RESOURCE MATERIAL SERIES No. 54

TOPIC 4CURRENT SITUATION OF DETECTION
AND INVESTIGATION
Chairperson
Co- Chairperson
Rapporteur
Co- rapporteur
Advisers

Mr. Armogam Gounder
Mr. Muammer Yasar Özgül
Mr. Purushottam Sharma
Mr. Claude Ranjatoson
Mr. Terutoshi Yamashita
Mr. Syoji Imafuku

I. INTRODUCTION
A. Introduction of Discussion Issues
The task given was to discuss the current
situation of detection and investigation
among the participating countries of the108th International Seminar, specificallythe discussion guidelines enumerated thefollowing points:(1) Structure and characteristic ofinvestigative organization, its
sufficiency in terms of personnel forinvestigation and devices (equipment).
(2) Ability and expertise of investigators.
(3) Collection of information for detectionof transnational crimes.
(4) D i f f i c u l t y i n i d e n t i f i c a t i o n o ftransnational crime groups and ingathering information on them.
(5) Success of detection and reasons for
failure in detection.
(6) A r e t h e k i n g - p i n s s u c c e s s f u l l yarrested?
(7) Difficulties in gathering evidence.
(8) Difficulties in international cooperation.
(9) Use of international systems andorganizations.
B. Definition/Characteristics ofOrganized Crime
If you notice the definition and/or
characteristics of organized crime, you may
realize that such characteristics may causesignificant and specific problems in
250(Fiji)(Turkey)(India)(Madagascar)(Japan)(Japan)investigation and detection of organizedcrimes compared to others. Thus, thisreport touches upon these points.
The definition of “organized crime” maydiffer from country to country, or
jurisdiction to jurisdiction, so it is betterfor us to try it and mention thecharacteristics of organized crime ororganized crime groups here. The
traditional definition and concept oforganized crime is somewhat restrictive in
its exclusion of general conspiracies toextort monies, services and associations ofoutfit, as well as by non-outfit
organizations and groups. Organized crimein effect, consists of the participation of
persons and groups of persons (organizedeither formally or informally) intransactions characterized by:(1) An intent to commit, or the actual
commission of substantive crime;(2) A conspiracy to execute these crimes,(3) A persistence of this conspiracy throughtime or the intent that this conspiracy
should persist through time;(4) The acquisition of substantial power
and money, and seeking of high degreeof political or economic security, as
primary motivation; and(5) An operational framework thatsometimes seeks the preservation of
institutions of politics, government andsociety in their present form.

108TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
It should be noted that any definition oforganized crime or organized crime groups
does not refer to a particular offence orcrime. Even though some organized crimegroups may tend to commit specific typesof crime, most of them usually commits
many types of crime in order to haveeconomic gain and maintain its
organization. As already reported in Topics
1 and 2, even if limited to organized crimes
in transnational nature, various types ofcrime (such as drug trafficking, firearms
trafficking, smuggling of illegal migrants,
illicit trafficking in women and children,
illicit trafficking in stolen motor vehicles,
money laundering, etc.) are touched upon.
C. Investigative Agencies
In many countries, the police or/and
other law enforcement agencies (like thenarcotic control agency, immigration
agency, etc.) investigate crimes includingorganized crime in general. On the other
hand, it should be noted that in somecountries like Japan, Korea and Turkey,
public prosecutors investigate crimes in
addition to the police. Although Japaneseprosecutors initiate and complete
investigation about white-collar crime (e.g.,
corruption, tax evasion, etc.), they do notinitiate investigation about organizedcrime, which is primarily investigated by
the police. Japanese prosecutors conduct
supplemental investigation after thereferral of such cases by the police.
Needless to say, there is no significant
meaning in whether prosecutors
investigate crimes in terms of addressing
problems in investigation and detection.
However, since the current situation of
investigation and detection is to be
discussed, the word “investigator” in thisreport includes public prosecutors for thosecountries.

II. PROBLEMS IN INVESTIGATION
AND DETECTION
A. Difficulty in the Collection ofInformation and Witnesses
Investigation begins when investigators
recognize an occurrence of a crime in some
way or feel that a crime has beencommitted. In many countries, law such ascodes of criminal procedure stipulate acomplaint, an accusation, etc., as the
beginning of an investigation. This ismeant to give special legal effect to these
deeds, and not to restrict the beginning of
an investigation. Although some cases(especially, damage to individuals or theirproperty) tend to require a complaint/
accusation of an interested party, to beinvestigated or prosecuted; the damage
given by corruption cases is not concerned
to a particular party but to the public andthe state. Therefore, the clues to startinvestigation are not only a complaint/
accusation etc., but also the investigationof other cases, anonymous letters, news
articles etc. in order to initiate collecting
evidence.
However, in most organized crime likedrug trafficking, illegal trafficking infirearms, illegal, smuggling of illegal
migrants (in case some are willing to doso), money laundering, etc., there is nocomplainant reporting to the police or otherinvestigative authorities. A visiting expertof this Seminar mentioned that organizedcrimes are bloodless and victimless. Hence,
there is difficulty in reporting such crimeand consequently organized crime groups
maintain and further proliferate.
Even in traditional and serious crimes
having victims like murder, kidnapping,bodily injury, extortion, illicit, trafficking
in stolen motor vehicles, economic crimes,
etc., victims and other people concerned are
reluctant to report those crimes to thepolice or other investigative agencies
because of fear of revenge from organizedcrime members in the future. Thus, again

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there is a difficulty in reporting suchcrimes.
Furthermore, although information frompeople inside or close to legitimate
organizations, like in cases of corruption
or economic crimes, may come out, suchinformation seldom comes out in organizedcrime. This is because of the tight
relationship among such group members
which is often reinforced by strict internal
rules and punishment.
B. Inadequacy of Existing Laws
Organized crime is a continuing
conspiracy, hence the incidents of theorganized crime are dealt with under thegeneral rule of conspiracy in most of
countries.
Existing laws are mostly inadequate tomeet the challenge as they target theindividuals and not the criminal groups or
criminal enterprises. Conspiracies arehatched in darkness and proving them ina court of law is a herculean task. Being amember of the gang is punishable in a few
countries.
In most of countries, anti-drug laws havebeen enacted after the so-called Vienna
Convention. Such laws criminalize money
laundering of illicit proceeds derived fromdrug-related crime. However, such laws are
insufficient for many countries to combat
organized crime or organized crime groups,
since their activities are not limited todrug-related crimes.
C. Difficulty in the Arrest of
Kingpins
As organized crime groups are
structured in a hierarchical manner, thehigher echelons of leadership are insulated
from law enforcement. It may be possible
to have the actual perpetrators of crimeconvicted, but it is difficult to go beyond
them in the hierarchy because, more often
than not, there is less evidence to get such
kingpins arrested. For example, thewitnesses are not willing to depose for fear

252of their lives and most countries have nolaw to provide protection to the witness
against organized gangs, except for thePhilippines.
D. Admissibility of Confessions
In some countries like Fiji, Hong Kong,Japan, Malaysia, Papua New Guinea, theRepublic of Korea and Tonga, theconfession made to investigators is
admissible in trial, subject to the proof ofits voluntariness, or other certain
requirements. However, a confession madebefore a police officer is not admissible inother countries like India and Pakistan.
There has been other practices forrecording confessions in such countries. A
police officer may take the accused before
an executive or judicial magistrate torecord the confession. Once recorded thisway, it is admissible in trial. However, forexample in India, when a police officer
takes the accused for confession, themagistrate provides one to two days timeto the accused for reconsideration, theaccused may meanwhile alter this version.
Hence, the investigative agencies find it
difficult to effectively cope with organizedcrime. As it is difficult to get eyewitness
evidence in cases of criminal conspiracy,
inadmissibility of confessions before apolice officer, can result in the failure toprove cases in the courts.
E. Time Lag between theCommission of Crime and Arrestor Trial
Even if investigators successfully obtain
information about organized crime, it takes
a long time to collect evidence, securearrest, prosecution and conviction.This is
the same in other crimes, but sinceorganized crime groups would continue
illegal activities and order their lower level
members to commit other crimes, such time
lag may give organized crime groups
significant benefit. Even after the arrestof such members and acquisition of

108TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
evidence to arrest them, members in higher
levels of hierarchy are still unlikely to becaught and more relevant evidence would
disappear.
“Justice delayed is justice denied” is awell known exiom. In some countries like
India, Malaysia, Pakistan, the Philippines,
the pace of trial is very slow. Hence, people
are losing faith in the efficiency of thecriminal justice system and have become
cynical, apathetic and non-cooperative incontrol efforts.
F. Limited Special Techniques in
Investigation (UndercoverOperations and Wiretapping)
Undercover operations are carried out
in instances where a person approaches theinvestigative agencies and files an official
complainant against the illegal conduct ofoffenders. In Hong Kong, Madagascar,
Malaysia and the Philippines, this isfunctioning well. Normally, undercover
operations require the approval of thedesignated authority in those countries, forexample, Attorney General in Hong Kong,
magistrates/judges in Madagascar. Sinceother participating countries have notlegalized undercover operations, they facedifficulties in penetrating organized crimegroups by traditional investigation
methods.
Similarly, wiretapping is not allowed inmost of the participating countries likeHong Kong, Papua New Guinea, Tonga andThailand, except for Turkey. Thus, most of
the participating countries have difficulty
in revealing cases and collecting evidence.
Controlled delivery techniques are widelyused in some countries like India. There
has been good success in recoveries of drugs
there, however it is not fully used in othercountries like in Fiji, Tonga, etc.
G. Lack of Coordination
Crimes committed by organized crimegroups are not limited to certain types ofcrime as mentioned in the introduction. On

the other hand, some countries gives
investigative power to several agencies,
either exclusively for a particular crime orconcurrently for some crimes. In such acase, coordination among several agencies
are necessary because of the lack of orlimited coordination may cause somedifficulty in combatting organized crimegroups. Most countries have good
coordination but there is still a possibilityof failure in investigating organized crimes
because of un-streamlined coordination
among agencies.
Moreover, in India, there is no national
level agency to co-ordinate the efforts of theState/City Police Organizations, as well as
the Central Enforcement Agencies, incombatting organized crime. Further, there
is no agency to collect, collate, analyze,
documents and function as a Central
Exchange of information relating tointernational and inter-State gangs
operating in India and about the Indiangangs operating abroad. Similarly, there isno system of sustained pursuit of selectedgangs at the national and the State level.
Apart from lack of an institutional frame
work, there are problems of coordination
between the Central Government and theState Governments and between one State
Government and another State
Government due to differences in politicalperceptions. This problem becomes quite
acute when different political parties arein power at the center and in the States.
Thus, there appears to be no sustained
effort to combat organized crime. The
information that comes in the hands ofCentral and State investigating agencies
is not exchanged and, if exchanged, not inreal time. Thus valuable clues are lost.
H. Political Influence
There has been a rapid spread andgrowth of criminal gangs, drug mafias,
smuggling gangs, drug peddlers andeconomic lobbiests. Since some organizedcrime groups are close to some politicians,

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political influence has been made during/after investigation in some countries. Dueto the political influence of these
syndicates, the investigating andprosecuting agencies are finding it
extremely difficult to deal effectively withthem. This problem was mentioned byIndia, the Philippines, Pakistan and
Thailand.

J. Inadequacy of Equipment
In most countries like Fiji, India,
Madagascar, Nepal, Pakistan, thePhilippines (law enforcement equipment),
Papua New Guinea (communicationequipment), Tonga (especially on detectionof drugs), there is problem of inadequacyof equipment to deal with sophisticated,
high-tech crime.

I. Problems in International
Cooperation
Different nations have different legal
structures. A certain act may be crime in
one country but not in another. Similarly,
some countries have laws against terrorism
but the others do not. Extradition of
criminals from one country to another ispossible only when the principle of dual
criminality is satisfied. However, nocountry agrees to abolish this principle
because it is natural for the requested
country that fugitives cannot be extradited
for conduct which is not criminalized intheir country.
Bangladesh, Fiji, India, Nepal, Malaysia
and the Philippines require an extradition
treaty to honor an extradition request. Thisis known as the treaty prerequisite
principle1, which is the most significant
impediment to extradition from theperspective of a civil law country (e.g.,
Japan, the Republic of Korea and Thailand
are categorized as civil law countries interms of extradition). A prima facie caserequirement is the usual practice incommon law countries. Some civil law
countries, in extradition procedure, requirereasonable grounds for having committed
a predicate crime (tantamount to “probablecause”). Even if all legal requirements are
satisfied, the execution of extradition takes
a long time.

K. Lack or Lesser Priority by theGovernment
In some countries like India, Malaysia,
Pakistan and Thailand, there has been
continued demand for increase in the workforce. Due to the variety of duties andcomplexities of crimes, it is extremely
difficult for the existing man power to copewith crime.

1 Although such countries do not need a treaty for

extradition within other commonwealth countries,
they are categorized as treaty prerequisite countries
since they still require a treaty with other countries.

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L. Insufficiency of Expertise andTraining
Almost all participating countries
mentioned the problem of insufficiency ofexpertise and training in investigative
agencies. Investigation of cases, theirprosecution and the setting up of thecriminal courts is the responsibility of theprefectural Government concerned, like inIndia. Most of the prefectural States faceresource crunches and are not in a position
to spare adequate resources for thecriminal justice system agencies. The
number of police personnel posted in police
stations, is inadequate. Besides, hardly any
training facilities exist for the investigationof organized crime. Prosecutors neither
have any special aptitude nor any
specialized training for conducting
organized crime cases. Moreover, they arevulnerable to frequent transfers resulting
in discontinuity in prosecution efforts. As
organized crime cases are tried, there isinordinate delay in their disposal due toheavy backlogs.

108TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
III. SUGGESTIONS
Realizing the problems the above
mentioned pose to law enforcement
agencies in combatting against organizedcrime, the following suggestions should betaken into consideration.
A. Projects to Collect First
Information
Even though investigation begins withvarious clues, it is necessary for successful
investigation or prosecution to obtain
credible information as much as possible.
However, such credible information isshared by the people who are officially or
personally close to corrupted officers,
because of the clandestine nature ofcorruption cases. Thus, how to encouragesuch people to release information must be
taken into consideration. Investigators
have to be cautious in dealing withanonymous letters because they are sentby someone to obtain a personal interestby making a false accusation against aparticular person. Such information tends
to be overstated or over-decorated. On theother hand, there are some anonymous
letters, especially from persons who haveinside information, which inform us of theimportant truth. In this regard, it is worth
considering introducing the project, socalled “Crime Stoppers” as in Fiji.
In order to resolve the problems of
having an uncooperative attitude fromorganizations concerned with criminalcases in Fiji, the Commissioner of Police
has introduced a project called “CRIMESTOPPERS” which is directly under his
control. For the last two years, it has beenfunctioning where anyone can address theletter without giving his identity and canforward information or lodge a complaint
regarding criminal activities of a person.
If people give information, and upon police
investigation the case information proves
to be true, the informer will be paid after
successful arrest (depending how serious

the information was). The source of
information will never be disclosed, thus
informers confidentiality is protected.
B. Effective Anti-Money Laundering
Law
Money laundering regulations were
initiated by the United States to deprive
criminals of property together with theAsset Forfeiture system. The predicate
crime of money laundering is now extended
to almost of all the serious crime in somecountries like Turkey and the UnitedStates. Even though some participating
countries have money laundering
regulations, the predicate crime is limited
to drug-related crime. However, organizedcrime groups commit any type of crime inorder to obtain economic gain, thus there
is no reason to limit predicate crimes todrug-related crimes. Moreover, since thedevelopment of transportation andcommunication carries over cultures, once
one country adopts stringent policies andcomplete legal systems for depriving
criminals of illicit property, it is natural forsuch criminals and property to move toanother country where such systems do notexist. Therefore, to protect one country
from such a situation, it is indispensable
to establish these legal weapons which
extend money laundering predicate crimes
as much as possible. Thus, for example,
Japan is now considering to extend thepredicate crimes of money laundering aswell as asset forfeiture. Such predicate
crimes may be serious crimes, including
those crimes committed by organized crimegroups. India has prepared a draft whichis in consideration in Parliament.
C. Legalization of UndercoverOperations
The law enforcement agencies in somecountries run under-cover agents to gather
information about criminal gangs, study
their modus operandi and evaluate their
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RESOURCE MATERIAL SERIES No. 54
information is used both for preventive andinvestigative purposes. In the UnitedStates, the evidence gathered by the undercover agents is admissible in evidencewhether it is in the form of their oral
testimony or recorded in audio or video
form. However, most participating
countries laws do not permit this. Thishandicaps the law enforcement agents inbuilding up cast-iron cases againstorganized gangs. It is suggested thatamendment of the law should be taken into
consideration to provide for admissibilityof such evidence.
D. Immunity
Most of the participating countries do
not have the so-called use and derivative
use immunity. This is a statement given
by a witness (e.g. accomplice) implicating
the accused in a criminal enterprise
involving them. The statement will makeclear that the content therein will not be
used as evidence to exculpate the witnessof his criminal activity. Specifically, it does
not imply any promise that the statementmaker will be given immunity fromprosecution. However, since the prosecutor
must establish that the evidence to be given
to the court is not derived from suchpromises beyond reasonable doubt,
prosecution against him is quite difficult.
E. Witness Protection Programme
In cases of organized crime, thewitnesses are reluctant to depose in open
court for fear of reprisals at the hands ofcriminal syndicates/terrorists. The cases of
threat or criminal intimidation of potential
witnesses are too many to be recounted.
Some witnesses have also been killed by
the criminal gangsters. As the courts go byevidence on record for establishing the guiltof the accused, it is essential to protect thewitnesses from the wrath of the criminal
gangs. Hence, legal and physical protection
should be provided to crucial witnesses insensitive cases so that they can depose

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fearlessly in the court. After the enactmentof Witness Security Reform Act 1984, theUnited States authorities could secureconviction of several notorious mafia
leaders. The United States Witness
Protection Programme, essentially,
involves changing the identity of thewitness, relocation, physical protection, if
needed, and financial support till such time
as s/he become self-supporting, subject tothe condition that s/he deposes truthfullyin the court.
Some participating countries like thePhilippines have witness protection
programmes similar to the United States.
However, most participating countries do
not have such programmes. These should
be taken into consideration to provide
protection to witnesses especially in casesof national importance involving criminal
syndicates.
F. Admissibility of Confessions
Although confessions made before police
officers are admissible in most countries,
in some countries like India, such a
confession is not admissible. Of course, thisis not to say that the court should baseconviction only on the un-corroborated
confession of an accused. What is being
suggested is that the court should take into
consideration the confession made by theaccused before a police officer along withother corroborative evidence forformulating its opinion.
G. Enhancement of International
Cooperation
If an extradition treaty has not beenconcluded between countries concerned,
especially treaty prerequisite countries,
even criminal fugitives who allegedly havecommitted serious crime cannot be
extradited. However, it should be notedthat Australia, recognized as a treaty
p r e r e q u i s i t e c o u n t r y, a m e n d e d i t s
extradition law so as to honor an
extradition request from a treaty non-

108TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
prerequisite country.
It is our experience that extradition is atime consuming and lengthy process,where, apart from satisfying the legal
requirements of the requested country, thejudicial requirement of a foreign court havealso to be satisfied. Thus, efforts to simplify
or streamline extradition procedure should
be made as much as possible. For example,
some treaties provide that “the requested
country may grant extradition after receipt
of a request for provisional arrest, provided
that the person sought explicitly consents
before a competent authority”. This kindof simplified extradition procedure should
be taken into consideration for effective
international cooperation.
Furthermore, it should be noted thatamong some Asian countries (e.g., Malaysia
and Singapore) having similar legal
systems, special procedure for extremely
simplifying the extradition procedure has
been stipulated in their laws; whichenables an arrest warrant issued by acourt, a judge or a magistrate of one
country effective in the other country if amagistrate of the latter endorses it undersome requirements. Thus, various ways toenhance extradition should be taken if notprecluded by the law of the countries
concerned.
Moreover, if extradition is impossible,
deportation may be sought as the last
solution. Of most importance is to bringcriminal fugitives to justice.
As for gathering more information ontransnational criminal and their activities,
Interpol should come to the effective
assistance of affected countries. Interpol isan overloaded and overworked
organization at present, with focus on drugtrafficking and illicit transnationalmigrations. With the proliferation oftransnational crime in its various
manifestations, it is time to set up regional
units of Interpol in Asia, Africa and Latin
America.

H. Adequate Training Programme
One of the weakest links in the struggle
against organized crime is the educationand training at the local level. Public
administrators, who are aware thatorganized crime exists in their community,
are not spending sufficient time ineducating and training citizens, law
enforcement officers and other members in
the criminal justice system. Consequently,
local persons with interest in curbing
organized crime are left to their own
resources in securing information about
those engaged in organized crime. There
are three modus for transmitting
information to those concerned withorganized crime control. They are (1)education in academic institutions, (2)specialized training for law enforcement
officers, and (3) greater public co-operation.
To implement one mode of learning without
the other will not produce a desirable levelof information about the criminal
confederations.
It would be desirable to impart intenseand highly select training to the police,prosecutors, judges and probation officers,
about the impact of organized crime on thesociety, the intelligence system, thestatutes relating to organized crime, theutilization of technology in investigationand the various types of organized crimeand various strategies for combating it.
IV. CONCLUSION“Organized crime succeeds as long as anation permits it to succeed.” The first andforemost step in our control efforts should
be to keep incidents of ordinary crimes
within reasonable bounds, by keeping thecriminal elements under relentless lawenforcement processes. If we reasonably
succeed in this effort, we would haveobtained or at least diminished thepossibility of unattended criminal elements
forging alliances with big crime figures,constituting criminals networks and

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thereby spawning the phenomenon oforganized crime. It is imperative to combat
the crime, to strengthen the criminal law
and tone up the criminal justice system.
Law enforcement, however efficient, cannot
succeed by itself without commitment by
the Government.
Despite best efforts, the domestic crime
is likely to spill over into internationalsociety and often does. Hence the need forinternational co-operation in suppressing
it in the form of expeditious extradition of
fugitive criminals, deportation ofundesirable aliens, mutual legal assistancein investigations and prosecution, andspeedy cooperation through Interpol.

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