This module is a resource for lecturers

International cooperation

Migrant smuggling is a cross-border crime. For this reason, successful investigations and prosecutions will often depend on cooperation between the relevant authorities of countries involved (see also UNODC, Toolkit to Combat Smuggling of Migrants, Tool 6, 2010).

Cooperation may be formal or informal:

Formal international cooperation can be based on bilateral, multilateral or regional treaties or agreements, including agreements on extradition and mutual legal assistance in criminal matters. Typical examples are those based on UNTOC (see articles 18 and 27) or the European Convention on Mutual Assistance in Criminal Matters. These instruments allow, for instance, foreign police to request the exercise of coercive powers (such as search or seizure) in a foreign jurisdiction to obtain evidence. Anti-money laundering measures are another example. In formal police cooperation, the specific rules of the legal systems involved must be assessed and respected (e.g. regarding jurisdiction, institutional competence, collection of evidence), which is usually contemplated by the applicable legal agreements. See also articles 10, 11 and 13 of the Protocol against the Smuggling of Migrants. In the absence of such agreements, UNTOC provides the basis for cooperation among States parties. Where there is no treaty framework for international cooperation, good practice is for States to cooperate based on courtesy and reciprocity.

Informal cooperation is governed neither by statute nor treaty. It involves operational police-to-police contact in seeking and aiding investigations to facilitate the secure and rapid exchange of information. Necessary arrangements for such informal cooperation can be made between relevant police officers or agencies. Where there are prosecutorial objectives, communications may need to be formalized to ensure the admissibility of evidence in court. It may further comprise one-to-one cooperation where individual officers or magistrates communicate and assist each other over the telephone or by email.

National laws may prohibit any type of cooperation or allow only one kind. Both forms of cooperation might be pursued in parallel.

In the realm of international cooperation, it is important to keep in mind the often critical role played by international organizations and institutions, such as INTERPOL, Afripol and Europol (international police cooperation) and Eurojust (international judicial cooperation). See Boxes 29, 30 and 31.

Box 20

Challenges to international cooperation

Lack of trust;
Differences in legal systems;
Diversity of law enforcement structures;
Misuse of, or failure to use, existing channels of communication;
Non-existent or poorly established direct channels of communication between countries;
Diversity in approaches and priorities; and
Resource-intensity of operations.

Police cooperation

In the context of international police cooperation, liaison officers deployed in the countries where information is sought are likely to be a resourceful tool.

Informal cooperation can be engaged relatively easily before the commencement of court proceedings (for example, in conducting surveillance or taking voluntary witness statements). Where there are prosecutorial objectives, informal communications between police will need to be formalized to ensure the admissibility of evidence in court. Box 21 below shows an example of potential problems arising because of informal communications between investigators.

Box 21

An investigator posted abroad used his informal relationship with another investigative agency to acquire sensitive information that normally would have required a search warrant to obtain. These documents contained exculpatory information and, pursuant to the law of the requesting State, they had to be disclosed to the defence counsel. The requested and requesting States were both placed in a difficult position because:

The information was of a sensitive nature, the requested State had not consented to its release and that same information was potentially sought to be presented in a public forum.
The requested State could not consent to the release of the information without a search warrant and therefore the information could not be disclosed by the requesting State as per its obligations under international law.

UNODC Manual on Mutual Legal Assistance and Extradition (2012), p. 67

Informal cooperation can be useful (depending on the good relations nurtured between the parties) and will likely be much faster and less expensive than formal cooperation. This does not mean, however, that informal police cooperation is subject to no requirements. Rather, those involved must assess the applicable national conditions. Typically, informal cooperation will involve passing a request through a central liaison unit or officer. In urgent cases, it may be possible to make direct officer-to-officer contact, with the general requirement that the liaison unit or officer be informed about the contact. Advanced frameworks of police-to-police cooperation have been established in certain cases, as outlined in Box 22.

Box 22

Police trans-border observations (EU)

European Union (EU) police teams are allowed to follow tracks or survey in another EU country when the perpetrators cross borders. The police can carry their weapons and use their police vehicles. The authorization for the observation is given by the liaison judge in Europol for 24 hours (emergency demand) or 30 days (ordinary demand). For instance, French police have followed criminals from Paris to Venice through Switzerland.

UNODC, Basic Training Manual on Investigating and Prosecuting the Smuggling of Migrants (2010), Module 8 International Cooperation, p. 8

Judicial cooperation

Judicial cooperation is linked to police and investigative activities and relates to mutual legal assistance (MLA). Mutual legal assistance is meant to allow for a wide range of assistance between States in the production of evidence. Article 18(1) and (2) of UNTOC refers to States parties affording "one another the widest measure of mutual legal assistance" and mutual legal assistance being "afforded to the fullest extent possible". However, this may only occur when the MLA request is communicated in a timely and effective manner and communication continues during its execution. MLA requests are subject to several prerequisites, which might vary from country to country.

Box 23

General Principles of MLA

Sufficiency of evidence - The amount of evidence required is dictated by the legislation of both the requesting and requested State. As a principle, the more coercive the means of obtaining the evidence, the more demanding the evidentiary requirements will be. For example, the interviewing of a witness who provides a statement to the police will require less evidence than a MLA request to intercept a person's telecommunications.
Dual criminality - The conduct of the person who is the subject of the MLA request must be a criminal offence in both the requesting and the requested State. It is a concept that tends to play a larger role in the law pertaining to extradition. However, it can also apply to MLA. It might be applicable to all MLA acts, only to coercive MLA actions, or not apply at all. Importantly, the test for dual criminality is whether the conduct that is the subject of the mutual legal assistance request is criminal in both States, not whether the conduct is punishable as the same offence in each State.
Limitations on the sharing and/or use of information obtained through MLA - article 18(19) of UNTOC restricts the use of the information gathered due to a MLA request to the investigation or prosecution that is the subject-matter of the request, unless permission is granted to use it otherwise. Exculpatory information may be disclosed to an accused. If this action is taken, "the requesting State Party shall notify the requested State Party prior to the disclosure and, if so requested, consult with the requested State Party. If, in an exceptional case, notice is not possible, the requesting State Party shall inform the requested State Party of the disclosure without delay".

MLA requests may be refused on several other grounds, including human rights considerations, severity of punishment, national or public interest and double jeopardy. See, for example, article 18(21) of UNTOC.

According to article 18 of UNTOC, MLA requests may refer to:

Taking evidence or statements;
Effective service of judicial documents;
Executing searches and seizures;
Examining objects and sites;
Providing information, evidence and expert evaluations, documents and records;
Identifying or tracing proceeds of crime, property, instrumentalities and other material for evidentiary purposes;
Facilitating the appearance of witnesses; and
Any other kind of assistance not barred by domestic law.

It is important to assess whether MLA requests offer the most appropriate means of meeting the needs of the investigation or specific stage thereof. Otherwise, other measures should be considered such as:

Police-to-police communication;
Agency-to-agency communication (e.g. direct contacts between National Central Bureaus of INTERPOL); and
Consular communications.

Box 24

Mexico, for example, utilizes its consulates to obtain evidence, declarations or information regarding investigations or judicial causes. Once the consular channel has been exhausted, the Mexican authorities then turn to a formal mutual legal assistance request as the instrument of international cooperation. Mexico bases this approach on article 5 (j) of the Vienna Convention on consular relations as well as national legislation.

UNODC Manual on Mutual Legal Assistance and Extradition (2012), p. 68

Extradition

Extradition is a specific type of formal international cooperation. It consists of the delivery of a person sought by a requesting State for criminal prosecution, or for the enforcement of a criminal sentence, in relation to an extraditable offence. Article 16 of UNTOC establishes minimum standards and principles regarding extradition. Notably:

Legal basis - Some States require the existence of a treaty on extradition between the countries involved. In States that do so, both bilateral and multilateral treaties (such as UNTOC) may serve as the relevant basis, provided the conditions indicated in article 16(5) of UNTOC are satisfied.
Dual Criminality - The requesting State must prove that the criminal offence for which extradition is requested is punishable under the domestic law of both the requested and requesting States. This requirement is particularly relevant to smuggling of migrants, as it shows the importance of all States criminalizing the respective conduct. Otherwise, in States that do not have smuggling offences smugglers may act with impunity.
Speciality - States must specifically detail the offences for which the extradition request is made. The requesting State is asked to prosecute only those offences. In regard to smuggling of migrants, there is the need to harmonize legislation to ensure that relevant definitions are aligned (in accordance with article 3(a) of the Protocol against the Smuggling of Migrants).
Non-extradition of nationals - Many countries refuse the extradition of nationals. It is important to recall article 15(3) of UNTOC, which outlines the duty to prosecute if extradition is denied solely on grounds of nationality. This calls for establishing enabling jurisdictional grounds. If extradition is requested for the purpose of enforcing a sentence, the requested State may also enforce the sentence that has been imposed in accordance with the requirements of its domestic law.

It should be noted that extradition procedures may be very lengthy, bureaucratically complex and technically demanding.

Box 25

Alleged smuggler extradited from Indonesia to Australia

An alleged people smuggler accused of sending more than 200 asylum seekers to Australia has been extradited from Indonesia. Ahmad Zia Alizadah, reported to be an Afghan national, is the ninth person extradited to face people smuggling charges in Australia since 2008. The Australian federal police flew him to Perth where he was expected to face court on 10 people smuggling offences from 2010. The immigration minister, Peter Dutton, said Alizadah was alleged to have smuggled more than 200 people on four vessels.

"This is a major operation," he told ABC radio. "It is alleged that he accepted payments of up to $US10,000 per person." Alizadah was arrested in 2015 and Dutton said extradition proceedings between countries always took time. In a joint statement with the foreign minister, Julie Bishop, and the justice minister, Michael Keenan, he said the extradition showed the strength of the relationship between Australian and Indonesian police. The trio said Indonesian authorities had made several arrests for people smuggling offences and Australia appreciated Indonesia's "determined efforts to bring people smugglers to justice".

The Guardian, 13 July 2017

Means of evidence: some reflections

Investigative authorities are often called on to explore the admissibility and appropriateness of numerous techniques and means of gathering evidence.

Videoconferencing is specifically referred to in article 18(18) of UNTOC. It permits the collection of evidence at reasonable costs and without the logistical challenges sometimes linked to obtaining testimony in another State. It may also reassure witnesses who fear sharing the same space or being in the proximity of the defendant. As such, videoconferencing may be a tool to advance investigations and, at the same time, protect witnesses. However, not all States allow for evidence gathering through videoconferencing. When allowed, the use of videoconference technology should be considered carefully due to the risk of violation of confidentiality regarding a witness's identity or location. The need to ensure secure communication channels is also necessary, given the possibility of criminal actors intercepting transmission of the testimony.

Box 26

Video conferencing

The Ibero-American Convention on the Use of Videoconferencing in International Cooperation between Judicial Systems facilitates the use of videoconferencing between competent parties in civil, commercial and penal cases. It allows for the cross-examination of a person, as party, witness or expert, residing in another State, via video conference. Article 5 of the Convention states that the cross-examination will be performed directly by the requesting State, under the supervision of a person from the requested State.

The tracing and seizing of assets is a domain where there are significant differences in national legal systems. Property (real estate and moveable property), banking systems and secrecy rules, management and disposal of seized assets and a plethora of other considerations are to be addressed before and upon submitting the corresponding MLA request. These issues can become extremely complex, particularly when it comes to locating and tracing assets that a criminal may have made significant efforts to conceal or mingle with legitimate assets. The technical expertise and resources necessary to carry out asset tracing and seizure may not be readily available. Communication will be key in ensuring that all phases of the seizure and forfeiture of assets run smoothly and that a successful result is obtained.

The confiscation of assets may be critical in disrupting smuggling networks. For instance, seizing the so-called 'mother vessels' is likely, at least, to temporarily disrupt organized criminal groups (for more details on the so called 'mother vessel' modus operandi, please see Module 1). These means of transportation are not easily replaceable. See article 13(1) and (2) and article 18(28) of UNTOC. A case where several important items of the investigation (mobile phones and storage devices), as well as substantial amounts of cash (presumably proceeds of migrants smuggling), were confiscated by police authorities during a joint cross-border operation is presented in Box 27.

Box 27

Migrant Smuggling Ring Dismantled by Finland, the United States and Iceland

On 10 October 2017, the Finnish Border Guard, with the support of Europol, the Icelandic Police, the U.S. Border Patrol (USBP) and the U.S. Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI), dismantled an organized crime group composed of Syrian and Iraqi nationals, accused of facilitating the illegal entry of migrants from Southern Europe to Finland and onwards to USA via Iceland and Mexico. Finnish authorities arrested 4 members of the criminal gang and conducted 4 house searches in Helsinki, Vantaa and Tampere (Finland). This resulted in the seizure of numerous mobile phones and storage devices. Thousands of euros worth of cash money, hidden in plastic bags, were found and confiscated during the house searches.

Europol

Joint investigation teams (JITs) are international cooperation tools based on an agreement between competent authorities--both judicial (judges, prosecutors and investigative judges) and law enforcement--of two or more States, established for a limited duration and for a specific purpose, to carry out criminal investigations in one or more of the involved States. Such agreements may be specific and on a case-by-case basis. See article 19 of UNTOC.

JITs may be located in either or both countries involved. The specifics of these teams may vary considerably depending on national laws. For instance, they may include foreign operatives (i) in an advisory, consultative or supportive role based on the provision of technical assistance to the host State, or (ii) with the ability to exercise operational powers under host State control in the territory or jurisdiction where the team is operating. JITs may also work in separate locations; that is, teams conduct parallel investigations in close cooperation with each other while not being physically in the same location. Officers operate with a common goal, assisted by a liaison officer or through personal contacts, and supplemented by formal mutual legal assistance requests. Teams operating in different physical locations require ready and open lines of communication. The decision on the type of JIT to deploy will depend on the laws of the countries involved, the primary needs of the investigation and the cost and resources implicated.

Box 28

Joint Investigations Teams (JITs)

Judicial and law enforcement authorities from Belgium, Bulgaria, France, the Netherlands and the UK, supported by Eurojust and Europol, acted against a Europe-wide organized criminal group (OCG). The OCG is suspected of facilitating unlawful immigration from countries including Afghanistan, Pakistan and Vietnam into the European Union in breach of immigration law. The OCG is also suspected of money laundering. The OCG is believed to have transported migrants in specially adapted vehicles, passing through Bulgaria, Belgium, France and the Netherlands, with the final destination being the UK. Investigations into the OCG began in 2016 in the UK and the Netherlands, and links were detected to the other three Member States. UK and Dutch authorities brought the investigation to the attention of the affected Member States. (…)

[N]ational authorities from the UK, Belgium, Bulgaria, France and the Netherlands took the decision to form a joint investigation team (JIT). All five Member States, plus Eurojust and Europol, joined the JIT in June 2017. The terms of the JIT were negotiated and drafted by Eurojust, and Eurojust also provided funding for the JIT. Europol provided extensive analytical support to the JIT throughout its operation and held two operational meetings in The Hague to discuss the law enforcement response to the OCG. Europol supported the action day by providing dedicated analysts for the operation and deploying its mobile office to the UK Command & Control Centre. Information gathered during the day of action was analysed and exchanged in real time and immediately cross-matched. A coordination centre was held at Eurojust, with support provided by Europol's National Desks and Operations Unit.