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Legal aspects of controlled deliveries

 

 

 

Defined by Article 1 g) of the 1988 UN Convention against illicit Traffic in Narcotic Drugs and Psychotropic Substances as: (…) the technique of allowing illicit or suspect consignments of (…) drugs (…) or substances substituted for them, to pass out of, through or into the territory of one or more countries, with the knowledge and under the supervision of their competent authorities, with a view to identifying persons involved in the commission of offences (…)” (and repeated by Article 2 i) of the 2000 UN Convention against Transnational Organised Crime and article 2 (i) of the 2003 UN Convention against Corruption with a view to investigating offences, the technique of controlled delivery has been used in some countries for a long time already.

 

On an international level, controlled deliveries are recommended by Article 11 of the 1988 UN Convention against illicit Traffic in Narcotic Drugs and Psychotropic Substances which states in its paragraph 1 that “ If permitted by the basic principles of their respective domestic legal systems, the Parties shall take the necessary measures, within their possibilities, to allow for the appropriate use of controlled delivery at the international level, on the basis of agreements or arrangements mutually consented to, with a view to identifying persons involved in offences established in accordance with article 3, paragraph 1, and to taking legal action against them”.

 

On European level, derived from article 11 of the 1988 UN Convention, article 22 of the Convention on Mutual Assistance And Cooperation Between Customs Administrations (18.12.1997) and article 12 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union states that Member States will undertake to ensure that controlled deliveries may be permitted in their territories in relation to criminal investigations into extraditable offences. Whereas article 73 of the Schengen Convention provided for controlled deliveries of drugs and psychotropic substances, these Conventions (called NAPLES II) provides for controlled deliveries in relation to “extraditable offences”: these could therefore refer to illegal trafficking of money, firearms etc.

 

Controlled delivery is an investigative technique not often regulated by laws. Many countries rather refer to administrative rules, guidelines etc…

The table below aims to give an overview of what is the legal or other framework employed for controlled deliveries at national level in the EU member States. It focuses on factors highlighted by the European Manual on Controlled Deliveries drafted by Europol in 2001, and the UNODC’s expert working group on special investigative techniques in September 2005. These factors are the need for regulation, whatever the legal framework employed; the need for the legal framework to clearly identify the authorising officials; to ensure that the requirement for authorisation are not too onerous and do not prevent effective cooperation; and finally the extensions of the controlled deliveries from the traditional application in drug cases to all crimes.

 

Country

Legal framework or guideline document for Controlled deliveries

 

Authorities competent to authorise to carry out controlled deliveries

Legal requirements for authorisation

 

Does this law apply only to drugs or may also apply for any kind of goods?

Which goods?

Austria

Federal law on judicial cooperation in criminal matters with the Member States of the European Union (EU-JZG).

Public Prosecutor’s Office in whose jurisdiction the border will be crossed or the delivery will start.

 

  • Indication that all transit states have given their agreement
  • Guarantee of continued surveillance
  • Delivery will be intercepted if there is a risk of losing the consignment
  • Authorities will only authorise deliveries to another country if an assurance is given that the consignment will be seized and those involved prosecuted
  • The controlled delivery through or out of Austria is to be undertaken and led by the Austrian authorities.
  • A controlled delivery is regularly conducted under observation in order to guarantee that the route of delivery is followed and the suspects and goods can be accessed at any time.
  • It must also be guaranteed that the controlled delivery can be handed over to the authorities of another State.

Any kind of goods

Denmark

There is no specific legislation on controlled deliveries but 31 July 2002 the Danish Ministry of Justice has issued guidelines on cross-border controlled deliveries.

 

Request must be sent to national police (authorisation must be obtained from the regional chief constable whose jurisdiction is expected to be involved in the case).

 

  • Specification of the requesting authority.
  • Information on the background and content of the request including a specific account for the reasons for requesting the carrying out of the controlled delivery.
  • Information on the contents of the controlled delivery including the quantity etc.
  • Information on the persons involved in the controlled delivery including Danish citizens (supplier, courier, recipient etc.).
  • Information on the time and route including the expected destination of the controlled delivery.
  • Information on other countries involved.
  • Information on permission from the country expected to be the final destination of the delivery.
  • Information on criminal proceedings in the country expected to be the final destination of the delivery
  • Description of the form of transportation – car (registration number, mark, colour etc.), train (train number, seat etc.), plane (plane number, seat etc.) ship (name, type, colour etc.).
  • Any information on previous contacts to the Danish authorities.
  • Name and telephone number on the persons in the Danish authorities responsible for the carrying through of the controlled delivery including the practical implementation of the delivery.
  • Information on foreign police officers who might follow the delivery into or through Denmark.

Any kind of goods

Estonia

No specific legal basis.

The requirements for any kind of surveillance related to criminal investigation (including use of controlled deliveries) are described in the Code of Criminal Procedure and the Surveillance Act.

 

Estonia has joined relevant international conventions.

 

The permission of preliminary investigation authority or a prosecutor who directs the proceedings is necessary.

 

Formal request for legal assistance is the basis for authorisation of a controlled delivery.
The requirements for any kind of surveillance related to criminal investigation (including use of controlled deliveries) are described in the Code of Criminal Procedure and the Surveillance Act.
The requirements include:
  • contact details of the authority that issued particular permission;
  • reason for the operation;
  • kind and amount of goods that are the subject of the operation;
  • identity of the suspect;
  • information about the authority responsible for the operation.

 

Any kind of goods

Hungary

Definition is art 68/F.§ d)of the Police Act (Act 34 of 1994).

Art.64 para.1f of the Police Act defines special investigative methods, including Controlled Deliveries when the permission of the prosecutor is needed and when it can be done without the prosecutor’s permission.

Customs will act upon according to §7 and §22 1f and §30 2d of the Law on Customs and Finance Guard (Act 19 of 2004). §7 of the aforementioned law refers to law on International Cooperation of Law Enforcement Agencies.

 

Police: no undercover detective involved

Public prosecutor: undercover detective involved

 

Any kind of goods which can be the object of a criminal offence. Most often: drugs, firearms, radiation substances.

Lithuania

The law of operative activities from 20.06.2002 Nr. IX/965 (section 3 Nr. 20, section 13) .

 

Controlled delivery is permitted by the chief public prosecutor, his deputy or the head of the public prosecutors office of the regions/districts.

  • the data substantiating the necessity of controlled delivery;
  • the data concerning a natural or legal person (persons) who is suspected of delivering controlled items;
  • the names of the countries from which and to which a controlled item is being carried;
  • the anticipated duration of controlled delivery;
  • the result aimed at as well as the intermediate and final objectives of controlled delivery;
  • type of drugs;
  • means of transportation;
  • requirement to intervene if there is a risk that consignment will be lost;
  • insurance of security of involved persons and environment.
  • Immediate interception in cases of risk of losing the shipment or through danger to human life or health
  • Weighing up the proportionality of actions
  • Prosecution or extradition (on request) must be guaranteed

Any kind of goods

Malta

Dangerous Drugs Ordinance – Chapter 101, Art 30 B (1)

Criminal Code – Chapter 9, Art. 435 E

 

Executive Police and, where appropriate, the Customs Authorities with the consent of the Attorney General or of a magistrate

  • All relevant details of the case and the individuals and materials/substances concerned, together with the reasons for the request.

 

Netherlands

Art 126ff Code of Criminal Procedure obliges seizure of goods which are harmful to health or a risk for security. In the interest of the investigation seizure can be delayed with the aim to confiscate these goods later. Controlled deliveries should be subject to guidelines of the Public Prosecutor.

 

Prior authorisation of the public prosecutor

 

A formal written request for legal aid is required and makes in accordance with art. 126ff Code of Criminal Procedure mention of:
  • the concerned goods
  • the importance of the investigation
  • the time or period when the obligation of seizure does not apply

 

Any kind of goods

Poland

Each organisation - police, border guard, customs and secret service has its own legal basis. The legal basis for controlled deliveries (relevant to crimes related to drugs) are covered mainly by the following instruments:

1. Act on Police of 6 April 1990 (with further amendments), art. 19b

2. Act on Border Guard of 12 October 1990 (with further amendments), art. 9g

3. Act on Internal Security Agency and Intelligence Agency of 24 May 2002 (with further amendments), art. 30

4. Act on Customs Service of 24 July 1999 (with further amendments), art. 6zj

1. The Police (Police commander-in-chief or relevant regional Police commander)

2. The Border Guard (Border Guard commander-in-chief or relevant Border Guard unit commander)

3. The Internal Security Service (Chief of Internal Security Service)

4. Customs Service (minister for public finances)

  • The decision on launching controlled delivery has to be transmitted by the organ issuing such a decision to the relevant public prosecutor (General Public Prosecutor or district prosecutor) without any delay
  • At any stage relevant public prosecutor may order to suspend the controlled delivery
  • The controlled delivery may be used only to collect evidence of the crimes already committed or to establish identity of the persons committing those crimes or to intercept the goods of crimes
  • It can be used in relation to the list of crimes expressly enumerated in the relevant Act of the service issuing such a decision
  • The controlled delivery cannot endanger human's life or health

Any kind of goods

Portugal

Art. 160-A, §9 of Law n° 144/99 of August 31, 1999 with the changes of Law n°104/2001, chapter “Controlled deliveries or deliveries under surveillance”.

 

 

Public Prosecutor of the Lisbon Court

  • The competent authorities in the countries of destination and the transit countries guarantee the security of the substances concerned against risks of theft or diversion;
  • The competent authorities in the countries of destination or transit ensure that their legislation provides for adequate criminal sanctions against the accused and that criminal action will be taken;
  • The competent judicial authorities in the countries of destination or transit undertake to communicate, without delay, detailed information regarding the outcome of the operation and details of the acts of each person involved in the crimes, particularly those acting in Portugal.

Any kind of goods.

Romania

Law no. 39/2003 on countering organized crime

Law no. 224/2006 on international judicial cooperation in criminal matters

Law no. 143 of July 26, 2000 on preventing and countering the illicit drug trafficking and use, as amended and supplemented
The Prosecution Office with the High Court of Justice can allow for controlled deliveries, with or without the complete replacement of drugs or precursors, at the request of the legally liable institutions or bodies.

Controlled deliveries are authorized by a substantiate ordinance that shall include the following:

  • detailed indications which substantiate the measure and reasons which call for the measure;
  • details of the goods subjected to the controlled delivery and on those that shall replace or be replaced;
  • time and place of the controlled delivery and the route of the delivery, if known;
  • Identification data of the people authorised to monitor the controlled delivery.

Controlled deliveries can be authorised unless they endanger national security, public health or order.

Any kind of goods

Slovak Republic

The new Code of Criminal Procedure No. 301/2005 Coll. Regulates controlled deliveries in its S. 111 .

 

The order to proceed this measure shall be issued by the presiding judge of a panel or in a pre trial proceedings by a prosecutor.

  • There shall be reasonable grounds to believe that it is an illegal consignment containing narcotics, psychotropic substances, poisons or precursors.
  • The surveillance shall be carried out by the Police corps in conjunction with the Customs Administration. In cases of emergency Police Corps may start the surveillance without fulfilling these conditions , but about this procedure shall be informed prosecutor and he shall confirm it within 2 days.

 

Any kind of goods

 

This measure can be applied also to nuclear materials, counterfeited money or credit cards, weapons or other objects intended to commit a criminal offence, or a object from committed offence with the aim to find out persons, that are participants in charging a consignment.

Slovenia

Criminal Procedure Act (Art. 155)

Public prosecutor

  • founded suspicion is necessary
  • detailed explanation of suspected criminal act
  • suspected criminal act can not be detected by other measures
  • the aim of the activity is disclosure of individuals, involved in the criminal offences defined in Criminal Procedure Act (Art. 150)
  • Permanent control during the CD must be guaranteed
  • In transit cases permission from the countries involved
  • Judicial process is guaranteed
  • Immediate interception in cases of risk of losing the goods is guaranteed

Any kind of goods

Spain

- Article 124 of the Spanish Constitution

- Article 263 bis of the Penal Process Law

- Organic Law 5/1999, 13 January that amends the above mentioned Penal Process Law related to investigated work linked to drugs illegal trafficking and other illicit activities.

Art. 18a of Law 50/1981 on the Organic Statute of the Public Prosecution Office.

Public Prosecution Office together with the central and provincial heads of the organisational units of the judicial police and their senior officers and the competent magistrate.

  • Guarantee of Permanent surveillance

Any kind of goods

Sweden

The cases when delivery takes place into or from Swedish territory are regulated in the Act on certain Forms of International Cooperation in Criminal Investigations (2003:1174) Section 10-14. On a national level the area is not regulated in a law.

 

 

A request for a controlled delivery in Sweden is dealt with by a prosecutor. It is also the prosecutor who applies to undertake a delivery of this kind abroad. The Police Authority, Customs and Coast Guard can make a request of this kind only after a prosecutor has given consent.

 

  • It must be a necessary measure and proportionate to the purpose of the measure.
  • There must be a reasonable degree of suspicion about a person.
  • The consignment must be under permanent surveillance.
  • The aim of the delivery must be to identify the suspect person and take legal proceedings against him or her.

 

Any kind of goods

Norway

There is no specific legislation on controlled deliveries, but the Ministry of Justice has issued guidelines on crossborder controlled deliveries in Letter of circulation, G-21/89 from 13 February 1989.

The District Public Prosecutor, on request by Police and Customs in collaboration.

 

Any kind of goods.

United Kingdom There is no specific legislation on controlled deliveries.

HM Revenue & Customs and SOCA/ACPO have an agreement in place to manage all instances involving controlled delivery across UK frontiers. The Immigration and Passort Agency (IPS) and the Border & Immigration Agency (BIA) may need to be similarly consulted if the controlled delivery transcends into their area of law enforcement responsibility.
SOCA overseas liaison network

Individual circumstances will determine the exact requirements.

Will require written undertaking by receiving LEA to manage commodity beyond the frontier into the UK.

A comprehensive background detailing the illegal commodity, quantity and destination will be a minimum requirement.

Consideration to Article 2 ECHR and legal obligations of risk to life.

Any kind of goods

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Page last updated: Friday, 30 April 2010