116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSCONTROLLED DELIVERYJohan Peter Wilhelm Hilger *I. INTRODUCTION
Controlled delivery is a tool employed bythe criminal prosecution authorities whichis indispensable to effectively detect
international organized crime. In
Germany, we understand by this controlled
importation, controlled exportation andcontrolled transit.
Controlled delivery is not governed bylaw in Germany. In practice, it is subject
to the tactical discretion of the criminal
prosecution authorities. Individualprovisions can be found in guidelines issued
to the criminal prosecution office, which isthe authority in charge of the investigation
proceedings. The police must follow theinstructions of the office (sections 161 and163 of the Code of Criminal Procedure[StPO]). This has worked smoothly inpractice in Germany for years; this also
applies to cooperation with the police
authorities in the neighbouring Europeanstates. The success of the investigations isfrequently spectacular.
II. PRINCIPLES AND FRAMEWORKThe principle of mandatory prosecution
applies in Germany, which is derived fromthe rule of law principle (sections 152, 161
and 163 of the Code of Criminal Procedure).
Accordingly, the criminal prosecution
authorities are obliged to initiate themeasures necessary for prosecution
without delay, in particular to solve thecrime, when they gain knowledge or forma suspicion of the commission of a criminal* Former Head of Division of Judicial System,
Federal Ministry of Justice, Germanyoffence. This means that they have nodiscretion as to whether to initiate criminal
proceedings; they are obliged to take thenecessary investigative measures.
Furthermore, the duty to act ‘within areasonable time’, as prescribed in Article 6para 1 of the European Human Rights
Convention, applies in Germany. Thismeans that the necessary criminal
prosecution measures are to be taken
without delay.
It is however not possible to deduce fromthese principles an instruction to intervene
immediately in the sense of, for instance,
search or seizure, or indeed apprehension
without delay. Rather, the publicprosecution office has tactical discretion as
to which measure to take at what point intime to solve a crime; the highest principle
is only that rapid detection may not suffer
as a result of this tactical discretion.
The principle of mandatory prosecution
does not entail a duty to take a specificinvestigation and intervention measureunless a specific danger otherwise existsthat the criminal prosecution would suffer
were this measure not to be taken, and thatin particular items of evidence would belost.
There is also no statutory requirementin Germany that the offender is to bebrought before a court in Germany. It issufficient to ensure that the offender issentenced at all. On the whole, this means:
The principle of mandatory prosecution,
the principle of acting within a reasonable
time and controlled delivery do notcontradict but complement one another in79

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a harmonious manner. This becomes clear
if one realises that too early, too rapid or
too intensive intervention, too early seizure
or too early apprehension may be
detrimental to the investigative
proceedings in individual cases because it
restricts the possibilities available fordetection. This would mean in practice that
it would contradict a correctly understood
principle of mandatory prosecution if depending on the facts of the individual
case - controlled delivery were not to beused, but one were to intervene too early.
The principle followed is: too earlyintervention is just as detrimental as thecriminal prosecution authorities
intervening too late, because it would
reduce the potential success of theinvestigations.
There are naturally cases in which theprinciple of mandatory prosecution and theprinciple of acting within a reasonable timeforce one to reject or abort controlled
delivery. Such a case is, for instance, where
the implementation of controlled delivery
would be too dangerous for the officers
involved. Another case in which controlled
delivery is not implemented or must be
aborted is that of endangerment to thegoods being transported, as is the case withtrafficking in human beings.
III. INDIVIDUAL QUESTIONS
On the basis of these considerations,Nos. 29 a to 29 d of the guidelines on
criminal proceedings stipulate thefollowing, in the main:
A. 29 aControlled delivery is the illegaltransportation of narcotics, arms, stolen
goods and property, etc., from a foreigncountry through domestic territory to athird country, monitored by the criminal
prosecution authorities; controlledexportation is illegal transportation from80

domestic territory to a foreign country;
controlled importation is monitored illegaltransportation from a foreign country todomestic territory.
B. 29 bSuch controlled transportation can only
be considered if the ringleaders cannot
otherwise be identified or distribution
channels uncovered. Monitoring is to be
carried out such that it is ensured that theoffenders and items involved in the offence
can be accessed at all times.
Moreover, the following declarations by
the foreign states must be provided fordelivery and exportation:(i)
assurance to monitor
transportation continuously;(ii) assurance to strive to investigate
couriers, ringleaders and buyers,
to seize the narcotics, arms, stolen
goods and property and the like,and to attempt to convict theoffenders and execute theirsentences; and(iii) assurance that the Germancriminal prosecution authorities
will be continually informed of therespective state of the proceedings.
C. 29 cWith controlled delivery, if as yet there
are no investigative proceedings pending
with a German public prosecution office inrespect of the offence, the public prosecutor
is on principle responsible for theproceedings who is responsible for theborder crossing via which the items related
to the offence are brought onto domesticterritory. This also applies to controlled
importation. With controlled exportation,
the proceedings are on principle operated
by the public prosecutor from whose district
the transportation is initiated.

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
D. 29 dThe decision as to the permissibility ofcontrolled transportation is taken by theresponsible public prosecutor. He/she
informs the public prosecutor from whosedistrict the transportation is likely to leavedomestic territory. The public prosecutor
responsible for the place of importation is
also to be informed if another than this one
is operating the proceedings.
The authorities and officers of the policeand customs service on principle approach
the responsible public prosecutor if theyneed decisions and information.
These relatively strict guidelines, which
are binding on the public prosecution officeand the police, ensure that controlled
delivery is only employed if it is expedient.
They also ensure that, in accordance withthe principle of mandatory prosecution andthe principle of acting within a reasonable
time, the offenders will be sentenced athome or abroad without delay.

become. It is also made more difficult if
organized crime becomes less accessible.
Here, controlled delivery overlaps withother investigation methods, such as theuse of undercover investigators. These are
frequently involved in controlled delivery.
If organized crime becomes even lessaccessible, it will become more and moredifficult to infiltrate organisations withundercover investigators. However, if thisbecomes more difficult, it will also become
more difficult to identify illegaltransportation of criminal goods at theoutset and to take early measuresnecessary for controlled delivery. I only
wish to touch on this problem here. We
can perhaps discuss this later.

IV. OUTLOOKI stressed at the beginning that
controlled delivery in Germany is acontinually functioning practice with good
detection rates. My information has, I
hope, also demonstrated that no statutory
provision is needed.
It is an unmistakable fact that controlled
delivery is gaining ever greater significanceas internationally operating organizedcrime increasingly expands trade channels
over the world. Effective detection is only
possible if controlled delivery is possible
and practised the world over in a network
formation.
One should also not overlook the factthat controlled delivery becomes all themore complicated the more complex thelinks and trade channels of organized crime81