanistan eit her through the Western Balkans, either through
Central Asia in the EU).
As regards the “cocaine route” , in 2010 as part of the
initiative entitled “Counteracting Global and Trans -regional
Threats of the long term component of the Instrument for
1 European Drug Report 2015: Trends and Developme nts, EMCDDA,
Lisbon, June 2015, p. 19.
12 Stability (IfS) ”, the European Commission launched the Terms
of Reference “Fighting against drug trafficking route:
Ameripol2”. According to th e Terms of Reference , the main
noticeable trends in drug trafficking reported by various law
enforcement agencies were (i) a major shift in the popularity of
sending consignments to Europe rather than the US (price
differential and fear of extradition to the US are major factors
influencing this move); and (ii) a major increase in air –
trafficking and the use of clandestine ai rstrips – often from
Venezuela via West Africa to Europe.
As pointed out in this initiative, “to reach the consumer
market, the cocaine route has shifted from traditional routes to
the A fro-European corridor. South American traffickers have
relocated to fr agile West Africa State s, using the area as a hub
for cocaine trafficking, benefitting from corruption, political
instability, poverty, and enjoying impunity, derived from the
lack of resources, basic skills or coordination of West African
law enforcement agencies. Two main flows are clearly present.
The first involves maritime, land and air shipments, ma naged
by South American groups, moving vast quantities of drugs
through West Africa. The second, stemming from the payment
for assistance of West African r ecruits, conveys cocaine to
Europe, usually through couriers in commercial air flights ”.
According to the analysis of specialists in the field , drug
traffickers change trafficking routes and methods of smuggling
or laundering of the revenues coming from i llicit drug
2 This programme followed the initiative launched in 2008 “New cocaine
routes: Latin America, Caribbean and West Africa” under the IfS Lot 1.
One of the objectives identified was to “ improve prosecutors’ and law
enfor cement agencies’ capability to carry out complex investigations and
related exchange of information on money laundering and financial
crimes ”.
13 trafficking. At the same time, “uncoordinated clamp -downs
may force traffickers to move drug production sites to
neighbouring countries or to shift trafficking routes, but these
measures cannot disrupt trafficking sustainably ”3.
Heroin trafficking routes
Cocaine trafficking routes
Source: UNODC World Drug Report 201 6, pp. xiii -xiv
3 COM (2011) 689: Communication from the Commission to the European
Parliament and the Council. Towards a stronge r European response to
drugs, p.2.
14
Routes for trafficking amphetamines
Source: UNODC World Drug Report 201 6, p. xv.
Share of total numbers of individual seizures and quantities seized4
Source: UNODC World Drug Repo rt 2015 , p. xii.
4 The 2016 UNODC World Drug Report states that “a direct indicator of
drug law enforcement activity, drug seizures are the result of those
successful operations that end in drug interceptions and are thus influenced
by la w enforcement capacity and priorities. At the same time, drug seizures
are one of the key elements in understanding illicit drug market dynamics,
drug availability and drug trafficking patterns and trends, particularly if
broad geographical entities are co nsidered and long periods are analysed”.
However, this indicator does not seem to be sufficient in terms of measuring
the number of organised crime groups dismantled as a result of the seizure.
Maritime trafficking is the least common mode of transportation used by
drug traffickers. However, as maritime seizures are by far the largest by aver age
weight and account for disproportionately large quantities of drugs seized,
interdiction of maritime shipments has potentially the greatest impact.
15
Source : EMCDDA 2016 Report
16
1.3. Current challenges
Presently, one of the main challenge s in the fight
against drug trafficking is the evolution of the Internet as an
online market of drugs. In the last few years, more than half of
the EU countries have targeted in particular the offenses related
to drugs on the internet, a number of these aiming the internet
sites selling synthetic drugs and other illegal substances5. New
developments in the field are represented by the use by drug
5 COM(2015) 584: Report from the Commission to the European
Parliament and the Council on progress in the EU's 2013 -2020 Drugs
Strategy and 2013 -2016 Action Plan on Drugs, p. 8.
17 traffickers of advanced technologies, as well as the codified
transmission of e -mails, the use of the internet cafes in order to
avoid computer and electronic surveillance , etc.
The Council of Europe, through its Pompidou Group
Work Programme 2015 -2018 entitl ed “Drug policy and human
rights: New trends in a globalised context6” is working on
different thematic priorities as identified by the 16 th
Ministerial Conference. One of these topics is “identifying
opportunities and challenges for drug policies arising from
internet”. The work to be carried out will address this
phenomenon because, according to the Pompidou Group’s
Work Programme, “recent developments in information and
communication technologies (ICT) have enabled the
emergence of a new global black mar ket for drugs sales which
is rapidly growing. Easy access and anonymity reduce the
threshold to buy drugs via the internet and have created new
distribution ways and payment systems that present new
challenges for law enforcement and customs. Thus the
grow ing number of websites offering drugs and/or promoting
drug use has become a main area of concern”.
Another important challenge, as reported by the
EMCDDA in its 2016 –18 strategy , work programme and 2016
6 The Co -operation Group to Combat Drug Abuse and Illicit Trafficking in
Drugs (Pompidou Group) is an inter-governmental body formed in 197 1 at
the initiative of the late French President Georges Pompidou. Initially, this
informal forum consisted of seven European countries – France, Belgium,
Germany, Italy, Luxembourg, Netherlands, United Kingdom – looking to
share their experience of combat ing drug abuse and drug trafficking . The
cooperation was subsequently extended to include new countries. In 1980
the Group was incorporated into the institutional framework of the Council
of Europe and at present it comprises 35 Member S tates.
http://www.c oe.int/T/DG3/Pompidou/Source/Documents/P –
PG_MinConf%20(2014)%204%20WorkProgramme%202015 –
18_ENGLISH.pdf
18 annual work programme , is represented by new psychoa ctive
substances (“NPS”) . As stated in this document7, “a total of
101 NPS were detected on the EU drug market for the first
time in 2014 (the last year for which complete data were
available at the time of writing), which is almost 25 % of the
total numbe r of NPS monitored by the EWS since 1997. This
brings the total number monitored by the EMCDDA to more
than 450 – close to double the number of substances controlled
under the United Nations international drug control
conventions – with more than half of t hese being reported in
the last three years alone”. As a result of this situation, the
European Commission has highlighted the need for a more
effective system to tackle the threat posed by NPS. In
September 2013, the Commission adopted a legislative
package to meet this objective and since then the package has
been subject to discussions by EU legislators8.
In additio n, the 2016 UNODC World Drug Report
states that “ increases in trafficking have been even greater in
the group of NPS in recent years. Accounting for 3 per cent of
all drug seizure cases in 2014, seizures of NPS are still
comparatively small (up from 1 per cent in 2009 and 0.1 per
cent in 1998) . In terms of the quantity seized, seizures of NPS
(excluding plant -based NPS such as khat ( Catha edulis) and
kratom (Mitragyna speciosa)) rose 15 -fold between 1998 and
2014. Ketamine and synthetic cannabinoids have been seized
the most; the total quantity of ketamine seized worldwide
7
http://www.emcdda.europa.eu/system/files/publications/2095/TDAX16001
ENN.pdf
8 http://eur -lex.europa.eu/legal –
content/EN/TXT/?uri=CELEX%3A52015DC0584
19 increased from an annual average of 3 tons in the period 1998 –
2008 to 10 tons in the period 2009 -2014 ”.
Furthermore, according to the most recent EMCDDA
report (March 2016) , the ramifications of the illicit drug market
are wid e ranging and go beyond the harms caused by drug use,
including:
involvement in other types of criminal activities
and in terrorism;
impacts on legitimate businesses and the wider
economy;
strain on and corruption of government
institutions; and
impact s on wider society .
There are many ways in which drug markets and those
involved in them interact with other areas of illegal activity.
These interactions can be viewed as being of three broad types:
When those involved in drug supply engage in
other i llicit trades, such as firearms or migrant
smuggling;
When drug supply is used as a means to a
different end, as when it provides financing for
other criminal activities or terrorism, or when
drugs are used as a means to control people
being exploited;
When other criminal activity is integral to the
drug trafficking activity, for example when
trafficked individuals are coerced into
participation in drug production or trafficking;
when corruption is used to facilitate trafficking;
when profits from dealing ar e laundered; when
20 cash is smuggled to pay for supplies; or when
violence is used to maintain the market position .
1.4. The importance of police and judicial cooperation
In the fight against drug trafficking and criminal groups
involved in this criminal acti vity, police and judicial
cooperation is essential . The Member States acknowledge that
an effective fight against drug trafficking can only be achieved
by an active cooperation among the authorities of the State s
where the production, transit and destinati on of drugs take
place. According to the EU Drugs Strategy (2013 -20),
strengthening cooperation and coordination at strategic and
operational levels among law enforcement agencies, should
include: improving cross -border real -time information sharing
(inclu ding operational information), best practices and
knowledge, as well as conducting joint investigations and
21 operations. Furthermore, this Strategy considers it necessary to
strengthen EU drug -related judicial and law enforcement
cooperation and the use of existing practices by establishing
faster and more accurate responses and to su pport judicial and
law enforcement cooperation activities and exchange of
information and intelligence9.
It is crucial to highlight the need to “reinforce
international coopera tion efforts and to ensure that the
available legal and judicial mechanisms, tools and platforms
are used effectively. Efforts to improve the sharing of
information and intelligence on a s trategic and operational
basis … Efficient use of resources can be a chieved through the
identification and targeting of geographical locations where
drug market -related activities are concentrated. Such specific
locations, which include large container ports, parcel delivery
hubs, specific land or air border points, and re latively discrete
geographical areas used for drug production, represent priority
targets for interdiction efforts ”10.
Most State s strengthen the system of preventing and
combating organised crime – drug trafficking in particular, by
equipping the authoriti es with legislative, institutional and
procedural tools . Organised crime groups employ many
counter measures when engaging in or preparing criminal
activities in order to deflect the attention of law enforcement
agencies. Traditional methods of investigati on are often
inadequate because of the special structures and
professionalism of organised crime groups. From a strategic,
tactical and operational perspective, it is therefore necessary to
resort to SITs such as controlled deliveries , covert
9 EU Drugs Strategy (2013 -20), sections 22.1 and 22.8 .
10 European Drug Report 2016: EMCDDA, Lisbon, March 2016 .
22 investigation s, interception of communications (wiretapping) ,
the use of bugging devices , covert surveillance and undercover
agents and informants .
In the first workshop of the project held in Tallinn , the
participants identified the following main investigative
challe nges they faced in drug trafficking cases:
Differences between the legislation of EU
Member States and also as regards cooperation
with third parties (Lithuanian participants);
Investigations should focus not only on drug
trafficking but also on money laun dering
resulting from drug trafficking (Romanian
participants and Belgian practitioner );
Differences in the ways evidence is handled in
different Member States, the bureaucracy of
cooperation between S tates ( including judicial
assistance ) (Bulgarian practi tioner );
The need to use controlled deliver ies to seize the
proceeds of drug trafficking . As the Italian
practitioner mentioned , “if you are seizing
drugs, the traffickers will produce other s, but if
you are seizing money, it will be more difficult
for the m to replace it”.
The use of the Internet and modern technologies
by drug traffick ers and the problems caused by
the communication of criminals by
Smartphones, through WhatsApp and other
social networks (Estonian and Romania n
prosecutors);
Difficult ies in cooperation between law
enforcement/judicia l authorities and Internet
23 service providers based in other States
(especially those outside the EU) ;
Identification of the criminal network leader,
due to the fact that in most cases, only couriers
or small crimi nal cells are identified by the
LEAs .
Most of the above investigative challenges were
confirmed during the second workshop of the project held
in Poiana Brasov (22 -24 June 2016). The most important
challenges identified by participants include the followin g:
Time restrictions for planning and organisation
of the operations ;
Dismantling of the money flow involved in drug
trafficking cases (according to a Lithuanian
criminal police officer, “if you cannot seize the
drugs, it is useful to seize money”) ;
Unjust ified refusal of a State for transfer of
proceedings in a drug trafficking case (opinion
expressed by a Romanian prosecutor) ;
The lack of resources could lead to prioritise
them only for some cases (Estonian prosecutor) ;
According to a Romanian prosecutor , “any
barrier for communication and cooperation
between LEAs is an advantage for the drug
traffickers” .
At the last Regional Meeting of the project, one of
the Lithuanian participant s stated that “we must learn not only
from the best practices, but also a s a result of bad experiences
in the topic. It is necessary to improve the efficien cy of human
resources management , especially as regards undercover
agents. It is not possible to perform successful antidrug
24 operations without the support of undercover off icers and
informants … One of the most essential challenges is
identifying of the whole criminal group, because most
frequently we arrest only the courier and seize the parcel
containing drugs ”. The Polish practitioner mentioned some
challenges with respect to the need for MLA request s, since in
Poland CD s are purely police measure s and thus no such
requests are required . He also mentioned that some States do
not investigate the drug trafficking of small amount s (i.e. small
parcels of drugs ). The Romanian pr osecutors who attended the
workshop in Druskininkai mentioned the following challenge s:
the identification of relevant laws in the EU and also in non-
EU MS ; differences between national regulations governing
the use of und ercover officers and informants; the need to
identify relevant contact points in States situa ted along the
trafficking route; the development of new technologies (social
network s, WhatsApp, etc.); improving drug detection.
1.5. Trafficking methods
In the context of international illicit traff icking, drugs
are trafficked by air, sea or land , drug detection by the law
enforcement agencies is often made after customs control, by
several methods such as risk analysis, the use of X-ray
scanners or other methods of proactive profiling. The
concealme nt of drugs by the drug traffickers is accomplished
by hiding them in locations either difficult to reach or
especially set up. The modes and places to hide the drugs in the
illicit traffic depend on many factors such as the quantity of
drugs, the means of transport, ingeniousness of traffickers or
final destination of the drugs. Also, according to the studies
conducted at EU level, “… traffickers use advanced techniques
to conceal drugs, for instance, by mixing liquid cocaine into
25 commercial goods (clothes , liquids, plastic), converting it into
powder cocaine in laboratories in Europe, or making it
odourless. … Criminal networks change their trafficking routes
frequently in order to circumvent controls. …”11.
Airports are a main entrance point for drugs used by
drug trafficking organizations. Furthermore , drug trafficking by
sea remains a basic method used by traffickers, who proceed to
conceal the drugs in containers12.
According to the World Customs Organization13, the
methods of concealing drugs in maritime containers are divided
into three main categories:
In the cargo: inside or among the goods
transported ;
In the means of transport: in the structure of the
container, including mechanical department of
the refrigerated containers ;
“Rip off ”14: the drugs are placed inside the
container, near the container ’s door and without
the knowledge of the sender/recipient.
11 COM (2011) 689: Communication from the Commission to the European
Parliament and the Council. Towards a stronger European response to
drugs, p. 3.
12 To tackle drug trafficking using containers, UNODC together with the
WCO are responsible for implementing the Container Control Programme
(CCP). The purpose of this programme is to build capacity in countries
seeking to improve trade security and faci litation standards and controls at
their borders. The CCP provides capacity building to profile, target and
examine containers being used for the transport of illicit goods.
13 UNODC –WCO Global Container Analysis Report 2008, p. 29.
14 In the last few years, it has been noticed an expansion of the “rip -off”
modus operandi in drug trafficking. As a reaction to this modus operandi,
the World Customs Organization has developed a secure system for
communicating information between the customs authorities
(Contain erCOMM), through which they could cooperate by disseminating
the sensitive information (alert warning messages) relating to high risk
26 In 2014, Spain’s Terrorism and Organised Crime
Intelligence Centre (Centro de Inteligencia contra el terrorismo
y el crimen organizado, “CICO”) draft ed a report on “Cocaine
maritime trafficking using containers”. Between 2011 and
2013, cocaine seizures in Europe were structured as follows15:
YEAR PLACE and WEIGHT (kg) OF SEIZURE
LAND AIRPORTS SEA CONTAINERS TOTAL
2011
2012
2013 10 234 6 223 14 897 20 279 51 633
8 358 8 707 11 149 31 682 59 897
8 481 7 200 11 902 33 872 61 455
1.6. Controlled deliveries in the context of drug
trafficking
One of the SITs that has stimulated the international
cooperation of police and judicial authorities in the fight
against international drug trafficking is controlled delivery.
Controlled deliveries are generally defined as the technique s
containers. On the basis of this information, in the past few years the
customs authorities in some State s seized signific ant captures of drugs
(especially cocaine).
15 Among the 17 Recommendations made in this report, two specifically
related to controlled deliveries:
“16. Strengthen police investigations to fight against the use of
containers to transport illicit goods, usi ng controlled deliveries
more frequently. In the implementation of this investigation
technique, coordination between police, customs, judicial and
prosecutorial authorities should be improved.
17. In the international environment, it is essential to carr y out
controlled deliveries. In order to make them possible, it is
necessary that national legal frameworks provide legal basis for
the effective and quick implementation of this investigation
technique .”
Given the significance of this threat, the European Union decided to
establish a sub group under the Cocaine EMPACT group exclusively
focused on cocaine trafficking via containers: Target Group Conex.
27 whereby illicit or suspect consignments are permitted to enter,
move within and exit the territory of one or more States, with
the k nowledge and under the supervision of the competent
authorities, with a view to investigating an offence and
identifying the persons involved in the commission thereof.
The method of controlled delivery has been identified as an
investigative tool by which an illicit drug transport is allowed
to transit through the territory of one or more S tates, under the
supervision of the competent authorities, in order to identify all
components of the drug trafficking criminal organizations ,
existing in the State s of origin, transit or destination of the
drugs.
In contrast to other SITs , controlled deliveries do not
have an impact on fundamental rights in the same way as, for
example, wire-tapping. However, the use of this technique may
be problematic in some countrie s because it facilitates the
transit of illicit goods through the territory of a State which
would otherwise be intercepted by law enforcement authorities.
As controlled deliveries involve the movement of illicit goods
across one or more countries there is a high associated risk of
losing track of them.
On balance, the added value of this investigation
technique outweighs the risks associated with its
implementation, in particular where the illicit goods are
transported through different countries. Conseque ntly, the use
of this technique has become widespread among law
enforcement agencies when dealing with drug offences, both
domestically and internationally.
Controlled deliveries may enter both in the sphere of
police cooperation, as well as in the judicia l proceedings, given
that in a number of Member States for the execution of such
28 operations is required a judicial authorisation, and in others
only the permission of the heads of the national police units .
In order to ensure the efficien cy of the measures to
combat criminal networks involved in drug trafficking, in
2007, at the seventh meeting of HONLEA ( Heads of National
Drug Law Enforcement Agencies ), a proposal was made to
increase the use of international controlled deliveries16.
According to the Manual on cross -border operations,
“there are different types of controlled deliveries, depending on
national law. Not all types are known to all Member States:
with undercover agents, with physical control, without physical
control (sometimes called monitored d elivery), with
informants, using substitutions ”17.
In referring to the CD’s added value compared with
other SITs, one practitioner who attended the last workshop of
the project mentioned: “CDs let us covertly observe the
transportation or production of drug s, can generate false
impressions among organised crime group members , and allow
us to identify the those involved, their modus operandi, the
vehicles used, enabling us to collect data about other crimes
commit ted”.
16 This was also proposed in the CCP Annual Report 2014. One of the main
objectives of the programme, as id entified in this Report, for Latin America
is to build closer links between the region and Europe, in particular to
develop operational “controlled delivery” capabilities with Panama and
Ecuador.
17 Manual on cross -border operations, General Secretariat, Co uncil of the
EU, Brussels, 14 December 2009, p. 18.
29 2. Legal regulation of controlled delive ry at international
level
Controlled delivery is regulated at both UN and EU
level. Its first appearance was in the UN Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(Vienna, 20 December 1988) (“the Vienna Convention ”), with
a view to combating drug trafficking. It was subsequently
included in the UN Convention against Transnational
Organ ised Crime (New York, 15 November 2000) and the UN
Convention Against Corruption (Merida, 2003). At EU level,
provision for controlled de livery was first made in the
Convention implementing the Schengen Agreement (14 June
1985, signed at Schengen on 19 June 1990), followed by the
Convention on Mutual Assistance and cooperation between
Customs Administrations (Naples, 18 December 1997) and the
Convention on Mutual Assistance in Criminal Matters between
the Member States of the European Union (29 May 2000).
The definition s of controlled delivery appearing in the
UN legal instruments enacted after the Vienna Convention
were mostly based on Article 1(g) of that convention . The main
difference between the se definitions lies in the broader field of
application of this investigative method, which is not only
limited to drugs in later instruments. The comparative table
below illustrates the differen t definitions of controlled delivery ,
together with the provisions on the conditions for the use and
implementation of controlled de liveries at transnational level .
Convention name
(legal act) Definition of controlled
delivery Conditions for implementa tion
UN Convention
against Illicit Traffic
in Narcotic Drugs and
Psychotropic
Substances (1988)18
Article 1 (g): “Controlled
delivery” means the technique
of allowing illicit or suspect
consignments of narcotic drugs,
psychotropic substances,
substa nces in Table I and Table
II annexed to this Convention,
or substances substituted for
them, to pass out of, through or
into the territory of one or more
countries, with the knowledge
and under the supervision of
their competent authorities, with
a view to identifying persons
involved in the commission of
offences established in
accordance with article 3,
paragraph 1, of the Convention. Article 11:
1. If permitted by the basic
principles of their respective domestic
legal systems, the Parties shall take the
necessary measures, within their
possibilities, to allow for the
appropriate use of controlled delivery
at the international level, on the basis
of agreements or arrangements
mutually consented to, with a view to
identifying persons involved in
offences esta blished in accordance
with article 3, paragraph 1, and to
taking legal action against them.
2. Decisions to use controlled
delivery shall be made on a case -by-
case basis and may, when necessary,
take into consideration financial
18 Unlike the previous international regulations (Single Convention Narcotic Drugs, 1961), the 1988 Convention has
revolutionised the fight against drug trafficking by a total change of paradigm in the ma tter of judicial investigation.
31 arrangements and understanding s
with respect to the exercise of
jurisdiction by the Parties concerned.
3. Illicit consignments whose
controlled delivery is agreed to may,
with the consent of the Parties
concerned, be intercepted and allowed
to continue with the narcotic drugs or
psychotro pic substances intact or
removed or replaced in whole or in
part.
UN Convention
against Transnational
Organ ised Crime
(2000)
Article 2 (i): “Controlled
delivery” shall mean the
technique of allowing illicit or
suspect consignments to pass
out of, throu gh or into the
territory of one or more States,
with the knowledge and under
the supervision of their
competent authorities, with a
view to the investigation of an
offence and the identification of
persons involved in the Article 20:
1. If permitted by the basic principles
of its domestic legal system, each State
Party shall, within its possibilities and
under the conditions prescribed by its
domestic law, take the necessary
measures to allow for the appropriate
use of controlled del ivery and, where it
deems appropriate, for the use of other
special investigative techniques, such as
electronic or other forms of surveillance
32 commission of the offence. and undercover operations, by its
competent authorities in its territory for
the purpose of effectively combatin g
organ ised crime.
2. For the purpose of investigating the
offences covered by this Conven tion,
States Parties are encouraged to
conclude, when necessary, appropriate
bilateral or multilateral agreements or
arrangements for using such special inves –
tigative techniques in the context of
cooperation at the international level. Such
agreements or arrangements shall be
concluded and implemented in full com –
pliance with the principle of sovereign
equality of States and shall be carried out
strictly in accordance w ith the terms of
those agreements or arrangements.
3. In the absence of an agreement or
arrangement as set forth in para graph 2
of this article, decisions to use such
special investigative techniques at the
33 international level shall be made on a
case-by-case basis and may, when
necessary, take into consideration
financial arrangements and
understandings with respect to the
exercise of jurisdiction by the States
Parties concerned.
4. Decisions to use controlled
delivery at the international level may,
with the co nsent of the States Parties
concerned, include methods such as
intercepting and allowing the goods to
continue intact or be removed or re –
placed in whole or in part.
UN Convention
against Corruption
(2003)
Article 2 (i): “Controlled
delivery” shall mean the
technique of allowing illicit or
suspect consignments to pass
out of, through or into the
territory of one or more States,
with the knowledge and under
the supervision of their
competent authorities, with a Article 50:
1. In order to combat corruption
effectively, each State Party shall, to
the extent permitted by the basic
principles of its domestic legal system
and in accordance with th e conditions
prescribed by its domestic law, take
such measures as may be necessary,
34 view to the investigation of an
offence and the identification of
persons involved in the
commission of the offence. within its means, to allow for the
appropriate use by its competent
authorities of controlled delivery and,
where it deems appropriate, other
special investigative techniq ues, such
as electronic or other forms of
surveillance and undercover operations,
within its territory, and to allow for the
admissibility in court of evidence
derived therefrom.
2. For the purpose of investigating
the offences covered by this
Convention, St ates Parties are
encouraged to conclude, when
necessary, appropriate bilateral or
multilateral agreements or
arrangements for using such special
investigative techniques in the context
of cooperation at the international level.
Such agreements or arrangeme nts shall
be concluded and implemented in full
compliance with the principle of
sovereign equality of States and shall
35 be carried out strictly in accordance
with the terms of those agreements or
arrangements.
3. In the absence of an agreement
or arrangement as set forth in paragraph
2 of this article, decisions to use such
special investigative techniques at the
international level shall be made on a
case-by-case basis and may, when
necessary, take into consideration
financial arrangements and
understandings with respect to the
exercise of jurisdiction by the States
Parties concerned.
4. Decisions to use controlled
delivery at the international level may,
with the consent of the States Parties
concerned, include methods such as
intercepting and allowing the good s or
funds to continue intact or be removed
or replaced in whole or in part.
Convention None Article 73:
36 implementing the
Schengen Agreement
(1990)
1. The Contracting Parties
undertake, in accordance with their
constitutions and their national legal
system s, to adopt measures to allow
controlled deliveries to be made in the
context of the illicit trafficking in
narcotic drugs and psychotropic
substances.
2. In each individual case, a
decision to allow controlled deliveries
will be taken on the basis of prior
authorisation from each Contracting
Party concerned.
3. Each Contracting Party shall
retain responsibility for and control
over any operation carried out in its
own territory and shall be entitled to
intervene.
Convention on Mutual
Assistance and
cooperatio n between
Customs None Article 22:
a. Each Member State shall
undertake to ensure that, at the request
of another Member State, controlled
37 Administrations
(1997)
deliveries may be permitted on its
territory in the framework of criminal
investigations into extraditable
offences.
b. The decision to carry out
controlled deliveries shall be taken in
each individual case by the competent
authorities of the requested Member
State, with due regard for the national
law of that State.
c. Controlled deliveries shall ta ke
place in accordance with the procedures
of the requested Member State.
Competence to act and to direct
operations shall lie with the competent
authorities of that Member State.
The requested authority shall take over
control of the delivery when the go ods
cross the border or at an agreed hand –
over point in order to avoid any
interruption of surveillance. During the
rest of the journey it shall ensure that
38 the goods are kept permanently under
surveillance in such a way that at any
time it has the possibi lity of arresting
the perpetrators and seizing the goods.
d. Consignments the controlled
delivery of which is agreed to may,
with the consent of the Member States
concerned, be intercepted and allowed
to continue with the initial contents
intact or removed o r replaced in whole
or in part.
Convention on Mutual
Assistance in Criminal
Matters between the
Member States of the
European Union
(2000)
None Article 12:
1. Each Member State shall undertake
to ensure that, at the request of another
Member State, con trolled deliveries may
be permitted on its territory in the
framework of criminal investigations
into extraditable offences.
2. The decision to carry out
controlled deliveries shall be taken in
each individual case by the competent
39 authorities of the requeste d Member
State, with due regard for the national
law of that Member State.
3. Controlled deliveries shall take
place in accordance with the procedures
of the requested Member State. The
right to act and to direct and control
operations shall lie with the comp etent
authorities of that Member State.
The Second
Additional Protocol to
the European
Convention on Mutual
Assistance in Criminal
Matters (Strasbourg,
8.XI.2001)
None Article 18:
1. Each Party undertakes to ensure
that, at the request of another Party,
controlled deliveries may be permitted
on its territory in the framework of
criminal investigations into extraditable
offences.
2. The decision to carry out
controlled deliveries shall be taken in
each individual case by the competent
authorities of the reque sted Party, with
40 due regard to the national law of that
Party.
3. Controlled deliveries shall take
place in accordance with the procedures
of the requested Party. Competence to
act, direct and control operations shall
lie with the competent authorities of
that Party.
CHAPTER II : NATIONAL REGULATIONS
CONCERNING CONTROLLED DELIVERIES WITHIN
THE EU MEMBER STATES
1. Austria
Definition and legal provisions
In Austria, the controlled deliveries are permitted in
accordance with the EU -JZG19 provisions, which include the
main instruments of mutual recognition20.
§ 71 EU-JZG provides that the controlled delivery
consists in delivering (transport) the prohibited goods or of
those subject to limited traffic from or through the Austrian
territory, without the obligat ion of the Public Prosecutor's
Office to intervene.
Implementation at national level
According to the EMCDDA21 website, the conditions
required for the authorisation of the controlled delivery are the
following:
Ensuring continuous surveillance of the
transport ;
The delivery shall be intercepted if there is a
risk of losing the transport ;
In case that Austria is the State of origin or
transit, the controlled delivery shall be
author ised only if an assurance is given
19 Federal law on judicial cooperation in criminal matters with the Member
States of the European Union (EU -JZG), 2004.
20 Katalin, Ligeti, Toward a Prosecutor for the European Union Volume 1:
A Comparative Analysis , Hart Publ ishing Ltd, 2013, p. 42.
21 http://www.emcdda.europa.eu/html.cfm/index44352EN.html
42 regarding the transport confiscation and arrest of
the people involved ;
Controlled deliveries on the national territory
are to be undertaken and led by the Austrian
authorities22;
Supervising the transport on the entire route
travelled, up to its handing over to the
authorities of another State.
When the request comes from a foreign body (if there is
no investigation in progress in Austria), the controlled delivery
must be authorised by the Public Prosecutor's Office with
competence in the district in whose jurisdiction the border is
expected to be crossed, or the district from whose jurisdiction
the controlled delivery route is to start. If these places could not
be established, the Prosecutor from Vienna has competence23
in this matter. Also, § 72 (1) sentence (3) EU -JZG provides
that criminal poli ce must inform without any delay the
competent prosecutor with respect to any controlled delivery
planned.
The implementation of controlled delivery shall be
carried out by police or tax authorities and the customs offices.
After completing the controlle d delivery, the prosecutor
will examine whether there is reason for requesting the State in
which the suspects were detained to take over the co nduct of a
criminal prosecution .
22 According to § 72 (4) EU -JZG, controlled deliveries carried out on the
Austrian territory are conducted by the Austrian authorities (in most cases
by the police). In practi ce, coordination of the controlled deliveries is
carried on by a special unit within the BKA.
23 Austria has emphas ised the problem of jurisdiction conflicts that arise in
practice. In these cases, Austria is based on legal regulations which provide
for a g eneral competence of the Prosecution Service in Vienna.
43 International cooperation
Austria has ratified the UN Convention against Illi cit
Traffic in Narcotic Drugs and Psychotropic Substances (1988)
and the UN Convention against Transnational Organ ised Crime
(2000). In addition , in 2012 Austria signed the Second
Additional Protocol to the European Convention on Mutual
Assistance in Crimi nal Matters, but thus far the Protocol has
not been ratified. Austria also signed the 1959 European
Convention on Mutual Assistance in Criminal Matters on 20
April 1959 which entered into force on 31 December 1968.
The Convention of 29 May 2000 on Mutual Assistance
in Criminal Matters between the Member States of the
European Union has been ratified and came into force with the
adoption of the Austrian Federal Law Gazette, Part I II, No 65
and 66/2005. With regard to the application of Article 12 of
the Convention, Austrian authorities issued the statement in
terms of which “the competent authorities for requests under
Article 12 is the public prosecutor's office in whose jurisdic tion
the border is expected to be crossed or from whose jurisdiction
the controlled delivery is to start ”.
For the authorisation of the controlled deliveries in
Austria, it is necessary to send a request for MLA .
§ 72 (2) EU -JZG provides that the controll ed deliveries
through Austria or from Austria to another State shall be
author ised at the request of another Member State or under the
agreemen t with another Member State, if ( a) the reasons which
are the basis of the controlled delivery may lead to the is suance
of an European arrest warrant ; (b) the controlled delivery shall
contribute to confirmation of the offenses and to the
identification of the people involved.
44 Furthermore , according to § 72 (3) EU -JZG, controlled
delivery is not permitted when it endanger s the life, health, or
physical integrity of a person.
Within Austrian borders, foreign agents are permitted to
participate as observers in the controlled deliveries
investigations. Likewise, the use of undercover agents is
allowed, but they are bann ed from committing or inciting to
commit offenses . According to § 73 (1) EU -JZG, deployment
of an undercover officer of another Member State operating
covertly in Austria, shall be admitted at the express request of
the judicial authority of the Member Sta te, based on a previous
order issued by the prosecutor in the jurisdiction of the area
where the operation is planned. Authorisation shall be granted
for a period of time necessary to achieve the purpose of the
operation, but not exceeding a month. Extensi on of the
authorization is possible only if the initial reasons shall be
maintained, and continuing of the operation will enable the
acquisition of important evidence in the case.
2. Belgium
Definition and legal provisions
In Belgium , the meaning of the ter m “ controlled
delivery” is not the same as the meaning defined in the
Schengen Convention (that is , the non -interception of , for
example , a consignment of illegal substances with the intention
of intervening at the final destination or at a checkpoint
previously agreed on). In Belgium, the concept of “ controlled
delivery” under Schengen is expressed as “monitored delivery”
while the “ controlled delivery” refers to another type of
intervention: infiltration. Consequently, in dealings with the
Belgian authori ties, it is necessary to draw this distinction
45 (whether reference is being made to Schengen -type controlled
delivery (surveillance) or controlled delivery under Belgian
law (infiltration).
In Belgium, monitored deliver ies and c ontrolled
deliver ies derive f rom Royal Decision of 28 M arch 2003
implementing the Law of 6 January 2003 on special
investigation methods and other investigative methods and
their preliminary texts.
Within the broad category of monitored deliveries , a
distinction must be drawn between monitored deliver ies
(consisting in the surveillance of persons or goods in
circulation with intervention at the final destination) and the
supervised assisted deliver ies (consisting in the surveillance of
persons or goods in circulation without intervent ion at the final
destination).
Besides monitored deliveries, the Royal Decision also
mentions c ontrolled deliveries , which are taken to mean
infiltration ( involving undercover police) with intervention at
the destination point . The Royal D ecision also ment ions
controlled assisted deliver ies (involving undercover police)
without intervention at the destination point. The sole purpose
of this last option is to identify itineraries and participants.
The L aw of 6 January 2003 also envisages a third
possibility by introducing art. 40bis of the Criminal Code of
Procedure concerning the delayed intervention. This is where
the arrest of the suspects or the seizure of goods linked to the
offence is postponed or delayed. The difference between
delayed intervention and controlled or monitored (assisted)
deliver ies lies in the fact that the former does not involve any
surveillance or infiltration. Arrests or seizures are made within
an ordinary ongoing investigation without resort to infiltration
or surveillance.
46 Goods o ther than narcotic drugs may be the subject of a
controlled delivery. The law refers to the “ illegal transport of
goods or persons ”.
Implementation at national level
Role of the prosecutor
The public prosecutor of the place from where the
consignment orig inate s and the public prosecutor of the
planned place of intervention are responsible for authorising
controlled deliveries . If there is a difference of opinion between
them , the federal magistrate will be asked to intervene . If the
starting point of the c ontrolled delivery is a foreign S tate, the
public prosecutor of the place where the delivery will enter
Belgian territory, if this location is known , is responsible . If the
location of entry into the territory is not known at the time of
the request from t he foreign authorities, it is for the federal
magistrate to decide whether or not to grant authorisation.
If the case is the subject of a judicial inquiry,
authorisation from the examining magistrate is necessary. If a
seizure is necessary and the destina tion location is unknown in
the territory, the federal magistrate has jurisdiction . Similarly,
if the seizure of goods has to be postponed in order to carry out
a controlled delivery originating from Belgium or in transit
within Belgian territory, the fede ral magistrate has jurisdiction
to authorise the postponement of the seizure.
The federal prosecutor must therefore :
Ensure coordination of the judicial proceedings
and facilitate international cooperation, together
with the relevant local public prosecuto rs;
47 Take all urgent and necessary measures. These
decisions are then binding on the relevant local
prosecutors;
If the final destination is not known in advance,
the federal prosecutor will take control of the
investigation himself.
He is required to apply two fundamental principles :
first, t he principle of proportionality –this process/technique
can only be applied in cases of serious and organis ed forms of
crime ; and secondly, t he principle of subsidiarity – this process
can be applied only if other techn iques do not allow the
necessary proof to be obtained.
Practicalities
The following details must accompany a r equest for a
controlled delivery :
Reason for the operation ,
Factual information justifying operation ,
Type and quantity of drugs / other goods ,
Anticipated means of transport and itinerary ,
Expected point of entry into and exit from the
requested State ,
Identity of each suspect (n ame, date of birth,
domicile, nationality, description) ,
Identification of the authority who authorised
the operation ,
Identification of the Head Investigator in charge
of the operation and contact details ,
Details of police, customs or other law
enforcement officers supporting the operation ,
Details of any special techniques proposed .
48 With the consent of the competent judi cial authorities, a
replacement substance may be used in a delivery.
International cooperation
Belgium has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
UN Convention against Transnational Organ ised Crime (2000),
as well as the 2000 European Convention on Mutual
Assistance in Criminal Matters and its
2001 Additional Protocol. Belgium also signed the 1959
European Convention on Mutual Assistance in Criminal
Matters on 20 April 1959 which entered in to force on 11
November 1975.
The public prosecutor of the place of intervention is the
responsible for the case. He or she decides on how the
operation will progress. As far as possible, the public
prosecutors of the places through which the delivery will pass
are informed of the operation. During the operation, the
criminal investigation department officer in charge of the case
may, at any time, decide to seizure the goods if there is a
serious risk of losing track of the m. It is important to highlight
the role of the federal prosecutor for all the CD’s where or the
place of entry into the Belgian territory is not known
beforehand.
The controlled delivery of persons is prohibited in
principle, but can be carried out in exceptional cases under
certain condi tions: the police departments must, at all times,
have a clear insight into the circumstances and conditions
under which the transport is carried out and must monitor the
actual situation; intervention must take place at the end
destination; there must be sufficient guarantees with regard to
the physical integrity (security) of the persons being
49 transported; execution of the measure falls within the
competence of special police units; the prior agreement of the
State prosecutor is required.
International a ssistance is possible in principle; it is
assessed on a case -by-case basis. Involvement may be in the
form of joint investigation teams. A judicial authority from the
requesting country must issue the request for co -operation in
the form of a rogatory letter. If the controlled delivery starts in
or transits Belgium, the following guarantees have to be given
by the judicial authorities of all countries involved :
Guarantee that the illegal goods will be under
permanent police observation and control;
Assurance that the illegal goods will be seized in
the country of destination (or wherever if there
is a risk of losing control over the goods) and
that the persons involved in the offence will be
prosecut ed.
The presence of law enforcement agencies of a
requesting country on Belgian territory is subject to the
permission of the competent judicial authorities, who will also
decide on practicalities such as the carrying of firearm. A
formal request to this end must be lodged beforehand. Given
that these delicate oper ations must be very carefully prepared,
the Belgian authorities prefer that contact be made as soon as
possible. In cases of extreme urgency, an agreement in
principle may be secured within a matter of minutes. As
regards the preparation of the operation, the timeframe may be
anywhere between 30 minutes to several hours (depending on
the complexity of the case).
50 3. Bulgaria
Definition and legal provisions
Controlled delivery is a special form of mutual
assistance under the investigation of criminal offenses which
gives rise to extradition. Controlled delivery is an operative
method regulated by Article 172(1) of the Code of Criminal
Procedure. Applying the controlled delivery is possible within
the international judicial assistance in terms of Article 12 of t he
Convention on Mutual Assistance in Criminal Matters between
the Member States of the European Union24.
The main legal regulations concerning controlled
deliveries are contained in the Code of Criminal Procedure, the
Special Intelligence Means Act , the La w on Drug Control and
Precursors, the Law on the State Agency for National Security,
Customs Law.
Controlled delivery consists of the export, transit or
import of drugs, precursors or other goods (as applicable).
These operations are only allowed in the ca se of offenses
punishable by imprisonment of more than 5 years.
Section VII entitled “Special Intelligence Means” of the
Code of Criminal Procedure specifies the instruments
regarding the use of special intelligence – technical means
(mechanical devices an d electronic equipment) and operative
methods (surveillance, interception, control of correspondence,
controlled delivery , etc.). According to Article 172(4) of the
Code of Criminal Procedure, controlled delivery can contribute
to obtaining evidence, and u ndercover officers must be
examined as witnesses.
24http://www.ejn –
crimjust.europa.eu/ejn/EJN_FichesBelgesResult.aspx?measure=804&countr
y=239&other= -1
51 Implementation at national level
Under the provisions of Article 10 a of the Special
Intelligence Means Act , “a controlled delivery shall be
performed by an intelligence body and shall be used by an
investig ating or body within the limits of their competence in
the presence of interrupted strict control on the territory of the
Republic of Bulgaria or another country within the context of
international cooperation, during which a controlled individual
shall be import, export, carry or effect transit transportation
through the territory of the Republic of Bulgaria of an object of
a criminal offence, with a view of detecting those involved in a
trans -border crime”.
In Bulgaria, the request for MLA is mandatory o nly in
cases where the controlled delivery is required for a criminal
trial or a criminal investigation. The requests for legal
assistance are not necessary when the controlled delivery is
requested in the context of operational investigations25.
Deployment of the controlled delivery shall be done
only after the authorization is issued by the court.
In the domestic legislation there are no fixed time limits
concerning the controlled delivery.
Initiation and execution of the controlled delivery shall
be carr ied out, after obtaining the approval of the competent
court, by the personnel of the following authorities:
Intelligence authoritie s – the State Agency for
National Security, the Ministry of Interior,
Investigative authorities (under the Special
Intellige nce Means Act ) – Prosecution Office in
Bulgaria, investigative authorities within the
25 Issue in focus number 1 “Cross -border controlled deliveries from a
judicial perspective”, Eurojust , 2015, p. 2.
52 State Agency for National Security, the Ministry
of Interior and the National Customs Agency.
After approval of the controlled delivery by the
competent court, the initia ting authority shall inform all
competent law enforcement agencies, in order to coordinate the
operation.
The prosecutor may, on a case -by-case basis, suspend
the controlled delivery if the originating conditions change.
According to Article 11 of the Special Intelligence
Means Act, the application of the operative methods (including
controlled delivery) shall be accompanied by recording on
audio, video and film tapes, and by photographing. The same
Act also lists other operative methods as observation, ta pping,
surveillance, penetration, marking and interception of mail and
computerised information, trusted transaction and investigation
through an undercover officer.
International cooperation
Bulgaria has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
the Convention against Transnational Organ ised Crime (2000),
as well as the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters. The
Convention on Mutual Assi stance in Criminal Matters between
the Member States of the European Union has entered into
force on December 1, 2007. Bulgaria also signed the 1959
European Convention on Mutual Assistance in Criminal
Matters on 30 September 1993 which entered into force on 15
September 1994.
In the event where a foreign authority sends a request
for authorization of the controlled delivery, the authority
competent to receive the request is the Supreme Cassation
53 Prosecutors’ Office in Bulgaria. After acceptance of the requ est
for assistance, the Supreme Cassation Prosecutors’ Office shall
immediately submit to the competent court a request for
authorization of the controlled delivery.
When the controlled delivery is carried out within a
police operation of international co operation, the authorisation
of this measure is given by a decree by the Supreme Cassation
Prosecutors’ Office. The decree shall be issued in two copies –
one shall be sent to the requesting authority and one to the
National Customs Agency, which shall all ow the entry into the
Bulgarian territory of the transport of drugs26.
The requests for conducting controlled deliveries
received from other State s must be made in writing and must
contain the following information27: the reason for the
operation, factual in formation justifying the operation, the type
and quantity of drugs, means of transport and route used, point
of entry on and exit from the Bulgarian territory, identity of the
suspects, who author ised the operation, data of the investigator
which coordinat es the operation, the technical means proposed
to be used during the controlled delivery.
The Handbook for the Naples II Convention on mutual
assistance and cooperation between customs administrations
includes some particulars relating to the guarantees re quired by
26 Evaluation report on the sixth round of mutual evaluations: "The practical
implementation and operation of the Council Decision 2002/187/JHA of 28
February 2002 setting up Eurojust with a view to reinforcing the fight
against serious crime and of the Council Decision 2008/976/JHA on the
European Judicial Network in criminal matters" Report on Bulgaria,
Brussels, 26 September 2014, p. 51.
27 Handbook for the Naples II Convention on mutual assistance and
cooperation between customs administrat ions – Part II: National fact sheets,
Council of the European Union, Brussels, 5 October 2015, p. 18.
54 the Bulgarian authorities for authorising the controlled
deliveries, namely:
The guarantee that all countries of transit have
given their consent for carrying out the
controlled delivery is necessary ;
Moreover, there are demanded guarantees tha t
the controlled delivery is under constant
supervision, as well as the immediate
intervention in the case there is a risk of losing
the transport ;
Are requested guarantees regarding the final
confiscation of the transport, as well as the legal
accountabil ity of offenders.
According to the EJN website28, “the request and
enclosed documents shall be accompanied by translation in
Bulgarian language or in one of the official languages of the
Council of Europe. With regard to the prompt administration
and fulfil ment of the request it is recommended the latter to be
translated in Bulgarian language in advance”.
According to Article 476 (7) of the Code of Criminal
Procedure, “the execution of requests from other State s for
controlled delivery shall be carried out by the competent
investigating authority. It may ask for assistance the police,
customs and other administrative authorities ”.
The initiating or the destination State is required to
inform the competent authorities about the outcome of the
controlled deliver y.
28 https://www.ejn –
crimjust.europa.eu/ejn/EJN_FichesBelgesResult.aspx?measure=804&countr
y=239&other= -1
55 Foreign agents may take part in the controlled delivery
within the Bulgarian territory as observers. The participation of
foreign agents shall be assessed and allowed by a decree of the
Supreme Cassation Prosecutors’ Office. The authorisation of
foreig n undercover officers requires information such as their
expertise, their real and covert identity29.
In Bulgaria, undercover officers must give written
statements in a specific form provided for by law. This
situation may lead to extensive communication an d exchange
of letters with the foreign authorities for description of the
Bulgarian system30.
Foreign technical support is allowed with the fulfilment
of certain conditions. Data and information obtained by the
technical support can be used as evidence in c riminal process
in compliance with the provisions of the Code of Criminal
Procedure in Bulgaria.
Under the provisions of Article 476(4) of the Code of
Criminal Procedure, “the Supreme Cassation Prosecutors’
Office shall file requests to other State s for in vestigation
through an undercover officer, through controlled delivery and
cross -boundary observation, and shall pronounce itself on such
requests from other State s”.
The exchange of information within the controlled
delivery operations at international le vel shall be carried out by
means of the following channels of cooperation – Europol,
Interpol, representatives of the Bulgarian authorities abroad,
SELEC, Eurojust (in the case of receiving requests for rogatory
29 Overview of replies to questionnaire on undercover officers, Council of
the EU, Brussels, 1 October 2008.
30 Issue in focus number 1 “Cross -border controlled deliveries from a
judicial perspective”, Eurojust, 2015, p. 7.
56 commissions). The Bulgarian authorities31 have shown that
controlled deliveries typically start through Europol or SELEC
channels, and in case of a legal requirement, the assistance of
Eurojust is requested.
4. Croatia
Definition and legal provisions
Controlled delivery is not regulated by the Law on
Mutual Assistance in Criminal Matters and shall be conducted
under the internal criminal proceedings, whereas “it is not
regarded as a form of international legal assistance provided by
local judicial authorities ”32.
Implementation at national level
For th e authorisation of the controlled delivery in
Croatia, a request for MLA is not necessary.
Article 332(1) of the Code of Criminal Procedure lists
the measures which temporarily restrict certain constitutional
rights of citizens, respectively monitoring and interception of
phone calls, interception and recording of electronic data,
undercover tracking and technical recording of people and
31 Evaluation report on the sixth round of mutual evaluations: "The practical
implement ation and operation of the Council Decision 2002/187/JHA of 28
February 2002 setting up Eurojust with a view to reinforcing the fight
against serious crime and of the Council Decision 2008/976/JHA on the
European Judicial Network in criminal matters" Repor t on Bulgaria,
Brussels, 26 September 2014, p. 52.
32 Evaluation report on the sixth round of mutual evaluations: "The practical
implementation and operation of the Council Decision 2002/187/JHA of 28
February 2002 setting up Eurojust with a view to reinfor cing the fight
against serious crime and of the Council Decision 2008/976/JHA on the
European Judicial Network in criminal matters." Report on Croatia,
Brussels, 27 November 2014, p. 47.
57 objects, use of undercover agents and informants, controlled
transport and delivery of objects coming from offenses.
According to the provisions of the Criminal Procedure
Code, controlled delivery and transportation are author ised by
a decision of a competent court.
If the investigation cannot be conducted in any other
way or would present great difficulties, the investigat ing
magistrate may, at the request of the State Prosecutor, order
against the people under the suspicion for committing or
participating in the commission of a crime covered by Article
334 of the Code of Criminal Procedure, controlled transport
and deliver y of objects coming from offenses.
The prosecutor requests the investigating magistrate for
the implementation of special measures. The request must
contain the name of the offense, its description, duration of the
measure, the reason for choosing it. If t he request is approved,
the judge issues a written order. The order issued by a judge is
implemented by the police in cooperation with other
institutions such as customs or the post office33.
This investigative method may be approved for a period
up to 3 mo nths. At the request of the State Prosecutor, the
judge may extend this measure for a further period of 3 months
and for serious offenses, another 6 months. This measure
ceases when the reasons that led to its approval34 have stopped.
In operational times, the operation is carried out by the
police under the supervision of a competent State prosecutor.
33 For further information, please see Controlled delivery manual for
SELEC Member States, SELEC, 2014.
34http://www.ejn –
crimjust.europa.eu/ejn/EJN_FichesBelgesResult.aspx?measure=804&countr
y=432&other= -1
58 During the controlled delivery, technical assistance and
exchange of information, as well the use of foreign undercover
agents are possible.
In addition , tota l and partial replacement of the drugs
are allowed.
International cooperation
Croatian authorities have signed and ratified the most
important agreements and conventions for cooperation in the
fight against organ ised crime and drug trafficking, such as th e
UN Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances (1988), UN Convention against
Transnational Organ ised Crime (2000), as well as the Second
Additional Protocol to the European Convention on Mutual
Assistance in Criminal Matters. Conversely , Croatia has not
accepted the application of Articles 17, 18 and 19 from the
Second Additional Protocol to the European Convention on
Mutual Assistance in Criminal Matters. Croatia also signed the
1959 European Convention on Mutual Assi stance in Criminal
Matters on 7 May 1999 which entered into force on 5 August
1999.
Up to the present time, Croatia has not ratified the
Convention on Mutual Assistance in Criminal Matters between
the Member States of the European Union (May 29, 2000).
5. Cyprus
Definition and legal provisions
Controlled deliveries may be carried out under the
Crime Suppression (Controlled Delivery and other special
provisions) Law of 1995 ( “the 1995 Law” ). Th e 1995 Law
defines a “controlled delivery” as the technique of all owing
59 prohibited substances or prohibited articles to pass from,
towards, or through the territory of one or more countries with
the knowledge and under the supervision of the competent
authorities with a view to identify persons involved in the
commission of prescribed offences .
The 1995 Law allows the appropriate use of “controlled
delivery” at local and international level as a legal technique
for identifying persons involved in offences associated with
narcotic drugs, as well as the illicit trafficking of other
prohibited articles, such as arms and ammunitions. This law
was drafted in accordance with the provisions of Article 11 of
the UN Convention against the Illicit Traffic of Narcotic Drugs
and Psychotropic Substances (Vienna Convention of 1988),
which the Republic of Cyprus ratified with Law 49/1990.
The C ypriot C ouncil of Ministers may issue regulations
for the better application of the provision s of this Law, in
particular to regulate the commencement and termination of
controlled delivery; and the supervision and keeping of record s
regarding the trafficking of prohibited substances or prohibited
articles.
Section 3(2) of the 1995 Law defines the prescribed
offences as follows :
The offences listed in Article 3 (1) of the Vienna
Convention, provided t hat they constitute a
criminal offence under domestic law;
Offences relating to the illegal import, export,
possession, usage, trade, transfer or traffic of
firearms and ammunition ;
Offences relating to the import, possession,
usage, trade, transfer or tra ffic of stolen objects ;
60 Offences relating to the import, export,
possession, usage, trade or transfer of nuclear
material, as defined in the Convention on the
Physical Protection of Nuclear Material
(Ratification and other Provisions) Law 1998
(L.3 (III)/1 998).
Section 7 of the 1995 Law provides that p ersons who
participate in controlled deliver ies at any stage will not be
liable for any damage that may be caused to any person or any
property by reason of bona fide mistake in the transmission of
information .
Implementation at national level
Section 6 of the 1995 Law sets out the procedure for
decisions on controlled deliveries . In essence, d ecisions on
controlled deliver ies are taken on a case by -case basis by the
Chief of Police or his representative , with notification of his
decision to the Director of the Department of Customs ; by the
Director of the Department of Customs, with notification of his
decision to the Chief of the Police; or by both official s acting
jointly.
The Attorney -General of Cyprus must be informed of
every decision on controlled deliver ies and he may give such
directions as he deems necessary or appropriate.
International cooperation
Cyprus has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substa nces (1988),
the UN Convention against Transnational Organ ised Crime
(2000), as well as the Convention on Mutual Assistance in
Criminal Matters between the Member States of the European
61 Union and its 2001 Additional Protocol. Cyprus also signed the
1959 Eu ropean Convention on Mutual Assistance in Criminal
Matters on 27 March 1996 which entered into force on 24 May
2000.
Section 5 of the 1995 Law provides that a controlled
delivery in cooperation with other States may take place only
pursuant to mutual agree ments or arrangements for the
identification of persons involved in the prescribed offences,
with a view to taking legal proceedings against them . If no
mutual agreement has been signed or other formal arrangement
has been made with a country, controlled d eliver ies may be
carried out on the basis of standard terms of mutual co –
operation.
Request s for controlled deliver ies must include as much
information as possible (justification of the operation, type and
quantity of drugs or other goods, border crossing points
affected, how the transportation will take place, etc.).
6. Czech Republic
Definition and legal provisions
According to the provisions of the Code of Criminal
Procedure (Article 87b – Monitored Consignment ), “in pre -trial
proceedings the public prose cutor may order to track a
consignment that is reasonably believed to contain items
referred to in Section 87a, if it is necessary for clarification of a
criminal offence or to reveal all its perpetrators, and
ascertaining the necessary matters of fact in other ways would
be ineffective or substantially more complicated” .
62 Implementation at national level
Controlled deliveries may be used only within the
activities in the area of judicial cooperation in criminal matters
and for the purpose of a criminal p roceeding. For the
authorisation of a controlled delivery, a request for MLA is
required. In urgent situations, the request may be issued during
the operation as well. The request must contain detailed
information with regard to: motivation of the operatio n, type
and quantity of the drugs which are the subject of the delivery,
means of transport and route, the border point, identity of the
suspect, the officer responsible for initiating the operation,
contact details of the foreign authority, data of the fo reign
officer responsible for supporting the operation, other special
investigation techniques proposed.
Authorisation of the controlled deliveries is granted by
the prosecutor. The measure may be ordered only under
preliminary proceedings.
Deployment of the controlled delivery shall be carried
out by the Police of the Czech Republic, and the Customs
Administration (only the staff which holds police authority),
and coordination of the project is under the responsibility of the
Sirene Bureaux of the Police or the General Directorate of
Customs.
Police can begin monitoring a transport without the
order of the prosecutor if there is a danger of delay and if the
order cannot be obtained in due time in advance. The police
shall inform the prosecutor immediately and shall proceed
according to the instructions of the latter.
In the stage of deploying the controlled deliveries, the
following rules are in effect:
63 Replacing the drugs is possible, but only with
the authorization of a judge ;
If there is a risk of losing the transport, the
Czech authorities will stop the controlled
delivery ;
The participation of foreign agents to the
controlled delivery is only permitted as
observers, to the extent that this issue is
stipulated in a treaty or in an international
conventio n. They have no legal power on the
territory of the Czech Republic ;
Foreign agents may possess weapons, but they
can use them only in cases of self – defence .
International cooperation
The Czech Republic has ratified the UN Convention
against Illicit Traf fic in Narcotic Drugs and Psychotropic
Substances (1988), the UN Convention against Transnational
Organ ised Crime (2000), as well as the Second Additional
Protocol to the European Convention on Mutual Assistance in
Criminal Matters. The Convention on Mutua l Assistance in
Criminal Matters between the Member States of the European
Union entered into force on June 12, 2006. The Czech
Republic also signed the 1959 European Convention on Mutual
Assistance in Criminal Matters on 13 February 1992 which
entered int o force on 1 January 1993.
Providing that the criminal procedure takes place in the
Czech Republic, the case prosecutor is responsible for issuing
the request for assistance relating to the controlled delivery
64 from the authorities of another State35. In the situation in which
the criminal procedure tak es place in another State, the
authority competent with authorising the controlled delivery is
the Regional Public Prosecutor’s Office in Prague36. According
to Article 65(1) of Law IJCCMI, the Regional Public
Prosecutor's Office in Prague is the only prosecution office
from the Czech Republic designated for executing the requests
relating to controlled deliveries.
When the Czech Republic is a State of origin or transit
for the controlled delivery, the concerned foreign authorities
require the guarantee that the drugs shall be confiscated, and
the people involved shall be held accountable. If the Czech
Republic is the State of transit, than is required the consent of
all countries that will be affected by the oper ation.
The authorities of the Czech Republic have not noticed
any problem concerning the direct communication of a request
for legal assistance. Prosecutors under the Regional
Prosec utor's Office in Prague have a 24/7 continuous schedule
(on 24/7 duty), so there are no problems in the event of an
emergency request for a controlled delivery. In ordinary cases,
it is under the competence of the public prosecutor to assess the
appropriateness and necessity of using the controlled delivery
method37.
35 Any case prosecutor from the Czech Republic may issue a request for
legal assistance in order to carry out a controlled delivery. If a prosecutor
has any issues relating to drafting the request for legal assistance, he may
request the assistance of the prosecutors from the Department of
International Affairs of the Prosecutor General's Office.
36 Handbook for the Naples II Convention on mutual assistance and
cooperation between customs administrations – Part II: National fact sheets,
Council of the European Union, Brussels, 5 October 2015, p. 34.
37 Evaluation report on the sixth round of mutual evaluations: "The practical
implementation and operation of the Council Decision 2002/187/JHA of 28
February 2002 setting up Eurojust with a view to reinforcing the fight
65 7. Denmark
Definition and legal provisions
According to instructions issued by the Danish Police,
Denmark may participate in controlled deliver ies of narcotic
substances as well as other kind s of goods as the State of entry,
exit or transit . As a general rule, that mand atory prosecution is
a precondition for a controlled delivery.
In Denmark, there are no specific national rules on
controlled deliveries. The Danish Administration of Justice Act
regulates the police investigation of criminal matters in general
terms and, by analogy , these rules also appl y when dealing
with controlled deliveries. However, the Danish rules on agent
activity (agent provocateurs), which are found in Article 754 a –
e of the Danish Administration of Justice Act, sets the limits on
the use of civ il informants and police agents. The use of such
informants or agents may affect both the admissibility of
evidence in court, as well as the actual sentencing. In
particular, the Danish Administration of Justice Act provides
that:
Undercover agents must be police officers;
Foreign police officers may be allowed to act as
undercover agents but they do not possess any
executive powers in Denmark;
Foreign police officers are only allowed to carry
firearms acc ording to a specific permission;
Undercover agents m ay be used only in cases in
which a prior agreement on consignment has
been made between the deliverer, the courier
against serious crime and of the Council Decision 2008/976/JHA on the
European Judicial Network in criminal matters " Report on the Czech
Republic, Brussels, 29 July 2014, p. 54.
66 and the receiver and where there are concrete
indicators that the receiver will most likely carry
out the criminal act.
On 31 July 2002 , the Danish Ministry of Justice issued
guidelines on cross -border controlled deliveries dealing with
the admissibility and the general handling of incoming and
outgoing requests for controlled deliveries.
Implementation at national level
Role of the police co mmissioner
The power of decision generally lies with the police
commissioner in the district where the delivery is to take place.
If another police district – perhaps in cooperation with foreign
authorities – is already investigating or has participated in the
investigation of the matter or other matters relating to it, the
decision to carry out a controlled delivery must be made in
close co -operation with that police district.
If it is not clear where the delivery is to take place, the
power of decision l ies with the police commissioner in the
district which is investigat ing matters relating to the controlled
delivery, if such an investigation exists. If the police district
with the power of decision cannot be determined from the
criteria mentioned above, but the available information – for
example the whereabouts of the suspects or other connections
to a geographic area – indicates that delivery will take place in
a certain area, the power of decision lies with the police
commissioner in that specific dist rict.
In cases where the information is not sufficient to
determine in which police district the delivery will take place,
and several districts may be possible , the police commissioners
of the different indicated police districts will coordinate and
67 distribute their involvement amongst the districts in accordance
with the general regulations.
In cases where the request relates only to a controlled
delivery through Denmark, the power of decision lies with the
police commissioner in the first police distri ct through which
the delivery is to pass in Denmark. I f the information is
insufficient to establish which police district has the power of
decision, the power of decision lies with the Police
Commissioner of Copenhagen. I f the available information
sugges ts that the delivery will take place in Jutland , however,
the Police Commissioner of Aarhus has the power of decision.
Practicalities
Request s must be sent to the national police
(authorisation must be obtained from the regional chief
constable whose juris diction is expected to be involved in the
case). If permission is given to carry out a controlled delivery ,
the n ational police , in co -operation with the relevant regional
chief constable , are responsible for the initiation , operational
command, actual con trol and the decision to terminate an
operation.
Both total and partial substitution of goods is allowed.
Substitution is decided whenever possible. There are no
restrictions on the contraband that can be subject to controlled
deliveries, e.g. narcotics/dr ugs, guns, tobacco, other contraband
and even – if it is deemed safe enough – trafficking in human
beings.
A request for a controlled delivery may be refused in
the following circumstances:
When the final destination is known to be in
another State and th ere is no confirmation to the
effect that those involved will be prosecuted;
68 When there is a risk of losing the consignment;
If an undercover agent, who is not a police
officer, is participating in the controlled
delivery.
International cooperation
Denmar k has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
the UN Convention against Transnational Organ ised Crime
(2000), as well as the Convention on Mutual Assistance in
Criminal Matters between the Me mber States of the European
Union and its 2001 Additional Protocol. Denmark also signed
the 1959 European Convention on Mutual Assistance in
Criminal Matters on 20 April 1959 which entered into force on
12 December 1962.
The channel for communications prio r to and during a
controlled delivery is through Interpol, Nordic LO, or the
Danish Liaison Officers at EUROPOL.
The transportation of deliveries of drugs through
Denmark, as part of operations planned by the authorities of
other countries, may only be all owed subject to prior
permission from the Danish authorities and with the
involvement of the Danish police. Within the framework of
Danish legislation, the competent Danish authorities will try to
carry out the measure in keeping with the wishes of the
requesting State. MLA request s can be sent directly to the
compete nt authority i.e. the relevant p olice district.
Request s from foreign authorities to carry out a
controlled delivery to or through Denmark must include the
following information:
69 The particular s of the authority making the
request .
The reason for the request and the contents of
the request, including a specific statement of the
reasons for requesting a controlled delivery.
The contents, including quantity, etc. of the
controlled delivery.
Person al data of the persons involved, including
Danish nationals (supplier, courier, receiver
etc.).
The time and route of the delivery, including the
suspected place where the delivery will be
completed .
Which other countries are involved, if any.
Information about the permission of the country
where the delivery will be completed.
Information about criminal prosecution in the
country where the delivery will be completed.
A description of the methods of transportation –
car (registration number, brand, colour, etc.),
train (train number, seat, etc.), aircraft (aircraft
number, seat, etc.) ship (name, type, colour,
etc.).
Any information about previous contact with the
Danish authorities, if any.
Names and telephone numbers of persons from
foreign authorities res ponsible for the controlled
delivery, including those responsible for the
practical execution of the controlled delivery.
70 Information about foreign police officers who
might follow the delivery into or through
Denmark.
Other than including the above inform ation, there are
no specific or official procedures or other requirements to the
form of the rogatory letter in which the requesting S tate ask s
for Danish participation in handling and executing a controlled
delivery.
8. Estonia
Definition and legal provisi ons
In Estonia, controlled delivery is perceived as a delayed
monitored delivery passing through the country, the measure
being possible within the judicial assistance and conducted in
conjunction with other surveillance measures.
Therefore , “the approach of the relevant authorities
regarding controlled deliveries is very pragmatic and flexible,
and they are conducted relatively effortlessly and efficiently,
especially when requested by Finland where the authorities and
procedures are familiar”38.
Accordin g to the EMCDDA website39 and to those
mentioned by the Estonian prosecutors who participated at the
first workshop in the project , there is no legal basis on the
controlled deliveries, the requirements regarding any type of
surveillance relating to crimina l investigations (including using
38 Evaluation report on the sixth round of mutual evaluations: "The practical
implementation and operation of the Council Decision 2002/187/JHA of 28
February 2002 setting up Eurojust with a vie w to reinforcing the fight
against serious crime and of the Council Decision 2008/976/JHA on the
European Judicial Network in criminal matters." Report on Estonia,
Brussels, 26 April 2013, p. 34.
39 http://www.emcdda.europa.eu/html.cfm/index44352EN.html
71 the controlled delivery) being provided in the Code of Criminal
Procedure (CCP) and the Law on Surveillance.
Implementation at national level
According to the Estonian prosecutors who attended the
first Regional Meeting of the project held in Tallinn,
“surveillance activities may be conducted with a written
permission of a prosecutor's office or a p reliminary
investigation judge. The preliminary investigation judge shall
decide the grant of permission by a ruling on the b asis of a
reasoned application of the prosecutor's office ”.
The relevant legislation is set out in:
(a) CCP § 126'5. Covert surveillance, covert
examination and replacement of things .
Section 1 provides that a prosecutor's office shall issue
a permission for covert surveillance of persons, things or areas,
covert collection of comparative samples and conduct of initial
examinations and covert examination or replacement of things
for up to two months.
According to Section 2, in the course of the surveillan ce
activities specified in this section, the information collected
shall be, if necessary, video recorded, photographed or copied
or recorded in another way.
(b) CCP § 126'6. Covert examination of postal items .
Under Section 1, upon covert examination of a postal
item, information derived from the inspection of the item is
collected.
Section 2 sets out that after the covert examination of a
postal item, the item shall be sent to the addressee.
According to Section 3, in the course of the activities
specifi ed in this section, the information collected shall be, if
72 necessary, video recorded, photographed or copied or recorded
in another way.
Section 4 provides that in the course of covert
examination of a postal item, the item may be replaced.
Under Section 5 , a preliminary investigation judge
grants permission for the surveillance activities specified in this
section for up to two months. After expiry of the specified
term, the preliminary investigation judge may extent this term
by up to two months.
(c) CCP § 126'7. Covert observation of informatio n.
Section 1 provides that information obtained by wire –
tapping or covert observation of messages or other information
transmitted by the public electronic communications network
or communicated by any other means shall be recorded.
According to Section 3, a preliminary investigation
judge grants permission for the surveillance activities specified
in this section for up to two months. After expiry of the
specified term, the preliminary investigation judge may exte nt
this term by up to two months.
(d) CCP § 126'8. Staging of criminal offence.
According to Section 1, staging of a criminal offence is
the commission of an act with the elements of a criminal
offence with the permission of a court.
Under Section 2, if p ossible, a staged criminal offence
shall be photographed, filmed or audio or video recorded.
According to Section 3, a preliminary investigation
judge grants permission for the surveillance activities specified
in this section for up to two months. After e xpiry of the
specified term, the preliminary investigation judge may extent
this term by up to two months.
73 As the Estonian participants mentioned, “f ormal request
for legal assistance is the basis for authorisation of controlled
delivery ”.
The requirement s for any kind of surveillance related to
criminal investigation include:
contact details of the authority that issued
particular permission ;
reason for the operation ;
kind and amount of goods that are the subject of
the operation ;
identity of the suspect ;
information about the authority responsible for
the operation .
Controlled deliveries are deployed by the investigative
competent authorities (police, customs administration and tax
administration).
International cooperation
Estonia has ratified the UN Co nvention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
the UN Convention against Transnational Organ ised Crime
(2000), as well the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matter s. The
Convention on Mutual Assistance in Criminal Matters between
the Member States of the European Union has entered into
force on August 23, 2005. Estonia also signed the 1959
European Convention on Mutual Assistance in Criminal
Matters on 4 November 19 93 which entered into force on 27
July 1997.
In general, the participation of foreign undercover
officers is not mandatory, but can be allowed (on a case -by-
74 case basis) in the deployment of controlled deliveries in
Estonia. For their authorization, the required information is
their true and undercover identity40.
In the event where the national authorities require a
controlled delivery abroad, the prosecutor shall send a request
for judicial assistance to another State through SIENA or
Interpol channels. Coo rdination and negotiations with other
Member States shall be carried out by the competent
investigative authorities41.
In Estonia, the Office of the Prosecutor General and
Eurojust's National Member for Estonia are competent to
submit a request for setting up a joint investigation team.
The Office of the Prosecutor General or Eurojust's
National Member for Estonia with the permission of the Office
of the Prosecutor General shall make a decision concerning
setting up a joint investigation team on the basis o f a proposal
made to Estonia and enter into a corresponding agreement with
the competent judicial authority of a foreign State .
9. Finland
Definition and legal provisions
The Police, Customs and Border Guard Cooperation
Act entered into force in early 201042. This new act replaces
the 2001 Decree on cooperation between these authorities. The
40 Overview of replies to questionnaire on undercover officers, Council of
the EU, Brussels, 1 October 2008.
41 Evaluation report on the sixth round of mutual evaluations: "The practical
implementation and operation of the Council Decision 2002/187/JHA of 28
February 2002 setting up Eurojust with a view to reinforcing the fight
against serious crime and of the Council Decision 2008/976/JHA on the
European Judicial Network in criminal matters.". Report on Estonia,
Brussels, 26 April 2013, p. 34.
42 Finnish Customs Intelligence and Investigation Report 2009.
75 act provides a new, clear legal basis for cooperation between
Finnish law en forcement authorities.
This Act contains specific provisions on controlled
delivery and on th e possibi lity of law enforcement authori ties
forming national data acquisition and investigation teams. The
Act also contains provisions on joint intelligence and anal ysis
functions as well as joint databases.
Prior to this Act, controlled delivery was a strategic
procedure and had no specific statutory basis in Finnish law.
Under Section 30(a) of the Finnish Police Act, a police
officer, as referred to in Articles 40 and 41 of the Schengen
Agreement, from another State, including Norway and Iceland,
is authorised to continue observation on Finnish territory, as
laid down in the international agreement which binds Finland.
However , a Finnish police officer may not immediately
continue observation on Finnish territory.
Equipment which Finnish police offic ers are entitled to
use in accordance with rules on technical observation may be
used for the purposes of cross -border observation. A report on
any observation carried out must be submitted to the police
authority of the district in which the observation a ctivities were
mainly carried out. A police officer from another State must
submit a report to the police unit in Finland in charge of the
observation activities, which will deliver the report to the local
police authority concerned.
Competent authorities may, on the basis of a request
and also in other cases, allow foreign authorities to participate
in controlled deliveries. Foreign officers may, with the
permission of the competent authorities, also participate as
observers.
76 Implementation at national level
The chief of the National Bureau of Investigation, the
chief of the Security Intelligence Service, police chiefs, and
officers specially trained in cover t collection of intelligence
have the power to take decisions on controlled deliver ies
conducted by the police. Controlled deliveries will be
authorised if they are necessary in order to identify persons
participating in an offence or in order to clarify the extent of a
larger offence.
Controlled deliver ies will be allowed if there are
grounds to sus pect the commission of an offence punishable by
at least four years imprisonment . This four -year-requirement
applies only to domestic controlled deliveries, not to
international controlled deliveries, since in international cases
the applicable convention prevails.
It must be possible for the delivery to be controlled and,
if necessary, for intervention to take place. In addition, the
measure must not cause significant danger to the life, health or
freedom of any person or significant danger or extensive
damage to the environment, property or assets.
International cooperation
Finland has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
the UN Convention against Transnational Organ ised Crime
(2000), as well as the Convention on Mutual Assistance in
Criminal Matters between the Member States of the European
Union and its 2001 Additional Protocol. The 1959 European
Convention on mutual assistance in criminal matters entered
into force in Finland on 29 April 1981.
Cooperation between the police, customs and border
guard service is based on rules governing the areas of authority
77 of various national bodies, based on the United Nations
Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substa nces, signed in Vienna on 20 December
1988, Article 73 of the Schengen Agreement, and other
agreements signed by Finland.
Finland has also signed bilateral agreements with the
Russian Federation and the Baltic States on customs and police
cooperation, whi ch allow controlled deliveries. In order to
ensure a uniform national procedure, and the coordination and
integration of action s between different authorities, the police,
customs and border guard service have signed a mutual
assistance agreement.
If the continued observation of a controlled delivery is
carried out on Finnish territory by police officers from another
of the Contracting Parties, or by Finnish police officers on the
territory of another Contracting Party, under Article 40 of the
Schengen Agr eement, the Schengen Agreement will apply in
accordance with Finnish national regulations and regulations
governing Finnish officers.
Under Article 40(1) of the Schengen Agreement, police
officers of one of the Contracting Parties who, within the
framework of a criminal investigation, are keeping under
observation in their country, a person who is presumed to have
taken part in a criminal offence to which extradition may
apply, are authorised to continue their observation in the
territory of another Contrac ting Party where the latter has
authorised cross -border observation in response to a request for
assistance which has previously been submitted. Conditions
may be attached to the authorisation.
Upon request, observation will be entrusted to officers
of th e Contracting Party in whose territory it is carried out.
Under Article 40(2), officers carrying out the observation shall
78 be authorised to continue the observation where, for
particularly urgent reasons, prior authorisation of the other
Contracting Party cannot be requested.
The measure is applied in accordance with the
provisions of the 2000 MLA Convention. The measure may
also be taken in relation to a Member State not applying the
Convention. The competent authority of the requesting State is
consulted on the practical methods of execution before the
measure is carried out. In relation to Member States applying
the provisions of the Convention on Mutual Assistance and
Cooperation between Customs Administrations, controlled
deliveries may be carried out p ursuant to the Convention.
The National Bureau of Investigation serves as national
contact point in the European Ju dicial Network and therefore
all requests concerning controlled deliver ies sent via Interpol,
Europol or national Schengen centres will be di rected to
National Bureau of Investigation. Request s for controlled
delivery must be in writing and must contain an adequate and
clear description of the facts required to assess the lawfulness,
feasibility and possibility of execution of the request. As i n all
rogatory letters concerning coercive measures , special attention
will be paid to the fulfilment of prerequisites.
10. France
Definition and legal provisions
The legislation governing controlled deliveries is set out
in Article 706 -80 of the Code of Cri minal Procedure (code de
procédure pénale or “CPP”), which provides :
“Judicial police officers and, under their authority,
judicial police agents, after having informed the public
prosecutor thereof and provided he does not object, may
extend to cover the whole of the national territory the
79 surveillance of persons against whom one or more
plausible reasons exist to suspect that they have
committed one of the crimes or misdemeanours falling
within the scope of Articles 706 -73,706 -73-1 or 706 -74
or the surveillance of the conveyance or transportation
of objects, goods or products deriving from the
commission of any of these offences or used to commit
them.
Advance notice of any extension of competence
provided for in the preceding paragraph must be given,
by any means, to the public prosecutor of the reg ional
court in whose jurisdiction the surveillance operations
are liable to begin or, where applicable, to the public
prosecutor seised in accordance with the provisions of
Article 706 -76.”
Under Article 706 -80 CPP, officers of the judicial
police are able to pursue, outside the boundaries of their
territorial jurisdiction, the surveillance of:
persons suspected of having committed certain
offences relating to organised crime;
objects, goods or products deriving from the
commission of such offences or used to commit
them.
Surveillance is a relatively w ide concept as it covers not
only persons, but also goods used in the commission of these
offences or deriving therefrom. As regards the persons targeted
by this provision, the requirement is that “one or more
plausible reasons [must] exist to suspect that they have
committed one of [these offences] ”, a requirement which, if
met, enables the person in question to be placed in custody.
80 In practice, these provisions are often used in the fight
against drug trafficking.
Offences covered:
This investigation tec hnique is reserved for the offences
set out in Articles 706 -73, 706 -73-1 and 706 -74 CPP, which
cover the entire spectrum of organised crime:
Article 706 -73 CPP : Murder committed by an
organised gang, drug trafficking, human
trafficking, procuring, theft co mmitted by an
organised gang, aggravated crimes of extortion,
acts of terrorism, crimes and misdemeanours
involving weapons, etc.;
Article 706 -73-1 CPP : Fraud committed by an
organised gang, illegal employment committed
by a criminal gang, money laundering , failure to
justify resources, etc.;
Article 706 -74 CPP : Misdemeanours committed
by criminal associations as well as all crimes
and misdemeanours committed by organised
gangs.
Implementation at national level
Before a controlled delivery can be set in mo tion, the
law requires that the public prosecutor be notified first. This
notification may take any form, including a telephone call. The
public prosecutor is entitled to lodge objections.
These limited formalities are due to the limited powers
of officers and agents of the judicial police in this context , who
have only a passive role to play and who are not entitled to
exercise any coercive powers.
The competent public prosecutor is the prosecutor:
81 In whose jurisdiction the surveillance operations
are liab le to begin. Thus, where goods are sent
from abroad, the relevant public prosecutor will
generally be the prosecutor of the place of entry
of the goods. Where the operation involves
goods which are already present in France,
competence will in principle li e with the public
prosecutor of the place where the goods are
found.
With specialist inter -regional jurisdiction
(juridiction interrégionale spécialisée or “JIRS”)
on account of the complexity of the case.
International cooperation
France has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
the UN Convention against Transnational Organ ised Crime
(2000), as well as the Convention on Mutual Assistance in
Criminal Matters between the Member States of the European
Union and its 2001 Additional Protocol. France also signed the
1959 European Convention on Mutual Assistance in Criminal
Matters on 28 April 1961 which entered into force on 21
August 1967.
At the level of practitioners, France h as signed a
Memorandum of Understanding with the Spanish Special
Antidrug Prosec ution Office with a view to work ing at bilateral
level as central contact point dealing with all matters related to
international cooperation to combat drug trafficking, including
controlled d eliveries.
82 Practitioners43 have mentioned that the uncertainty of
the route creates problems in identifying the French local
competent judicial authority to authorise the delivery, since
there is no single judicial authority in France with nationwide
jurisd iction in this area. They also pointed out that some
countries systematically request authorisation to use real -time
location technology on French territory. From the opposite
perspective, some countries have difficulty in executing French
requests to plac e surveillance devices on vehicles. Differences
in legislation lead to unexpected drug seizures that affect
criminal investigations. The temptation of the authorities is to
seize the drugs upon detection, even though they have a request
to let them run. In some Member States , it is not a mere
temptation but an obligation for police authorities to seize the
drugs upon detection. This prevents the identification of the
final recipient of the drug consignment.
11. Germany
Definition and legal provisions
The cond itions and procedure for controlled deliveries
are regulated by administrative guidelines (no. 29 a -d of the
guidelines on regulating criminal prosecutions and fines).
Germany has not enacted any special statutory framework for
controlled deliveries. Howev er, individual provisions of the
German Code of Criminal Procedure also apply to controlled
deliveries.
In Germany, there are three different types of controlled
delivery: controlled transit , involving the illegal transport of
drugs, weapons, stolen prope rty or goods and similar
43 Report provided by the French Liaison Magistrate in Spain, Ms Heléne
Davo.
83 (excluding human beings) from abroad via Germany to a third
country under surveillance by the criminal prosecution
authorities ; controlled export , involving the illegal transport of
such goods from Germany to foreign countries unde r
surveillance ; and c ontrolled import , involving the illegal
transport of such goods from foreign countries to Germany
under surveillance.
Implementation at national level
Responsibility for implementation at national level
depends on whethe r we are deali ng with a controlled transit,
export or im port, and whether investigative proceedings are
already pending in Germany .
In cases of controlled transit, implementation is
generally managed by the public prosecutor in whose area the
border crossing point is l ocated through which the goods are
imported, unless investigative proceedings are already pending
before the German public pros ecution office for the offence.
The same applies to controlled import. If no other indications
as to the probable location of the border crossing exist, the
authority in whose area the most favourable traffic connection
is located will take a decision when they receive a mutual
assistance request. As for controlled export , implementation is
generally managed by the public prosecutio n office in whose
district the transport starts. The public prosecutor responsible
for implementation also has the power to decide whether to
permit the controlled transport.
Subject -matter of controlled deliveries
Controlled deliveries can be carried out for narcotic
drugs, weapons, stolen goods and similar substances and items .
Controlled deliveries involving humans, in particular in
investigations into human trafficking and migrant smuggling,
84 are prohibited , as the danger to the life of the persons
conce rned cannot be safeguarded with sufficient security.
Legal requirements
This guideline s provide that “ surveillance of
transportation ” (controlled delivery) is only permitted if there
is no other way of identifying the instigators or the distribution
routes ; if the possibility of intercepting the perpetrator of the
offence and seizing the corpus delicti is guaranteed at all times ;
and if the competent office of the p ublic prosecutor authori ses
use of the “surveillance of transportation” method .
Supervision must be exercised in a way that ensures full
control over the perpetrator and subject -matter of the offence at
all times. Consequently, the mere surveillance by GPS of a
vehicle which is presumed to transport large amounts of
narcotic drugs does not constit ute a controlled delivery within
the meaning of the guidelines .
International cooperation
Germany has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
the UN Convention against Transnational Organ ised Crime
(2000), as well as the Convention on Mutual Assistance in
Criminal Matters between the Member States of the European
Union and its 2001 Additional Protocol. Germany also signed
the 1959 European Convention on Mutual Assistance in
Criminal Matters on 28 April 1961 which entered into force on
1 January 1977.
Mutual assistance requests between Germany and the
Baltic Sea States – apart from the Russian Federation – can be
exchanged directly between the judicial offices of the relevant
countries. No tra nslations need to be enclosed in requests or
letters rogatory exchanged between Germany on the one hand
85 and Denmark and Finland on the other . However, translations
into the language of the relevant country must be included if
letters rogatory are exchanged with the other countries,
although translations into English language suffice for Estonia
and Norway.
Mutual assistance requests on controlled deliveries must
always be made in writing, although advance notice of the
request by telephone should suffice in urgent cases. Requests
for and consent to controlled delivered need not take any
special form.
In the event of transit through and export from
Germany, the following declarations from all foreign countries
involved must be on file:
Consent to the import o r transit;
Assurances t hat the transport will be control led
at all times;
Assurances that investigations will be conducted
into the couriers, instigators and receivers, that
the narcotic drugs, weapons, stolen goods and
the like will be seized, and that st eps will be
taken to secure conviction s and enforce
sentences ;
Assurance s that the German criminal
prosecution authorities will be constantly kept
up-to-date about the status of the relevant
proceedings.
86 12. Greece
Definition and legal provisions
In the Greek system, controlled delivery (monitored
transport of drugs) consists in monitoring the transit through
Greece of narcotic drugs and other hallucinogenic substances,
if the confiscation or partial replacement of the goods
transported illegally is neces sary44.
The method of controlled delivery of drugs is regulated
in the Hellenic legislation in different legal acts, such as Article
253A(1) of the Code of Criminal Procedure, Law No
2145/1993 (Article 38), as amended by Law No 2331/1995 and
Law No 1990/91 (by which the Greek State has ratified the UN
Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances).
In agreement with the provisions of the domestic law,
controlled delivery is an investigative activity carried out in
full secrecy, with regard to certain crimes (including also drug
traffic king). The provisions of Article 38 of Law No 2145/93
(as amended by Article 15, par agraph 1 of Law No. 2331/1995)
shall be applicable only to the controlled deliveries of drugs.
Implementatio n at national level
The authorization of carrying out the controlled
delivery is issued by the General Prosecutor of the Prosecutor's
Office under the Court of Appeal in Athens. The necessary
conditions for the authorisation of this operation are the
follo wing:
44 http://www.ejn –
crimjust.europa.eu/ejn/EJN_FichesBelgesResult.aspx?measure=804&countr
y=279&other= -1
87 Fulfilment of the formal conditions imposed by
Article 11 of Law 1990/9145;
The existence of serious indications on
committing a crime, the method of controlled
delivery being absolutely necessary for
prosecuting the criminals.
The implementation of c ontrolled delivery shall be
achieved by the Central Anti -Drug Coordination Unit (SODN).
According to Article 15 of Law No 2331/1995, SODN will
carry out the specific activities under the controlled deliveries,
after obtaining authorisation from the prosecu tor.
The specialist personnel within the SODN will ensure
monitoring of the transport, from the time of entry into and up
to exiting the country. Within 48 hours from the moment the
drugs exited the country, SODN shall draw up a detailed report
on the fact s concerning the controlled transport, the date,
period of time and place where the drugs entered and exited the
country. Furthermore, a copy of this confidential report shall be
sent to the Public Prosecutor at the Prosecutor's Office under
the Court of A ppeal in Athens.
International cooperation
Greece has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988)
45 According to Article 11 of Law 1990/91, "if is permitted by the basic
principles of the internal corresponding legal systems, the Parties shall take
the necessary measures according to their competences, to permit the use of
controlled delivery at international level, on the basis of agreements or
regulations mutually agreed upon, in order to identify the people involved
in the offense. The decisions concerning using contro lled delivery shall be
issued on a case by case basis and the Parties concerned shall be able to
take into account, where necessary, financial agreements or arrangements
relating to the exercise of jurisdiction".
88 and the UN Convention against Transnational Organ ised Crime
(2000). Furthermore , Greece has signe d in 2001 the Second
Additional Protocol to the European Convention on Mutual
Assistance in Criminal Matters, but up to the present time this
protocol has not been ratified. Greece also signed the 1959
European Convention on Mutual Assistance in Criminal
Matters on 20 April 1959 which entered into force on 12 June
1962. Up to now, Greece has not ratified the Convention on
Mutual Assistance in Criminal Matters between the Member
States of the European Union (29 May 2000).
The authorization to carry out a controlled delivery on
Greek territory is given after sending a MLA request , directl y
or through the communication and cooperation channels
(Interpol), to the Central Anti -Drug Coordination Unit
(SODN). According to Article 38 of Law No 2145/1993,
requests o f foreign States in compliance to Article 11 of the
Vienna Convention of 1988 are sent, by any way but always in
writing, directly or through the Interpol, to the Central Anti –
Drug Coordination Unit (SODN), which after verifying the
legality and validity o f the request, shall immediately inform
the Public Prosecutor of the Court of Appeal in Athens.
Technical assistance from other State s under the
controlled transport of drugs on the territory of Greece is
allowed. An important regulation is also the one a ccording to
which on Greek territory, the participation of agents from the
State requesting the controlled delivery is not allowed.
Requests of the Hellenic authorities to carry out
controlled deliveries outside Greece shall be send to SODN,
which shall re quest authorization of the operation by the Public
Prosecutor at the Prosecutor's Office under the Court of Appeal
in Athens.
89 13. Hungary
Definition and legal provisions
Police Law (Law No 34/1994) and the Law of the
National Tax and Customs Administration re gulate the general
framework for deploying the controlled deliveries. Starting
2008 Border Guard was integrated in the Police , while in 2011
Customs was merged with the Tax Authority and the National
Tax and Customs Administration was established (NTCA).
Act on Penal Proceedings, Act on International Legal
Assistance in Criminal Matters , Act on Cooperation in
Criminal Matters with the Member States of the European
Union, Police Cooperation Convention for Southeast Europe
(PCC SEE), Vienna and Palermo Conve ntion, respectively
offer also a legal framework.
According to the domestic law, police and customs46
ensure coordination and exchange of information in the case of
international controlled deliveries.
Article 64 (1f) of Police Law defines the special
invest igative methods, including controlled delivery.
Implementation at national level
The Hungarian practitioner who att ended the last
Regional Meeting mentioned that “the national legislation
regarding controlled deliveries (e.g. question of approval) has
been revised , nowadays the general rule is that each controlled
delivery has to be authorized by a prosecutor ”.
According to the Eurojust47 study, in Hungary,
“legislation permits substitution of drugs. Nevertheless,
46 The customs shall participate in the con trolled deliveries on the basis of
the provisions of Law No. 19/2004.
47 Issue in focus number 1 “Cross -border controlled deliveries from a
judicial perspective”, Eurojust, 2015, p. 6.
90 Hungary is cautious in using such practice as it may hamper
the prosecution and detention of perpetrators. If Hungary seizes
a transport that does not contain any drugs, it then relies only
on evidence from the country where the drugs were substituted.
Such evidence is very unlikely to be sent to Hungary within
72h, the maximum time required by Hungarian law for a
decision regarding detention ”.
In the case of controlled deliveries in which there is a
risk that the transport is uncontrollable, the intervention of
Hungarian authorities is allowed.
According to the same Hungarian practitioner, “a
controlled delivery may be used for drugs and all other objects
that are related to criminal activities, with the exception of
nuclear material and human beings. Controlled delivery shall
also be rejected if d rug is smuggled via body packers
(swallowers)”.
International cooperation
Hungary has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
the UN Convention against Transnational Organ ised Crime
(2000). Instead, Hungary has signed in 2003 the Second
Additional Protocol to the European Convention on Mutual
Assistance in Criminal Matters, but up to the present this
protocol has not been ratified. Hungary also signed the 1959
European Convention on Mutual A ssistance in Criminal
Matters on 19 November 1991 which entered into force on 11
October 1993. The Convention on Mutual Assistance in
Criminal Matters between the Member States of the European
Union has entered into force on November 23, 2005.
In order to carry out the controlled deliveries, a request
for assistance is required, which, in urgent cases, can be sent
91 also during the operation. According to Article 17 -19 of Law
LIV from 2002 on international cooperation of the law
enforcement agencies, in order for the controlled deliveries to
be authorised, the requesting authority shall send a request for
assistance at the headquarters of the National Police –
International Law -Enforcement Cooperation Centre (NEBEK).
In the event where the delay in obtaining the approval
could endanger the interests of the investigation, the request for
assistance made by the foreign competent authority could be
sent directly to the competent law enforcement agency in
Hungary. In such cases, it shall be proceeded to the immediate
subsequent notification of NEBEK48.
Requests for controlled delivery must contain detailed
information with regard to the reasoning of the operation, type
and quantity of drugs, means of transport (the identification
data) and itinerary (route), border poi nts affected, identity of
the suspects, details of the case officers, contact method of the
foreign authority, special investigation techniques proposed.
In cases where the controlled deliveries start in Hungary
or are in transit through this country, t he foreign authorities
must ensure that the drugs will be confiscated, and the people
involved shall be prosecuted. For the controlled deliveries
transiting through Hungary, all State s affected by the operation
must give their consent49.
Foreign officers ma y participate in the controlled
deliveries only as observers. However, they do not have law
48 Handbook for the Naples II Convention on mutual assistance and
coopera tion between customs administrations – Part II: National fact sheets,
Council of the European Union, Brussels, 5 October 2015, p. 160.
49 For further information, please see Controlled delivery manual for
SELEC Member States, SELEC, 2014; European Union man ual on
controlled deliveries, The Hague, Europol, 2004.
92 enforcement powers and are acting under the authority of the
Hungarian officials. They can carry weapons with prior
permission, but the use of weapon can be made on ly in the
event of legitimate self -defence .
Foreign equipment and technical devices can be used
under the Hungarian law. The foreign authorities may provide
technical assistance, as well as technical surveillance or
tracking devices under the supervision o f the law enforcement
services of Hungary.
Police Law, Law of the National Tax and Customs
Administration , as well as the Code of Criminal Procedure
allow the use of undercover agents. The agent may be an
Hungarian or foreign officer, the operation requiri ng approval
by a prosecutor.
The use of informants in the context of deploying the
controlled deliveries is not allowed.
The central point of contact for the controlled deliveries
is NEBEK, institution that coordinates the activity of all law
enforcement a gencies in the field of international cooperation.
NEBEK is operational 24/24, and after being approached , this
body shall inform and coordinate the controlled deliveries
conducted by the national police or NTCA ,.
According to the Hungarian practitioner, “ if there is no
ongoing criminal proceeding neither in the requesting nor in
the receiving Member State the cooperation concerns the
intelligence phase, therefore, the provisions of the act on the
international co -operation of the law enforcement agencies
shall be applied within the frame of the bilateral and
multilateral international agreements. If there is an ongoing
criminal proceeding in any of the Member States involved, the
controlled delivery can be carried out exclusively in the frame
of judicial co operation”.
93 The practitioner also shared with the other participants
the procedure of using evidence resulted from controlled
delivery. If the requesting country wishes to obtain evidence
that can be used as a document with regards to the controlled
delive ry, it can be done within the frame of judicial
cooperation, only. In case of judicial cooperation the rogatory
letter with regards to the controlled delivery shall be sent to the
public prosecutor:
to the competent public prosecutor in case of EU
MSs,
to the Office of the Prosecutor General (acting
as a centra l authority) in case of non -EU S tates.
14. Ireland
Definition and national provisions
Section 88 of the Criminal Justice (Mutual Assistance)
Act 2008 defines “controlled delivery” as a delivery permitt ed
in the State in accordance with this Act or in a designated State
in accordance with the relevant international instrument for the
purposes of an investigation into an offence . This Act goes on
to describe the procedure for making requests in these two
circumstances (Sections 89 and 90).
The Garda Síochána Act 2005, as amended, enables
members of An Garda Síochána to serve outside the State as
members of a joint investigation team, including in order to
carry out a controlled delivery.
Implementation at national level
The authorities competent to authorise or coordinate
controlled deliveries are An Garda Síochána and the Office of
Revenue Commissioners (for offences that fall under their
94 jurisdiction). The National Member of Eu rojust , as prosecutor,
is n ot empowered to authorise or coordinate controlled
deliveries. He indicated that it was not possible to coordinate
from Eurojust controlled deliveries between Irish authorities
and the other Member States.
Communication prior to and during a controlled
delivery may be sent through Interpol, Europol, Police and
Customs. Official requests for rogatory letters must be made
through the Department of Justice, Equality & Law Reform
(Mutual Assistance Section). There is no expected delay for
clearance of a control led delivery request.
The Irish national investigative authorities (including
the Office of the Revenue Commissioners) reported that
controlled deliveries were mostly, and successfully, carried
out on the basis of the 1998 Convention on Mutual
Assistance a nd Cooperation between Customs
Administrations and the 2000 Convention on Mutual
Assistance in Criminal Matters between the Member States
of the European Union.
International cooperation
Ireland has ratified the UN Convention against Illicit
Traffic in Na rcotic Drugs and Psychotropic Substances (1988)
and the UN Convention against Transnational Organ ised Crime
(2000). It also signed the 1959 European Convention on
Mutual Assistance in Criminal Matters on 15 October 1996
which entered into force on 26 February 1977, but did not sign
the Convention on Mutual Assistance in Criminal Matters
between the Member States of the European Union or its
Second Additional Protocol.
Requests for controlled deliveries sent to the Irish
authorities must contain the followi ng information:
95 Reason for the operation ,
Factual information justifying operation ,
Type and quantity of drugs / other goods ,
Anticipated means of transport and itinerary ,
Expected point of entry into and exit from the
requested State ,
Identity of each sus pect (name, date of birth,
domicile, nationality, description) ,
Identification of the authority who authorised
the operation ,
Identification of the Head Investigator in charge
of the operation and contact details ,
Details of police, customs or other law
enforcement officers supporting the operation ,
Details of any special techniques proposed .
15. Italy
Definition and legal provisions
Article 98 of Presidential Decree No 309/90 was the
legal provision governing controlled deliveries. It allow ed the
continuance of criminal activity in order to obtain key items of
evidence and locate or capture those responsible for any of the
offence s listed in that Decree. In particular, this provision
permits the omission or delay in the issue or execution of
measures of arres t or detention . This article of the law was
replaced by article 8 of Law 13 August 2010, n. 136.
Controlled deliveries in field of drugs, now, with the new
legislation are regulated together the controlled deliveries in
the other fields (terrorism, money l aundering, etc ). The
regulation has not significantly changed .
96 Implementation at national level
Public Prosecutor's Office of the area in which
controlled delivery is going to be carried out, is the competent
authority. The Prosecutor will issue an order (decreto) giving
grounds to delay capture, arrest or seizure measures or arrange
for their execution to be delayed. In cases where different
regions will be involved, the Procura Nazionale Antimafia e
Antiterrorismo will act as central authority to auth orise the CD
implementation.
International cooperation
Italy has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
UN Convention against Transnational Organ ised Crime (2000),
and the 1959 European Con vention on mutual assistance in
criminal matters . Since March 2016 , the Italian authorities have
been empowered to establish joint investigation team s (JITs).
On 5 August 2016, new legislation ratifying and implementing
the European Union Convention on Mut ual Assistance in
Criminal Matters, in particular concerning extradition, entered
into effect in Italy (Law No. 149 of 21 July 2016 Ratifying and
Implementing the Convention on Mutual Assistance in
Criminal Matters Between Member States of the European
Union of May 29, 2000, and Delegating Powers to the
Government for Its Implementation). Law No. 149 also
delegates powers to the Executive Branch to amend Book XI of
the Criminal Procedure Code on the execution of judicial
decisions, amends provisions on ext radition, and sets deadlines
in connection with coercive measures.
The Law No. 149 includes several amendments to the
Italian Code of Criminal Procedure to facilitate international
cooperation in criminal matters. According to the amendments,
97 the EU Conven tion on Mutual Assistance in Criminal Matters
and the Treaty on the Functioning of the EU governs the
relations between Italy and other EU Member States
concerning international extradition requests, the effects of
foreign criminal decisions, the enforceme nt of Italian criminal
decisions overseas, and other relations with foreign authorities
related to the administration of criminal justice.
Based on the international reciprocity principle, the
Italian Ministry of Justice may reject requests for judicial
assistance, extradition, or other matters related to the
administration of criminal justice. (Art. 4(1)(b).) The power to
reject requests for international judicial assistance must be
exercised in accordance with Italian treaties with EU Member
States and , in the case of non -EU Member States, based on
potential danger to national sovereignty or security o r Italy’s
essential interests (Art. 4(1)(c)(1) and Art. 4(1)(d)(1)) .
A request for MLA is not required for controlled
delivery. In particular , where a pro secutor from another
country wants a consignment of drugs to transit through Italy
without action being taken to effect seizure , there is no need for
a MLA request; direct written contact (e.g. fax or mail) is
sufficient. However, a formal MLA request is n eeded where a
foreign prosecutor wants to seize or take control of a
consignment of drugs . In those circumstances , the request must
be formally addressed to the Minist ry of Justice or, where the
request come s from a European country , to the competent
Court of Appeal.
The relevant authorities are the Ministry of
Justice/Interior and the Direzione Centrale per i Servizi
Antidroga D.C.S.A (Anti -drug Central Directorate). Under
Article 725 of the Italian Code of Criminal Procedur e, the
measure may be execute d in accordance with the form
98 requested by the requesting State, provided that this does not
conflict with fundamental principles of Italian law .
16. Latvia
Definition and legal provisions
According to the Latvian practitioner who attended the
last Regional Mee ting of the project, within the law there are
two ways in which controlled deliveries can be organised in
Latvia : (i) Operational activities Law – Article 15(1).
Controlled delivery ; and (ii) Criminal Procedure Law – Article
227. Control of criminal activi ty.
In the category of investigative (operational) measures
referred to in Article 6 (1) of the Operational activities Law , we
find also the controlled delivery. The definition of controlled
delivery is given in the content of Article 15(1) of the same
law: “controlled delivery is the movement of goods or other
valuables (including substances, means of payment or other
financial instruments) in the territory of Latvia or across the
State borders and the control of persons associated with such
movement the p urpose of which is to prevent or detect criminal
offences and to ascertain the persons committing such offences
if information has been received or there are justified
suspicions regarding the association of the goods or other
valuables to be moved with cr iminal offences ”.
The Criminal Procedure Law is also relevant as regards
the control of criminal activity. Article 227 provides that “if, on
the basis of a decision of an investigating judge, a separate
stage of a single criminal offence or mutually connec ted
criminal offences is determined, but, in immediately
discontinuing such stage, the opportunity to prevent another
criminal offence, or ascertain all involved persons, especially
99 the organisers and commissioning parties thereof, or all the
purposes of t he criminal activity, will disappear, control of the
criminal activity may be performed”.
Implementation at national level
For the authorisation of controlled delivery within a
criminal procedure or a criminal investigation, a written
request is required. The authorisation request must include the
essence of the case and the approval of the prosecutor /judge
that monitors the case. The guarantee that all transit State s have
given their consent to the controlled delivery on their national
territory is a requ irement.
In ordinary cases, using the controlled delivery is
approved by the investigating magistrate. In urgent cases, use
of the controlled delivery may be approved by the designated
prosecutor, with the subsequent approval of the investigating
magistrat e50.
Controlled deliveries shall not be author ised when there
is a risk of endangering the life or health of people, of
spreading certain substances hazardous for the life of people or
of generating environmental disasters.
In the situation in which during deployment of the
controlled delivery are necessary other investigative measures
as well, their authorization shall be made in compliance with
the provisions of the Operational activities Law .
50 Evaluation report on the sixth round of mutual evaluations: "The practical
implementation and operation of the Council Decision 2002/187/JHA of 28
February 2002 setting up Eurojust with a view to re inforcing the fight
against serious crime and of the Council Decision 2008/976/JHA on the
European Judicial Network in criminal matters." Report on Latvia, Brussels,
23 May 2014, p. 37.
100 Operational performance measures, during which are
substantiall y violated fundamental rights of individuals, are
taken special methods which have been approved with Chief
Justice or a specially author ised Supreme Court judge or, if
provided by law, the approval of a prosecutor.
According to Article 212 of the Criminal Procedure
Law, “special investigative actions shall be performed on the
basis of a decision of an investigating judge, except cases
determined in this Chapter. In emergency cases, a person
directing the proceedings may commence special investigative
actio ns by receiving the consent of a public prosecutor, and,
not later than the next working day, a decision of an
investigating judge ”.
The measures for ensuring special investigative actions
are regulated by Article 228 of the Criminal Procedure Law. In
order to ensure a special investigative action, the officials and
persons involved in such special investigative action may use
information and documents specially prepared beforehand,
organisations or undertakings specially established beforehand,
imitations of objects and substances, specially prepared
technical means, as well as imitate participation in the
committing of a criminal offence, or participation in the
manner of a supporter.
Controlled deliveries shall be put into effect by the
State Police or Cu stoms Police Department, State Revenue
Service.
In performing such controlled delivery of goods and
substances, the free sale and purchase of which is prohibited by
law and regulations or the referred -to activities require a
special permit, the goods or su bstances may be fully or
partially seized or exchanged.
101 International cooperation
Latvia has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
UN Convention against Transnational Organ ised Crime (2000 ),
as well as the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters. Latvia
also signed the 1959 European Convention on Mutual
Assistance in Criminal Matters on 30 October 1996 which
entered into force on 31 August 1997. The Convention on
Mutual Assistance in Criminal Matters between the Member
States of the European Union has entered into force on August
23, 2005.
In Latvia, the request for MLA is mandatory only in the
cases where controlled delivery is requeste d within a criminal
procedure or of a criminal investigation. The request s for legal
assistance are not necessary when the controlled delivery is
requested in the context of operational investigations51.
Foreign agents may participate in controlled deliveri es
as observers, but may be required to testify as witnesses in the
court of law.
17. Lithuania
Definition and legal provisions
Controlled deliveries are permitted by the national
legislation, in the context of the import, export and transit of
illicit goods or other suspicious objects.
According to the Lithuanian prosecutor who attended
the last Regional meeting of the project, “controlled delivery
could be used during the criminal intelligence and also pre -trial
51 Issue in focus number 1 “Cross -border controlled deliveries from a
judicial perspective”, Eurojust, 2015, p.2.
102 investigation” . The legal framework is repre sented by the
Lithuanian Law no. XI -2234/2012 on criminal intelligence and
the Code of Criminal Procedure.
According to Article 2 of the Law o n criminal
intelligence , controlled delivery is the authorised way for
gathering information allowing illicit or s uspect goods and
other objects to pass into, through or out of the territory of the
Republic of Lithuania under the control of an entity of criminal
intelligence activities with a view to the detection of criminal
acts and the identification of the persons preparing, committing
or having committed the acts.
Implementation at national level
(a) Controlled delivery pursuant to the Law on criminal
intelligence
The Law on criminal intelligence is used for the
collection of the data in the absence of the eleme nts of crime.
All data obtained during the criminal intelligence procedures
are usually treated as State or official secret s.
The p rosecutor controls and coordinates the acts
performed by the subjects of criminal intelligence and either
addresses the cour t for the approval of certain criminal
intelligence acts (e.g. interception of telecommunications,
covert access to premises) or personally approves certain acts
(e.g. surveillance, imitation of the criminal act, controlled
delivery).
The methods of collec ting criminal intelligence
information regulate d by law are as follows: use of agents,
interview, inspection, controlling verification, controlled
delivery, imitation of a criminal act, stakeout, surveillance,
covert operation, law enforcement institution assignment, use
of technical means (monitoring or recording economic,
103 financial operations of a natural or legal person, the use of
financial instruments and means of payment, personal
conversations, other communication or actions).
Article 6 of Law no. XI -2234/2012 regulates the rights
of the entities of the criminal intelligence: “ Para 3, Point 4)
apply ways of gathering criminal intelligence information:
controlled delivery, imitation of a criminal act, surveillance,
task of the law enforcement instituti on”.
The legal requirements relating to conducting a
controlled delivery are as follows52: data relating to the need
for a controlled delivery, the suspects, the countries involved
on the traffic route, the expected time duration of the controlled
delivery, objectives of the operation, type of drugs, means of
transport, provided that the transport to be confiscated if there
is a risk of losing thereof, ensuring the safety of people and of
the means involved, the guarantee of penal prosecution or
extradition (upon request).
According to Article 14 (1) of the Law no. XI –
2234/2012 , controlled delivery shall be authorised by the
prosecutor subject to a reasoned application by the head of an
entity of criminal intelligence or his authorised deputy. Section
2 of Art icle 14 sets out that the application shall indicate: the
name, surname and position of the officer who has filed the
application; the data and (or) reasoning, substantiating the
necessity of controlled delivery and the sought result; the data
concerning a natural or legal person (persons) who is carrying
controlled items; the names of the countries from which and to
which a controlled item is being carried; the anticipated
duration of controlled delivery; the result aimed at as well as
the intermediate and final objectives of controlled delivery.
52 http://www.emcdda.europa.eu/html.cfm/index44352EN.html
104 Upon the authorisation of controlled delivery, the head
of an entity of criminal intelligence or his authorised deputy
shall not later than next working day after the authorisation
send one copy of the application to the Prosecutor General or
his authorised prosecutor of the Prosecutor General‘s Office.
Under Article 14(4) of the Law no. XI -2234/2012 ,
“where a prosecutor refuses to authorise the actions specified
in paragraph 1 of this Article, the head of an entity of criminal
intelligence or his authorised deputy shall have the right to
refer to a superior prosecutor who is controlling the legality of
the actions of criminal intelligence entity. The refusal by the
prosecutor must be substantiated in writing. The pr osecutor
who has taken a decision not to authorise the mentioned actions
must inform thereof the Prosecutor General or his authorised
prosecutor of the Prosecutor General‘s Office”.
An essential regulation is that indicated in Article 14 (5)
of the same law , which provides that it shall be prohibited to
carry out controlled delivery, where it poses a direct danger to
human life and health or may give rise to other serious
consequences.
Controlled deliveries shall be put into effect by Police
and Customs.
(b) Controlled delivery pursuant to the Code of
Criminal Procedure
Evidence is collected upon establishment of the
elements of crime. Pre -trial investigation is conducted by pre –
trial investigation officers.
Prosecutors lead the pre -trial investigations, or ganise
and control them. All principal decisions during the pre -trial
investigation are passed by the prosecutor (the prosecutor
addresses the court for the approval of the acts which restrict
105 the person’s rights, decides on the referral of the case to cou rt,
discontinues the pre -trial investigation).
As the Lithuanian prosecutor said, “definition
“controlled delivery” is not used in the Code of Criminal
Procedure. There are no special rules in the Code of Criminal
Procedure ”.
The same requirements are prov ided for a controlled
delivery as well as for other covert measures of investigation
specified in the Code of Criminal Procedure.
A controlled delivery is authorised under Article 158 of
the Code of Criminal Procedure. A controlled delivery is
author ised by the pre -trial judge upon the reception of the
requests of the prosecutor organiz ing the pre -trial investigation.
In urgent cases, a controlled delivery may be carried out
pursuant to the decision of the prosecutor, however, the judge’s
approval / affirma tion regarding the carried out actions must be
obtained within three days.
The following data shall be indicated in the prosecutor’s
request/application to the judge: the persons who will carry out
covert actions; a person against whom the actions to be ca rried
out; information on the person’s criminal offences; specific
actions allowed to be performed; the result sought; duration of
the covert actions.
According to the Lithuanian prosecutor above
mentioned , “every year less than 10 controlled deliveries ar e
sanctioned pursuant to the Law on Criminal Intelligence.
Information on how many controlled deliveries are sanctioned
pursuant to the Code of Criminal Procedure is not available” .
106 International cooperation
Under Article 14(6) of the Law no. XI -2234/2 012,
controlled delivery may be carried out only on the basis of
international treaties or agreements.
Lithuania has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
UN Convention against Transnationa l Organ ised Crime (2000),
as well as the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters.
Lithuania also signed the 1959 European Convention on
Mutual Assistance in Criminal Matters on 9 November 1994
which en tered into force on 16 July 1997. The Convention on
Mutual Assistance in Criminal Matters between the Member
States of the European Union has entered into force on August
23, 2005.
In order to authorise controlled deliveries in the
criminal proceedings , it is necessary to send a request for
MLA .
The participation of foreign officers (including
undercover) is allowed, but only as observers in deployment of
the controlled delivery, with the prior permission granted by
the General Prosecutor of the Republic of Lithuania.
Also, the use of foreign and national telephone
equipment is allowed.
18. Luxembourg
Definition and legal provisions
In the Luxembourg system, controlled delivery consists
in “observation during which an illegal transport of goods or
107 persons is c arried out with the knowledge and under permanent
watch of the police”53.
According to the Europol manual on controlled
deliveries , the legislation in Luxembourg does not contain
specific provisions relating to the method of carrying out
controlled deliver ies. The legal basis for carrying out
controlled deliveries is comprised of Article 12 of the
Convention on Mutual Assistance in Criminal Matters between
the Member States of the European Union and Article 11 of the
UN Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances.
Implementation at national level
These categories of operations are allowed in the case
of any type of drugs trafficked. Authorisation of the controlled
deliveries on the territory of Luxembourg is subject to the
following conditions:
The controlled delivery is author ised only in
cases where obtaining evidence could not be
achieved by conventional methods ;
The request of another State must include
information relating to the place, date and time
period during w hich the delivery shall be carried
out, details on the case, the packaging of the
drugs, the exact tasks required, the staff of the
requesting State that will participate in carrying
out the delivery (including the means of contact,
address );
53 https://www.ejn –
crimjust.europa.eu/ejn/EJN_FichesBelgesResult.aspx?measure=804&countr
y=314&other= -1
108 Ensuring that the transport of drugs will be
under continuous surveillance is a requirement .
Controlled deliveries are author ised and coordinated in
accordance with the progress of the proceedings (investigation)
by the General Prosecutor, Prosecutor54 or the investigat ing
magistrate.
In the case in which there is a risk of losing control over
the transport, it shall be proceeded to its seizure.
International cooperation
Luxembourg has ratified the UN Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(1988) and the UN Convention against Transnational
Organ ised Crime (2000). In exchange, Luxembourg has signed
in 2008 the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters, but up
to now the protocol has not been ratified. Luxembourg also
signed the 1959 European Convention on Mutual Assistance in
Criminal Matters on 20 April 1959 which entered into force on
16 February 1977. The Convention on Mutual Assistance in
Criminal Matters between the Member S tates of the European
Union has entered into force on March 6, 2011.
The request for MLA is necessary for the authorisation
of controlled deliveries in Luxembourg. This request is
addressed to the Grand Ducal Police, through the Interpol. In
54 The Department of Public Prosecution (the Prosecutor 's Office attached to
the Court of the region of Luxembourg – with competence in the south, the
Prosecutor's Office attached to the Court in the region of Dukirch – with
competence in the north).
109 urgent cases, the request may be addressed verbally , providing
that a written request subsequently will follow55.
In principle, the competent authorities of Luxembourg
shall not proceed to the substitution of the drugs unless they are
requested to do so by the State of d estination or transit.
19. Malta
Definition and legal provisions
National legislation comprises of regulations relating to
controlled deliveries in the following regulatory documents:
the Dangerous Drugs Ordinance (Chapter 101, Article 30 B(1))
and the Crimi nal Code , Chapter 9, Article 435E).
Controlled delivery takes place in order to identify the
people involved in committing a crime incriminated by the
laws of Malta or of another State. According to Article 435e(1)
of the Criminal Code, the General Prosecu tor shall author ise
the Executive Police and, where appropriate, the customs
authorities to carry out a controlled delivery in order to identify
the people involved in committing any crime in accordance
with the legislation of Malta or of another country56.
Implementation at national level
The legal requirements concerning the authorisation of
these operations shall include any information relating to the
case, people and materials/substances involved, the motive for
the operation57. Also, according to the a spects listed in the
Handbook for the Naples II Convention on mutual assistance
55 For further information, please see European Union manual on controlled
deliveries, The Hague, Europol, 2004.
56 Evaluation report on the sixth round of mutual evaluations: Report on
Malta, Brussels, 3 December 2013, p. 34.
57 http://www.emcdda.europa.eu/html.cfm/index44352EN.html
110 and cooperation between customs administrations , it is
necessary to ensure fulfilment of the guarantees relating to: the
consent of all countries of transit for carrying out th e controlled
delivery, permanent surveillance of the transport, immediate
intervention in the case where there is a risk of losing the
transport, final confiscation of the transport and legal
accountability of the offenders.
These operations are author ised by the General
Prosecutor or by a magistrate and are deployed by police or
customs.
Controlled delivery is also regulated by Article 30b(2)
of the Dangerous Drugs Ordinance , which additionally
provides for the replacement of the drugs during a controlled
delivery.
Special techniques may also be permitted in the
execution of a controlled delivery. Such techniques may
comprise of a variety of procedures , however, if the
interception of communications is involved, authorisation must
be obtained from the Minis ter responsible for Justice and
Home Affairs, in accordance with the Security Services Act
(Chapter 391 of the Laws of Malta – Article 6).
International cooperation
Malta has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychot ropic Substances (1988),
UN Convention against Transnational Organ ised Crime (2000),
as well as the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters. Malta
also signed the 1959 European Convention on Mutual
Assistance in Criminal Matters on 6 September 1993 which
entered into force on 1 June 1994. The Convention on Mutual
111 Assistance in Criminal Matters between the Member States of
the European Union has entered into force on July 3, 2008.
In Malta, for the autho risation of controlled deliveries
summoned by other State s, the request for MLA is necessary .
Execution of the technique in compliance with the
procedures applicable in the requesting State is possible, if they
are not contrary to the legislation of Malta.
Article 435E(3) of the Criminal Code provides for the
possibility that the competent authorities of another State to use
undercover agents or under false identity on the territory of
Malta, for controlled deliveries, with the permission of the
General Pro secutor.
20. Netherlands
Definition and legal provisions
The Instruction on Investigation Powers (Aanwijzing
opsporingsbevoegdheden) regulates controlled deliveries.
The Code of Criminal Procedure (Wetboek van
Strafvordering) is also relevant to controlled d eliveries. Article
126ff provides that investigating officers are obliged to
exercise the powers of seizure conferred on them by law if,
pursuant to the execution of a warrant, they become aware of
the location of objects or substances whose presence or
possession is prohibited. However, such seizure may be
postponed in the interest of the investigation with a view to
carrying it out at a later date , such as in the case of controlled
deliveries . Under this article, the seizure obligation may be
disapplied i f a public prosecutor issues an order to that effect.
Because delaying seizure of prohibited objects or
substances may only occur provided that the seizure is carried
out at a later date, measures must be taken to effect such
112 subsequent seizure . The object s / substances must always be
under constant surveillance , the transit countries (if any) must
give assurances to this effect beforehand, and the objects /
substances must never reach the open market.
Implementation at national level
The LIRC ( National Ag ency for Cross -border
Observation )/NIC (National Information Coordinator) receive
the request. The designated public prosecutor of the National
Public Prosecutor’s Office gives permission or refuses.
Consent must be confirmed in an administrative order und er
Article 126g / 126o of the Code of Criminal Procedure.
There are two possible scenarios :
(i) the location of the delivery is unknown. In this
scenario, the national public prosecutor gives temporary
permission. When the location of the delivery has been
established, the local public prosecutor takes over the case and
can either agree with the temporary decision or not. The local
public prosecutor can revoke permission and order seizure of
the goods to be seized. The local prosecutor also takes over the
lead on the Schengen surveillance team.
(ii) if the location is known beforehand the local public
prosecutor decides if the controlled delivery can take place or
not. When dealing with special circumstances “higher level
verification” (Minister of Justice) is required. If a serious
investigative interest is at stake the public prosecutor can give
permission for a controlled delivery. This measure is regulated
by a stringent approval procedure: a decision must be in
advance presented to the Minister of Justi ce.
Case -law
113 07-03-1998, ECLI:NL:HR:1998:ZD0975 In
this case, the suspect was involved in the
importation of cocaine into the Netherlands.
During the import procedure, the cocaine was
seized by the police and replaced with fake
cocaine. The question was w hether complicity
could be proven even though the indictable
offence had not been completed. In this case, the
cocaine had already been seized and the actions
of the suspect no longer had any effect on the
crime. According to Supreme Court of the
Netherlan ds, “ acts to be performed after the
substance containing cocaine is seized can by
definition no longer serve to further transport
and transfer the substance placed within the
territory of the Netherlands and the objects in
which the substance is packaged ”.
04-07-2006, ECLI:NL:HR:2006:AX2032 The
investigating police officers had left a small
amount of the original substance in the
shipment. Approximately 5 kg of cocaine in a
postal package were replaced in the controlled
delivery by approximately 10 g of cocaine. The
defendant was convicted of introducing 5 kg of
cocaine into the Netherlands.
International cooperation
The Netherlands has ratified the UN Convention agai nst
Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(1988), UN Convention against Transnational Organ ised Crime
(2000), as well as the 2000 European Convention on Mutual
114 Assistance in Criminal Matters and its Additional Protocol.
The Netherl ands also signed the 1959 European Convention on
Mutual Assistance in Criminal Matters on 21 January 1965
which entered into force on 15 May 1969.
21. Poland
Definition and legal provisions
In Poland, legal regulations concerning controlled
deliveries exist in the normative acts of each institution (police,
border police, customs and intelligence services) which can
conduct controlled deliveries. In this respect, the main
regulations are the following:
The Law on Police of April 6, 1990 ( Article
19b), and its subsequent amendments58,
The Law on Border Police of October 12, 1990
(Article 9g), and its subsequent amendments,
The Internal Security Agency and Intelligence
Agency Law of May 24, 2002 ( Article 30), and
its subsequent amendments,
The Law on Customs Serv ice of July 24, 1999
(Article 68J), and its subsequent amendments.
Controlled delivery consists of the secret control of
production, transport, storage and movement of objects
deriving from the criminal activity, in order to obtain evidence
of the offenses referred to in Article 19(1) of the Law on Police
or for establishing the identity of the people participating in
such crimes or who appropriate the objects of the offense59,
58 Controlled delivery is one of th e method s of police work appeared in
1995 in amendments to the Law on Police.
59http://www.ejn –
crimjust.europa.eu/ejn/EJN_FichesBelgesResult.aspx?measure=804&countr
y=351&other= -1
115 while ensuring that these do not create a danger to endanger the
life or health o f humans.
According to the Polish practitioner who attended the
3rd Regional Meeting in Druskininkai (Lithuania), “ in general
to the law enforcement perspective, controlled delivery is
understood as covert surveillance of shipment or load
containing drugs or other crime objects, with respect to which
the LEAs intend to first intervene covertly to achieve a specific
target in combating drug crime”.
The Law on Police lists the following crimes which
justify ordering a controlled delivery:
illegal production, possession or distribution of
weapons, ammunition, explosives, intoxicant or
psychotropic substances and nuclear and
radioactive materials ;
economic crimes that cause significant damage
to property, crimes against property of
significant value and fiscal c rimes that involve
significant loss in tax or other levies due to State
Treasury ;
counterfeiting/forging money and securities, and
putting them into circulation ;
crimes investigated under international
agreements.
Implementation at national level
In Polan d, controlled delivery is not a judicial measure.
The Law on Police defines who and for what purpose
may order the use of this measure of police work. A provision
also states that controlled delivery is launched in order to:
document the offenses referred to in Article 19 b of the Law on
116 Police, determine the identity of persons involved in these
crimes, intercept the objects of crime.
As the Polish practitioner mentioned, “ it is important to
underline that in Poland the responsible for establishing
contro lled delivery operation authority is Commander in Chief
not Prosecutor’s Office”.
In Poland the law does not allow to use controlled
delivery operation in order to detect crime, because prior to
launch controlled delivery the offense must already be
disclo sed or it must be reasonably likely to have been
committed. According to the Polish practitioner, “ before
making a decision to carry out controlled delivery, we must
have a verified information that the offense of smuggling,
production or transportation of drugs will be committed. Such
information may come from law enforcement authorities of
another country or confidential sources of information, or
could be the result of an own criminal investigation ”.
The competent authority to author ise the controlled
delivery is the Commander -in-Chief of the Police, or the
commander of the regional police60 who, in terms of Article
19b(2) of the Law of Police will notify without any delay the
prosecutor (the General Prosecutor or District Prosecutor) of
any taken decisio n.
The domestic legislation provides for the obligation to
inform the prosecutor with regard to any authorization of
controlled delivery issued, as well as with regard to the conduct
of the action and the results obtained.
60 In accordance with the law, a controlled delivery may be ordered by the
Comm ander -in-Chief or Provincial Commander of the Police or
Commander of PCBI following a request from a competent KGP Bureau or
Head of PCBI Department or Head of Department of the Provincial Police
Headquarters (KWP).
117 The Law o n Police does not speci fy for how long have
to be ordered controlled delivery , only specifies that it must be
implemented for a limited period of time .
Every controlled delivery is registered with the
Regional Prosecutor's Office, National Police Headquarters
(KGP) and Provincia l Police Headquarters (KWP) across the
country .
The Regional Prosecutor may order the procedure to be
discontinued at any stage. So, in contrast to other advanced
methods of operational work, the Law only requires the
Regional Prosecutor be notified that a controlled delivery has
been ordered. In this case, the supervisory function of the
Regional Prosecutor is manifested in that the Prosecutor may
order the controlled delivery procedure to be discontinued.
In Poland, controlled delivery can be conducted b y
agencies and LEA: Police, Border Guards, Internal Security
Agency, Customs, Military Police.
Under the controlled deliveries carried out in Poland, in
accordance with the provisions of Article 19b(4) of the Law on
Police, the total or partial replacement with other harmless
substances is possible.
Controlled deliveries shall not endanger the life or
health of people.
According to the Polish practitioner, “ nearly 100% of
controlled deliveries are carried out by the police, including
about 90% by the Centra l Bureau of Investigation (CBI). This
is undoubtedly due to the CBI experience in combating
organ ised crime and the possibility of using such units as
observation (surveillance teams) or special technical units. For
comparison services such as border guard s, customs and
military police do not have such opportunities. Each year in
Poland , Police launches about 10 to 15 CD operations”.
118 International cooperation
Poland has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Su bstances (1988),
UN Convention against Transnational Organ ised Crime (2000),
as well as the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters. Poland
also signed the 1959 European Convention on Mutual
Assistance in Criminal Matters on 9 May 1994 which entered
into force on 17 June 1996. The Convention on Mutual
Assistance in Criminal Matters between the Member States of
the European Union entered into force on the date of October
26, 2005.
Poland also appointed t he Commander -in-Chief of the
Police (“Komendant Główny Policji”) as Central Authority
competent to receive and execute requests for controlled
delivery and covert investigation61.
22. Portugal
Definition and legal provisions
The applicable provisions are found in Article 160 -A,
§9 of Law No 14 4/99 of 31 August 1999, as amended by Law
No 104/2001, in the Chapter entitled “Controlled deliveries or
deliveries under surveillance”.
At the request of one or more foreign State s, in
particular if the wording of an agreement so provides, the
Public Pro secutor’s Office may authorise the criminal police on
a case -by-case basis to refrain from taking any action within
the context of cross -border criminal enquiries concerning
61 http://www.coe.int/t/dghl/standardsett ing/pc –
oc/Country_information1_en_files/Poland%20%20Mutual%20Legal%20As
sistance.pdf
119 offences which could give rise to extradition for the purpose of
establishing, in co-operation with one or more foreign State s,
the identity and criminal responsibility of the greatest number
of perpetrators of the offence.
Implementation at national level
The Public Prosecutor’s Office of Lisbon is responsible
for authorising controll ed deliveries. Once authorisation has
been secured and the request of foreign authorities has been
received, the Judicial Police formalise s the documentation it
has to dispatch as soon as possible and, at the same time,
arrange for the controlled delivery of luggage and passenger by
air.
Upon arrival, the passenger is monitored by authorities
of the country of destination in order to detain as many
perpetrators as possible and se ize the drugs.
Thereafter, those authorities communicate the outcome
of the ste ps taken and report on the full identity of the suspects,
the nature and characteristics of the seized products and any
other information relevant to the investigation.
Such situations can occur not only at the airport but also
in containers transported by sea and detected by customs.
Practitioners62 identified procedures of a practical
nature adopted in order to permit controlled deliveries . If
confirmed that no Portuguese nationals are in transit to another
country and if there is no evidence suggesting th at the suspects
are carrying drugs inside their body, or are not in transit to a
country where the facts constituting the offence are punished
with life imprisonment or the death penalty (Article 33 of the
62 Joao Paulo Centeno and Manuel F. Goncalves, Prosecutors at the Lisbon
Public Prosecution Office.
120 Portuguese Constitution) the Judicial Police immed iately
contact the authorities of the country of destination to enable
them to indicate whether they have an interest in authorising a
controlled delivery.
At the same time, the Judicial Police make telephone
contact with the Public Prosecutor’s Office in Lisbon
(Departamento Central de Investigação e Ação Pena DIAP) in
order to obtain the relevant authorisation for the steps in
question.
International cooperation
Portugal has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psycho tropic Substances (1988),
UN Convention against Transnational Organ ised Crime (2000),
as well as the Convention on Mutual Assistance in Criminal
Matters between the Member States of the European Union and
its Additional Protocol. Portugal also signed the 1959
European Convention on Mutual Assistance in Criminal
Matters on 10 May 1979 which entered into force on 26
December 1994.
Requests for mutual assistance sent to Portugal are
implemented in accordance with Portuguese law. However, if
the foreign State expressly requests, or if there is an
international agreement, treaty or convention covering the
matter, mutual assistance may be given in accordance with the
law of the foreign State provided this is not incompatible with
the fundamental principles of Por tuguese law and does not
inflict serious loss or damage on the persons affected by the
proceedings.
Authorisation will only be granted when the country of
destination so requests on condition that the competent foreign
authorities: a) provide an assurance that their legislation
121 provides for adequate criminal penalties and that criminal
action will be pursued; b) guarantee the safety of the
substances and property in question against the risk of removal
and accidental loss; and c) give an undertaking that t hey will
urgently communicate detailed information on the outcome of
the operations and details of the subsequent activities of each
of the perpetrators of the offences, in particular those who
acted in Portugal.
Notwithstanding the aforementioned authori sation, the
criminal police will intervene if safety margins are
substantially reduced or if circumstances arise which render it
more difficult to detain the perpetrators of offences or to seize
substances or property. If the authority giving authorisation is
not informed in advance of the said intervention, it must be
informed in writing within 24 hours thereof.
Upon agreement with the country of destination,
prohibited substances or substances which are hazardous in
transit may be partially replaced by i noffensive substances and
a report to this effect must be provided. Failure by the foreign
authorities to perform these obligations may result in future
requests for authorisation being denied.
The participation of foreign legal authorities and the
crimina l police in actions associated with criminal proceedings
which have to be carried out on Portuguese territory may be
authorised by the Minister of Justice. Such participation is
permitted exclusively by way of assistance to the competent
Portuguese legal a uthority or criminal police responsible for
such activities and their presence is always compulsory. The
provisions of Portuguese criminal procedural law must be
complied with and the condition of reciprocity must be met.
122 The competent authorities in the c ountries of
destination and the transit countries must
guarantee the security of the substances
concerned against risks of theft or removal;
The competent authorities in the countries of
destination or transit must ensure that their
legislation provides fo r adequate criminal
sanctions against the accused and that criminal
action will be taken;
The competent judicial authorities in the
countries of destination or transit undertake to
communicate, without delay, detailed
information regarding the outcome of t he
operation and details of the acts of each person
involved in the crimes, particularly those acting
in Portugal.
International contacts are made by the Judicial Police
through the National Interpol Office (GNI). Any other entity
that receives requests fo r controlled deliveries, namely the
Customs Directorate -General (DGA), through the Customs
Cooperation Council (Conselho de Cooperação Aduaneiro) or
its foreign counterparts, and without prejudice to the handling
of information of a customs nature, should immediately send
these requests to Judicial Police for the purposes of execution.
In practice, requests for controlled deliveries by the Portuguese
authorities in cases of drug trafficking arise as follows: the
Judicial Police learns through the Tax Author ity, ex DGA, that
narcotics have been detected in a passenger’s luggage at the
airport which is in transit to another country.
123 23. Romania
Definition and legal provisions
Until 2014, controlled deliveries were carried out in
compliance with the provisions o f Law no.143/2000 on
preventing and combating the illicit drug use and trafficking , of
Law no.39/2003 on preventing and combating organ ised crime
and of Law no.218/2002 on the organization and functioning of
the Romanian Police.
Starting with 2014, with th e entry into force of the new
Code of Criminal Procedure, the investigative method of
controlled delivery was regulated in this Code, the other
provisions from the special laws being repealed.
Controlled delivery is part of the special surveillance or
investigation methods provided by Article 138(1) of the Code
of Criminal Procedure . According to the general provisions
regulated by this article63, “the special surveillance or
investigation methods are the following :
(a) interception of communications or of a ny type of
remote communication;
(b) accessing of a computer system;
(c) video, audio or photo surveillance;
(d) tracking or tracing by technical devices;
(e) obtaining information regarding the financial
transactions of individuals;
(f) withholding, deliv ery or search of mail deliveries;
(g) use of undercover investigators and collaborators64;
63 www.just.ro/wp -content/uploads/2016/01/Noul -cod-procedura -penala –
EN.doc romanian criminal procedure code
64 In exceptional situations, when the use of undercover investigators is not
sufficient for obtaining information or such obtaining is not possible, the
prosecutor which oversees or is in charge of the criminal prosecution may
124 (h) author ised participation in specific activities;
(i) controlled delivery;
(j) obtaining data generated or processed by providers
of public electronic communicatio n networks or by providers
of electronic communication services intended for the public,
other than the content of communications, stored by these
under the special law on storing data generated or processed by
providers of public electronic communication networks and by
providers of electronic communication services intended for
the public”.
The definition of controlled delivery is given in the
content of par agraph (12) of Article 138 of the Code of
Criminal Procedure : “Controlled delivery means the techni que
of surveillance and investigation allowing the entry, transit and
exit from the country of goods for which there is a suspicion
concerning the unlawful nature of holding or obtaining them,
under supervision or authorization of the competent authorities ,
in order to investigate an offense or for identifying the people
involved in committing such offense ”.
Implementation at national level
Article 151(1) of the Code of Criminal Procedure
(amended 2016) provides that “the controlled delivery may be
authori sed, by an ordinance, by the prosecutor which oversees
or is in charge of the criminal prosecution, at the request of the
competent institutions, with or without the total or partial
substitution of goods subject of the delivery ”. As regards the
controlled deliveries in drug trafficking cases, these operations
author ise the use of a collaborator, to whom an identity different from their
real one can be attributed.
125 are authorised by the prosecutor within the DIICOT which is in
charge of the criminal prosecution .
The necessary conditions to be met for authorising
controlled deliveries, referred to in Article 151( 2) of the Code
of Criminal Procedure are the following:
(a) if discovery or arrest of the people involved in the
illegal drug transport could not be made in any other way or
would encounter particular difficulties which would prejudice
the investigation or would be a danger to the safety of people
or of some valuables;
(b) if the discovery or proof of the offenses committed
in connection with the delivery of illegal or suspicious
transportations would be impossible or very difficult in any
other way.
The in formation required for requesting a controlled
delivery are the following: motive for the operation, type and
quantity of the drugs/other goods, means of transport and
itinerary, expected point of entry and exit of the requested
State, identity of each sus pect, data on who author ised the
operation, information on the police, customs or other law
enforcement agencies which support the operation, the special
techniques of investigation proposed.
The controlled delivery may be deployed on the
Romanian territor y only if the prosecutor which oversees or is
in charge of the criminal prosecution ensure s that the
competent authorities with the checking or surveillance of
entry to, passage or exit from the national territory of the
goods:
keep confidentiality of the activities deployed ;
ensure that the illicit or suspicious transport is
permanently under surveillance .
126 The relevant national provisions i n cases of cross –
border controlled deliveries are regulated by Article 151(3) of
the Code of Criminal Procedure (amen ded 2016) . In these
cases , the prosecutor which oversees or is in charge of the
criminal prosecution takes measures and makes sure that the
authorities of the State of transit:
agree with the entry of the illegal or suspicious
transport on their territory and with its exit from
the territory of the State ;
guarantee that the illicit or suspicious transport
is permanently under surveillance by the
competent authorities;
guarantee that the prosecutor, police bodies or
other competent authorities are informed o f the
results of the criminal prosecution against
persons accused of the offense subject to this
special investigation method .
The prosecutor must issue an ordinance for each
controlled delivery authorise d. According to Article 151(5) of
the Code of Crimin al Procedure (amended 2016) , the
prosecutorial ordinance must include: “name of the suspect or
defendant, if known ; the reason of the operation; indication of
the goods subject of controlled delivery and of the evidence
from which it result s the illegal ch aracter of the goods , data in
respect of the goods that will be substituted and also of the
goods which will replace them , if appropriate ; the time and
place of the operation or, if a ppropriate , the route of the
transport, if known; the ways in which the s urveillance shall be
carried out ; identification of the persons authorised with the
surveillance of the transport ”.
127 Controlled delivery is deployed by the police or other
competent authority65. In all cases, the prosecutor shall
delegate the competent judi cial police bodies which carry out
the controlled delivery and shall inform the National Customs
Authority in order to provide them with the special ised support
needed. The prosecutor shall establish, coordinate and control
the manner of deploying the cont rolled delivery.
In Romania, the total or partial substitution of drugs in a
controlled delivery is permitted.
The technical equipment, as well as the audio -video
recordings or locating devices and GPS tracking may be used
under the controlled deliveries w ith the authorisation of the
judge for rights and liberties . In urgent cases, authorisation
may be given by the prosecutor for a time period of maximum
48 hours, with the confirmation of the judge for rights and
liberties in the following 24 hours.
At prac tical level, t ransport surveillance shall be made
permanently, both by technical means, as well as through
personnel specialised in surveillance operations, in order to
eliminate any risk of losing the drugs or precursors. In
Romania it is possible to perf orm also the domestic controlled
delivery of drugs, not only in the context of international
judicial cooperation.
Also, t he decisions concerning completion, interruption
or continuation of the controlled delivery or other such
decisions are taken by the p rosecutor ex -officio or after
consulting the authorities that have requested the controlled
delivery, only in the case where the request comes from a
foreign author ised body.
65 According to the provisions of Article 151(7) of the Code of Criminal
Procedure, "deployment of the controlled delivery does not constitute an
offense".
128 The data obtained as a result of deploying the controlled
delivery shall be draft ed by the institution which has carried
out the action, in a report, containing the activities undertaken
and any appropriate proposals, following the latter to be
submitted to the prosecutor.
International cooperation
The Romanian State is a party and ha s ratified most of
the international conventions and legal acts in preventing and
combating organised crime and illicit drug trafficking and
consumption. Romania has ratified the UN Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Subs tances
(1988), UN Convention against Transnational Organ ised Crime
(2000), as well as the Second Additional Protocol to the
European Convention on Mutual Assistance in Criminal
Matters. Romania also signed the 1959 European Convention
on Mutual Assistance in Criminal Matters on 30 June 1995
which entered into force on 15 June 1999. The Convention on
Mutual Assistance in Criminal Matters between the Member
States of the European Union has entered into force on
December 1, 2007.
The measure of controlled deli very is regulated in the
context of international judicial cooperation in criminal
matters, by Article 180 of Law no. 302/2004. According to
paragraph (1), “The Romanian judicial competent authorities
shall author ise, upon request, in compliance with the c onditions
provided by Romanian law, controlled deliveries under
criminal proceedings concerning criminal offenses which may
give rise to extradition ”. Also, paragraph (2) states that the
controlled deliveries shall be conducted according to the
Romanian la w. The provisions of paragraph (3) of Article 180
129 shall apply accordingly also in the case where assistance is
requested by the Romanian judicial authorities.
At practical level, t he applicant authority shall send to
the prosecutor the written documentati on justifying the
controlled delivery as quickly as possible66.
Participation of foreign officers is permitted, with the
authorization of the prosecutor. They shall be assisted to the
deployment of the controlled delivery by an officer of the
Romanian Poli ce.
Undercover officers and collaborators may be
author ised to participate within the controlled delivery, but
their hearing is required as witnesses in court without being
physically present, with their voice and image distorted.
24. Slovakia
Definition an d legal provisions
The legal framework concerning controlled deliveries is
the Code of Criminal Procedure (Law No. 301/2005, Article
111). Controlled delivery implies following the movement of a
delivery from sender to recipient in the import, export or tr ansit
thereof, if the circumstances of the case may lead to the
assumption that the transport contains drugs, psychotropic
substances, precursors, for the purpose of identifying the
people involved in these activities by means of the delivery.
Implementat ion at national level
Requests for authorizing such controlled deliveries shall
contain the following information: the name and contact details
66 The request for carrying out a controlled delivery can be sent by fax,
followed by sending on the official channels, of the formal request of the
prosecutor in the requesting country.
130 of the judicial authority, reason for the operation, type and
quantity of the goods which are the subject of the operation,
place of entry and of exit of the transport, the type of transport
and route, identity of the suspects. It is also necessary to ensure
fulfilment of the guarantees relating to the: consent of all the
countries of transit for carrying out a cont rolled delivery,
permanent supervision of the transport, immediate intervention
in the case where there is a risk of losing the transport, final
confiscation of the transport and legal accountability of
offenders.67
Controlled delivery may be authorised by the president
of the court or by the prosecutor (in this case, only before
beginning the prosecution and in the early stages of the
investigation)68. In urgent cases, the police can start the
operation without fulfilling these conditions, but must inform
the prosecutor with regard to starting the operation. The
prosecutor must confirm the operation within 2 days69.
Otherwise, the controlled delivery will cease and the
information obtained will not be able to be used in legal
proceedings.
There is the possibi lity for the request to be rejected if
there is no adequate information on the transport, if there is the
risk of losing thereof or if other State s do not agree with the
operation.
67 Handbook for the Naples II Convention on mutual assistance and
cooperation between customs administrations – Part II: National fact sheets,
Council of the European Union, Brussels, 5 October 2015, p. 232.
68 According to Article 111, paragraph (2) CCP, controlled deliveries may
be author ised by the prosecutor befo re the penal trial and in the pre -trial
proceeding, or by the president of the court during the penal trial.
69 http://www.emcdda.europa.eu/html.cfm/index44352EN.html
131 Supervision of the transport during the delivery must be
carried out by the police in collaboration with customs
administration.
Throughout deployment of the controlled delivery, the
replacement of the drugs with other harmless substances is
allowed.
International cooperation
Slovakia has ratified the UN Convention against Illic it
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
UN Convention against Transnational Organ ised Crime (2000),
as well as the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters.
Slovakia also signed the 1959 European Convention on Mutual
Assistance in Criminal Matters on 13 February 1992 which
entered into force on 1 January 1993. The Convention on
Mutual Assistance in Criminal Matters between the Member
States of the European Union has entered into force on October
1, 2006.
For the authorisation of controlled deliveries in
Slovakia, it is necessary to submit a request for MLA .
According to the EJN website70, “in case of existence,
the bilateral or other multilateral treaty covering the specific
subjec t matter may be applicable. In the absence of legal
framework, the principle of reciprocity may be applicable”.
The exchange of information on controlled deliveries
with other State s shall be carried out directly by the National
Drug Service or by other ch annels of cooperation (Europol,
Interpol, liaison officers).
70 https://www.ejn –
crimjust.europa.eu/ejn/EJN_FichesBelgesResult.aspx?measure=804&countr
y=368&other= -1
132 25. Slovenia
Definition and legal provisions
The legal basis for conducting controlled deliveries is
represented by the Code of Criminal Procedure, the Law on
Police and the Law on Cooperation.
Acco rding to national legislation, controlled delivery is
possible in cases in which the seizure of assets or arrest of
people is delayed in order to identify (discover) a larger
criminal activity.
Implementation at national level
The legal requirements for a uthorising controlled
deliveries are as follows71:
The existence of a serious suspicion ;
Details on the offense ;
The impossibility of investigating the deed
through other methods ;
The aim of the activity is to discover the people
involved in committing the offense ;
Ensuring continuous monitoring of the transport
during a controlled delivery ;
In the case of transit operations, the permission
of the State s involved is required ;
Ensuring the initiation of a penal trial ;
Ensure the immediate confiscation in the case
there is a risk of losing the goods.
In the situation in which Slovenia is the State of origin
or transit for the controlled delivery, such operation is possible
only if all the State s involved give their consent.
71 http://www.emcdda.europa.eu/html.cfm/index44352EN.html
133 The competent authority for approving controlled
deliveries is the Public Prosecutor's Office72. In cases where it
is necessary to use also other investigation means such as
technical devices, the measure shall be authorised by the court.
Controlled delivery shall not be authorised or shall be
suspended where there is a risk to the health or life of people.
The police shall lead the deployment of all operations.
Also, in the context of controlled deliveries there is a mutual
cooperation agreement between police and customs authority.
The replac ement of the drugs under controlled
deliveries carried out in Slovenia is permitted.
International cooperation
Slovenia has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
UN Convention against Tran snational Organ ised Crime (2000),
as well as the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters.
Slovenia also signed the 1959 European Convention on Mutual
Assistance in Criminal Matters on 26 February 1999 which
entered into force on 17 October 2001. The Convention on
Mutual Assistance in Criminal Matters between the Member
States of the European Union entered into force on the date of
September 26, 2005.
Controlled deliveries are author ised at the request o f the
competent authorities of the Member States or on the basis of
the agreement with other Member States, by submitting a
request for MLA .
72 Controlled deliveries shall be author ised by the State district prosecutor of
the region where the delivery shall be executed or of the region where the
delivery shall be initiated, or by a prosecutor within the special ised State
Prosecutor's Office.
134 Participation of foreign officers to the conduct of such
operation is possible.
26. Spain
Definition and legal provis ions
Controlled delivery is a technique regulated by Article
263 bis of the Spanish criminal procedure law (ley de
enjuicimiento criminal or “LECrim”). This provision allows
illicit consignments of goods to leave, enter or move within
Spanish territory wit hout any intervention on the part of the
authorities or their officers, but under their surveillance, in
order to ascertain or identify the persons involved in the
commission of an offence in relation to these consignments,
and to lend help and assistance to foreign authorities for the
same purposes. The law also permits the delivery of suspicious
consignments without interference, as well as the opening of
such consignments and the substitution of the illicit goods,
often drugs, with another object, the re packaging of the goods
(so that they appear as if they have not been tampered with)
and their controlled delivery to their destination. The relevant
national provisions are as follows:
“Article 263 bis.
1. The competent investigating judge and the Public
Prosecutor’s Office, as well as the heads of the central
or provincial organisational units of the judicial police,
and their superior officers, may authorise the controlled
delivery or movement of toxic drugs, narcotic or
psychotropic substances and other prohibited
substances. The grant of this measures shall be based on
a reasoned decision which expressly states, where
possible, the subject -matter of the controlled delivery or
135 authorisation as well as the type and quantity of the
substance at issue. In ta king these measures, their
necessity for purposes of the investigation having
regard to the seriousness of the offence and the
feasibility of control shall be taken into account. The
judge who delivers the decision shall forward a copy
thereof to the senio r judge within his jurisdiction, who
shall maintain a register of such decisions.
Authorisation may also be granted in respect of the
controlled delivery or movement of the equipment,
materials and substances referred to in Article 371 of
the Criminal Code , of the property and proceeds
referred to in Article 301 of the Criminal Code, in all
the cases provided for therein, and of the property,
materials, objects and animal and plant species referred
to in Articles 332, 334, 386, 566, 568 and 569 of the
Crimi nal Code.
2. Controlled delivery or movement shall mean the
technique of allowing illicit or suspect consignments of
toxic drugs, psychotropic substances and other
prohibited substances, the equipment, materials and
substances referred to in the preceding paragraph, the
substances for which the foregoing have been
substituted, as well as the property and proceeds
deriving from the criminal activities laid down in
Articles 301 to 304 and 368 to 373 of the Criminal
Code, to travel across, leave or enter Spani sh territory
without preventive interference by the authorities or
their agents and under their supervision, with a view to
ascertaining or identifying the persons involved in the
commission of any offence relating to such drugs,
substances, equipment, mat erials, property and
136 proceeds, and to provide assistance to foreign
authorities for the same purposes.
3. The decision to have recourse to controlled delivery
shall be made on a case -by-case basis and, at an
international level, shall comply with the provi sions of
international treaties.
The heads of the central or provincial organisational
units of the judicial police or their superior officers
shall immediately inform the Public Prosecutor ’s Office
of the authorisations granted in accordance with
paragrap h 1 of this article and, if court proceedings are
under way, the competent investigating judge.
4. The interception and opening of mail items suspected
to contain narcotics and, where appropriate, the
subsequent substitution of any drugs present therein
shall be carried out at all times in accordance with the
judicial safeguards established in the legal system, with
the exception of the provisions of Article 584 of this
Law.”
“Article 588 quinquies b. Use of technical media or
devices for tracking and traci ng.
1. Where there are well -founded reasons based on need
and provided that the measure is proportionate, the
competent judge may authorise the use of technical
media or devices for tracking and tracing.
2. The authorisation must specify the item of techni cal
media that is to be used.
3. The service providers, agents and persons referred to
in Article 588 ter e are required to provide the judge,
the Public Prosecutor ’s Office and officers of the
judicial police designated to implement the measure the
necess ary assistance and cooperation to facilitate
137 execution of the tracking orders, failing which criminal
proceedings may be brought for disobedience.
4. In urgent cases where there are reasonable grounds
for considering that the failure to immediately install
the technical media or device for tracking and tracing is
likely to frustrate the investigation, the judicial police
may carry out such installation and shall provide a
report thereon as soon as possible and in any event
within 24 hours to the court, whic h may confirm the
measures implemented or order its immediate
withdrawal. In this latter scenario, any information
obtained from the device shall be excluded from the
proceedings.”
Implementation at national level
The delivery as well as the movement and substitution
of the drugs may be authorised by the prosecutor or the
investigating judge of the place where the goods are located or
the place to which they are addressed, or by the head of the
relevant unit of the judicial police.
The measure is only int ended for offences relating to
the trafficking of narcotic drugs; precursors; endangered
species of plants or animals; counterfeit money; the possession,
trafficking or storage of weapons, munitions or explosives; and
for assets or earnings that are the su bject of the money
laundering.
In practice, the following conditions must be fulfilled:
Guarantee of permanent surveillance on the
transportation, and assurance that everything
possible will be done to track down and bring to
justice those responsible. The requesting
138 authority must undertake to seize the drugs and
arrest all those involved, especially where there
is a risk that the drugs may be stolen at any
given moment of the operation.
Full information on the vehicle or means of
transport which will be u sed for the operation
(including the number plate).
Full information on those likely to drive the
vehicles, especially the name to be used at the
border crossing.
The date of likely arrival in Spain and the
probable border crossing.
The fullest information possible on the
investigation so far in the requesting country.
If Spain is the final destination, it is important
that information be supplied regarding the
persons involved and the exact final destination.
Prior authorisation from the countries through
which the transportation under surveillance will
pass.
Precise information on additional facts which
may emerge during the operation.
International cooperation
Spain has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
UN Convention against Transnational Organ ised Crime (2000),
as well as the Convention on Mutual Assistance in Criminal
Matters between the Member States of the European Union and
its Additional Protocol. Spain also signed the 1959 Euro pean
139 Convention on Mutual Assistance in Criminal Matters on 24
July 1979 which entered into force on 16 November 1982.
The request must always refer to an identifiable
consignment and must be duly justified, specifying the relevant
and known information re lating to its execution (final
destination, dates, surveillance possibilities, prior substitution
of the drug, etc.).
In practice, the Spec ial Antidrug Prosecution Office,
which has jurisdiction over the whole of Spain , works as a
central contact point to implement mutual legal assistance
requests in connection with this special investigation technique.
Both in the EU and in Latin America, the Special
Antidrug Prosecution Office plays a significant role through
the European Judicial Network in criminal mat ters and IberRed
contact points working in this specialised unit. It also leads the
Iberoamerican Network of Antidrug Prosecutors, a specialised
platform made up of prosecutors dealing with drug trafficking
cases. In this context, the Network has launched an operational
initiative to strengthen the exchange of information in order to
facilitate controlled deliveries regardless of differences in
legislation.
27. Sweden
Definition and national provisions
Controlled deliveries for all goods are permitted as a
standard police and customs technique. There is no legislative
basis for controlled deliveries , although there is a manual for
the handling of cases in which controlled deliveries may be
considered. Furthermore, the definition of controlled delivery
in Arti cle 1 (g) of the UN Convention Against Illicit Traffic in
Drugs and Psychotropic Substances of 1988 is applied because
Sweden has ratified the convention.
140
Implementation at national level
The channel for communications prior to or during a
controlled deli very may be through Interpol, DLO, Europol,
and Customs. Continued surveillance can be guaranteed for
controlled deliveries. Total substitution is allowed for drugs.
This can sometimes result in difficulties in proving a crime
where a consignee defends him self by claiming an absence of
knowledge of illicit goods being involved.
International cooperation
Sweden has ratified the UN Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (1988),
UN Convention against Transnational Org anised Crime (2000),
as well as the Convention on Mutual Assistance in Criminal
Matters between the Member States of the European Union and
its Additional Protocol. Sweden also signed the 1959 European
Convention on Mutual Assistance in Criminal Matters on 20
April 1959 which entered into force on 1 May 1968.
The provisions on international legal assistance in
criminal matters are mainly contained in the International
Legal Assistance in Criminal Matters Act (2000:562). There
are supplementary provisions on legal assistance in certain
cases in the Act on Joint Investigation Teams for Criminal
Investigations (2003:1174) section 10 -14.
Official requests for rogatory letters may be made
through Interpol, DLO, Europol, and customs. A guarantee of
seizure of the object of the controlled delivery and prosecution
of suspected persons at the end of the operation is a
precondition for controlled deliveries originating, transiting or
destined for Sweden.
141 Since investigation and prosecution are mandatory, a
preliminary investigation will always be conducted in Sweden
concerning a controlled delivery, whether the delivery is
originating, transiting or destined for Sweden. A request for a
controlled delivery may be refused in the following
circumstances:
If the benefit is judged not to be proportional to
the effort and/or results .
If the intended measure may turn out to be
against Swedish law in that a situation may
develop which provokes a crime.
If the act is not punishable in all countries
involved .
If security cannot b e guaranteed.
Applications for controlled deliveries are decided
jointly by police, customs and prosecutors . If any one of these
is not in favour then the controlled delivery is not carried out.
Foreign personnel are not permitted to take any action in
relation to a controlled delivery. Use of undercover agents is
only possible when using a Swedish p olice or customs officer
as an undercover agent.
28. United Kingdom
Definition and national provisions
In the United Kingdom, a “controlled delivery” is
considere d to be a technique for allowing illicit or suspect
consignments of substances or objects or substitutions to pass
out of, through or into the territory of one or more countries,
with the knowledge and under the supervision of the competent
authorities, fo r the purposes of establishing who is criminally
involved. Controlled deliveries can also include people.
142 As controlled deliveries are treated as a facet of
criminal investigation, there are no specific guidelines in place.
In the UK it was not necessary to introduce legislation
specially to provide for the conduct of controlled deliveries
because powers to conduct controlled deliveries were already
provided for in existing legislation. Each agency dealing with
controlled deliveries in the UK has guideline s for the control of
such operations which take account of the competencies and
resources of the agencies involved. Therefore there are written
guidelines for internal UK police/customs controlled deliveries
– but these only reflect the split of responsibi lities between
police and customs. They do not give guidance on how the
controlled delivery should be carried out.
Implementation at national level
All cases that involve the controlled delivery of
prohibited or restricted goods (including all drugs and f irearms)
either into or out of the United Kingdom must have prior
approval from the UKBA Enforcement and Crime Directorate,
specifically Criminal and Financial Investigations – Borders
(CFI).
Substitution of drugs in consignments is allowed in
whole or in part. The substitution process must be carried out
in such a manner as will satisfy the evidential requirements of
the UK courts. Usually, in the case of class A drugs in large
quantities (heroin, cocaine, ecstasy etc.), the expectation would
be that the load would be substituted. In the case of smaller
parcels, they may be allowed to run. Any necessary authorities
would be obtained by the investigators.
Undercover work and participation in crime are
permitted within limits prescribed for UK agencies.
143 International cooperation
The UK is a signatory to the UN Convention against
illicit Traffic in Narcotic Drugs and Psychotropic Substances
1988 (the ‘1988 Convention); the UN Convention against
Transnational Organised Crime 2000 (the ‘2000 Convention’)
and th e UN Convention against Corruption 2003 (the ‘2003
Convention’) and the English Common Law allows their
provisions to be given effect . The UK has also signed the 2000
Convention on Mutual Assistance in Criminal Matters between
the Member States of the Eur opean Union and its Additional
Protocol. It also signed the 1959 European Convention on
Mutual Assistance in Criminal Matters on 21 June 1991 which
entered into force on 27 November 1991.
Requests for a controlled delivery should be directed to
the Nationa l Crime Agency (NCA) who will make the
necessary arrangements via their Multilateral Operations
Department. Multilateral is a single department which performs
a variety of roles, including those of the INTERPOL National
Crime Bureau (NCB), the EUROPOL Nati onal Unit and the
SIRENE Bureau for the United Kingdom. The United
Kingdom (NCA) Liaison Officers and Europol UK Liaison
Bureau can also provide advice and assistance.
Multilateral provide a 24/7 Gateway for international
communication and tasking and they will advise on the most
appropriate course of action. Controlled delivery activity that
falls under an existing NCA operation will be routed through
the United Kingdom (NCA) Liaison Officers directly into the
(NCA) International Planning Teams and will no t be routed
through (NCA) Multilateral.
Official requests for rogatory letters should be made to
(NCA) or Her Majesty Revenue & Customs (HMRC) via the
United Kingdom Central Authority. Officials from other
144 Member States are allowed to assist in controlled deliveries
acting under the powers of the particular UK enforcement
agency. They are subject to the same restrictions as employees
of those agencies. The recipient country is expected to give a
substantial operational/surveillance commitment (particularly
in the case of chemicals)
Although (NCA) is the principle point of contact in
cases involving requests for controlled delivery activity, both
Her Majesty Revenue & Customs (HMRC) and the United
Kingdom Police Service provide another option to manage
contro lled delivery activity.
Article 9d of the Eurojust Council Decision sets out
possibility for the national members to author ise and to
coordinate in urgent cases controlled deliveries and to execute
a request for or a decision on judicial cooperation in rel ation to
the UK.
145
CHAPTER III : THE PRACTICAL ASPECTS OF
TRANSNATIONAL CONTROLLED DELIVERIES OF
DRUGS
1. Operational objectives and types of controlled
deliveries
1.1. Operational objectives
Controlled deliveries are investigative methods used by
LEAs in the co ntext of international drug trafficking.
Cooperation between States shall be carried out at most
frequently based on the MLA request. The criminal procedure
against traffickers is carried out by the authorities of the
requesting State that initiated the cr iminal case and summoned
another State (requested State ) to carry out the controlled
delivery of drugs.
The relationship between the authorities of the State s
involved in the controlled deliveries of drugs
In order to understand the above graph, let u s imagine
the following scenario:
146
The algorithm of
cooperation between
State s (left) and route
of the drugs in the
State of origin to the
State of destination
(right)
The competent authorities of State A obtain an information
according to which in a short time, a la rge quantity of
cocaine concealed in a shipping container will stop in a
port in State B, transiting also State C until reaching the
final destination (State A). In this context, the authorities in
State A conduct the investigation or criminal procedure wi th
regard to the people involved in the drug traffic king in State
B, which is transiting State C until its destination (State A).
To the extent that they deem necessary to use the method of
controlled delivery for establishing the criminal activities
and i dentifying the final recipients of the drugs, the
competent authorities in State A shall address requests for
judicial assistance (for allowing the passage of the
transport of drugs and carrying out the controlled delivery)
to the authorities in States B a nd C. The authorities in States
B and C will comply with the request and assistance, by
cooperating with State A, without having to conduct the
criminal procedure with regard to the participants in the
drug traffic king.
147 The operational objectives of controlled deliveries
consist mainly in:
Identif ying the members of the drug trafficking
criminal group, in particular those based in the
transit and destination countries as well as the
final recipients of the drugs;
Obtaining information with regard to the modus
operandi and the organizational struct ure of the
criminal group ;
Confiscating the drugs at the end, after
establishing the entire criminal chain73.
Frequently, the conduct of controlled deliveries
involves the cooperation of LEAs in the States supplying drugs
(State of transit and State of dest ination ).
1.2. Types of controlled deliveries
A. Controlled deliveries based on the different
types of drug trafficking routes (by land , sea or
air);
Controlled deliveries by air (as compared to those by
land or by sea) have the advantage of avoiding the transit
through the territories of all State s on route, the only issue
required is obtaining permission from the State where the drugs
have been detected, from the authorities of the State of landing
(of destination) and possibly from the auth orities in the point of
transit of the aircraft. Another issue generated by the controlled
deliveries by sea is also the legislation specific to maritime
law, which involves a bureaucratic procedure, where there is a
73 If the method of controlled delivery is not used, drugs may be seized
prematurely and the organ ised crime group leaders and final recipients of
the drugs may not be identified.
148 risk of changing the travel route. A possible situation to solve
these problems is provided in the model below.
The main practical arrangem ents for deploying
controlled deliveries are the deliveries monitored through the
suspect's cooperation, without the suspect's cooperation,
controlled import/ export and those conducted by courier /mail
services.
Practical arrangements for achieving the controlled deliveries
B. Controlled deliveries carried out with the
cooperation of a suspect (carrier74, courier of
74 Generally , the carriers are vulnerable individuals, possibly without a
criminal record, who, in exchange for a sum of money (advanced repeatedly Let us assume that the authorities in State A (State of origin)
find in a sea port a container in which drugs are being
transported in a concealed way. These authorities take the
decision to cooperate w ith the authorities in the States of transit
(States B and C) and those in the State of destination (State D).
In order to avoid any potential risks, the competent authorities
in the State of origin, based on the request of the authorities in
the State of destination, take the decision of total replacement
of the drugs before conducting the controlled delivery.
Afterwards, the drugs are brought in the State of destination by
air, by an investigator from the State of destination.
149 drugs) after the detection by customs, police or
border police of an illicit drug transport,
concealed in means of transport or in the case of
drugs concealed on the body by the suspect.
At international level, possible scenarios employing
controlled deliveries through the carrier's cooperation are those
where drugs are discovered in the checked luggage, when the
substances are trafficked by air . The best opportunities are
those in which the check is carried out when handling the
checked baggage within the airport of transit (for flights with
stopover). As a general rule, drugs are discovered based on the
risk analysis or by using sniffer dogs.
In these cases, the suspect might agree to cooperate
with LEAs by sending the replaced drugs or the goods to the
recipient, in order to identify the drug -trafficking group
leaders.
The carrier's cooperation is essential for a positive end
of the controlled delivery in such cases. He must be trained by
the staff of the law enforcement agencies to comply with any
of the previous agreements which he has agreed with the
organ iser or recipient of the transport (scheduled stops, calls
for confirmation with the tra ffickers , etc.). The purpose of
investigators is to obtain as many evidence with regard to the
network of traffickers, and confiscation of the transport and the
flagrant operation to be carried out at the final destination75.
It is preferable that the deci sion concerning the
initiation of the controlled delivery based on the suspect's
by the recruiters who contacted them in order to "lure" them), will agree to
carry drugs to the specified destinations.
75 Dennis G., Fitzgerald, Informants, Cooperating Witnesses and
Undercover Investigations. A practical guide to law, policy and procedure,
Second edition , CRC Press, Taylor &Francis Group, 2015, pp. 394 -395.
150 cooperation (carrier) to be taken by the LEAs in the State in
which the investigation is conducted.
The decision of cooperating with the carrier for the
purpose of identifyin g the recipients, organ isers or sponsors of
the drug traffickers groups may, depending on the outcome of
the operation, reduce the penalty of the carrier for the offence
committed . This decision may be taken based on Article 4 of
the Council Framework Deci sion 2008/841/JHA of 24 October
2008 on the fight a gainst organised crime , according to which
“Each Member State may take the necessary measures to
ensure that the penalti es referred to in Article 3 may be reduced
or that the offender may be exempted from penalties if he, for
example: (a) renounces criminal activity; and (b) provides the
administrative or judicial authorities with information which
they would not otherwise have been able to obtain, helping
them to: (i) prevent, end or mitigate the effects of the offence;
(ii) identify or bring to justice the other offenders; (iii) find
evidence; (iv) deprive the criminal organisation of illicit
resources or of the proceeds o f its criminal activities; or (v)
prevent further offences referred to in Article 2 from being
committed ”.
Moreover, according to Article 26 (1) of the UN
Convention against Transnational Organ ised Crime, “Each
State Party shall take appropriate measures t o encourage
persons who participate or who have participated in organ ised
criminal groups:
(a) To supply information useful to competent
authorities for investigative and evidentiary purposes on such
matters as: (i) The identity, nature, composition, stru cture,
location or activities of organ ised criminal groups; (ii) Links,
including international links, with other organ ised criminal
151 groups; (iii) Offences that organ ised criminal groups have
committed or may commit;
(b) To provide factual, concrete help to competent
authorities that may contribute to depriving organ ised criminal
groups of their resources or of the proceeds of crime ”.
C. Controlled deliveries carried out by covert
monitoring of the trafficked drugs.
In these cases ( “the cold convoys ”)76, the person
culpable for transporting the drug s is not aware of the drugs
being discovered and of authorities allowing the consignment
to travel in order to identify the members of the drug
trafficking network. Controlled deliveries are carried out where
the a uthorities have uncovered drugs concealed in cargo
consignments , containers , etc.
According to an opinion77, “by far the best
opportunities for controlled delivery occur when customs
officials detect drugs concealed in consignments of goods that
are moving unaccompanied by a “courier ”, for example in
freight consignments, unaccompanied baggage,
unaccompanied motor vehicles and the parcel post. Without the
use of controlled delivery such detections would normally
result in the seizure of the goods only; those responsible for the
smuggling would not be discovered, and the smuggling
organization would lose only the drugs ”.
In most of these cases, LEA personnel do not know the
final recipient of the drugs.
76
https://www.unodc.org/pdf/india/publications/tr aining_Guidelines/18_contr
olleddelivery.pdf
77 P.D. Cutting, The technique of controlled delivery , 1983.
152 Special refer ence must be made to controlled deliveries
of drugs carried out using mail / transport and courier services
(unaccompanied packages ). There are situations in which
controlled deliveries by this method are carried out only within
the border s of a single country (the so -called internal controlled
delivery, without a foreign component). Controlled deliveries
of mail packages are similar to the controlled deliveries carried
out with regard to the transport of goods containing concealed
drugs (case presented in letter b)).
As a general rule, in these cases LEAs are notified ex
officio, or by the postal, transport or courier services, or by
information received from the human intelligence
sources /collaborators , or information that transpired in the
investigation of other cases, or by reason of denunciation . Once
the prosecutor and the law enforcement personnel have
analysed the primary information relating to the case, than a
search of the package could be ordered . If by virtue of search,
substances appearing to be drugs are found, than the substances
are s end to a special ised laboratory for a forensic examination .
Following confirmation that the substances are classified as
illegal drugs, on a case -by-case basis the operations would
involve: substitution of the drugs, repacking, placement of GPS
device insi de the package, and continuity of the covert
controlled delivery for identifying the consignee. On a case -by-
case basis, the activity and behaviour of consignee would be
monitored by physical and technical supported surveillance.
153 D. Controlled import / expo rt (“the pass through ”78)
carried out together with other special
investigation techniques such as undercover
agents .
In these instances , the illicit goods are
imported/exported for a stratagem in which during the
controlled deliveries, undercover agents will be infiltrated into
the drug traffickers groups, and will purchase drugs from drug
traffickers based in other countries (if it is allowed by the
national law) . Often, an infiltrate is made by an informant /a
collaborator , who – depending on the case – may establish the
contact of the undercover officer with the drug traffickers .
E. Controlled deliveries with / without replacement
of the drugs.
As indicated in the comparative legislative analysis,
controlled deliveries may be deployed by LEAs by
(total/par tial) replacement of the drugs or without replacing the
drugs, depending on the legislation of each State located along
the drug trafficking route. The decision whether to replace the
drugs should be taken by mutual agreement between the
authorities of the States located along the trafficking route. If
the drugs are to be replaced, the LEAs should replace them
with other substances before allowing the transport to proceed
(“clean controlled delivery ”)79.
78 Andrea, Di Nicola, Philip, Gounev, Michael, Levi (project coordinators),
et al., Study on paving the way for future policy initiatives in the field of
fight against organised crime: the effectiveness of specific criminal law
measures targeting organised crime (final report) , Evaluation financed by
the European Commission , 2015, p. 282.
79 "Clean" controlled deliveries are always preferable to "dirty" one s, in
order to avoid the risk of losing the transport. For further details, please see
P.D. Cutting, The technique of controlled delivery , 1983.
154
The risk of losing the transport or unexpecte d changes
in the trafficking route are elements that led to the development
of “clean controlled deliveries”. The advantage of replacing the
drugs is to minimis e the risk of the consignment being
distributed if the operation fails , and at the same time , having a
sufficient amount from the consignment in order to prosecute .
The replaced drugs are packed and sealed for their
forensic examination in special ised laboratories . It is
recommended that the substitution of drugs to be made by the
law enforcement per sonnel of the first State which discovered
the drugs . Drug replacement shall be carried out by qualified
personnel in assembly of packages, substitution of substances
(drugs could be swapped with coffee, salt, sugar, flour or any
other substance), and repa cking of packages . Replacement
should be done in locations with full security (replacement of
the drugs can be done safely at the headquarters of a law
enforcement agency), so that members of the drug trafficking
groups are not aware of the fact that drugs were replaced.
When the transport of drugs is allowed to pass without
the drugs being replaced by similar substances, we are dealing
with a controlled delivery without replaced drugs (“dirty or live
controlled delivery”). These types of deliveries can gen erate
high stress or risk, especially for the transit State s (located on
the trafficking routes), where there is a risk of losing the
transport. In this context, when there is danger of losing the
controlled delivery of the drug transport, automatic captur e
should be executed . CONTROLLED
DELIVERIES
WITH SUBSTITUTION
OF THE DRUGS
CONTROLLED DELIVERIE S
WITHOUT SUBSTITUTION
OF THE DRUGS
155 The participants in the second workshop of the project
underlined the considerable risks of CD s without substitution
of drugs , especially in cases where the consignment must pass
through the territory of many transit State s: “It’s a h igh risk, we
could assume it, but even if we are taking the surveillance and
investigative measures, there is a risk of losing of the
consignment ”.
The findings of analysing the legislation of the Member
States illustrate that in the event of a State being the destination
State for controlled delivery, it is desirable the partial
substitution and leaving the remaining drugs in the mail
package, container or the means of transport . The rationale for
this practice entails the admissibility of the evidences ob tained
through controlled delivery in the State of destination.
2. Planning and organization of controlled
deliveries
The decision to initiate and conduct a controlled
delivery must be based on factors such as : if there is
information pertaining to a case of drug trafficking , validity of
the preliminary information obtained, exchange of information
and cooperation of the State s located on the trafficking route,
the absence of legal obstacles in the path of conducting the
controlled delivery.
According to th e Manual on cross -border operations ,
“due to the fact that the handling of controlled deliveries is a
complicated task, both from a practical and a legislative point
of view, these cases ought to be handled by specialised contact
points and units ”80.
80 Manual on cross -border operations, General Secretariat, Council of the
EU, Brussels, 14 December 2009, p.20.
156 In all international operations for investigating drug
trafficking activities, early planning and the exchange of
information between the key partners constitute essential
aspects. Establishing personal contacts between practitioners
within the LEAs of different State s remains an essential pre –
condition for the subsequent exchange of information, based on
formal contacts.
As mentioned by most of the participants in the
workshop held in Tallinn , the primary cooperation channel is
through the police, because it is more flu id and quick er than
other cooperation channels. Practitioner s stated that they first
have to determine whether the controlled delivery is possible at
operational level . If so, the legal aspects of cooperation
between S tates will subsequently be tak en in to consideration.
One of the topics discussed at the second workshop
related to the fastest cooperation channel s in drug trafficking
cases. The Lithuanian participants mentioned that police
channels operating 24/7 are the fastest tools for exchangin g
data. The Estonian prosecutors added the following comments :
“We should combine both the police and judicial cooperation
channels and choos e the channels that work better. We should
also take in to consideration the liaison officers channel. Lastly ,
we sh ould consider the Europol 's ability to exchange classified
information”. The Romanian prosecutors who participated in
the second workshop mentioned that , in almost all cases ,
cooperation begins at an informal level through the police
channels.
The first st ep in attaining an international investigation
is achieved by the detection of a quantity of drugs: most often,
concealed in unaccompanied packages or in a means of
transport; or, by virtue of information originating from
157 collaborators or human intelligenc e sources about the existence
of international connections between drug traffickers.
In some State s traversed by trafficked routes, an
essential element for commencement of a controlled delivery is
knowledge of the route and final destination of the drugs. In
this regard, according to the Eurojust study81, “Lithuania
indicated that, in more than one case, the operation could not
be executed because foreign authorities refused to provide
assistance due to the unknown route/final destination of the
drugs … Hungary mentioned that, typically, the exact route and
timing are not known in advance, particularly at the time of
drafting the MLA request. The practice of Hungary is to inform
the requested State that such details are not communicated in
the MLA request, but only later through police channels. This
practice, however, has not been accepted by a number of
Member States … ”.
At the same time, in the context of controlled delivery,
the requesting authorities must provide the requested authority
with information such as : full description of the containers –
size, weight, colour, structure; the method of concealing the
drugs ; copies of any documents relating to the transport
(invoices, letter of transport, etc.) ; shipping company or name
of the airline company ; flight number ; route and estimated time
of arrival , etc.
A practitioner at the first workshop stated that the
planning and organisation of controlled deliveries by air or by
train is easier than th e planning and organisation of controlled
deliveries by land: “In the first case, you already know the
81 Issue in focus number 1 “Cross -border controlled deliveries from a
judicial perspective”, Eurojust, 2015, p. 4.
158 route and estimated time of arrival of the flight or of the train ,
in contrast to the unexpected change of the route by road ”.
Case study: the planning and organisation of
controlled deliveries at practical leve l in Amsterdam
Schip hol airport
Step 1.1: Report that drugs have been found
Drugs are found during a criminal investigation or are
reported by third parties
Drugs are seized and a police report filed
Step 1.2: Sampling
Sampling and weighing the drugs
The investigative agency that has detected the drugs, if
necessary, take samples, secures and stores the counter –
samples, weighs the drugs and forwards them to a forensic
laboratory.
A police report is filed
Step 1.3: Examination of trace evidence
Investigate trace evidence
The investigative agency that has taken care of the sampling
and weighing, also arranges for the examination of trace
evidence (dacty, DNA).
Step 2: Assess controlled deliveries – Is a controlled delivery
possible?
Assess
Approach the CargoH arc-team
The investigative agency contact the CargoHarc team at
Schiphol. There will be informed whether agreements have
been or can be reached with the country of destination. The
flight route is also cleared. This may involve securing the
consent of the countries where a stopover will be made.
Secure the consent of the Public Prosecutions
Department
The investigative agency that has detected the drugs or has
been approached to carry out a controlled delivery informs the
159 Public Prosecutions Department of the place of seizure and
requests verbal permission for a controlled delivery.
Step 3: Make contact with the receiving body – Contact
with the KLPD ( National Police Services Agency)
or liaison officers
Inform the KLPD or Dutch Liaison Officer
The investigat ive agency contacts the KLPD in Zoetermeer,
which places the contact between the investigative authorities
and the DLOs. Contact may also be made via “direct ” contacts
such as DLOs or foreign liaison officers working in the
Netherlands. For controlled deli veries in Europe contact needs
to be made with Europol in the Hague.
Fax the necessary data to the KLPD
The KLPD will send the fax to the contacts in the
country of destination.
Step 4: The country of destination agrees to the controlled
delivery
The autho rities in the country of destination make direct
contact, or via the KLPD, with the investigative agency
that has the shipment.
The authorities in the country of destination make a
request for legal assistance.
The authorities in the country of destination write a
letter in which they state that the crew on the plane
carrying the package will not be prosecuted in the host
country in respect of the concerned shipment.
The foreign authorities fax the form directly to the
investigative agency or to the KLPD.
Inform the IRC (International Legal Assistance Centre)
The investigative agency will send the request for legal
assistance through the intervention of the attending public
prosecutor to the IRC.
Step 5: Approval and signature public prosecutor
The investiga tive agency creates a form “relating to
controlled deliveries abroad”.
The investigative agency faxes the forms to the Public
160 Prosecutor in the relevant district for approval and
signature.
The Public Prosecutor signs the form and faxes the
signed form to the investigating authority.
Step 6: Make contact with the CargoHarc -team
The investigative agency makes contact by phone with
the information desk of the CargoHarc -team for further
arrangements on the transfer / transport.
The investigative agency faxes t he forms to the
CargoHarc -team.
Step 7: Activities Cargo Harc -team
The CargoHarc -team makes contact with the airlines for
further arrangements on the transfer / transport.
The CargoHarc -team creates a form “Request
cooperation” that will be faxed to the a irlines
concerned.
Once the relevant flight, date and time has been
confirmed, the CargoHarc team contacts the
investigative agency and agrees when the investigative
agency must be present at the airport with the package.
The employee of the CargoHarc -team prepares the
package for sending.
Step 8: Placing of the package on the plane
The forms are delivered to the captain of the plane.
The investigative agency puts the package on the plane.
Immediately after placing the package, the investigative
agency will inform the relevant investigating officer in
the destination country that the package is on its way.
The foreign investigative agencies inform via fax or
phone that the package has arrived safely.
Step 9: A police report is filed
Best practices model – the Polish system
According to the Polish practitioner, “ one should note that the
Police Act of 6 April, 1990 permits ordering a CD only as part
of the investigative actions prior to the institution of penal
161 proceedings, which start with issuing a decision to open
preparatory proceedings. This means that prior to starting the
procedure of covert surveillance of movement of crime objects,
no actions may be undertaken related to the legal proceedings –
i.e. interrogate witnesses, conduct a search or inspectio n. All
police actions are documented by memos or technical means
(video or photographic material, initial instrument examination
at forensic laboratories)”.
When using the CD procedure, the Police may covertly
make the following alterations in shipments or items that
contain crime objects:
(1) Remove (extract) the shipments and other items
from distribution or production, open them in order to inspect
and evaluate their contents, mark them, remove crime objects
or replace all or some parts of the objects, detect and record
forensic traces,
(2) Reseal the shipments and other items after they
were opened, and reintroduce them into distribution or
production.
Every action performed in the framework of CD
operations must be documented through photos, memos,
recordings and minutes of research. Research and analysis of
forensic evidence and chemicals are conducted in Central
Police Forensic Lab. Research and measures are conducted by
experts of chemistry, photography and fingerprinting.
As the Polish practitio ner mentioned on the occasion of
the last meeting during the project, “the successive stages of
controlled delivery are as following:
• preliminary information, initiating activities (conducted
case, WT, LO, Europol, information from other
country),
• preparat ion of documentation, information for P.P.O.,
• information for B.G., Customs, Post Office or C.Comp.
• seizure (take over) the subject of controlled delivery,
opening and evaluation of content,
• replacement of drug by substitution other substance,
162 examination and evaluation,
• installing of technical devices (GPS, WT, radiolocation,
opening indicator, fluorescent powder),
• developing a plan of action,
• re-introduction of the consignment in the distribution
(on the market),
• execution of the plan , arrest the perpetra tors, liquidation
of drug trafficking route,
• transferring of the obtained evidences to the prosecutor
and the court,
• transferring in the framework of law assistance after the
decision of the Prosecutor’s Office obtained evidences
to the countries, that coo perated in the controlled
delivery operation”.
3. Special investigative techniques used in the
context of controlled deliveries
Although CDs are distinct investigative methods, their
complexity involves simultaneous use of other techniques, such
as human intelligence sources (informants )/collaborators ,
physical surveillance, technical surveillance (interception of
communications and GPS location), interception of e-mail,
undercover officers.
According to the Council of Europe Recommendation
Rec(2005)1082, SITs are “the techniques applied in the context
of criminal investigations for the purpose of detecting and
investigating serious crimes and suspects, meant to collect
information so as not to alarm the people concerned ”. The
Council of Europe identifies the following as SITs : “controlled
82 Recommendation Rec(2005)10 of the Committee of Ministers to M ember
States on “special investigation techniques” in relation to serious crime s
including acts of terrorism.
163 deliveries, covert investigations, interception of
telecommunications (wire -tapping), bugging of premises,
covert investigations; interception of communications (wire –
tapping); bugging of premises; covert surveillance; cove rt
storefront operations which appear to offer opportunities for
crime; and undercover agents and informants”83.
Furthermore, Article 20 of the UN Convention against
Transnational Organ ised Crime identifies controlled deliveries,
electronic or other forms o f surveillance and undercover
operations as SITs 84.
Extending the use of SITs in the context of combating
organised crime and the drug traffickers groups is an essential
element of the reaction of authorities against the improvement
and specialisation of criminal groups.
To gather information about the activity of a criminal
group, it is necessary to resort to certain special methods of
investigation, based on operational needs. Some techniques
such as interception of communications or controlled delivery
are generally used to understand the role of the suspects in the
criminal group, and to identify and dismantle the criminal
group. Although these measures are intrusive by nature, they
are limited to certain serious offenses often committed in an
organ ised manner85.
83 White Paper on Transnational Organised Crime, Council of Europe,
(CDPC 2014 11 Fin), section 3.2, p. 30.
84 Article 20.1 of the UN Convention against Transnational Organ ised
Crime establishes “ if permitted by the basic princ iples of its domestic legal
system, each State Party shall, within its possibilities and under the
conditions prescribed by its domestic law, take the necessary measures to
allow for the appropriate use of controlled delivery and, where it deems
appropriat e, for the use of other special investigative techniques, such as
electronic or other forms of surveillance and undercover operations (..)”.
85 White Paper on Transnational Organised Crime, Council of Europe, 2013.
164 According to the results of recent research, “in the
majority of cases other tools such as the interception of
communications, undercover investigation and informants are
used to gather the intelligence needed to successfully carryout
a controlle d delivery”86.
The use of these SITs is permitted in most Member
States, particularly in the case of organ ised crime offenses and
drug trafficking . These SITs are used to gather evidence about
the criminal activities in a proactive manner, so as the people
covered by the investigation should not be aware of their use
by LEAs .
The main SITs used in controlled deliveries
86 Andrea, Di Nicola, Philip, Gounev, Micha el, Levi (project coordinators),
et al., Study on paving the way for future policy initiatives in the field of
fight against organised crime , p. 284.
HUMAN
INTELLIGENCE
SOURCES
(INFORMANTS)
UNDERCOVER
OPERATIONS
GPS
TRACKING
INTERCEPTION OF
ELECTRONIC
COMMUNICATIONS
PHYSICAL
SURVEILLANCE
(STAKEOUT)
CONTROLLED
DELIVERY
165 Investigating cases of international drug trafficking is
often initiated on the basis of the information provid ed to the
LEAs by human intelligence sources (informants ) /
collaborators .
The practice of LEAs has revealed the fact that the
networks of drug traffickers usually recruit only reliable
persons, being quite difficult to determine based on clear
evidence t he criminal activities in some o ther way than by
using informants . The informant may be a person who wishes
to provide information in order to benefit from a reduced
sentence or a person who provides information based on the
civic spirit. From the experien ce of the LEAs , it has resulted
that informants are the people who know best both the
traffickers, but also the drug consumers87. After receiving the
information and evaluating the source, begins the phase of
verifying the information. The responsibility of investigators is
to verify the information and to establish the motivation of the
source. When using informants , investigators must real ise the
difference between an informant (person who only provides
information to investigator(s)) and a participant informant
(person who participated directly in committing offenses
within the criminal group – for exam ple, in the case of a carrier,
courier or driver)88. According to the Europol Review 2011,
the informant has a crucial importance within the police
activitie s, the quality of the information collected is directly
proportional to that of the informant .
During the workshop held in Poiana Brasov, a
Romanian antidrug police officer presented the main
87 Michael D., Lyman, Practical drug enforcement, 3rd ed., CRC Press,
Taylor & Francis Group, 2007, p.3.
88 Basic Training Manual on Investigating and Prosecuting the Smuggling
of Migrants, UNODC, 2010, p. 75.
166 challenges in and obstacles to cooperation between the police
and informants. He stressed that any informant wants
something (often money) for providing information : “We are
trying to use other methods – approaching the informant, trying
to convince him to collaborate because of the civic spirit, not
for money.”
Physical surveillance (stakeout) is another technique
used in the context of deploying controlled deliveries. Any
investigator knows that an effective way to obtain information
is pursuing a person or monitoring a transport, places or objects
which have links with a criminal offense. This method shall be
used in the context of monitoring the drug transport and the
activity of the people receiving the drugs which are to present
themselves at a post office/customs office/courier company to
take possession of the suspect package , etc. Physical
surveillance is generally less -intrusive than technical
surveillance and involves placing a target (person, means of
transport) under surveillance, for establishing the places
visited, the route travelled, the people contacte d, etc.89
As it apparent from the study conducted , technical
surveillance include s, in particular , the interception of
communications and electr onic conversations, the bugging of
premises , as well as of some tracking tools and GPS location.
The interceptio n of telecommunications is an
essential technique to which the LEAs resort for obtaining
evidence during a controlled delivery. From the interceptions
of telecommunications may result data according to which the
people involved have knowledge about the dru gs trafficked,
being frequent the situations in which, after being detected by
89 Deployment of special investigative means , Council of Europe, 2013, p.
12.
167 the authorities, couriers plead that were paid to perform a
transport, without having knowledge about the substances
transported. Moreover, after analysing the telephone
convers ations may result information relating to a rerouting of
the transport based on the information received by the courier
from the transport organ iser, in order to avoid detection by the
police. As a result of technology development in the last
period, the c ompetent authorities in a Member State may
intercept communications and electronic conversations carried
out in another Member State, without the technical assistance
of this State . The main legal regulations in this area are those
contained in the Convent ion on Mutual Assistance in Criminal
Matters between the Member States of the European Union.
The Convention regulates the interception of
telecommunications on the national territory by means of the
providers of services (Article 19) and the interception of
telecommunications without technical assistance from another
Member State (Article 20). According to the opinion expressed
by experts90, “regardless of where the subject of the
interception is located, the interception of telecommunications,
carried out through a satellite system, requires only a single
operation, by means of a technical installation called
“Gateway ” (“portal ”). This portal allows the establishment of a
satellite connection, which allows the use of
telecommunications equipment in very lar ge geographical
areas. In order to intercept telecommunications directly, the
90 Ulrike, Kathrein, Cătălina -Gabriela, Miron, Ana, Ploscă, et al.,
International judicial cooperation in criminal matters. Manual drawn up
within the Twinning project between Romania and Austria PHARE RO
2005/IB/JH 03, entitled "Strengthening the institutio nal and legislative
framework in the field of international judicial cooperation" , the Center of
Legal Competence, Vienna, 2007, p. 79.
168 State must have a portal. If it does not, then it may request the
assistance of the State on the territory of which the portal is
located, for each interception that they wish to carry out or the
operator installs “remote access ” to the portal. This facility
enables a country to issue a remote interception order via a
portal located outside its own territory. It may be given to the
company or companies ( “providers of services ”), who shall
provide the service of satellite telecommunications on each
national territory, provided to carry out the orders of
interception which are required under the law by the competent
authorities. Technically it is possible to restrict the use of the
remote access to telecommunications made from the or
received in the territory of the Member State who uses it ”.
In order to prevent LEAs from intercepti ng and
recording telecommunications, drug traffickers (organ isers,
distributors, couriers , etc.) often use the following methods:
multiple mobile phones and multiple SIM cards (including
prepaid cards) ; Internet -based messaging services , instant
messaging services such as WhatsApp and Blackberry, or
encrypted systems e.g. PGP (“pretty good privacy”). Also, in
order to make it more difficult for the LEAs to understand drug
traffickers’ modus operandi, these criminals often use a
coded/conspiratorial language (in one case, the drug traffickers
kept in touch by mobile phones with prepaid cards and their
disguis ed discussions made reference to “fruit juices ”, “files”,
“chocolate ”, “candies ”, and not to drugs certifying through this
coded common language that both knew the actual contents of
the packages) .
Another surveillance technique is also the GPS
location, b y placing speci al devices on the illicit drug
transport, as well as locating the users of mobile phone
169 stations91. Locating or tracking by technical means involves
the use of devices that determine the place where the person or
object to which these are att ached is located. Attaching the
tracking devices on the drugs transports is essential for
determining the exact location and for avoiding losing control
on the transport. Attaching the GPS device to a drug transport
may be done by the staff of the law enfo rcement agencies of a
State , and location of the transport to be made until final
destination, based on the device placed in the State of origin.
Generally, placement of the locating technique shall be made
by the staff of the law enforcement agencies of the Member
State where the transport is departing, where the detection of
drugs was made, being much more difficult to place the
tracking device later in complete conspiracy. On a case by case
basis, there are situations where some State s receive the
locat ion data of the transport or State s that wish to take control
over this data. The most effective measures for monitoring
drug transports in the context of controlled deliveries are those
which combine physical surveillance with surveillance based
on GPS lo cation. When the GPS device is placed on the
suspect’s vehicle in one State and travel s to another State (State
of destination), the use of the information deriving from those
devices might require the authorisation of the competent
authorities in the States of transit and destination . When
drafting request s for legal assistance, LEAs from one S tate
could ask other States for permission to monitor and collect
information from the GPS and, if it i s necessary, to change the
batteries.
91 Locating people based on mobile phones may facilitate the investigation
by establishing the approximate area in which the drug trafficker is located,
at the time of using the phone in question.
170 The experts from Lithua nia pointed out “that some
Member States stipulate requirements that are redundant and
encumber the operation. Regardless of the possibility to receive
real-time GPS information from the initiator of the delivery,
these Member States request direct control of the GPS devices
installed by the authorities of another Member State “.
Furthermore , experts from Bulgaria underlined that “some
countries do not formulate their requests properly and in
accordance with relevant international conventions. This has
led to several supplementary MLA requests that had to be dealt
with urgently “92.
Using under cover officers to infiltrate into the
criminal networks, in particular within the drug trafficking
groups, is an efficient and proactive operational method.
According t o some authors93, “infiltration constitutes the deed
of the police officer to maintain, under a false identity,
sustainable relations with one or more persons in respect of
whom there are strong grounds for believing that are
committing offenses within a cr iminal organization ”. In the
context of using under cover investigators, ECHR case law has
decided to prohibit the incitement or the instigations of a
person to commit offenses. Thus, in the case of Teixeira de
Castro v Portugal (9 June 1998) , ECHR consider ed that “… the
two police officers’ actions went beyond those of undercover
agents because they instigated the offence and there is nothing
to suggest that without their intervention it would have been
committed …”. Also, in the case of Constantin and Stoian v
Romania (29 September 2009) , “… the Court considers, having
92 Issue in focus number 1 “Cross -border controlled deliveries from a
judicial perspective”, Eurojust, 2015, p.5.
93 Michel, Franchimont, Ann, Jacobs, and Adrien, Masset, Manuel de
procedure penale , Editions Larcier, Bruxelles, 2006, p.331.
171 regard to the foregoing, that the actions of the undercover
police officer and his collaborator had the effect of inciting the
applicants to commit the offence of which they were convic ted,
going beyond the mere passive investigation of existing
criminal activity, and that the domestic courts did not
investigate sufficiently the allegations of incitement …”.
Under cover operations are used, as a general rule, to
attain the following obje ctives:
Identifying the members of the organ ised crime
group and o btaining information ab out their
criminal activities;
Corroborating information obtained by the
LEAs through other methods ;
Procurement o f drugs along with the informants
or collaborators fr om traffickers (if it is allowed
by law, depending on each State legislation) .
Under cover investigators infiltrated in cases
investigated by the method of controlled delivery may be
allowed to come into contact with members of the criminal
group , to coordi nate and monitor the activity of other officials
(Customs staff, courier services, etc.), to buy drugs together
with collaborators from drug traffickers, to transport drugs as a
carrier (drivers) in order to identify the final recipients of the
drugs etc. There are also controlled del ivery operations in
which under cover agents of a State shall be authorised to
engage in activities for gathering information, procurement of
drugs or transport thereof in another State, accompanying or
monitoring the controlled delivery , etc. On the occasion of the
9th meeting of HONLEA (held on 16 -18 June 2009), it has
been proposed that the governments of the State s to take
measures for ensuring that the framework necessary to
172 facilitate the operations on the mo vement and use of foreign
under cover officers in other jurisdictions has been established.
In these situ ations, activities of the under cover agents
are carried out under strict coordination of the LEAs staff of
the State in q uestion (they support the under cover operatio n,
drug delivery and reception, their expertise , etc.). As a general
rule, in t he situation in which the under cover agent procures
drugs from another State in the context of a controlled delivery,
they shall be handed over after purchase to the LEAs person nel
of the State in question. The drugs are subject to forensic
expertise in that State, and the latter shall send the report
(bulletin) of expertise to the authorities in the requesting
country who initiated the co ntrolled delivery and the
under cover oper ation.
The main problems caused by the deployment of
under cover officers on the territory of another State consist of
the following aspects94:
Distinct requirements and procedures of the
State concerning the movement of the
undercover officers ;
Legislative differences with regard to protecti on
of the identity of the under cover officers ;
Granting an equal status to the domestic and
foreign under cover officers ;
The possibility to second (assist) the under cover
officers abroad ;
Cross -border assistance in ensur ing the
operational coverage for under cover officers.
94 Council Resolution 6678/3/07 on simplifying the cross -border
deployment of undercover officers in order to step up Member States'
cooperation in the fight against serious cross -border crime, Co uncil of the
EU, Brussels, 25 May 2007.
173 4. The outcome of controlled deliveries. Parallel
criminal investigations in countries involved
Among the most important activities carried out in
connection with completing the controlled deliveries, is t he
catching in the act activity which will ensure obtaining
evidences and prosecution of traffickers. The operations of
catching in the act (in flagrante operations) involve catching
drug traffickers at the time of conducting transactions, when
taking poss ession of the drug transports, of the amounts of
money derived from the sale of drugs delivered in a controlled
operation, when opening postal packages delivered in a
controlled operation , etc. As a general rule, this operation takes
place in the State of destination of the drugs or when there is a
risk of losing the transport (by ceasing the controlled delivery
in any State located on the drugs trafficking route). Flagrant
operations ensure the operative detection of the offenses
committed and retention of the traffickers involved, in order to
avoid their escape and evading investigation.
Completion of the controlled delivery operation will
lead to legal measures against the drug trafficking group
members. As mentioned previously, most commonly the
authorit ies of the State requesting the controlled delivery are
conducting the criminal procedure with regard to the drugs
delivered in controlled operations by other State s of origin or
transit. However, there may be exceptions to this rule:
in the case where the re is a risk of losing the
drug transport under the delivery controlled by
LEAs personnel of a State of transit, it may be
decided upon the confiscation of the drug
transport and cessation of the controlled
delivery. In this situation, the authorities of t he
174 State of transit are competent to carry out the
criminal prosecution with regard to the offenses
committed only for the time period between
entry of the transport in the country and
confiscation thereof. With regard to the other
criminal activities in w hich the drug traffick ing
group members are involved, the competent
authorities of the requesting State of controlled
delivery will carry out the criminal prosecution.
As a general rule, confiscation of the transport
in the State of transit shall be made a fter
consulting the authorities of the State of
destination. For example, if a drug transport by
road monitored by the police of the State of
transit, shall enter in a warehouse in which the
police does not know and does not have control
over the activitie s carried out there, is taken the
decision of immediate capture, by prior
notification of the authorities initiators of
controlled delivery.
in the case in which during the period of passage
of the drug transport through the State of transit,
between the c ountry of origin and the country of
destination, shall be committed other offenses or
are identified other participants to committing
the offenses.
in the case of the transfer of procedures between
the States affected by the drug trafficking route,
in the meaning that it is estimated that the
judiciary evidence can best be administered in a
particular State . According to Article 8 of the
175 European Convention on the Transfer of
Proceedings in Criminal Matters of 15 May
1972 , a Contracting State may request95 another
Contracting State to start criminal prosecution in
the following cases:
“a) if the suspected person is ordinarily resident
in the requested State;
b) if the suspected person is a national of the
requested State or if that State is his State of
origi n;
c) if the suspected person is undergoing or is to
undergo a sentence involving deprivation of
liberty in the requested State;
d) if proceedings for the same or other
offences are being taken against the suspected
person in the requested State;
e) if it considers that transfer of the
proceedings is warranted in the interests of
arriving at the truth and in particular that the
most important items of evidence are located in
the requested State;
f) if it considers that the enforcement in the
requested Stat e of a sentence if one were
passed is likely to improve the prospects for
the social rehabilitation of the person
sentenced;
g) if it considers that the presence of the
suspected person cannot be ensured at the
hearing of proceedings in the requesting Stat e
95 It is important to note that there is no specific mechanism enabling a State
to ask another State to transfer criminal proceedings.
176 and that his presence in person at the hearing of
proceedings in the requested State can be
ensured;
h) if it considers that it could not itself
enforce a sentence if one were passed, even
by having recourse to extradition, and that the
requested State c ould do so.”
Important rules on the transfer of criminal procedures
are provided also in the UN Conventions. Article 8 of the 1988
UN Convention establishes that “t he Parties shall give
consideration to the possibility of transferring to one another
proceedings for criminal prosecution of offences established in
accordance with Article 3, paragraph 1, in cases where such
transfer is considered to be in the interests of a proper
administration of justice”. As for the UN Convention against
Transnational Org anised Crime, Article 21 states that “ States
Parties shall consider the possibility to mutually transfer the
procedures relating to the prosecution of a criminal offense
covered by the Convention in cases where such transfer is
considered necessary in the interests of a good administration
of justice and in particular, when the cause concerns multiple
jurisdictions, in order to central ise such prosecutions ”.
In addition, Article 21 of the European Convention on
Mutual Assistance in criminal Matters (Strasbo urg, 1959),
makes the following provision for the laying of information in
connection with proceedings:
“1. Information laid by one Contracting Party with a
view to proceedings in the courts of another Party
shall be transmitted between the Ministries of J ustice
concerned unless a Contracting Party avails itself of
the option provided for in paragraph 6 of Article 15.
177 2. The requested Party shall notify the requesting
Party of any action taken on such information and
shall forward a copy of the record of any verdict
pronounced.”
In other cases, solving the cases through the transfer of
procedure can be done also by means of bilateral agreements
for cooperation.
Possible solutions in the case of jurisdiction and of
coordination of the actions of criminal pr osecution are offered
also by the application of Article 7 (2) of the Council
Framework Decision 2008/841/JHA of 24 October 2008 on the
fight against organised crime: “Whe n an offence referred to in
Article 2 falls within the jurisdiction of more than one Member
State and when any one of the States concerned can validly
prosecute on the basis of the same facts, the Member States
concerned shall cooperate in order to decide which of them will
prosecute the offenders, with the aim, if possible, of
centralising proceedings in a single Member State. To this end,
Member States may have recourse to Eurojust or any other
body or mechanism established within the European Union in
order to facilitate cooperation between their judicial authorities
and the coordination of their action. Special account shall be
taken of the following factors: (a) the Member State in the
territory of which the acts were committed; (b) the Member
State of which the perpetrator is a national or resident; (c) the
Member State of the origin of the victims; (d) the Member
State in the territory of which the perpetrator was found ”.
Finally, Eurojust’s role in providing assistance to
resolve conflicts of jurisdic tion is enshrined in Council
Framework Decision 2009/948/JHA of 30 November 2009 on
prevention and settlement of conflicts of exercise of
178 jurisdiction in criminal proceedi ngs. Article 12 of this
Framework Decision provides:
“1. This Framework Decision shall be complementary
and without prejudice to the Eurojust Decision.
2. Where it has not been possible to reach consensus in
accordance with Article 10, the matter shall, w here
appropriate, be referred to Eurojust by any competent
authority of the Member States involved, if Eurojust is
competent to act under Article 4(1) of the Eurojust
Decision”.
5. Obstacles and difficulties (legal and practical)
in the field of controlled deliveries
The research carried out within the project has led to the
identification of several obstacles and difficulties (both legal
and practical) which the practitioners in this field are
experiencing.
5.1. Difficulties at i nternational level .
At internati onal level, the UN has adopted a number of
initiatives to identify the main obstacles faced by practitioners
in the implementation of controlled deliveries.
The Commission on Narcotic Drugs (CND)96
passed Resolution 45/4 on controlled deliveries
in March 20 02. According to this Resolution,
one of the key elements to successfully
implement controlled deliveries is the “timely
96 The CND was created by Economic and Social Council (ECOSOC)
Resolution 9(I) in 1946 to assist the ECOSOC in supervising the application
of international drug control treaties. In 1991, its mandate was extended by
the General Assembly of the United Nations and it was empowered to
function as the governing body of the United Nations O ffice on Drugs and
Crime (UNODC).
179 and quick exchange of information between law
enforcement agencies”.
In addition, Resolution 45/4 recommends “swift
and effective actio n in dealing with requests for
international assistance in controlled delivery
operations and [the establish ment of] effective
mechanisms for its implementation”.
Accordingly, having regard to the wording of
this Resolution, it is essential t hat procedure s be
established which involve both police and
judicial authorities and ensure the timely and
quick exchange of information with a view to
dismantling criminal organisations.
Subsequently, the CND adopted Resolutio n 47/6
in 2004 in which it recalled Resolut ion 45/4 and
made a number of additional findings on the
notion of effective controlled deliver y. In
particular, it identified the key obstacles that
hamper the effectiveness of controlled
deliveries:
o The limited availability of resourc es to
gather techni cal evidence;
o Lack of knowledge of the different legal
systems and that requirements represent
further obstacles ;
o Poor cooperation and coordination
between competent authorities in order
to streamline procedures for approving
and conducting effective cont rolled
delivery operations.
180 A Paris Pact Expert Working Group meeting
was held on 21 -22 June 2011 in Islamabad, at
which 63 experts from 25 countries and
organization s shared their opinions on the legal
and operational challenges associated with
controlle d deliveries97. One of the topics which
received special attention at the meeting was the
threat posed by opium trafficked through
Central Asia, Afghanistan, Iran and Pakistan .
Whilst acknowledging the differences existing
between this region and the Europe an Union, it
is nevertheless instructive to highlight the main
obstacles identified by the experts:
o Differences in legal requirements and
procedures between States may pose
difficult ies when carrying out controlled
deliveries. Obviously, this problem is
more acute when the legal rules of the
State of origin differs drastically from
those of the States of transit or
destination.
o Lack of trust among State s in cases
involving undercover operation s often
97 The Paris Pact Initiative is one of the most important frameworks in the
fight against opiates originating in Afghanistan. It aims at the reduction of
illicit traffic in opiates including opium poppy cultivation, produ ction and
global consumption of heroin and other opiates, and at the establishment of
a broad international coalition to combat illicit traffic in opiates. Efforts
under this initiative are aimed at the strengthening of international and
regional cooperati on to support its sustained efforts, including on a national
level, to address illicit traffic in opiates, recognizing the threat they pose in
different regions of the world and the important role played by UNODC in
these efforts.
181 results in a poor exchange of information
on seizures an d on operational issues
which , in turn , hampers operations.
o Once the controlled delivery has taken
place, States often do not share
information about the progress of the
case, including information on arrests or
seizures.
o Difficulties in identifying the correct
focal point for controlled deliveries,
especially when several law enforceme nt
agencies are legally authoris ed to carry
out this type of investigation technique.
5.2. Difficulties at European level .
At European level, there have been several attempts t o
improve the effectiveness of controlled deliveries by
identifying the most significant obstacles.
According to a study98 completed in 2015, the main
issues in the field of controlled deliveries are:
The temptation to LEAs in some State s to
confiscate prem aturely a drug transport, thus
preventing the activity of identifying the final
recipients of the drugs ;
The possibility of occasional losing the transport
within the controlled deliveries ;
The difficulty generated by the bureaucracy of
the process of inte rnational judicial cooperation.
98 Andrea, Di Nicola, Phil ip, Gounev, Michael, Levi (project coordinators),
et al., Study on paving the way for future policy initiatives in the field of
fight against organised crime, p. 287.
182 Thus, the information analyzed show that
sometimes the process of cooperation is
complicated and difficult. Especially within the
context of the need for reactions and quick
responses from similar authorities in other
State s, personal and informal contacts are
considered to be the most effective ;
Issues generated by the mutual confidence
between the LEAs , particularly in respect of
disseminating confidential data and i nformation
(concerning informants , undercover officers ,
etc.);
The lack of relevant information with regard to
the points of contact and the type of
authorization and conditions required in each
MS. Practical difficulties may arise in
identifying the competent authorities to approve
the use of controlled deliveri es. In some MSs,
for the purposes of controlled deliveries is
required a judicial authorisation, while in others
the authorisation is granted by police
authorities99. Therefore, identifying the
competent authorities of a MS may raise certain
issues100;
The di fficulty in using evidence obtained
through contr olled delivery in another State;
The lack of resources or inadequate resources
(technical and human) in some States.
99 In such cases, the requested Member State, whose judicial system
provides for judicial cooperation in the case of controlled deliveries, can not
comply only with a police request.
100 Eurojust Annual Report 2011, p. 28.
183 At the same time, the analysis carried out by
Eurojust among the competent authorities of the EU MSs and
Norway has identified several categories of obstacles in respect
of controlled deliveries, as they have been indicated by the
national agencies personnel101:
Not knowing the exact route and time period
when the drug transport will cross the bo rder of
a State or unexpected change of these
variables102;
Difficulties or delays in obtaining permission
from the authorities of other MSs for placing
GPS devices in the vehicles involved in the drug
transport and trafficking ;
Difficulties or delays in ide ntifying the
competent authorities of another MS or in
obtaining authorisa tion on the controlled
delivery ;
Legal differences between requirements of the
MSs relating to the substitution of the drugs in
the context of controlled deliveries ;
Insufficient res ources in the context of requests
for authorization of a controlled delivery
101 Issue in focus number 1 “Cross -border controlled deliveries from a
judicial perspective”, Eurojust, 2015, pp. 4 -8.
102 One of the problems generated by the controlled deliveries of drugs
(especially those by sea and road), is changing the travel route. In this
situation, the authorities in the State of transit where the changing of the
travel route is found shall have to inform as quickly as possible the
authorities in the State that has initiated the controlled delivery, so that the
latter to take in due time the necessary steps for obtaining permission to
transit the new State .
184 performed at unexpected times/during the
night/weekend ;
The differences between the requirements of
MSs for delaying the confiscation of drugs in
the context of controlled deliver ies;
Difficulties on the deployment and use of
undercover officers in other MSs in the context
of controlled deliveries ;
Admissibility of the evidence obtained in the
context of cross -border controlled deliveries ;
The confidential nature (classified) of th e
information obtained through the method of
controlled delivery in some State s;
Difficulties on the movement of armed police
officers in other States within the cross -border
controlled deliveries ;
Legal and operati onal issue s on the acceptance
of informan ts' participation in the controlled
deliveries.
The Eurojust Annual Report 2011 identified difficult ies
in organi sing controlled deliveries involving third party
countries, and Eurojust has supported in this respect the
practitioners in the Member States, by relying on its experience
in the field of cross -border operations carried out beyond the
borders of the EU.
One of the main outcomes of the workshop held in
Tallinn (16 -18 May 2016) was the confirmation by
participants of most of these obstacles . They referred to (1)
the different powers of the authorities involved in the
implementation of CDs ; (2) difficulties in implement ing
185 technical surveillance and especially in intercepting modern
communication technologies ; (3) difficulties in identify ing the
competent LEAs in urgent cases; (4) lack of trust ; (5) lack of
resources ; (6) language barriers in communication between the
LEAs from different countries; and (7) differences in Member
States’ legal frameworks .
Most of the above obstacles were also confirme d also
during the second workshop of the project. In that
workshop, the participants referred, among others, to: (1) lack
of permanent cooperation between States situated along the
trafficking route ; (2) fear of losing consignments during the
CDs; (3) the desire of some LEAs to seize the drugs and
initiate criminal proceedings; (4) lack of common procedures
in respect of CDs ; (5) lack of a common legal framework as
regards SITs ; (6) language barriers ; (7) impossibility of
substituti ng the drugs because of t he method of concealment or
time restrictions ; and (8) belated permission for a CD from a
State situated along the trafficking route.
During the last Regional Meeting, the participants
also identified the following obstacles: (1) lack of essential
data for performing a CD ; (2) difficulties in understanding
wiretapped communications due to the differ ing nationalities of
and languages spoken by those involved in international drug
trafficking ; (3) non-criminalisation of certain drugs in some
States; (4) time needed to prepar e the surveillance team ; (5)
lack of LEA staff with expertise in CDs.
5.3. Summary of the obstacles and difficulties
In view of all of the foregoing, both at international and
European level, it is possible to summarise the main obstacles
as follows, distinguishing between those related to practical or
186 operational issues and those linked to the legal requirements
for implementing controlled deliveries.
Operational/practical obstacles :
o Lack of trust between those involved in
the implementation of controlled
deliveries in view of the confidential
nature of the data to be transmitted
(classified information) . This may also
lead to the premature confiscation of the
substances in question .
o Difficulties in identify ing the relevant
competent authorit ies for carry ing out a
controlled delivery in another Member
State .
o Lack of coordination between LEAs in
the context of the need for exchanging
information and taking speedy action to
secure authorisation, set up effective
surveillance mechanisms and jointly
decide on when to confiscat e the illicit
substances.
o Different type of authorities involved in
the implementation of controlled
deliveries e.g. customs officers, police
officers, drug trafficking police units,
prosecutors and judges.
o Lack of information on legal
requirements for obtaining authorisation
for a controlled delivery in another
Member State .
187 o Difficulties in ascertain ing where and
when the illicit substance will cross the
territories of the Member States
involved .
o Difficulties in placing GPS d evices in
vehicles to facilitate the surveillance and
control of the substance.
o The risk of losing the controlled
deliveries .
Legal obstacles :
o Differences in Member States’ legal
frameworks as regards the requirements
for implement ing this investigation
technique. These differences might have
an impact on the admissibility of
evidence obtained in another country in
the context of cross -border
investigation s.
o Differences in Member States’ legal
frameworks as regards the possibility of
replacing drugs in cont rolled deliveries .
o Differences in Member States’ legal
frameworks as regards the
implementation of other special
investigation techniques (e.g. undercover
agents , GPS surveillance or informants )
which might be used together with a
controlled delivery. This is particularly
relevant because CDs themselves always
need to be monitored by means of other
investigation techniques .
188 6. The role of international and European
institutions in the coordination and support of
controlled deliveries
6.1. Eurojust
Eurojust was established by Decision 2002/187/JHA of
the Council as a body of the EU with legal personality to
promote and improve coordination and cooperation between
the competent judicial authorities of Member States.
In order to strengthen the operational capacity of
Eurojust, it was adopted the Decision 2009/426/JHA of the
Council of 16 December 2008103.
According to this provision, one of the new powers
which may be conferred to national members, with the
agreement of the competent national authorities, is to authoris e
and coordinate controlled deliveries in their Member States.
Also, in agreement wit h the regulations in Article 9d (a) of
Decision 2009/426/JHA, national members, in their capacity as
competent national authorities, in urgent cases and to the extent
that it is not possible to identify or contact in good time the
competent national authorities, shall have the right to author ise
and coordinate the controlled deliveries in their own Member
States. As soon as it is identified or contacted the competent
nationa l authority, the latter shall be informed on the exercise
of this competence by the national officials.
103 Council Decision 2009/426/JHA of 16 December 2 008 on the
strengthening of Eurojust and amending Decision 2002/187/JHA setting up
Eurojust with a view to reinforcing the fight against serious crime.
189 Article 13 of Decision 2009/426/JHA provides for
exchanges of information with the Member States and between
national members. In accordance with Artic le 13(7), letter b),
the Member States shall ensure that their national member is
informed on the controlled deliveries affecting at least three
States, of which at least two are Member States. The types of
minimum information to be transmitted, when avail able, are
the following: the Member States and the competent authorities
concerned; data allowing identification of the person, group or
entity which is the subject of an investigation or criminal
prosecutions; type of delivery; type of the offense in
conn ection with which the controlled delivery is conducted.
In respect of the concrete exercise of these powers
conferred by Decision 2009/426/JHA, existing data show that
until now in very few cases national members have author ised
a controlled delivery (in a single State at EU level), and in only
two Member States of the EU, national members have
exercised their right to coordinate controlled deliveries.
The situation on the implementation of the provisions of
Decision 2009/426/JHA on the authorisation and co ordination
of controlled deliveries by national members in their own
Member States, according to the evaluation reports, is as
according to the table below:
190
MEMBER STATE The implementation of Article 9d (a)
of DECISION 2009/426/JHA
Austria The n ational member has to date no
power to author ise controlled
deliveries.
Belgium According to the current legal
framework, the national Member
cannot author ise controlled
deliveries. In practice, there were
some cases in which the national
member has coord inated controlled
deliveries.
Bulgaria There were no cases in which the
national member has coordinated
controlled deliveries. In the event of
requests for a rogatory commission
sent through Eurojust, they were
communicated promptly to the
Bulgarian compe tent authorities.
Croatia According to the Croatian law,
controlled deliveries are not regarded
as an instrument of judicial
cooperation.
Cyprus In practice, there was a single case in
which the support of Eurojust was
requested.
Czech Republic In case of problems, it is possible to
request the assistance of Eurojust.
Denmark As a general rule, the national
member to Eurojust does not
participate in the deployment of the
191 controlled deliveries. The national
member facilitates and initiates
contacts, when necessary.
Estonia In the controlled deliveries organ ised
until to now, there has been no
involvement of Eurojust.
Finland There were no cases coordinated by
Eurojust.
France Until now, the French national
member has not authorised or
coordinated contr olled deliveries.
Germany The national member is not entitled
to author ise or to coordinate
controlled deliveries. However, the
national member may submit
proposals to that effect to the
competent national authorities.
Greece The national member is not e ntitled
to author ise or to coordinate
controlled deliveries.
Hungary Until now, the national member has
not authorised or coordinated
controlled deliveries.
Ireland The national member is not entitled
to author ise or to coordinate
controlled deliveries.
Italy The national member is not entitled
to author ise or to coordinate
controlled deliveries.
Latvia The national member is not entitled
to author ise controlled deliveries.
192 Until now, the national member only
facilitated the controlled deliveries in
some cases.
Lithuania The national member (prosecutor) is
not entitled to author ise controlled
deliveries. By order of the General
Prosecutor of December 2009, the
national member may act as a
competent national authority of
communication in the coordination
of controlled deliveries.
Luxembourg Until now, the national member has
not authorised or coordinated
controlled deliveries.
Malta The national member is not entitled
to author ise controlled deliveries.
Netherlands Until now, the national member has
not authorised or coordinated
controlled deliveries.
Poland Eurojust is not involved in the cases
of controlled delivery, because in
Poland controlled delivery is not
considered to be a judicial measure.
Portugal According to Law no. 20/2014, the
nation al member has the right to
author ise and coordinate controlled
deliveries in agreement with the
competent national authority.
Romania According to Law no. 35/2012, in
cases of urgency the national
member has the right to author ise
193 controlled deliveries.
Slovak Republic The national member has not
coordinated any controlled delivery
in the Slovak Republic. However,
the judicial authorities of the Slovak
Republic have contacted it in
connection with requests for
controlled delivery by other Member
States.
Slovenia In urgent cases and to the extent that
it is not possible to identify or to
contact the competent national
authority, the national member may
have a right to author ise and
coordinate the controlled deliveries
and to carry out or to propose the
execution of a request for judicial
cooperation without the consent of
the competent authority. The
national member has not made use of
this possibility to the present.
Spain Each time the national members
were involved in the controlled
deliveries, this com petence has
always been exercised in agreement
with the competent authority.
Sweden The Swedish National Bureau has
been requested in the past to
facilitate several controlled
deliveries.
UK The National Bureau in the UK is
194 not involved in the authorisat ion or
coordination of controlled delivery
cases.
Table adapted after analysis of all assessment reports of the
Member States104
In addition to the possible competencies which may be
exercised by the national members, Eurojust has offered
assistance in th e matter of controlled deliveries in the past few
years, mainly as regards clarification of the legal requirements
in the field, offering recommendations to the Member States
concerned, facilitating the execution on time and in an efficient
manner of the r equests for legal assistance.
The Eurojust Annual Report 2014 analyzes in a distinct
section the controlled deliveries component, in order to identify
the most effective methods of managing the challenges and
good practices in the field. As shown in the contents of the
report, “solutions to address these problems included increased
communication and mutual trust between the competent
authorities of the Member States; harmonisation of legislation
on controlled deliveries; mapping the competent authorities
and clarifying the legal requirements on controlled deliveries in
all Member States; gathering reflections on a unified set of
requirements for controlled deliveries; increased involvement
of Eurojust and Europol in cross -border operations, particularly
in organising operational meetings and coordination meetings;
identification of contact points for controlled deliveries in the
104 Evaluation report on the sixth round of mutual evaluations: "The
practical implementation and operatio n of the Council Decision
2002/187/JHA of 28 February 2002 setting up Eurojust with a view to
reinforcing the fight against serious crime and of the Council Decision
2008/976/JHA on the European Judicial Network in criminal matters".
195 Member States; analysis of information; and legal, tactical and
technical support ”105.
In September 2014, Eurojust organised a “St rategic
meeting on drug trafficking” involving prosecutors, law
enforcement authorities and experts in the drug trafficking
area. The participants were drawn from across the EU Member
States as well as Brazil, USA and international institutions such
as the Council of Europe (Pompidou Group), Europol, the
European Monitoring Centre for Drugs and Drug Addiction
(EMCDDA) and the United Nations Office on Drugs and
Crime (UNODC). This strategic meeting followed Eurojust’s
seminar on drug trafficking, held in Kra kow in October 2011
organised together with the Polish Presidency of the EU.
At the 2014 s trategic meeting , one of the key areas for
discussion was controlled deliveries. A workshop entitled
“Judicial aspects of controlled deliveries and the role of
Euroju st and Europol” , the starting point for which was a
Eurojust questionnaire on judicial aspects of controlled
deliveries . This questionnaire shone light on a number of
obstacles that hamper the effectiveness of this investigation
technique , such as the comp lexity of the case ; the
involv ement of multiple jurisdictions; a reluctance to
execute requests for placing vehicle tracking device s; and
cooperation with third States. Participants in this
workshop considered that Eurojust and Europol could
contribute add ed value in this area by organising operational
and coordination meetings in order to ensure the effectiveness
of controlled deliveries, particular ly where third State s were
involved.
105 Eurojust Annual Repo rt 2014, p. 50.
196 The assistance of Eurojust in a case of controlled delivery
Source: E urojust Annual Report 2011 , p. 29.
“Several Member States in Central Europe were
investigating an organised crime group that was supplying
associates in Turkey with acetic anhydride, an essential
precursor for heroin production. The investigation had
established that more than 30 tons of the precursor were
involved. (Approximately 400 -600 kg of heroin can be
produced from one ton of acetic anhy dride.) The heroin
produced was then distributed for sale in the European
Union. Previous attempts to organise a controlled delivery
of the precursor in Turkey had not been successful.
When the Slovak authorities received information about a
new plan to s hip 10 tons of acetic anhydride to Turkey and
to take a return delivery of 300 kg of heroin via Italy,
Bulgaria, Romania, Hungary, the Slovak Republic and
Austria, they contacted Eurojust so that a cross -border
controlled delivery under judicial supervisio n could be
arranged. Eurojust involved Europol in providing
intelligence cross -match analysis, with the result that links
to investigations in other countries were established. In
November 2011, all affected countries (including Turkey)
attended a coordina tion meeting at Eurojust to agree a plan
of action. The controlled delivery of acetic anhydride across
the Member States proceeded as agreed, but once in Turkey
the shipment was seized and the innocent truck driver
arrested, contrary to the agreements reac hed at the
coordination meeting. Eurojust played a crucial and active
role in the release of the truck driver. Although the
operation was not able to continue in Turkey, eight
ringleaders were arrested in the European Union, and in
total 32 tons of acetic anhydride, together with drugs,
illegal weapons and false documents, were seized.”
197 Some of t he participants at the workshop held in Tallinn
mentioned that the added value of Eurojust in the context of
controlled deliveries is especially benefi cial in cases involving
multiple Member S tates, in terms of ensuring and expediting
judicial cooperation between LEAs .
6.2. European Judicial Network in criminal matters
The European Judicial Network (EJN) is a network of
national contact points with the aim of facilitating judicial co –
operation in criminal matters. Th e network was created by
Joint Action 98/428 JHA of 29 June 1998 in order to fulfil
recommendation No 21 of the Action Plan to Combat
Organised Crime adopted by the Council on 28 April 1997.
The EJN was the first practical structured mechanism of
judicial co-operation to become truly operational.
The EJN is composed of contact points of the Member
States and of the European Commission and its secretariat is
based in The Hague. National contact points are appointed by
each Member State from among the c entral authorities
responsible for international judicial co -operation, judicial
authorities and other competent authorities with specific duties
in the field of international judicial co -operation . The contact
points are drawn from all areas of serious crime, including
corruption, drug trafficking and terrorism. The result is the
existence of more than 300 national contact points t hroughout
the 28 Member States.
One of the most useful EJN tools are the “Fiches
Belges” . These comprise very practical information o n the
legal framework governing the rules on criminal procedure in
each EU Member State . In particular, they contain information
on cross -border operations including surveillance , hot pursuit,
198 tracking (by placing a device on a vehicle or a person),
contro lled deliveries and joint investigation teams.
The EJN facilitates international judicial cooperation in
criminal matters, particular ly through direct contact between its
contact points who ensure coordination from a judicial
perspective in the implementat ion of investigation technique s,
such as controlled deliveries. Therefore, when controlled
delivery only requires coordination between the relevant
authorities, EJN contact points become a very effective tool to
ensure the exchange of information and the f ulfilment of legal
requirements.
6.3. Europol
The creation of Europol was established with the
adoption of the Maastricht Treaty concerning EU on 7
February 1992. Initially, its actions were limited to the
cooperation on combating drug -related offenses, under the
aegis of the Europol Drugs Unit (EDU). Subsequently, the
competence of Europol extended to other important areas of
crime. At present, the activity of the Europol is regulated by
Council Decision 2009/371/JHA on the setting up of the
European Police Of fice (Europol).
Europol may grant operational support by means of
operational meetings and may facilitate the coordination of
operational activities. Furthermore, Europol provides analytical
support and secure exchange of operational infor mation
through t he SIENA system .
The operational support of Europol in the cases of drug
traffic king may include the coordination and initiation of
criminal investigations, but also on-the-spot assistance granted
199 to the national LEAs in the course of dismantling the illic it
drug production units and of collating evidence106.
In the category of instruments made available by
Europol for the coordination of operations within the scope of
drug trafficking are the joint investigation teams , the Europol
Illicit Laboratory Comparis on System (EILCS) and the
Europol Synthetic Drug System (ESDS) .
According to a recent study107, the support and
assistance offered by Europol in the cases of controlled drug
deliveries are the following:
Identification and establishment of contact
between th e national police and customs
authorities,
Support for the exchange of information,
processing and analysis of the information
obtained during the deployment of controlled
delivery,
Support for the operative part of the controll ed
delivery and coordination of joint police actions,
Support in real time, especially in situations of
unexpected change of the transport route, when
it is urgently necessary to involve another S tate
in the operation,
Coordination of the controlled deliveries via the
liaison officer s.
Furthermore , according to the practitioners in the
Member States of the HONLEA, in recent years, the Europol
Manual concerning controlled deliveries has constituted an
106 Europol Review. General Report on Europol activities, European Police
Office, 2011, p. 30.
107 Issue in focus number 1 “Cross -border controlled deliveries from a
judicial perspective”, Eurojust, 2015, p. 11.
200 useful and practical tool relating to legislation and national
contact points which c an facilitate these operations.
The assistance of Europol in a case of controlled delivery
Source: Europol Review. General Report on Europol activities,
European Police Office, 2011 , p. 32.
“On 22 September 2010, an air freight cargo consignment
containing 217.3 kilos of coffee powder arrived in Estonia
from Venezuela via Germany. German Customs had already
found that the consignment tested positive for cocaine and
in cooperation with the investigation department of the
Estonian Tax and Customs Board, a controlled delivery was
organised.
Europol promptly provided two very comprehensive
reports on cocaine conver sion laboratories, cocaine
extraction and conversion procedures, chemicals and
equipment used, and details on the risks involved during the
cocaine extraction and conversion process. In addition to
daily contact, additional information was also provided on
laboratories discovered in other EU countries where similar
consignments had been processed.
Based on these reports and associated advice, and
during subsequent house searches, investigators found and
identified a list of chemicals used for the conversion and
purification of cocaine.
In total, 48 kilos of cocaine were seized, while two
Estonian citizens and two others are suspected of drug –
related crimes. Three further suspects have been in custody
at the prosecutor’s request .”
201 6.4. SELEC
SELEC aims to support the activities of its Member
States in preventing and combating organ ised crime in the
region. With effect from 7 October 2011, along with the
signing of the SELEC Convention, SECI Centre was
transformed into the new SELEC.
SELEC is an international organization which brings
together r epresentatives of the police and customs aut horities
of 12 States, both EU M ember States (Bulgaria, Croatia,
Greece, Hungary, Romania), as well as non -EU countries
(Albania, Bosnia and Herzegovina, FYR OM, Moldova,
Montenegro, Serbia, Turkey).
Among the mul tiple facilities of cooperation offered to
the 12 Member States, the most efficient have proved to be the
network of liaison officers and the joint working groups (task –
force) with operative character, meant to annihilate the main
networks of cross -border crime.
In the last few years, SELEC has supported several
operations of controlled drug deliveries between Member
States. Also, in addition to the operational support offered to
the national authorities in the Member States, SELEC has
drafted a manual on c ontrolled deliveries carried out by
Member States. The manual has a practical and applicative
nature and is designed to facilitate the work of law enforcement
personnel in the Member States.
6.5. Networks of practitioners
Due to the transnational nature of or ganised crime, the
development of international cooperation and mechanisms to
exchange experiences in the investigation and prosecution of
serious offences linked to organ ised crime at the regional level
is essential. There is a pressing need for a joined -up and
202 effective approach towards tackling the criminal groups
scattered around South America and extending beyond that
region.
The importance of regional networks is supported by
the Resolutions of the Commission on Crime Prevention and
Criminal Justice ( CCPCJ) and of the Conference of the Parties
to the Organ ised Crime Convention in 2010 and 2012.108
These resolutions have called for UNODC, in cooperation with
member States, to promote the development of regional
networks and other mechanisms to facilitate formal and
informal cooperation, such as regional and interregional
meetings and exchanges of experience among practitioners,
and to facilitate cooperation among all such networks.
At present, there are different platforms of practitioners
to promote the exchange of information and to build trust, key
elements in the area of controlled deliveries in p articular with
third countries.
These platforms include :
Network of specialised prosecutors against
organised crime in the Balkans.
Iberoamerican Network of Antidrug
Prosecutors, focused on the fight against drug
trafficking. This network, with contact points in
17 different countries (including Spain and
Portugal) specifically promotes the exchange of
information on drug trafficking cases using
containers thr ough a standard common form.
108 See Resolution 19/7 of the Com mission on Crime Prevention and
Criminal Justice and Resolutions 5/8 and 6/1 of the COP.
203
CHAPTER IV : CONCLUSIONS AND
RECOMMENDATIONS
As set out in the ToR of the project, “the project’s
objective is to stimulate EU LEAs to target drug trafficking and
to enhance their cooperation by creating a list of national
contact points in the case of controlled deliveries (…) The main
project goal is thus to facilitate the communication between the
LEAs of the EU MS by creating a list of contact points
responsible for the authorization of the controlled deliveries as
well as common rules for transmission /execution of such
requests”.
Consequently, the project identifies a twofold objective:
To create a list of contact points to ensure and
facilitate communication between LEAs in the
effective implementation of CDs ; and
To identify common rules for the transmission
/execution of CDs requests.
One of the findings of this manual is that the controlled
delivery of drugs is one of the main and most effective tools in
respect of investigating criminal activities with internation al
component.
An essential element concerning the success of
controlled delivery operations is the cooperation and
coordination among LEAs of the Member States. In the last
few years, based on the experience acquired at European level,
there have been deve loped contacts at formal level, but also at
informal level among the LEAs . Cooperation at the formal
level is achieved by means of the instruments made available
by Eurojust, Europol, EJN, Interpol, SELEC, and also via the
204 liaison officers. Cooperation at informal level is based
especially on the exchange of information among law
enforcement agencies personnel. One of the participants in the
first workshop observed that , in controlled deliveries, mutual
trust between LEAs from different States is a very imp ortant
factor in reaching successful results. According to another
participant, “the more countries are involved in the CD, the
more difficult it is to be successful ”. The same aspect of mutual
trust was stressed in the second workshop of the project.
Acco rding to a participant, “we have to exchange confidential
data between us. We have to trust each other in the cooperation
process and exchanging of sensitive data as regards the
suspects name, the unde rcover identity, the drugs routes, etc. ”.
The rapidity in conducting criminal activities from the
scope of drug trafficking involves an extremely operative
reaction from the LEAs personnel. Often, the decision to
confiscate a transport of drugs or to carry out a controlled
delivery thereof, must be taken very quickly, while formal and
bureaucratic understandings and agreements could le ad to
failure of the operation. This issue affects the responsiveness of
LEAs . In order to streamline operations and to initiate and
implement expeditiously controlled deliveries, it is necessary to
identify best practices and recommendations.
Practitioners who participated in the workshop held
in Tallinn identified the following recommendations:
To ensure p ermanent coordination between
competent authorities ;
To r aise awareness between practitioners by
promoting specialised training on CDs with a
view to eliminating concerns over losing the
205 drugs and to disseminate information on EU
legal instruments ;
To identify (good/reliable) contact points ;
To have a central authority that could authorise
the CDs (according to one participant, “a single
point of contact is not enough, because the
reaction time of the authority is also very
important. It is practically impossible to have a
successful CD if you need authorisation from
several re gional prosecutors’ offices”) ;
To strengthen coordination with third (non EU)
countries ;
To emphasise the i mportance of jointly planning
the CDs to secure their effectiveness.
In addition to the above recommendations, the
participants in the second worksho p identified the
following proposals :
To ensure the rapid exchange of data between
LEAs, followed by a speedy criminal
investigation ;
To draft a practical guide/best practices manual
to implement CDs ;
To organise joint meetings of practitioners
involved in CDs (prosecutors, police, customs,
border police , etc. );
To harmonise national legal framework s; and
To implement a common procedure at practical
level and establish national contact points.
At the last Regional Meeting held in Druskininkai,
the participa nts underlined the following proposals and
recommendations :
206 To use all available investigative tools (wire –
tapping, GPS, Internet research, correspondence
checks, informants, etc.) ;
To plan all stages of CDs meticulously ;
To maintain p ermanent contact with the
respective counterparts involved in CD
operation . As one practitioner mentioned, “ for
successful CDs it i s important to have a direct
contact points in other countries” ; and
To harmonise national legal framework s and
procedures.
Conclusions and recom mendations will be presented by
distinguishing between those related to the achievement of the
project’s goals and those that will support the effectiveness of
CDs at EU level . Based on this analysis and on discussion s
with practitioners during the worksho ps, the following
recommendations can be identified :
1. Recommendations in order to achieve the
project ’s goals
1.1. Contact points
First of all, two key issues must be clarified : (1) w hat
type of contact point are we looking for? (2) w hich is
preferable: the est ablishment of a list of contact points or the
establishment of a network of experts in CDs in every MS ?
As regards the type of contact point we are looking for
to ensure and facilitate communication between LEAs in the
effective implementation of CDs, disc ussion s with practitioners
showed that there are two main options .
207 contact points as the competent authorities to
effectively authori se the implementation of the
CD when a foreign request is received ; or
contact point s as the “channel” through which
reques ts are received and forward ed to the
competent authority in the country, ensuring
close follow up of their implementation and
providing technical advice on any legal or
practical issue s that might arise at transnational
level.
In the light of the discussio ns held during the
workshops with practitioners and the research conducted
in this manual, the second option is preferable (contact
points as the channel through which requests are received
and forwarded to the competent authorities). The reasons
behind th is recommendation are that, in many countries, the
authority with competence to authorise a CD cannot known in
advance, as there is no single competent authority and, in the
end, the competent authority depends on the territory through
which the CD passes or is destined.
As regards the question whether preference should be
given to the establishment of a list of contact points or the
establishment of a flexible and informal network of experts
in CDs in every MS , discussions with practitioners lead us
to rec ommend the second option.
These experts would act as a central contact point (in
countries where no such contact points exist) for controlled
deliveries and would ensure the smooth exchange of
information as well as the effectiveness of this special
invest igation technique. One other advantage of a network like
this would be that it could communicate with other platforms
208 existing in non -EU countries where the CD involves a third
country. The network, through its contact points, would be
well-placed to
Identify best practices and provide technical
advice at national and transnational level where
required.
Ensure sustainable assessment of the manual in
terms of its implementation and updating ,
amending it whe re necessary in the light of
changes in national le gislation or international
instruments with an impact on the
implementation of CDs.
Build a database of CD cases in order to obtain
an accurate view of the importance of this
investigation technique.
1.2. Identification of common rules for the transmission /
execution of CD requests .
Discussion s with practitioners demonstrated the added
value of a common standard form for the transmission of
information.
Before deciding whether it is appropriate or expedient
to propose a legislative initiative requiring amendm ents to
national legislation, a common language must be established
between practitioners involved in controlled deliveries. One
such possibility involves the establishment of a standard form
translated into all EU languages (such as that used in the
conte xt of EAWs) for the transmission of the necessary
information on controlled deliveries between the law
enforcement / judicial authorities of the EU Member States.
This form could contain practical information on the
relevant authorities (e.g. contact deta ils) as well as standard
209 fields on, for instance, the route, identification of the
consignment, suspects, intended destinations and the use of
undercover agents. The standard form could be accompanied
by guidelines or a protocol on how to make best use of it.
A draft standard form ( Annex II ) was discussed with
practitioners attending the three workshop s. It is important to
underline that the objective of this standard form is not to
replace mutual legal assistance requests to implement CDs at
international level but to exchange information in an informal
and rapid manner to start the planning of this investigation
technique. In addition , some of the participants mentioned that
this standard form could be very useful at the beginning of the
investigation s or in urgent cases.
2. Complementary actions to ensure the
effectiveness of CDs
2.1. Statistical database on controlled deliveries.
In order to ascertain the magnitude of any problems
linked to controlled deliveries which hamper the investigation
of drug traffick ing at EU level, it is necessary to gather and
subsequently analyse statistics on the number of transnational
EU controlled deliveries which take place in the EU over a
given period of time. The existence of a network of experts in
controlled deliveries wo uld facilitate the collection of statistics
for this purpose.
2.2. Awareness raising
In other words, r aising awareness of the practical and
legal requirements for implement ing CDs at international level
among EU practitioners by carrying out a programme of
specialised training at EU level. This training will build mutual
trust between practitioners and will disseminate the outcomes
210 of the manual , including the identification of contact points for
the effective implementation of CDs.
This training could be develo ped in the form of
different workshops in Member States in order to disseminate
the manual, improve cooperation between practitioners as well
as familiarity with this special investigation technique.
211
ANNEX I: LIST OF NATIONAL CONTACT POINTS IN
THE FIELD OF CDs
NOTE – the information belo w is compiled from different sources:
Directory of Competent National Authorities under the UN Convention
against Transnational Organised Crime and the Protocols Thereto and
Articles 6,7 and 17 of the UN Convention against Illicit Traffic in
Narcot ic Drugs and Psychotropic Substances of 1988 ;
European Union manual on controlled deliveries, The Hague, Europol,
2004 ;
Eurojust Issue in Focus No 1 “Cross -border controlled deliveries from a
judicial perspective”, 2015 , pp. 13 -25;
Handbook for the Naples II Conve ntion on mutual assistance and
cooperation between customs administrations – Part II: National fact
sheets, Council of the European Union, Brussels, 5 October 2015 ;
Manual on cross -border operations – national fact sheets, General
Secretariat, Council of t he EU, Brussels, 26 October 2012 ;
https://www.ejn -crimjust.europa.eu/ejn/EJN_FichesBelges.aspx .;
https://www.coe.int/en/web/conventions/full -list/-
/conventions/treaty/182/declarations?p_auth=bilU27aN .
Please take note that in urgent cases Eurojust, the Si ngle Point of Contact
(SPOC) within the MS’ law enforcement authorities and the different
national offices (the Europol National Unit, the Interpol National Central
Bureau, the SIRENE Bureau, the national liaison officers posted abroad,
etc.) are always a ppropriate cooperation channels.
212 Member
State National Contact Points
Central Contact Point
responsible
for authorising CD s Contact Point s
responsible for
exchanging
information /sending
request for MLA in
CDs
Austria CDs must be authorised by
the Public Prosecutor's
Office with competence in
the district in whose
jurisdiction the border is
expected to be crossed, or
the district from whose
jurisdiction the CD route is
to start. If these places could
not be established, the
Prosecutor from Vienna has
competence. Publi c Prosecutor’s Office
in Vienna
Landesgerichtsstraße 11
Postfach 400
A-1082 Vienna
Phone: +43 (1) 40127
Fax: +43 (1) 4027911
Federal Ministry of the
Interior
General Directorate for
Public Security Criminal
Intelligence Service
Josef Holaubek -Platz 1
1090 Vienna
Phone : +43 1 24836
85025, +43 1 24836
85026, +43 1 24836 85027
Fax: +43 1 24836 85190,
+43 1 24836 85191
E-mail: BMI -II-BK-
SPOC@bmi.gv.at
Belgium The public prosecutor of the
place from where the
consignment originates and
the public prose cutor of the
planned place of
intervention are responsible
for authorising CDs. Federal Judicial Police –
DGJ/DJO/Perm
Rue Fritz Toussaint 8
B-1050 Ixelles
Phone : +32 2 642 78 09 –
+32 2 642 78 10 – +32 2
642 78 11
Fax: +32 2 642 69 53
E-mail:
dgj.djo.perm@pcnip.be
213 Bulgaria In criminal proceedings:
the competent court. The Supreme Cassation
Prosecutor's Office
Palace of Justice, 2
Vitosha Blvd.
1061 Sofia
Phone: +359 2 9370 337
Fax: +359 2 988 5895
E-mail: mpp_ vkp@prb.bg
In the context of
international police co –
operation: the Supreme
Cassation Prosecutor's
Office.
Chief Directorate for
Countering Organised
Crime
Phone: +359 982 85 93
E-mail: 170@mvr.bg
Croatia CD and transportation are
author ised by a deci sion of a
competent court.
Criminal Police
Directorate, Drug Division
Phone: +385 1 3788 188
Fax: +385 1 3788 979
E-mail: droga@mup.hr,
interpol@mup.hr
Cyprus Decisions on CDs are taken
on a case by -case basis by
the Chief of Police or his
representative , with
notification of his decision
to the Director of the
Department of Customs; by
the Director of the
Department of Customs,
with notification of his
decision to the Chief of the
Police; or by both officials
acting jointly.
The Attorney -General of
Cypru s must be informed of
every decision on CDs and
he may give such directions
as he deems necessary or
appropriate. Drug Law Enforcement
Unit International
Cooperation and European
Union Office
Cyprus Police
Headquarters, 1478
Nicosia
Phone : +357 22 607378
(office hours 07.15 – 14.30
Monday – Friday);
+357 22 607361 (24
hours/7days)
Fax: +357 22 607377 /22
607368
E-mail.:
dleu@police.gov.cy
dleuico@police.gov.cy
Czech
Republic Regional Prosecutor's Office
in Prague
Husova 11
110 01 Praha 1 Regional Prosecutor's
Office in Prague
Husova 11
110 01 Praha 1
214 Phone: +420/22 2 111 700
Fax: +420/222 220 075
E-mail:
podatelna@ksz.pha.justice.cz Phone: +420/222 111 700
Fax: +420/222 220 075
E-mail:
podatelna@ksz.pha.justice.
cz
Police Presidium of the
Czech Republic Bureau of
Criminal Police and
Investigation Service
Europol National Unit
P.O.BOX 62/MPS
170 89 Prague 7
Phone: +420 974 834 210
(24/7)
Fax: +420 974 834 716
(24/7)
E-mail: europol@mvcr.cz
(working hours)
General Directorate of
Customs Section of
Investigation and
Supervision
(based on Naples II
Convention)
Budějovická 7
140 96 Prague
Phone : +420 261 333 333,
+420 261 333 853, +420
261 333 854
Fax: +420 261 333 800
E-mail:
operacni@cs.mfcr.cz
Denmark Authorisation must be
obtained from the regional
chief constable whose
jurisdiction is expected to be
involved in the case . Danish National Police
National Centre of
Investigation Anker
Heegaards Gade 5
DK-1577 Copenhagen V
Phone : +45 4515 4200
Fax: +45 3332 2771
E-mail:
interpol@interpol.dk
Estonia Office of the Prosecutor
General (Riigiprokuratuur) The Tax and Customs
Board
215 Wismari 7, 15188 Tallinn
E-mail:
eve.olesk@prokuratuur.ee (based on Napl es II
Convention)
Narva mnt 9j, 15176
Tallinn
Phone : +372 676 2888
+372 676 2998
Fax: +372 676 2833
E-mail:
neeme.rohtjarv@emta.ee
Finland The chief of the National
Bureau of Investigation, the
chief of the Security
Intelligence Service, police
chiefs, and officers specially
trained in covert collection
of intelligence have the
power to take decisions on
controlled deliveries
conducted by the police. National Bureau of
Investigation, Sirene
Box 285, 01301 Vantaa
Phone: +358 71 878 6910
Fax: +358 71 878 6 911
E-mail:
sirene.krp@poliisi.fi
France There is no single judicial
authority in France with
nationwide jurisdiction in
this area. Direction Centrale de la
Police judiciaire
101 rue des Trois Fontanot
92000 Nanterre
Phone: +33 1 409788 -00
Fax: +33 1 4097 88-11
Germany Police and the public
prosecutor office in whose
district the transport will be
carried out. Bundeskriminalamt
[Federal Criminal Police
Office]
(Interpol NCB)
65173 Wiesbaden
Phone: +49 611.55 -13101
(24h),
Fax: +49 611.55 -12141
(24h),
E-mail: mail@bka.bund.de
Greece General Prosecutor of the
Prosecutor's Office under the
Court of Appeal in Athens The Central Anti -Drug
Coordinative Unit
(SODN)
Phone: +30 2106977113
Fax: +30 2106917910
E-mail:
sodn.emp@minocp.gov.gr
minocp.gov.gr
216 sodn.emp@.gov .gr
Hungary The general rule is that each
CD has to be authorized by a
prosecutor. Centre for International
Cooperation in Criminal
Matters (NEBEK)
1903 Budapest, Pf.:
314/22.
Phone: +36 -1 443 -838
(non-stop)
Fax: +36 -1 443 -5815
E-mail:
intercom@nebek.poli ce.hu
Ireland The authorities competent to
authorise or coordinate CDs
are An Garda Síochána and
the Office of Revenue
Commissioners (for offences
that fall under their
jurisdiction). Central Authority for
Mutual Assistance
Mutual Assistance &
Extradition Division
Department of Justice and
Equality
51 St. Stephen’s Green
Dublin 2
Phone: +353 87 254 -5235
(24 hours)
Fax: +353 1 476 -8665
E-mail: mutual@justice.ie
Italy Ministry of Justice/Interior,
the Direzione Centrale per i
Servizi Antidroga D.C.S.A.
[Cen tral Directorate for
Drug Enforcement Services
III Unit “Operazione
Antidroga”
direzione.antidroga@interno
.it
Phone: +390646523000
Procura Nazionale
Antimafia e Antiterrorismo]
Latvia In ordinary case s, using the
CD is approved by the
investigating magistrate. In
urgent cases, use of the CD
may be approved by the
designated prosecutor, with
the subsequent approval of
the investigating magistrate. International Cooperation
Bureau of the Central
Criminal Police
Department of the State
Police
Ciekurkalna 1.linija 1 K -4,
Riga
Phone : +371 67829535;
217 +371 67829407 Fax: +371
67829532
E-mail: ssp@vp.gov.lv
Customs Police
Department
State Revenue Service
(based on Naples II
Convention)
Talejas str.1, Ri ga, LV –
1978
Phone: +371 67120687
Fax: +371 67120780
E-mail: ncp@vid.gov.lv
Prosecutor – General
Office
Kalpaka Boulevard 6
Riga, LV -1801
Phone: +371 6 704 4400
Fax: +371 6 704 4449
E-mail: gen@lrp.gov.lv
Lithuania Prosecutor’s General Office
of the Republic of Lithuania
Rinktinės str. 5A, LT -01515,
Vilnius
Phone: + 370 5 266 2305
Fax: + 370 5 266 2317
E-mail:
generaline.prokuratura@pro
kuraturos.lt Organised Crime
Investigation 3rd Board
Lithuanian Criminal Police
Bureau
Saltoniskiu str. 19
LT-08105 , Vilnius
Phone: +370 5 271 9905,
+370 5 271 9912 Fax:
+370 5 271 7917
E-mail: drugs@policija.lt
Luxem –
bourg CDs are authorised and
coordinated in accordance
with the progress of the
proceedings (investigation)
by the General Prosecutor,
Prosecutor or the
investigating magistrate. The Chief Public
Prosecutor,
Cité judiciaire, Bâtiment
CR,
L-2080 Luxembourg
Police Grand -Ducale
Direction Service de Police
Judiciaire
2957 Luxembourg
Phone: +352 4997 6000
Fax: +352 4997 6099
Malta Attorney General’s Offi ce
Triq ir -Repubblika, Attorney General’s Office
Triq ir -Repubblika,
218 Valletta, VLT 2000
Phone: +356 2122 5841
Fax: +356 2124 0738
E-mail: ag@gov.mt Valletta, VLT 2000
Phone: +356 2122 5841
Fax: +356 2124 0738
E-mail: ag@gov.mt
International Relations
Unit within the Malta
Police Force
Police Headquarters
Floriana, Malta
Phone: +356 2122 4001
Fax: +356 2122 3376
E-mail:
sirene.police@gov.mt
Nether –
lands The designated public
prosecutor of the National
Public Prosecutor’s Office
gives permission or refuse s. Landelijke Coordinatie
Grensoverschrijdende
Observatie, National State
Prosecutor via the National
Agency for Cross -border
Observation
Poland The Chief Police
Commander
(Komendant Glówny Policji)
ul. Puławska 148/150,
02-624 Warszawa
NIP: 521 -31-72-762
Phone: (22) 60 148 79
Fax: (22) 60 129 21
E-mail:
kancelaria.gabinetkgp@poli
cja.gov.pl The Chief Police
Commander
(Komendant Glówny
Policji)
ul. Puławska 148/150,
02-624 Warszawa
NIP: 521 -31-72-762
Phone: (22) 60 148 79
Fax: (22) 60 129 21
E-mail:
kancelaria.gabinetkgp@po
licja.gov.pl
Portugal The first section of the
Prosecution Office in Lisbon Polícia Judiciária through
the Interpol national
central bureau
Mobile Phone: +351
966020055/
+351 962500577
Fax: +351 213304254
219 Romania Directorate for Investigating
Organised Crime and
Terrorism
(DIICOT)
Central Structure
24 Grivitei Avenue, district
1, Bucharest
Phone: +40 (0) 21.319.38.67
Fax: +40 (0) 21.319.38.58
E-mail: diicot@mpublic.ro Directorate for
Investigating Organised
Crime and Terrorism
(DIICOT)
Office for Cooperation,
Representation and
International Legal
Assistance
Phone: +40 21 4123132,
+40 21 4123133, +40 21
4123207, +40 21 4123208,
+40 21 4123271
Fax: +40 21 3193905, +40
21 3193920
E-mail:
diicot_cooperation@mpubl
ic.ro
Slovakia CDs may be authorised by
the president of the court or
by the prosecutor (in this
case, only before beginning
the prosecution and in the
early stages of the
investigation). The requests for CDs sha ll
be addressed directly to the
district Prosecutor’s Office
for the district where the
requested assistance shall
be carried out and a copy
thereof shall be sent to the
General Prosecutor’s
Office.
Presidium of the Police
Force Bureau for
International Police Co –
operation SPOC (Single
Point of Contact)
Pribinova 2
812 72 Bratislava
Phone: +421 9610 564 50
Fax: +421 9610 564 59
E-mail:
spocumps@minv.sk
Slovenia CDs shall be authorised by
the State district prosecutor
of the region where the
delivery sha ll be executed or
of the region where the
delivery shall be initiated, or International Police
Cooperation Division of
the Criminal Police
Directorate (within the
General Police
Directorate)
220 by a prosecutor within the
specialised State
Prosecutor's Office. Štefanova 2, 1501
Ljubljana
Phone: +386 1 4284 835,
+386 41713699 Fax: +386
1 2517 516, +386 1 4284
790
E-mail:
interpol.ljubljana@policija
.si
sirene.slovenija@policija.s
i (24/7)
Spain In practice, the Special
Antidrug Prosecution Office,
which has juris diction over
the whole of Spain, works as
a central contact point to
implement mutual legal
assistance requests in
connection with this special
investigation technique. Unidad Central de
Estupefacientes (Central
Narcotics Unit).
Departamento de Aduanas
e Impuestos Especiales
(Special Customs and
Excise Department) of the
Servicio de
VigilanciaAduanera
(Customs surveillance
service).
Special Antidrug
Prosecution Office Fiscalia
Especial Antidroga calle
Garcia Gutierrez,
Audiencia Nacional 28004
Madrid
Fiscalia.antidroga.sfj@fisc
al.es
Phone: (34) 91 709 6704
Sweden Applications for CDs are
decided jointly by police,
customs and prosecutors. If
any one of these is not in
favour then the CD is not
carried out. NBI, IPO (National
Bureau of Investigation,
International Police
Cooperation Division)
POB 122 56
10226 Stockholm
Phone: + 46 10 56 37 000
Fax: + 46 10 56 41 239
E-mail: ipo@rkp.police.se
Swedish Customs
Intelligence and
Communication centre
221 (base d on Naples II
Convention)
PO Box 12854 SE -112 98
Stockholm Phone: +46 -8-
4050570
Fax: +46 -8-6540611
E-mail: ncp@customs.se
UK All cases that involve the
CD of prohibited or
restricted goods (including
all drugs and firearms) either
into or out of the Un ited
Kingdom must have prior
approval from the UKBA
Enforcement and Crime
Directorate, specifically
Criminal and Financial
Investigations – Borders
(CFI).
National Crime Agency
(NCA) International
Criminal Bureau (ICB) and
the NCA Border Policing
Command
Phone: +44 370 496 7622
(24 hours)
E-mail:
communications@nca.x.gs
i.gov.uk
For Scotland:
Head of Intelligence,
Scottish Crime and Drug
Enforcement Agency
(SCDEA)
Phone: +44 141 302 1000
(Office ho urs) or via
Strathclyde Police Force
Overview
+44 141 800 4880 (Out of
hours SCDEA Senior Duty
Officer Contact)
222
ANNEX II: DRAFT STANDARD FORM FOR CD
PURPOSES
Authorities
Requesting authority Requested authority
Information about date and route
Date of the CD
Day / Month / Year Tentative route and
destination
Place of origin / transit / destination
Type of transport
Identification of the type of vehicle / flight / vessel
Identification of the person
/company that carry out the
package Destination: Identification
of the person /company
Type of goods / Replacement of drugs
Type of illegal substance
Weight
Request for use of SITs
The surveillance measures
Interception of telecommunications
GPS
Undercover agents
223
ANNEX III: SCENARIOS (HYPOTHETICAL CASES)
PRESENTED AT THE WORKSHOPS
Filippo is a well known drug trafficker under
investigation in your country. Your informants reported that he
is trying to find a driver to send 50 kgs of her oine to Spain.
After your investigation, police officers in your country
carry out surveillance of a meeting between Filippo and other
suspects in a restaurant.
Through surveillance/video recording and exchange of
information with the Spanish Police, one o f the suspects is
identified.
He is Dante/Brazil with criminal records in different
countries, based in Marbella (Spain).
It seems that Dante has made a first payment/40% as a
guarantee and the second payment will be made when he
receives the drug in Spain .
After several meetings, an undercover police officer is
recruited by Filippo to drive the lorry with the heroine. Filippo
doesn’t trust him much, so he says that is important that one of
his men will go in the lorry to protect the drug.
Filippo gives the undercover agent some information
about the route and the date, but he is very cautious and
changes the plan at the last minute: they will travel next
Sunday and will cross two European countries before arriving
in Spain.
Scenario no. 1
224 Questions
1. Would you implemen t a controlled delivery ?
a) Objectives,
b) How do you plan it ?
2. Identify the main problems:
a) Legal,
b) Practical.
3. How/to whom would you send the request for a
controlled delivery ?
4. How would you ensure surveillance ?
5. Would you replace th e substance ?
The customs officers of State A find 2 kg of cocaine in a
luggage of a passenger who travels by plane to the State C,
with stopover at an airport in State B. The cocaine is concealed
among the passenger’s belongings in checked baggage.
The participants will be divided in three working groups,
representing States A, B and C.
1. Questions for group A ( State of origin):
a) What are the investigative options ?
b) Which State are you going to contact for initiating a
CD in this case ?
c) How will you id entify the authorities from those
States ?
d) What are you going to do with the luggage containing
drugs ?
e) What are you going to do with the passenger (courier) ?
Scenario no. 2
225 2. Questions for group B (transit State ):
a) In case of receiving of a request from the State A for
CD, what kind of information are you going to
request ?
b) What is the channel used for receiving of the
information ?
c) Will you initiate a criminal file in this case ?
3. Questions for group C ( State of destination):
a) In this case, will you be interested to put in place a
CD ? What kind of CD will be put in place in this
case (with/without the substitution of drugs,
with/without the courier’s cooperation) ?
b) Are there any problems and obstacles as regards the
CD ?
c) Which authorities must send the MLA request in thi s
case ?
d) What kind of data are you going to exchange with the
other State s ?
e) Is it possible to have a CD without the transit State ?
4. Common questions
a) Which State authorities will conduct the criminal
procedure as regards the courier and the final
recipien t of the drugs ?
b) Please mention the role of police, customs officers
and judicial bodies in each State .
226
a) The customs officials of State B detect a vehicle in
which are concealed 5 kg of heroin. The driver is taken to the
police station. The police officers draft an initial report and
inform the prosecutor who decide to hearing the suspect.
Common question
What are the questions that will be addressed during
interrogation of the driver ?
b) After the preliminary hearing, the driver recogn ises the
crime and agrees to cooperate with the investigators from the
State B in order to identify the other members of the organised
criminal group. During the interrogation of the suspect, it has
resulted that he was paid by drug traffickers in State C to
transport drugs from State A by transiting the State B.
The prosecutor from the State B decides to extend the
investigation and contact the authorities of the State C.
Questions for group 1 (State B)
How will you identify the authorities from State C ?
What is the channel used for exchanging the information
?
What are you going to do with the drugs ?
What other kind of special investigative techniques could
you use in the CD ?
Will you initiate a criminal file in this case ?
Is it still necessary to contact t he authorities of the A
? Why?
Scenario no. 3
227 Questions for group 2 (State C)
In this case, will you be interested to put in place a CD ?
What kind of CD will be put in place in this case (with/without
the substitution of drugs) ?
Are there any problems and obstacles a s regards the CD ?
What kind of data are you going to request to the State B
for sending the MLA request ?
Is it still necessary to contact the authorities of the A
? Why?
What other kind of special investigative techniques could
you use in the CD ?
Please , mention the role of law enforcement agencies in
this case.
Which are the steps to be taken by the law enforcement
after the driver will meet the recipient of drugs ?
Common question
Which State authorities will conduct the criminal
procedure as regards the driver and the final recipient of the
drugs ?
228
ANNEX IV: BIBLIOGRAPHY
INTERNATIONAL AND EUROPEAN
INSTRUMENTS
United Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, Vienna, 20
December 1988.
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