GROUP 2

MEASURES TO COLLECT KEY EVIDENCE WHICH SUBSTITUTES FOR OR
CORROBORATES WITNESS STATEMENTS
Chairperson
Co-Chairpersons
Rapporteur
Co-Rapporteurs
Members
Visiting Expert
Advisers

Mr. Zine Labidine Mohamed Kadhem
Mr. Masanori Hisaki
Mr. Fernando Cesar Costa
Mr. Kazuhiro Kikawa
Mr. Zhu Ping
Ms. Junko Kawamata
Mr. Juergen Kapplinghaus
Deputy Director Keisuke Senta
Prof. Shintaro Naito
Prof. Megumi Uryu
Prof. Tae Sugiyama(Tunisia)(Japan)(Brazil)(Japan)(China)(Japan)(Germany)(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
The Group was assigned to discuss the above topic and agreed an agenda as follows:
1. Enhancement of traditional measures:a) Search and seizure;b) Examination of objects and sites;c) Expert evaluation;d) Access to bank, financial, commercial and government records;e) Taking evidence through other non-coercive or coercive measures.
2. Use of special investigative techniques and the use of evidence obtained through them at trial:a) Undercover operations;b) Electronic surveillance;c) Controlled Delivery;d) Others.
3. International Co-operation:a) Mutual Legal Assistance;b) International Co-operation for special investigative techniques;c) Exchange of information between law enforcement authorities.

II. TRADITIONAL METHODS
The starting point of the discussion was a description by each participant of the reality of their respective
countries regarding the matters under discussion.
Concerning the four first topics, all participants made a detailed description of their respective countries’
legal systems.
In fact, after discussion, there was consensus in the Group that there are no crucial necessary changes totake effect in participant countries’ legislation in order to improve the application of these measures. Searchand seizure, examination of objects and sites, expert evaluation and access to bank, financial, commercial andgovernment records are measures already very well executed in all the countries during investigation,prosecution and trial of ordinary criminality.1
Concerning search procedures, the Japanese, Brazilian and Tunisian systems are ruled by the“jurisdiction clause”, meaning that it is necessary to obtain a warrant from a judicial authority in order for
law enforcement authorities to obtain evidence in this way. The Brazilian legal system has an exception for
flagrant cases, when the police forces can enter anywhere to collect evidence related to the crime under
1 The expression ‘ordinary criminality’ was adopted in this paper in opposition to organized crime and transnational organizedcrime.

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investigation.
As noted by Mr. Kadhem, the Tunisian criminal procedure system comprises an investigating judge. The
latter shall undertake in accordance with the law any investigative step he or she deems useful for the
discovery of the truth. He or she seeks out evidence of innocence as well as of guilt. Mr. Kadhem pointed
out that in his capacity, and as an independent investigating judge, he can seize everything he considers
necessary to find the truth. In Tunisia, searches may be carried out in any place where elements of evidence
are likely to be found. Searches in private houses are the exclusive competence of the investigating judge.
Some exceptions are stipulated and concern cases of flagrant wrongdoing. The investigating judge mayundertake in person all the investigative steps or give an express Letter Rogatory to the judicial police
officers to have them perform the necessary investigative steps under his supervision. He chooses andcharges the police department that he considers the most efficient for the case, for example, when dealing
with a case of drug trafficking he may designate the rogatory act to the anti-drug police division etc. The
judicial police officers appointed to carry out the Letter Rogatory exercise all the powers of the investigating
judge within the limits set by the letter.
In contrast, as asseverated Mr. Zhu, in China there is no necessity of a warrant from judicial authority forthe police to conduct searches and seizures, that is, the law enforcement authorities, including prosecutors,
can take these measures at their discretion.
A question brought to the floor by Professor Naito was the seizure of computers and other devices thatcan store data information. Mr. Kikawa said that in practice the extraction of data stocked in a PC, harddisks, compact discs, etc. apprehended during the investigations is not easy. Mr. Kikawa remembered a caseinvolving a large Japanese company and said that ways of seizing computers and other devices, especiallyconcerning the damage that an apprehension of computers can cause in big companies by way of halting
activities due to the seizure, were discussed in this case. The solution reached was to make a copy of thehard disks in order to do not disturb company activities.
Concerning this matter, Mr. Costa said that the same procedure is in place in Brazil, and also commented
that the problems related to defendant questions are not common in Brazil because the extraction andevaluation of the data information from apprehended devices is a duty of in-house police experts called
Technical Police, who have a jure et de jure presumption of truth in everything they do. So, in that country,
the burden of proof belongs to the defendant when he or she alleges during a trial that the data extracted by
the law enforcement authorities and brought as evidence was not in his or her apprehended device orcomputer. The same aspect was commented upon by Mr. Kikawa, who said that the same presumption does
not exist in Japan, even though the extraction and evaluation of the data is also done by in-house experts.
At this moment, Mr. Kadhem commented on the experts’ evaluation in Tunisia saying that they belong toa special police division called the Scientific Police (with responsibility, for example, for fingerprinting
expertise etc.). In addition, he said that in Tunisia other judicial experts are involved in the collection andevaluation of evidence, for example experts who analyse handwriting or doctors specialized in forensic
medicine.
Continuing the discussion about the institutions of seizure, some comments were made in relation tomoney laundering and financial crimes, and once more, the members agreed that the pieces of legislation
under analysis have very similar statements. As related by Mr. Kikawa, prosecutors and police officers
during investigations and trials can request directly from financial institutions information regarding bankmovements of the people under suspicion while in Tunisia and Brazil there is a necessity of a preceding
warrant.
Mr. Kikawa and the Visiting Expert Mr. Juergen Kapplinghaus said that in Japan and Germany financial
institutions are very co-operative with prosecutors and law enforcement authorities, providing all thefinancial information requested during the investigations. This fact was the object of comments from the
Visiting Expert Mr. Juergen Kapplinghaus in the second session, who demonstrated, during his intervention,
the German legal system and brought to the floor some questions introducing the theme of international cooperation just to relate to the members some experiences of Eurojust in these two areas.

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Mr. Kadhem reported that in his country, whenever the necessity of investigation required access to abank’s data, the investigating judge may request from the financial institution required information of theaccount of any offender and may afterwards, if necessary, ask experts to analyse the obtained data.
At this point some questions about money laundering repression were brought to the floor. The Brazilian
member said that as signatory to the UN Convention the Brazilian legal framework established mainly byFederal Law 9,613, provides an effective system of administrative and financial controls. The mentioned
legislation brings to the Brazilian legal system (a) the criminalization of this practice (Art. 1 establishes apenalty from three to ten years’ imprisonment); (b) the institution of seizure enabling the apprehension anddeprivation of goods, merchandise or real property acquired as a product of crime; (c) the confiscation(permanent deprivation of property) of the chattels seized during the investigation and prosecution, in favourof the Federative Republic, and, the most importantly, (d) the shifting of the burden of proof of the illegal
origin of the seized objects; no longer a duty of the prosecutor, but a burden of the indicted, who must
demonstrate the licit origin of the properties in his or her name, personally, in the presence of the judge.
Moreover, the same legislation created two departments to deal with the matter: (a) the Brazilian
financial intelligence unit called the Council of Financial Activities (COAF) and (b) the Department for the
Combat of Financial and Exchange Illicit Acts (DEAFI) as a unit of the Central Bank of Brazil, designated to
be in charge of the general monitoring of financial market activities. The first department (COAF) receives
information, examines and identifies suspect occurrences of illicit activities related to money laundering andalso exchanges information inside and outside the country which could provide quick and efficient actions in
the combat of money laundering, while the second department, DEAFI, receives information and allegations
by the COAF in relation to the financial system, in order to apply administrative sanctions to the financial
institutions which do not comply with the legal statements related to money laundering prevention.
In Tunisia, in order to combat money laundering and deter criminals, law No. 75 of 10th December 2003
related to the fight against terrorism and the suppression of money laundering has imposed upon financial
institutions and banks operating in that country the obligation to report any suspicious or abnormaltransaction to the Tunisian Financial Analysis Commission. Failing to comply with the said obligation, theconcerned legal persons and their directors and managers incur prison sentences and fines.
A report by a financial institution or any concerned person involves the automatic immediate temporary
suspension of the transaction and the Tunisian Financial Analysis Commission examines the case. The funds
or assets are deposited in a waiting account where they shall remain until the end of investigations. In theevent of absence of unlawful transactions, The Tunisian Financial Analysis Commission is required to notify
without delay the concerned institution and authorize it to remove the freeze. In all cases the said
commission is required to close its investigations within a deadline of two days, renewable once. In theevent of reasonable suspicion the Commission shall bring the file with the result of the investigation before
the competent public prosecutor, the public prosecutor of Tunis, who alone has jurisdiction to rule on thiskind of crime. The freeze of the account shall continue and shall be removed only if the public prosecutor
decides that there is no matter to prosecute due to the absence in the file of evidence. If the publicprosecutor decides to prosecute and try the concerned offender he submits the case to the criminal court
and the freeze shall continue unless otherwise decided by the court ruling on the case.
Mr. Zhu said that the Chinese legal system criminalizes laundering the proceeds of crime, and provides
for their forfeiture, including measures that allow law enforcement authorities to confiscate criminal assets.
The Chinese Penal Code has prohibited acts of money laundering since its amendment in 1997. Nowadays
Article 191 of that Code punishes money-laundering activities with a maximum of ten years’ imprisonment
when the precedent crime is related to smuggling, drug trafficking, terrorism, corruption, financial and mafia
crimes. In addition, on 17 September 2002, the Chinese Central Bank created an Anti Money-Launderingand Large Amount and Suspicious Current Transaction Report Rule that provides for control andpunishment of suspicious financial transactions.

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III. SPECIAL INVESTIGATIVE TECHNIQUES
During the second session, with the participation of Mr. Juergen Kapplingaus, discussions of the special
investigative techniques illustrated in the United Nations Convention against Transnational Organized
Crime were initiated.
Concerning undercover operations, the system introduced in Brazil in 1995 (seven years before theratification of the United Nations Convention Against Transnational Organized Crime, signed in Palermo,
Italy in 2002) by Federal Law 9034 of 3 May 1995 (modified by Federal Law 10,217 of 11 April 2001) was
described; despite the fact that there is no doubt that it is a very complicated investigative technique, it isalso one of the most effective ways of supplying information useful for evidentiary purposes on matters suchas the identity, nature, composition, structure, location or activities of organized criminal groups, as well as
offences that organized criminal groups have committed or may commit. As shown, the Brazilian system
requires that this measure must be preceded by a judicial order and it is also covered by an inviolable
secrecy that is broken just after the formal accusation . Otherwise, the Brazilian system allows only
infiltration by police officers and intelligence agents, and does not include in its statements the use of
informers or other non-governmental persons.
As exposed by the members, Tunisia and Japan do not have any statements about this matter in theirrespective legal systems. The Japanese members, Mr Kikawa, Mr. Hisaki and Ms. Kawamata, clarified that
undercover operations and infiltration techniques are not addressed by the Japanese legal system. Moreover,
Ms. Kawamata said that she does not think that undercover operations are useful for investigations related
to the Japanese Mafia, the Boryokudan (“the violent ones”) because these organizations are very closed, andmoreover, Japan is a small country without a federal police force where the prefectural police departments
are charged with all investigation activities in each prefecture, meaning that police officers attempting to
infiltrate activities might be easily noticed by the criminals. However, the necessities of supplying
information useful for obtaining evidence about the activities of criminal organizations are covered by othermethods such as the collaboration of members of the Japanese Boryokudan during the prosecution and trials.
Mr. Kapplinghaus made some comments about the principles under conflict in this matter. As he said, theprinciple of legality inherent in the civil law system must be mitigated in order to allow the introduction ofthis investigative and evidence obtaining technique that is a typical instrument adopted by countries thathave common law systems.
During his intervention, Mr. Kapplinghaus also asseverated the difficulties of the practical use ofundercover operations, related to questions of the nature of eventual offences that the police officer or
intelligence agents acting undercover may have to commit, the personal safety of the infiltrated agents andthe control of execution of the procedures by the law enforcement authorities or judges and prosecutors
during the investigation. He finished by stating that one of the most complete legislative responses to thismatter is the Spanish system, which could be copied by other countries in its outlines. He also commented
that in England, such kinds of operations are a duty of the intelligence agencies and the information obtained
can be used in the courts as evidence.
In the following session the Group restarted the discussion about undercover operations by listening to
the description of the Chinese situation. Mr. Zhu related that it is very common to use this investigative
tool in cases of drug trafficking, although there is a lack of statements in Chinese criminal procedural law on
the matter. The Chinese participant asseverated that there are some rules about undercover operations
which have been enacted by the Chinese National Public Security Agency and the Supreme Attorney’s
Office.
The Japanese participants, Mr. Kikawa and Ms. Kawamata, asseverated that their domestic legal systemdoes not rule this method an investigative technique, and that there is no consensus about the necessity of
introducing this technique among prosecutors, police officers and judges. The Japanese members also said
that the use of informers has been executed with relative success in organized crime repression
investigations, as well sting operations in investigations related to drug trafficking activities.
Visiting Expert Mr. Kapplinghaus brought to the floor the concept of undercover operations - called

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covert investigations – for Eurojust, and asseverated that this technique is used ultima ratio in investigation
activities in the European Union with regard to Articles 14, 15 and 16 of the Mutual Legal Assistance
Convention. As Mr. Kapplinghaus said, there is an urgent necessity to define this institute and its outlines;
or example, if it recognizes the use of non-governmental agents or not, or recommends punishment for theoffences eventually committed by undercover police officers during the investigation.
The use of informers was discussed by the Group. The Brazilian member related that this technique cancompromise the evidence obtained, by the fact that informers do not have the legal duty, as undercoverpolice officers do, to tell the truth to law enforcement authorities, judges and prosecutors, and for thisreason are used just as an auxiliary method during the investigations.
Changing the focus of the discussion, the Group started the analysis of electronic surveillance tools. The
Brazilian system was described by the statements of Federal Laws 9034/95 and 9296/96, which allow the useof phone call and computer communications interception for serious crimes, as well interception of on-site
conversations in the investigation and prosecution of organized crime.
Mr. Zhu from China described the system in that country, saying that there is a lack of explicit statements
on electronic surveillance in criminal procedures. However, as he said, there might be some statements ofthis investigative tool in laws governing serious crimes. He also asseverated that judges cannot introduce
the results of phone calls alone to trials as public evidence.
In 2000, after a long controversy, the Japanese legislature introduced as an investigative tool ruled by thelaw on telephone call interceptions, for ten days in principle, which can be extended only up to 30 days andfor investigation of severe organized crimes, such as organized murders, organized drug trafficking
activities, organized trafficking of firearms etc. Such interceptions must always be preceded by a warrant. In
spite of the fact of the existence of the law, it is not used as a rule during investigation, prosecution and trial.
This is particularly due to the difficult procedures described by the National Law on Communications
Interceptions during Criminal Investigations, which requires (i) a daily report to the judge; (ii) the necessityof a witness from the telephone company during the interception; and (iii) the obligation for the investigators
to inform the suspect about the interception after 30 days, in principle, of its conclusion. Despite these
difficulties, police officers are really encouraged to use this method in investigations related to national andtransnational organized crime.
Mr. Kadhem reported that in Tunisia there are no legal statements ruling this special investigativetechnique; however the investigating judge may in his or her capacity as an independent judge order suchkind of measures when he or she considers it a useful means to discover the truth.
Continuing the discussion, the Group started an analysis of practical procedures related to phone callinterceptions, as well eventual compensation for innocent persons who had their privacy invaded by such aninvestigative technique. The Brazilian member asseverated that, in Brazil, all the conversations are recorded
and presented to the judge who signed the warrant and to the prosecutor, who will decide if the material
obtained that does not concern the offences under investigation should be destroyed. He also commented
that in the Brazilian legal framework there is no obligation to notify the person whose telephone secrecy
was broken by a judicial order.
At this moment, Mr. Kikawa made a intervention and said that according to the already mentioned
Japanese National Law, after 30 days of the conclusion of the interception, the object of this measure must
be notified. Mr. Kapplinghaus explained that Germany has the same obligation, and related that in somecases innocent people have obtained an indemnity for moral damage from the State because of the use of thiskind of evidence obtaining procedure by prosecutors and law enforcement authorities. In his comments Mr.
Kapplinghaus also asseverated that Germany’s Constitutional Court stated the unconstitutionality of the law
pertaining to on-site interception, that is the conversations taking effect in private buildings (houses, offices,etc.).
Later, the participants restarted the discussion of the investigative techniques mentioned in the UN
Convention, and decided to begin with the analysis of the definition of ‘undercover operations’.

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First of all, the Chairman, Mr. Kadhem, brought to the floor an idea that controlled delivery may beclassified an undercover operation, and read the statements of the Hungarian legal system. Mr. Costa madesome comments about the Brazilian system which defines undercover operations as “to infiltrate a police
officer or a intelligence agent into a criminal organization to gather evidence about the crimes perpetrated by
the gang ”. Mr. Zhu noted the differences between those measures, and Professor Naito noted that during an
undercover operation it is necessary to have contact between police officers that do not reveal theiridentities as police officers nor the identities of the criminals under investigation. That situation is notinherent to controlled delivery cases. All the members agreed that this contact exposed by Professor Naito
is the starting point to define undercover operations, in a wide or strict sense.
In the ensuing session, the members of the Group also agreed that the period of time for infiltrating acriminal organization, the procedures to guarantee the safety of the infiltrated agent, and statements about
eventual crimes perpetrated by the undercover agent must be ruled by law, as well as the necessity of apreceding warrant. All the members also agreed that as a very complicated technique which in most cases
demands a very long time to prepare the agents involved, large numbers of police officers just to guarantee
the safety of the infiltrated agent and the inherent risk involved, undercover investigations must be used
ultima ratio, even in criminal investigations related to organized crime activities.
In order to finalize the discussion about undercover operations the admissibility of the evidence obtainedby this investigative tool was questioned by Mr. Kadhem, when it was said by Mr. Zhu that, even in China,
where there is no law about the matter, such evidence is accepted by judges. However from a judge’s
perspective, Mr. Zhu pointed out that it is very difficult to examine the credibility of evidence obtained bythis method because Chinese Police Officers are reluctant to give their testimony at open trials. Only one
case occurred in 2005, in which two police officers that worked in an undercover operation were brought tocourt as witnesses. As undercover operations are ruled by law in Brazil, there is no problem in admitting theevidence obtained during the investigation at trial.
Controlled delivery was the object of study by the Group, and the analysis started with the description of
the Chinese system. Mr. Zhu said that the Chinese legal system does not provide explicit rules about thiskind of investigative technique, but if necessary, police officers adopt this tool freely, and they do this not
only on drug cases but also in the investigation of other crimes such as firearms trafficking and currency
counterfeiting.
Mr. Zhu also asseverated during his intervention that this technique is very complicated and sometimes
creates some problems such as the decision about the right moment to relinquish control and to apprehend
the drug or other objects of the crime, as well as the fact that sometimes the use of the controlled delivery
procedure alone does not give law enforcement authorities possibilities to identify the ringleaders of thecriminal organizations.
Concerning the Japanese system, Mr. Kikawa said that controlled delivery is provided for in Article 4 of
the Narcotics Provision Law which provides a special statement for customs procedures. Normally, when thecontrolled drug is found by inspection of a cargo pursuant, the director-general of customs has to seize this.
However, when there is a request from a public prosecutor or a police officer by this provision, the directorgeneral of customs can issue permission to control the delivery of such cargo. In this case, it is required thatsufficient surveillance systems should be established before permission. Concerning the importing ofcontrolled goods, live controlled delivery (LCD) is allowed only for illegal drugs. In Japanese law there is noprovision for live controlled delivery of firearms and counterfeit currency, etc.
On the other hand, concerning clean controlled delivery (CCD), there is no special provision ruling how
to carry this out. This is because clean controlled delivery can be carried out without special provision.
However, in order to increase the effectiveness of a clean controlled delivery, to punish the carrier who
remains involved after the prohibited items are extracted, special legal statements are provided in Articles 8
and 17 of the Firearms and Swords Control Law. Even if the carriers handle empty baggage after the drug
extraction he or she will be punished by Japanese law.
Mr. Kikawa said that a legal standard to select clean controlled delivery (CCD) or live controlled delivery

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134TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(LCD) does not exist in Japan. It is at the investigator's discretion in each case, and an important point iscomparison of the risk and the necessity. CCD will be selected when the amount of the drug is huge andthe risk of failure is too large. Moreover, when the drug brought in with luggage is discovered at customs,
the technique of controlled delivery will not be possible because a sufficient surveillance system can not beestablished.
Mr. Kikawa outlined an actual case where the police used LCD. In this case, the drugs were sent fromthe Philippines to a flat in Japan in which five or six Filipinos lived together. Using LCD in this case, thepolice forces caught all of the cohabitants in the act of drug possession. Similarly, quite a lot of elements are
related to the selection of LCD and CCD.
Moreover, controlled delivery is executed without using special regulations when drug dealing is done
domestically. Mr. Kikawa outlined another case where drug dealing was conducted by mail order from Tokyo
to Okayama, and investigators utilized controlled delivery with total success.
Mr. Zhu commented that it is necessary to combine traditional techniques with new methods to opposetransnational organized crime. He said that it is important to use other methods such as electronic
surveillance, in addition to controlled delivery.
Mr. Hisaki commented on the application of controlled delivery for investigating human trafficking
activities, and an effective case was considered for illegal migrants, where it would be completely safe forthe person involved, though it was later deemed inappropriate. However, in Japan there is no legislation thatallows a person to enter the country when the police force knows it is illegal. International co-operation isindispensable in these cases.
Ms. Kawamata brought to the discussion a case related to drug trafficking from Hawaii to Japan in which
the drug dealers utilized packages containing bottles of peanut butter with cannabis inside. The police forces
decided to use controlled delivery in this case, but the use by the drug dealers of false addresses and names,
and a pre-paid cellular phone gave the police the possibility of arresting just the man who had come to thepost office box to receive the packages. This man was identified as a companion of a Boryokudan, however
the smuggling of the cannabis could not be proven by this method to be an organized crime committed by
the Boryokudan.
Ms. Kawamata also asseverated that the Advanced Passenger Information System (APIS) in which eachairline ought to send information to law enforcement authorities (in Japan the relevant authorities are the
National Police Agency, the Immigration Bureau and Customs), is very useful for controlled delivery
purposes. In Japan there is no obligation upon the companies to send the information, but they do this cooperatively.
The use of international information about delivery of drugs in order to get a warrant to use investigativetechniques such as search and seizure was brought to the floor by Professor Naito, and all the participants
agreed that it is possible, and as Professor Senta said, Japan has an advantage because after obtaining awarrant for searches and seizures in order to support a controlled delivery for example, this information canremain closed.
The Brazilian system of controlled delivery was demonstrated as a great advance for combating organizedcrime in Brazil, as before it, the constitutional and penal laws principles were interpreted in a form thatavoided the usage of the method of controlled delivery. It was said that once the police had the duty ofarresting any person caught in the act of committing a crime or who was found attempting to commit,
committing or right after committing the crime, if the arrest did not follow immediately, the police agentswould be committing a crime named “Prevaricação”, which consists in not doing what a public servant is
supposed to do according to law. Such interpretation was finally overruled, with the help of new legal
statements, which brought a new light to studies on the matter.
As demonstrated by Mr. Costa, Federal Law 10,409 stipulates in Article 33 detailed norms regulating thisinvestigation technique, such as the statement that the request is a duty of the police authorities, and ought

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to be preceded by a judicial order after the prosecutor’s opinion; demonstrations that the most likely
itinerary of the drug transportation is previously known; and, in the case of transnational transportation,a previously issued warrant of the foreign authorities to assure the arrest of people involved and the seizureof the drug. Practical experience in combating organized drug trafficking has demonstrated that controlled
delivery resulted in a great increase in drug apprehensions worldwide but it is a technique that must be usedin combination with other investigative tools such as wire-tapping and electronic surveillance.
Concerning international co-operation during controlled delivery activities, Mr. Kadhem brought to thefloor the necessity of agreements about the matter between the countries involved in a situation like this. At
this point, Deputy Director Senta said that very detailed agreements bring difficulties to the use of thistechnique, and asseverated that the most important aspect is mutual trust between the persons acting inthis situation. All the participants agreed with Professor Senta, who emphasized the differences between
smuggling of migrants and trafficking in persons. Professor Senta also commented on the difficulties of theadmission of controlled delivery for such kind of crimes, since this technique can risk the victims’ safety.
Moreover, as Professor Senta noted, in cases of trafficking in persons the evidence of the related crimes
comes after entry.
During a later session the Group initiated the discussion of other methods of investigation. Mr. Costa
mentioned the investigative tool known as controlled action, created in Brazil by Federal Law 9,034 of 3 May
1995, as a retarding action for arresting people at a better moment for obtaining evidence, after obtaining a
judicial warrant for doing so.
Ms. Kawamata, Mr. Kikawa, Mr. Hisaki and Professor Naito agreed that this is usually utilized by the law
enforcement authorities of Japan without prescriptions of the legal system and without any problems at trial
related to evidence obtained by this method.

IV. INTERNATIONAL CO-OPERATION
Afterwards, the discussion moved onto ‘International Co-operation and Mutual Legal Assistance’ as
recommended by Article 27 and others of the UN convention.
Mr. Kadhem introduced this subject as following:(i) The traditional measures of judicial co-operation in the penal field are still used. However the
principles that are at the basis of these measures have to be interpreted in order in order to enhancethe effectiveness of fighting transnational organized crime; and(ii) A wide and open interpretation of the principle of dual or double criminality is required.
Once more, Mr. Kadhem commented on the necessity of agreements related to the matter, and Mr.
Kikawa in addition said that agreements alone do not guarantee the collaboration of other countries during
investigations into organized crime. Mr. Kikawa asseverated that it is essential to create a situation in which
other affected countries become interested in repressing the crime in question.
Some problems about the validity of the evidence produced abroad were raised by Professor Naito,
especially when the evidence was obtained by one resource that is not permitted or ruled by the legislationof the other country, or when the dual or double criminality criterion is not presented in the case.
Concerning this matter, all the participants agreed that this is one of the reasons the UN Convention had
included in its articles all investigative tools, even if some of them are already controversial.
Mr. Costa said that the UN convention outlined the necessity of improving the exchange of information
between law enforcement authorities from all the signatories. In particular, Mr. Costa asseverated that it will
be possible only when there is mutual trust between the parties involved, which is increased by entities likethe UN and UNAFEI with their respective activities such as training courses, seminars, international
meetings and events in which the authorities of several countries can establish contacts and professional
relationships.
In further discussions, Mr. Costa elaborated on the importance of the UN Convention and asseverated

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that the adoption of its outlines by all the signatory countries will create in the near future similarities
between their legal systems, decreasing the difficulties for mutual legal assistance and extradition.
About this matter, Professor Uryu said that the experience of Eurojust can be taken as a good example ofone measure that enhances mutual legal assistance. Regional organizations at international level with theauthority to facilitate mutual legal assistance between different countries can be very useful for these
purposes.
The subject of co-operation between law enforcement authorities was brought to the floor. Mr. Costa said
that in a country like Brazil, where the police forces are organized primarily at the state level, rather than
the national or local level, and these state police forces have responsibility for investigating the vast majorityof criminal activities, contacts with Interpol as a duty of Federal Police sometimes damages investigations
into criminal organizations by breaching the secrecy of the investigation, and increasing the time needed toobtain information and give co-operation.
Ms. Kawamata said that in Japan, the National Police Agency co-ordinates the activities of Interpol inJapan, and the prefectures’ police departments must request Interpol co-operation through the NPA.

V. CONCLUSION
After detailed deliberations, members of the Group came up with the following recommendations toenhance measures to collect key evidence which substitutes for or corroborates witness statements:
1.

In order to combat transnational organized crime, the use of traditional techniques, which are still
very useful methods to gather evidence of any kind of crime, should be enhanced and must be
combined with new investigation techniques as outlined by the United Nations Convention;

2.

Undercover operations are one of the most effective ways to supply information useful forevidentiary purposes on such matters as the identity, nature, composition, structure, location or
activities of organized criminal groups, as well as offences that organized criminal groups havecommitted or may commit. However there is no doubt that it is a very complicated and dangerous
investigative technique that should be followed by measures to ensure the safety of the undercover
officers, as well as rules to guarantee the control of execution of the procedures by the law
enforcement authorities during the operation;

3.

The interception of several different systems of telephone and data communications (Internet: MSN
Messenger, e-mails, Voice upon Internet Protocols, etc.) and on-site interceptions (where deemed
appropriate) must be used as an important tool in collecting evidence of organized crime activities.
However, as these measures can interfere with the exercise of certain fundamental freedoms, eachcountry should adopt rules about the matter to guarantee both the effectiveness of those measuresand the protection of human rights;

4.

The practical experience in combating organized drug trafficking has demonstrated that controlled
delivery has resulted in a great increase in drug apprehensions worldwide. However, it is a techniquethat shall be used in combination with other investigative tools such as wire-tapping and undercover
operations in order to gather useful information about the structure and activities of criminalorganizations under investigation;

5.

International co-operation is crucial for repressing transnational organized crime. States should
actively take measures to revise domestic legislation to avoid legal obstacles to Mutual Legal
Assistance. Therefore, agreements and conventions shall be established bilaterally and regionally inorder to make effective the outlines of the UN Convention concerning international experience.
International co-operation will also be enhanced by the establishment of regional internationalorganizations with powers to facilitate the effectiveness of this measure;

6.

Concerning exchange of information, it is important to maintain close relationships and co-operation
among law enforcement authorities through international training courses, seminars and meetings,
which will increase mutual trust between them. This exchange of information will also improve theuse of techniques to gather evidence of organized crime activities, even in the absence of bilateral or

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multilateral agreements;
7.

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Finally, it is important to note that the adoption of the UN Convention by all the signatories will
create in the near future similarities between all the legal systems, decreasing the difficulties formutual legal assistance, international co-operation and even extradition. It will also create aworldwide inhospitable environment to criminal organizations, in order to achieve someeffectiveness in the struggle against this menace.