At its first meeting, the PC-TI decided to adopt a questionnaire to be sent to all Council of Europe member States and to the observer States represented in the Committee, with a view to gathering relevant information on the regulation and use of Special Investigation Techniques.
Replies to the questionnaire should be sent in English or in French, in electronic version, preferably by e-mail, and should be 5 to 10 pages long (A4 page single space), to Mr Rafael A. BENITEZ, Head of the Counter-Terrorism Task Force, Directorate General of Legal Affairs, Council of Europe, 67075 Strasbourg Cedex (France) - E-mail: email@example.com, by 2 June 2003.
If you require any further information, please do not hesitate to contact Mrs Anita VAN DE KAR, Administrator, Counter-Terrorism Task Force, Directorate General of Legal Affairs (Tél: 33 3 88 41 29 29 - Fax: 33 3 88 41 27 94 - E-mail: firstname.lastname@example.org).
ON SPECIAL INVESTIGATION TECHNIQUES IN RELATION TO ACTS OF TERRORISM
The purpose of this questionnaire is to gather information about the situation in member States concerning Special Investigation Techniques (SITs), their regulation and use.
The information gathered through this questionnaire is intended to serve the purpose of implementing the terms of reference of the PC-TI which are “to study the use of special investigation techniques respective of European criminal justice and human rights standards, with a view to facilitating the prosecution of terrorist offences and increasing the effectiveness of law enforcement, and to make proposals as to the feasibility of preparing an appropriate instrument in this field.”1 2
For the purposes of this activity, SITs are tentatively defined as techniques for gathering information systematically in such a way as not to alert the target person(s), applied by law enforcement officials for the purpose of detecting and investigating crimes and suspects.3
This questionnaire deals inter alia with the following SITs4:
1. under-cover operations5 (including covert investigations)
2. front store operation (e.g. undercover company)
4. controlled delivery6
5. observation (including cross-border observation)
6. electronic surveillance
7. bugging (private or public premises)
8. interception of communications7 (telephone, fax, e-mail, mail, public and private networks)
9. searches (including of premises, of objects, e.g. computers, cars, etc. by various means including scanning)
10. cross-border (hot) pursuits
11. "agent provocateur"
12. pseudo-purchases or other "pseudo-offences"
Delegations are invited to provide information about other SITs used in their country.
The questionnaire does not directly concern the means for carrying out the SITs. However, delegations are invited to provide information about them where appropriate.
1. Please indicate the SITs used in your country, the respective legal framework governing their use and their legal definition, if any.
2. When and under which circumstances (eg criminal investigation, preliminary stage, etc) SITs can be used?
3. Are there any specific features governing the use of SITs in relation to acts of terrorism? If so, please specify.
4. How does the legal framework governing the use of SITs guarantee respect for human rights and individual freedoms, the principles of subsidiarity and proportionality? Is the authorisation to use SITs subject to time-limits? Which bodies and procedures are in place to supervise compliance with human rights standards and with the above-mentioned principles in the use of SITs? Is supervision automatic/systematic?
5. Which institutions are involved in the use of SITs and what is their role (e.g. law enforcement agencies, prosecutor’s Office, judicial authorities, etc)? Which institutions can order and/or authorise the use of SITs? How does co-operation between these institutions work in practice ?
6. Are there any specialised counter-terrorism institutions? What is their role in the use of SITs.
7. Which measures have been adopted in order to facilitate international co-operation (e.g. joint investigation teams)? Can the SITs listed in reply to question 1 be used in cross-border settings?
8. What use can be made of SIT in the context of mutual legal assistance?
9. How can the use of SITs be improved? Please provide any comments/proposals concerning the implementation of the terms of reference of the PC-TI and in particular the use and regulation of SITs.
Note 1 See document PC-TI (2003) 1 rev.
Note 2 See document "Guidelines on human rights and the fight against terrorism", Council of Europe Publishing, September 2002
Note 3 As defined in document PC-S-CO (2000) 3.
Note 4 See the relevant provisions of the reference texts in document PC-TI (2003) Misc. 1 and where appropriate in other documents. The definitions relating thereto are intended for the purposes of clarification and the gathering of information and are not intended to be final. They do not presuppose an agreement by the PC-TI.
Note 5 “An undercover operation is a method of investigation where substantial information and evidence are gathered over a period of time, involving the use of lawful measures by law enforcement and by using undercover agents to obtain such information and evidence”, definition in document PC-TI (2003) Inf. 1.
Note 6 “Controlled delivery shall mean the technique of allowing an illicit or suspect consignment to pass out of, through or into the territory of one or more States with the knowledge and under the supervision of their competent authorities with a view to the investigation of an offence and the identification of persons involved in the commission of the offence”, definition in Article 2(i) of the United Nations Convention against Transnational Organized Crime, see document PC-TI (2003) Inf. 1.
Note "Controlled delivery" means the technique of allowing illicit or suspect consignments of goods or money, or items substituted for them, to pass out of, through or into the territory of one or more States, with the knowledge and under the supervision of their competent authorities, with a view to identifying persons involved in the commission of offences, Article 1 (g) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna,1988).
Note Controlled delivery can be carried out with or without laissez-passer (of the delivery) and/or infiltration.
Note 7 “The covert monitoring of direct communication or telecommunication in which one or more suspects are taking part, in order to provide evidence or intelligence on their participation in crime”, as defined by the PC-OC in document PC-S-CO (2000) 3.