RESOURCE MATERIAL SERIES No. 58

GROUP 1PHASE 2
SPECIAL INVESTIGATIVE TOOLS TO COMBATTRANSNATIONAL ORGANIZED CRIME (TOC)
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Visiting Expert
Advisors

Mr. Mustafa Abdullah
Mr. Ruy Gomes Silva
Mr. John Kamya
Mr. Satomi Konno
Mr. Xue Qin Wang
Mr. Genot Hariyanto
Mr. Yoshihiko Hatanaka
Mr. Masashi Shibata
Mr. Tetsuji Tamagoshi
Mr. Bruce G. Ohr
Prof. Chikara Satou
Prof. Hiroshi Tsutomi
Prof. Mikiko Kakihara

I. INTRODUCTION
Transnational Organized Crime (TOC)
has become a great concern to the worldcommunity as it poses a threat to the safety
and security of sovereign states. It has
manifested itself in many ways, prominent
amongst which are drug trafficking, money
laundering, trafficking in women andchildren, illicit manufacturing of andtrafficking of firearms, the smuggling of
migrants etc. The result of the above isthe emergence of serious problems invarious countries of the world.
The use of traditional investigative
methods to combat TOC has proved to bevery difficult and ineffective. This state ofaffairs therefore calls for the use of special
investigative tools such as controlled
delivery, undercover operations andelectronic surveillance (wiretapping,
communications interception etc) by law
enforcement agencies to effectively control
TOC.

228

(Malaysia)(Brazil)(Uganda)(Japan)(China)(Indonesia)(Japan)(Japan)(Japan)(USA)(UNAFEI)(UNAFEI)(UNAFEI)

H o w e v e r, t h e r e i s c o n t r o v e r s ysurrounding the use of these techniques
and thus, to a certain extent, discouraging
the law enforcement agencies to utilize
them. Their use potentially undermines
the rule of law, may lead to infringementon human rights and involves government
agencies in the use of deceitful means.
There is a fear that governments may use
them to oppress citizens under the guise ofnational interest. Their use therefore often
spark off politically sensitive debates.
The biggest question therefore is how to
use these techniques consistent with therule of law and respect of human rights.
The answer to this cannot be universallyobtained and this will depend on the legal
system, practice and culture of eachcountry. There is a need therefore, to strikean agreement as to what extent the privacy
rights of individuals can be respected at
the same time keeping them (people) safe
from the effects of TOC.

116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEIn that vein, this paper seeks to analyze
these tools with emphasis on the current
situation, common issues and problems aswell as proposed solutions. It will also
analyze the legal framework existing incountries of focus and the trial
admissibility of evidence obtained using
the above-mentioned investigative tools.
II. CONTROLLED DELIVERY
A. Current Situation
Controlled delivery is recognized to be
one of the most effective investigative tools
in fighting TOC, particularly illicit drugtrafficking. It is defined as the techniqueof allowing illicit or suspect consignments
to pass out of, through or into the territoryof one or more states, with the knowledge
and under the supervision of theircompetent authorities, with a view to theinvestigation of an offence and theidentification of persons involved in thecommission of the offence.1
Under the controlled delivery system,
the shipments of such goods are monitored
closely by law enforcement officers and may
delay arrests in order to identify as manymembers of a trafficking network as
possible and to arrest them at a point
where legal proof is most readily available.
This innovative technique of investigation
can be very effective in trapping themanagers of crime syndicates. However
the methods employed may not be
acceptable to many countries in view ofconsiderations of their domestic laws,
because it produces offences which could
be otherwise prevented.
Since the endorsement of its application
vide Article 11 of the 1988 UN Convention
against Illicit Traffic in Narcotic Drugs andPsychotropic Substances (herein after
1

Article 2 (i), The Draft UN Convention against
Transnational Organized Crime (A/AC. 254/36).

called the 1988 UN Convention), thisinvestigative technique has beenfrequently utilized by law enforcement
agencies in dealing with drug offences, bothd o m e s t i c a l l y a n d i n t e r n a t i o n a l l y.
Obviously this tool has become one of themost effective weapons in combating illicit
drug trafficking as it enables the law
enforcement agencies to specifically
identify, arrest and prosecute not only the
carriers and couriers but also theprincipals, organizers and financiers ofsuch illicit activities. Apart from drugtrafficking, the usage of this technique has
been extended to other type of organizedcrimes such as trafficking of firearms,
trafficking of stolen vehicles etc...
In reality, almost all the participating
countries have adopted the tactics ofcontrolled delivery in tackling mainly
drugs and firearms trafficking. Three ofthese i.e. Italy, Japan and Pakistan, havesome special laws or regulations pertaining
to conducting controlled delivery whileothers have conducted the operation basedon discretion of the law enforcement
agencies in accordance with the regulations
or some departmental guidelines of
relevant authorities such as police,prosecution, customs etc... In countries
where this investigative tool has beenutilized, evidence collected during
investigations is admissible upon court
decisions in accordance with the existing
criminal laws of respective countries.
However, in Brazil, despite of the techniquebeing provided under the Organized Crime
Law, the tool has not been utilized by thelaw enforcement agencies because the legal
provisions are found to be insufficient.
Efforts are underway to strengthen the law
to this effect.
In Italy, the provisions of some laws
allow controlled delivery operations in
respect of illicit drug trafficking, money
laundering and illicit trafficking of firearms

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RESOURCE MATERIAL SERIES No. 58
and explosives. However, this technique
is only to be applied when any otherinvestigative methods are proven to be
unsuccessful or insufficient. The same lawsalso call for delayed action by theenforcement officers in respect of arrestsand seizures during such operations.2
In Japan, since the enactment of the Law
on Special Provisions for Narcotics3 in 1992
until October 2000, about 160 operationsof controlled delivery were conducted by theJapanese law enforcement agencies.4
B. Common Issues and Problems
The use of controlled delivery usually
becomes a very pertinent issue especiallywhen the laws of a particular country do
not explicitly provide for its use. How thencould an agency apply it? On this question,
it was felt that the laws of most countries
do not specifically designate the use of thistechnique as illegal. It is often just foundout that such a method as a means ofinvestigation and detection of criminal
activity had not been considered when thelaws were promulgated. It can therefore
be presumed that while this methodology
is not explicitly sanctioned by law, it cannot
be said to be unlawful. Controlled delivery
is often a mean to an end and a good
method of catching the sender and receiverof illicit consignments. The question is
however whether it is really effective?
Whether it is worthwhile employing? What
its merits and demerits are - Is it aneffective tool from investigative point ofview? Can it lead to arrests? What are2

Article 97 & 98 of Republic President Decree (DPR)
309/90 and Article 12-4 DPR 306/92.
3 Law Concerning Special Provisions for the
Narcotics and Psychotropics Control Law, etc, andother Matters for the Prevention of Activities
Encouraging Illicit Conducts and Other Activities
Involving Controlled Substances ThroughInternational Cooperation.
4 Isamu Ikenoue, UNAFEI lecture, 2 October 2000.

230

the legal provisions and what is thesentencing policy?
While discussing all these issues, it was
found that controlled delivery has bothadvantages and disadvantages. On thepositive side, it is the most effective methodof arresting a whole network of a particular
illicit trafficking syndicate, not just thesender and the receiver. On the negativeside, it is very dangerous because if it fails,
the illegal goods or substances enter themarket.
In practice, the operation of controlled
delivery is very difficult and complicated,particularly when it involves many
countries. Worse still when there is adifference in legal systems and practicesof the countries concerned, as well as thelack of cooperation and coordination among
various law enforcement agencies.
In utilizing this tool, enforcement
agencies are often haunted by fears thatthe illicit consignments may end up lost in
the process. Even worse, is the case of
firearms, their loss is directly linked withdanger. In Japan therefore, the law
accordingly provides that controlled
delivery of firearms should be conducted
only under clean controlled delivery (CCD)
operations.
C. Proposed Solutions
In regard to the solutions for these
problems, we can derive our lessons fromsuccessful precedents. One classic example
was the case of successful CCD operation
conducted jointly by 3 countries i.e. the US
Republic of Korea - Japan in 1998 whereby
6 kg of “fake-cocaine” was ferried from theUnited States to Japan via Republic ofKorea resulting in an arrest of a receiverin Japan.5 In this particular case, the Drug
Enforcement Administration (DEA) had
5

Mune Ohno, UNAFEI lecture, 2 October 2000.

116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
decided to change the real cocaine with fakeone because of security reasons and thereceiver was indicted in accordance withJapanese law. The success of this operation
was as a result of proper planning, close
cooperation and coordination between
countries concerned.

function of acting as a contact
point. This contact point should
promote communication with thecountry concerned m
accomplishing international
controlled delivery.
(ii)

We can draw several lessons from thisparticular experience:(i)
The establishment of close contact
and cooperation with countries inrelation to controlled delivery
operation leads to successful
results. In this vein, law
enforcement agencies in eachcountry should establish andmaintain intelligence andinformation exchange mechanisms
and networks, so as to get timely
and accurate information, both atthe domestic and international
level. Legislation or policy
designed to promote international
cooperation and harmonization inaccordance with the 1988 UN
Convention forms the basis ofestablishing smooth informationexchange mechanisms. Needlessto say, the success of controlled
delivery hinges upon domesticcooperation and coordination
among law enforcement agencies,
as well as international
coordination and cooperation.
Each law enforcement agency ineach country has to set up a systemof exchanging intelligence andinformation and these intelligenceand information units should beclosely linked and cooperating witheach other. Then, a multi-agency
task force may be organizedwhenever deemed necessary. In
case of practical law enforcement
on international mutual
assistance, these intelligence andinformation units shall fulfill theControlled delivery carried out inconjunction with the undercover
operation produces good results inthat the fear of losing
consignments and the escape ofsuspects will diminish with timely
gathering of accurate information.
(iii) It is necessary to develop newtechnologies to re-enforce the useof this tool, such as sophisticatedmonitoring devices (tracing
transmitters, response senders
and receivers, thermo imaging
cameras etc).
It is expected that thesecountermeasures may lead to solving the
problems mentroned above m thecontrolled delivery operations.
In order to overcome the fear that CCD
may weaken the court case, we need a law
or regulations to conduct CCD. In Japan,
the Law on Special Provisions for Narcotics
approves judicial authorities to punish
violators who with intent to commit any
offence, import, export, transfer, receive or
possess any drug or other article as acontrolled substance. Japanese law
enforcement officers can invoke this law toengage in CCD.
In addition to these measures, effective
application of the controlled delivery toolin any country requires policies andcountermeasures that are fast, flexible,
easy to adapt to new situations and bothtechnically and conceptuallycommensurate with the ever-growing
complexity of the evolving global TOC
problems. There might also be a need for231

RESOURCE MATERIAL SERIES No. 58
interdisciplinary research andconceptualization, experimentation withentirely new concepts and approaches andincreased international cooperation. In
that context, the establishment of theinformation network system would also
produce good results so that many
countries could share among themselves
their knowledge, expertise, and develop
information on the various available
approaches to solving the problems incontrolled delivery operations. There is no
doubt that an approach which is successful
in one country may not always be
successful in another, because the idea ofthe law and the criminal procedure
depends upon the social, cultural andhistorical background of each country andtheir policies. Therefore, the measure
should be suitable and in conformity withthe situation in any country, and exact
measures should be selected out of
information available, with given regard to
the fundamental idea that we have tocombat TOC.
It is therefore clear that controlled
delivery, though a simple concept, it
demands a high level of skill andprofessionalism, teamwork andcooperation between agencies. How
successful the operation of controlled
delivery will thus depend on how close thecooperation, coordination and monitoringis between the involved agencies, both
domestically and internationally. It is also
expected that accomplishing the controlled
delivery as part of the international
cooperation against trafficking of illicit
consignments other than drugs will havea great impact on combating TOC.
III. UNDERCOVER OPERATIONS
A. Current Situation.
Undercover operation is anothereffective investigate tool against TOC andin many cases, it is employed hand-in-hand232

with controlled delivery. The law
enforcement agencies in some countries
employ undercover agents to gather
information and collect evidence about
criminal gangs, study their modus operandi
and evaluate their future plans andstrategies. This information is used bothfor preventive and investigative purposes.
This technique inherently involves anelement of deception and may require
cooperation with persons whose motivationand conduct are open to question, and soshould b e carefully considered andmonitored.
Undercover operation means aninvestigation involving a series of related
undercover activities (investigative
activities involving the use of an assumed
name or cover identity) by an undercoveremployee (agent) over a period of time.6 It
may be of very short duration, lasting only
a few hours, or may be quite lengthy,
lasting a few years. It may be directed atonly a single crime incident, or a long term
criminal enterprise. Through such
undercover operations, law enforcement
agents are able to infiltrate the highest
levels of organized crime groups by posing
as criminals when real criminals discuss
their plans and seek assistance incommitting crimes.7
Undercover operations are extremely
sensitive and pose the danger of luringotherwise innocent people into criminal
activity. Because this technique carries thepotential for problems, it requires
exceptional preparation. In most drugcases, the undercover agents are officers
from law enforcement agencies where they
act as buyers of drugs. This method ofinvestigation is very dangerous as it puts
the life of the law enforcement officer at
6

US Attorney General Guidelines on FBI UndercoverOperations Revised 11/13/92
7 Bruce G. Ohr, UNAFEI lecture, 24 October 2000.

116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
risk if he is identified by the syndicates andas such it has’ to be carefully planned, byusing officers who have some experiencein conducting such investigations.
All the participating countries except
Brazil and India have employed thetechnique of undercover operation forinvestigating crimes which includes drug
and firearms trafficking, money
laundering, stolen properties trafficking,woman trafficking, etc, of which 6
countries; China, Germany, Italy, Japan(for narcotics and firearms traffickingonly), Malaysia and, Pakistan have somespecial laws or regulations pertaining toconducting undercover operation whileother countries have conducted theoperation according to the guidelines
formulated by the relevant authorities. In
these countries, some sort of consent or
permission to conduct the operation isrequired, for example, the consent of aprosecutor and judge in Germany, theconsent of agency supervisor andprosecutor in the United States, authorityof a prosecutor in Italy, and in case ofJapan, and authority of the Minister of
Health and Welfare for drug trafficking andby the Prefectural Public Safety
Commission for firearms trafficking
respectively.
The use of this investigative tool has
proven to be very effective in combating
TOC. It is evident in the undercover
operations carried out m most countries
which employed the tool. The classic
examples are the Operation Dinero (1994)
and Operation Green Ice II (1995) in the
United States, whereby DEA undercoveragents set up front business that offeredmoney laundering services to drugtraffickers. Both operations were hugely
successful and disabled sophisticated drugtrafficking organizations. Operation
Dinero resulted in the seizure of threevaluable paintings and US$90 million andthe arrest of 116 suspects in the UnitedStates, Spain, Italy and Canada. Whereas
Operation Green Ice II, which involved over
200 agents from 27 different law
enforcement agencies, resulted in over 80
indictments. Another most successful
undercover operation by DEA is Operations
Pipeline and Convoy which were conductedsince 1984 in New Mexico and New Jersey,
resulting in seizures of Marijuana(1,199,855 kg), Cocaine (133,419 kg), Crack
Cocaine (896 kg), Heroin (487 kg),
Methamphetamine (4,617 kg) and currency
US$604 million between the period of L
January 1986 to September 2000.8
In Thailand, recently the Thai policeannounced that they seized 2 million
methamphetamine tablets in early October2000 from a 28-year-old man trying to sellthem to an undercover agent.9
B. Common Issues and Problems
The justification of an undercover
operation demands establishment ofcriminal liability of the action of theaccused person, failure of which often
raises issues challenging the legality of theoperation. In the USA for example, for theundercover operation not to give rise to
successful claims of entrapment or related
defenses, all law enforcement officers must
consider the following three points before
conducting undercover operation: First,
while reasonable suspicion is not legally
necessary to initiate an undercover
operation, officers should nonetheless be
prepared to articulate a legitimate law
enforcement purpose for beginning such as
investigation. Secondly, law enforcement
officers should, to the extent possible, avoid
using persistent or coercive teclmiques, and
8

US Department of Justice, Drug Enforcement
Administration, Internet Site <www.usdoj.gov/dea/
programs/money.htm&www.usdoj.gov/dea/
programs/pipecon.htm as at 10/19/00>.
9 The Daily Yomiuri, 11 October 2000.

233

RESOURCE MATERIAL SERIES No. 58
instead, merely create an opportunity orprovide the facilities for the targetedcriminal to commit the crime. Thirdly,
officers should document and be prepared
to articulate the factors demonstrating thata defendant was disposed to commit thecriminal act prior to Government contact.
Such factors also include a prior arrest
record, evidence of prior criminal activity,
a defendant’s familiarity with thecircumstances surrounding a particularcriminal event, and a defendant’s
eagerness to engage in the criminal
activity. The most convincing evidence ofpredisposition will typically occur during
the initial Government contacts, which
officers should carefully document tosuccessfully defeat the entrapment
defense. In Japan, some judicial
precedents by courts 10 point out thefollowing as justification for carrying out
the undercover operation:(i)
Due to the complexity of cases
involving drug trafficking anddifficulty in their investigation,
employment of the tool is legally
acceptable.
(ii) The general guiding principle touse this tool should be consonantwith public interest, order andmorals. A law enforcement officer
should not induce a person who has
no prior intention of commission ofcrime to commit an illegal act.

official and the suspect, and to preserve
them in good condition, for evidence.
Meanwhile, in employing the undercover
operation, there are a few underlying
common problems:(i) The risk of disclosure of the true
identity of an undercover agent
puts his life at considerable danger.
The physical safety of the agent
must therefore be considered.
(ii) At times new members of thegroups have to undergo unlawful“tests of innocence” by being
required to commit criminal acts
such as abuse of illicit drugs,
homicide, stealing, causing injury
etc yet, as a matter of principle, theagents are not allowed to commit
any criminal offences.
(iii) The work of an undercover agent
is stressful, demands a full-time
pretence and often expose totemptation of committing crimes.
Thus, it requires a closemonitoring by controlling officers
and back-up crews to support theoperation.
(iv) Sometimes countries refuse tocooperate in the use of thisinvestigative tool. This prevents
undercover agent from operating
i n m o r e t h a n o n e c o u n t r y,especially if a crime is of atransnational in nature.

It is obvious that such a principle inJapan and the United States lies at thebasis of the undercover operation so thatthe operation is not legally approved unlessthe principle is secured. It is accordingly
essential to conduct a conclusive preinvestigation and keep a detailed record
with regard to words spoken between the

C. Proposed Solutions
To prevent the disclosure of his/her
identity, the undercover agent must:(a) B e p r o v i d e d w i t h a f u l l y
substantiated past history, referred
to as “backstopping” and careful
briefing concerning the criminal
targets.
(b) C o n s i d e r i n a d v a n c e e v e r yconceivable scenario that may induce
suspicion of, or hostility towards theagents.
(c) Undergo careful testing, often

10 Supreme Court, 1st Petty Bench, 5 March 1953, 7

Sai-han Keishu 3-482, Tokyo High Court, 3 April
1997, Koken Sokuho 3065-37 & Tokyo High Court,
16 March 1953, 3 To-ko-jiho 3-120.

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116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
including psychological profiling, toensure that he/she possesses theintangible qualities to ensure that he/
she will “fit” comfortably into the new
identity.
With respect of the use of undercover
operation in a serious case, to balanceCommittee consisting of prosecutors andinvestigators exists in the United themerits and demerits to the agent and the
public, The Undercover Review States. The
committee is responsible for reviewing,
approving, and controlling all sensitive
undercover operations. To be approved, an
undercover proposal must be in writing,containing a full factual description of thesuspected criminal activity and theparticipants therein, set out, in detail, theproposed undercover scenario, theexpertise of the undercover team, theduration of the project, the anticipatedlegal issues, and it must evaluate the risk
to the agents and the public.
Establishment of such a committee may be
a useful measure.
In an event where undercover agentswere required to commit any violent act,
the operation may be stopped immediately.
In the United States, whenever anundercover operation reveals that a crimeof violence is about to take place, law
enforcement authorities are required totake necessary steps to prevent the violencefrom occurring. This may include warning
the potential victim, arresting the subjects
who pose a threat, or ending the undercover
operation altogether. There is also a need.
for decriminalization of participation in thecommission of crimes to a certain extent,
by undercover agents. In considering this,the officer who has skills of dealing withany unexpected contingency should beselected and permitted to engage in theundercover operation. Acquiring training
and experience is the first principle forundercover agents.

It is important that countries which havesucceeded in using this tool should share
their experiences and expertise with others
in close international cooperation.
Cooperation at the regional and subregional level is the most importantbecause to be effective undercover
operations must often involve more than
one country in the region. Such cooperation
is often hampered by a lack ofunderstanding between countries.
IV. ELECTRONIC SURVEILLANCE
A. Current Situation
The use of electronic surveillance suchas wiretapping, communications
interception etc. is a very sensitive issue
and the topic is commonly surrounded bycontroversies. Questions of theconstitutionality and violation of humanrights expressed by rights activists havein many jurisdictions restricted or aborted
the use of this investigative tool because itis generally an illegal practice. However,the law often comes in to legalize its
application under given circumstances so
as to protect the rights of other people frombeing violated by criminals. In order toharmonize its application and respect theright to privacy, several conditions must be
followed depending on the requirement ofeach country concerned. These always
include obtaining permissions fromcompetent authorities (judge, prosecutor,
minister etc), making effort not to interferewith the private affairs/conversations,making progressive reports, close
supervision of the tapping etc. However,this method should only be applied if othermeans have failed, are impracticable orinsufficient.
Electronic surveillance represents the
single most important law enforcement
weapon against organized crime. There isnothing as effective as proving a crime
through the defendant’s own words. Its

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RESOURCE MATERIAL SERIES No. 58
evidence provides reliable, objective
evidence of crimes through the statementsof the participants themselves.
Additionally, electronic surveillanceenables law enforcement agencies to learnof conspirators’ plans to commit crimes
before they are carried out. This allows
them to survey the criminal activities, suchas delivery of contraband andconspiratorial meetings, or to disrupt andabort the criminal activities, whereappropriate, making electronic
surveillance particularly helpful inpreventing the occurrence of violent
crimes.11
Telephone interception and monitoringof all electronic communications are themost controversial aspects of electronic
surveillance, yet very useful in assisting
law enforcement agencies in combating
T O C . Wi r e t a p p i n g o r t e l e p h o n einterception is defined simply as theinterception of a telephone conversation
between parties without their knowledge,
using equipment that is inserted into theelectronic circuit between the transmitterand receiver. It is meant for obtaining
information and intelligence on various
illegal activities, and only a handful ofagencies are authorized to use this facility.
A screening process is normally carried out
before permission to intercept is granted.
This means that the agency has to justify
the action by placing for scrutiny before thecompetent authority the reasons why
tapping of a particular number is required,and also the antecedents and activities ofthe suspect. It requires handling in a very
professional manner.
Wiretapping can be effective against
crimes such as drug trafficking, money
laundering, prostitution, gambling,
kidnapping etc committed by the organizedcriminal groups which frequently employ
11 Bruce G. Ohr, UNAFEI lecture, 24 October 2000.

236

the use of telephone to perpetrate theoffence. For example, if an order of drugs
is received from a buyer, whereby theparties designate a secret rendezvous forthe transfer of drug to be carried out. Only
the parties to the telephone conversation
know the transfer point. Therefore, it isvery difficult for investigating authorities
to obtain pertinent information which willassist in their investigation and clarify thesubstance of the crime committed, except
through tapping the communication.
Wiretapping has been used to locate or
trace the movement of the drugs in order
to arrest the trafficker whilst in possessionof such drug’s. By employing such amethod, not only the carrier of the drugs
can be apprehended but also most of themembers of the syndicate, resulting in theextermination of the syndicate.
In an attempt to analyze the situationof electronic surveillance among theparticipating countries, two categories
were identified: countries which have nolegal provisions allowing the use of thetechnique and those which have. Amongcountries with no legislation are Fiji, Laos,
Nigeria, Papua New Guinea, Tanzania andThailand. It is, however, noted that someof these countries go ahead to employ thewiretapping technique under guidelines
internally issued by the relevant
authorities for purposes of intelligencegathering instead of court evidence.
On the other hand, Hong Kong,
Indonesia, Pakistan and Uganda have legal
provisions allowing the employment of thetool, and the power granting authority is
the police head. In India, the Telegraph
Act of 1885 permits communicationinterception in case of public emergency,
and so Pakistan’ s Telecommunication (Reorganization) Ordinance of 1996 and the
Wireless Telegraphy Act of 1933 underwhich the authorizing power belongs to the

116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEInterior Minister. In Malaysia, theDangerous Drug Act 1952, the Dangerous
Drugs (Forfeiture of Properties) Act 1988,
the Anti-Corruption Act 1997 and the
Kidnapping Act 1951 all provide for the useof telecommunication interception under
the authority of the public prosecutor.
There are countries, however, whichhave legal provisions for the employmentof the technique, after obtaining a warrant
from a court judge. These include Brazil,
China, Germany, Italy, Japan, thePhilippines and the US. In most of thesecountries, the offences, where the tool canbe used is as prescribed by the law, must
be serious in nature, and only if it can beshown that other investigative techniques
are either impractical or insufficient. The
proposal for interception in the US Passes
through a stringent procedure before
approval by the judge, via the publicprosecutors office and after approval fromthe department of Justice in Washington.
However, there is a provision that allows
wiretapping without the judge’s approval,
in case of emergency, but approval must
be sought within 48 hours of the tapping.
Even after permission is granted,
submission of periodic progress reports tothe courts is required. In 1998, a total
number of 1329 cases of wire, oral andelectronic communications interception
were authorized by the courts in the US12.
In Japan, the law authorizing the use of
the tool was enacted in 1999 and came into
effect on August 15,2000, whereas inGermany, the 1968 Code of Criminal
Procedure permits the use of wiretapping.
B. Common Issues and Problems
The main issues and problems in the useof this investigative tool are as follows:(i)
The main problem hampering the
12 Administrative Office of the U.S. Court, 1988

Wiretap Report.

use of this technique is lack oflegislation allowing it to apply inmany countries. Even where
legislation exists, it often imposes
stringent conditions such as
limited time of communicationinterception, time consuming
approval procedures and sorting ofprivate conversations from crime
related ones. In cases where
authority have been obtained tointercept communication related toa particular crime, it has often
become an issue whether tapping
should continue when thecriminals are discussing a newcrime that is not contained in thewarrant. The question always iswhether the tapping authority
should go ahead and tap thecircumstantial crime or stop thetapping until a new approval is
granted. In Italy, basically all
crimes which are punishable byminimum imprisonment of 4 years
under Criminal Procedure Code,can be wiretapped after obtaining
a warrant. However, in the case ofserious crimes which include
Mafia-related crimes, wiretapping
can be continued even if such acrime is not listed in the original
warrant. In Japan on the other
hand, even though wiretapping isauthorized for only 4 categories ofcrime (drug related cases,
trafficking of firearms, illegal
immigrants trafficking andorganized homicide), the tapping
can be allowed to continue if theinformation being discussed
relates to a crime punishable by aminimum imprisonment of 1 year.
Similarly in the US and Germany,
the laws give some leeway in thecontinuation of wiretapping
related to other crimes but
authority should be sought

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RESOURCE MATERIAL SERIES No. 58
immediately after the tapping.
Lack of funds to purchase the rightequipment, which is often very
expensive.
(iii) The persistent public debates andcontroversies surrounding thepeople’s right to privacy vis-a-vis
telecommunications interception.
(iv) Persistent lack of voice experts toprove in courts of law that thevoices tapped are of the accused
persons.
(v) The emergence of new technologies
e.g. mobile phones, pre-paid
phones, internet communications,
etc which are often difficult tointercept or to tie to a particularowner.
(vi) There is often a problem of
telephone companies/vendors
refusing to cooperate with theinvestigating agencies in carrying
out wiretapping, giving various
reasons such as protection ofconfidentiality and privacy of theircustomers etc.
(vii) It is noted that in some instances
there are countries which refuse tocooperate m carrying out the useof this tool, especially during
investigation of TOC.

related matters.

(ii)

C. Proposed Solutions
To overcome the above problems, there
should be enabling laws that make the useof the tool practicable and useful. Suchlaws should provide ample time forcarrying out the surveillance or applying
the interception, reduce the time
consuming procedure of obtaining
permission to use the tool, cover a wide
range of electronic surveillance methods
such as telephone and oral communicationinterceptions etc so as to effectively fightTOC. In countries where it is not possible
to enact an independent law on electronic
surveillance, the provisions should beembedded in other laws that address TOC

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Secondly, the laws should compel thetelephone vendor/companies to cooperatewith investigating agencies in the use ofthis tool. Thirdly, there is a need forcountries to strike a balance in the use of
the tool so as to effectively overcome thedifferences existing in relation to which
type of crimes the tool should be used.
Lastly, there should be international
cooperation in the use of this tool. Thisshould be accompanied with exchange ofexpertise between countries that havesucceeded in using the tool with those thathave not.
V. CONCLUSION
In conclusion, employment of the newinvestigative tools is highly necessary tofight against the ever growing threat of
TOC. Undercover operations, controlled
delivery and electronic surveillance standout as the most effective investigative tools
against TOC given the fact that where they
have been used, they have exhibited a highlevel of ability to deliver good results.
However, like all new innovations, the useof these tools have to overcome a lot of
problems, ranging from lack of or
ineffective legislation, lack of trained
manpower, challenges from civil society
and admissibility of evidence obtained
through their application.
The ultimate solution for the success of
the use of these tools lies in avoiding themisuse of these tools. Governments andenforcement agencies therefore need toestablish proper guidelines and controls on
their application by agents to avoid abuse.
International cooperation and recognitionof the effects of TOC and the sharing ofexperience and support between nations inusing the tools to fight TOC are equallyimportant. Regional police bodies such as“ASEANAPOL” in ASEAN “EUROPOL” in116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Europe and “EAPCCO” in Eastern Africa
to re-enforce ICPO/INTERPOL cancontribute greatly to strengthening thenecessary level of cooperation.

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