CARDS Regional Police Project :
a new Council of Europe regional project against serious crime in South-eastern Europe
Use of special investigative means and intelligence
in accordance with human rights standards
BACKGROUND AND JUSTIFICATION
The use of special investigative means – SIMS (interception of telecommunications, electronic surveillance, undercover operations etc.) is recognised to be an legitimate and effective tool for investigating serious criminal activities. An analysis of the use of SIMS in countries of South-eastern Europe1 point at the following needs which would need to be addressed to enhance their effectiveness and prevent possible abuse and threats to the right to privacy under Art. 8 of the European Convention of Human Rights:
· Need to improve legislation
with few exceptions legislation in most countries still does not allow the use of SIMS for all relevant organised crime, trafficking in human beings and corruption related offences
many countries limit (to different extent) the evidentiary value of the information gathered by the use of SIMS (e.g. they allow the use of SIMS but only to gather police intelligence not usable in court)
most countries regulate by law only the use of technical SIMS (e.g. wiretapping), while electronic surveillance, observation and in particular deployment of undercover agents is not regulated by law (which creates at least three interrelated problems: a) possibility for abuse; b) evidentiary value of information gathered by the later SIMS; c) protection of identities of undercover agents giving testimony in court)
legal provisions for ordering and implementation of different types of SIMS are in some countries so vague as to raise serious doubts of their compliance with ECHR.
· Need for implementing regulations
SIMS require a comprehensive set of implementing regulations (by-laws) which must in detail specify different practical aspects of: a) the internal (within the police and/or prosecution service) approval procedure; b) the implementation (e.g. the procedures for establishing a “Legend”, obtaining forged documents, internal reporting on its implementation; scope of the permissible conduct of the undercover agent, etc); c) handling of the material/information collected (how to record and preserve a chain of evidence, etc.)
much of the above is lacking in most of the countries, which seems to have an additional negative effect in some countries: the judiciary is deeply susceptible to the credibility and evidentiary value of information gathered by SIMS.
· Need to promote low cost or non-technical SIMS
with very few exception, countries are in lack of the equipment to intercept and monitor new forms of communication
where equipment exist it is in the hands of the State Security services, not the public law enforcement agencies
while it is unrealistic to expect that this will change soon in most countries, the emphasis could be given to non-technical SIMS (e.g. deployment of undercover agents).
· Need to provide training
there have been close to no training activities on the SIMS (with the exception of some general seminars)
· Need to establish oversight mechanisms
with the exception of one or two countries there are no external oversight mechanisms as known in many European countries (e.g. parliamentary or other special committees).
1 Provisional results of the PACO SIMS project (2002-2003).