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Techniques in Building and Linking Complex Evidence in Corruption Cases using the Palermo Convention. UNODC. The Problem of Perspective. The tree against the forest:. Types of Corruption. From the perspective of the ACT Single act Repetitive acts Pattern of Corruption.

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Techniques in Building and Linking Complex Evidence in Corruption Cases using the Palermo Convention

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Techniques in Building and Linking Complex Evidence in Corruption Cases using the Palermo Convention

UNODC


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The Problem of Perspective

  • The tree against

    the forest:


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Types of Corruption

  • From the perspective of the ACT

    • Single act

    • Repetitive acts

    • Pattern of Corruption


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Types of Corruption

  • From the point of view of the PEPETUATOR

    • Single

    • Collective

    • Linked to Organized Crime


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Collective OffencesCorruption


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Investigation

* What is being investigated?

Relationship between a criminal or administrative norm with the reality.

* The rule of evidence is a norm in which the investigation has to be based. Therefore:

- We need strategies


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Techniques of Investigation (forward looking)

  • Criminal activity constituting predicate offences have not yet been committed

    • Electronic Surveillances

    • Controlled Deliveries

    • Undercover Operations

    • Wiretapping


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Techniques of Investigation (backward looking)

  • Investigation of criminal activity is accomplished post facto, by uncovering historical predicate criminal and OC events

  • Collaborating witness

  • Financial investigations

  • Traditional techniques of investigation


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Elements of a strategy

* Try to figure out the type of case.

* Determine the technique that you are going to use

* Go to all the elements of the Falcone check list

* Determine the relationship with other international elements


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Corruption in the Palermo Convention

Article 8

Criminalization of corruption

1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) The promise, offering or giving to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties;

(b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties….


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Measures against Corruption

  • Adopt legislative, administrative and other measures to:

    • Promote the integrity of public officials.

    • Prevent, detect and punish .

    • Provide independence to the anticorruption authorities.


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Organized Crime linked to Corruption

Organized Crime Group

Group of three or more persons that exists during certain time. It acts by previous agreement, with the objective of commiting one or more serious crimes (4 years of jail). With the aim of obtaining financial or other material benefit

O.C. links with Violence

and Corruption

The O.C. Groups exert their powers

through the threat and use of violence


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Organized CrimeTwo Formulas

  • First (Conspiracy)

    • Agreement between 2 or more people

    • To commit serious crimes

    • With the aim of obtaining financial or other material benefit

  • Second

    • Active participation in the organized group

    • Other activities that contribute to the criminal objectives of and OC group AND with knowledge that participation will contribute to the aim of the organized criminal group


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Other Related Conducts

  • Organizing,

    • Aiding,

    • Abetting,

    • Facilitating or

    • Counselling the commission of serious crime involving an organized criminal group.


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Laundering of proceeds of crimeCriminal Offences

  • With knowledge by the offender of the illicit origins of assets,

    • conversion or transfer of property

    • concealing or disguising the illicit origin, source, location, disposition, movement, ownership of or rights with respect to property

    • acquisition, possession or use of property.

  • Association with or conspiracy to commit,

    • attempts to commit and abetting,

    • facilitanting and counselling


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Investigating Corruption Cases using the Palermo Convention

Single act of bribery

The Palermo Convention

against Corruption

Articles 2a, 8, 9

Acts of Corruption

Corruption as an instrument of organized crime

Corruption as an act of organized crime (3 or more persons)


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Participation in Organized Crime is a second level offence

  • Logically it presupposes a first level offence, called predicate offence

  • Even though it is an autonomous crime

Organized Crime

Money laundering

Drug Trafficking

Corruption

Murder


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Only three second Level Offences


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No additional prohibitions

  • All O.C. offences are already prohibited in the predicate offence-prohibitions

Prohibitions

without O.C.

offence.

Prohibitions

with O.C.


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Obstruction of justice

The use of physical force, threats or intimidation or the promise, offering or givingof an undue advantage to:

  • Induce false testimony

  • Interference

    • in the offering of testimony

    • in the production of evidence

    • with the exercise of official duties.


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Confiscation and seizure

  • Proceeds of crime

    • Property derived or obtained directly or indirectly from the commission of an offence

  • Property, equipment and instruments of crime

  • Obligation to enable:

    • Identification and tracing

    • Freezing or seizure

    • Disclosure of financial and commercial records

  • International co-operation rules


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General elements for the fight against Transnational Organized Crime

General rules for:

  • Extradition

  • Mutual Legal Assistance

  • Transfer of sentenced persons

  • Transfer of criminal proceedings

  • Maintain database of criminal’s and activities


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Joint investigations and Special Investigative Techniques

  • Possibility of joint investigations:

    • Joint investigative teams

  • Controlled delivery

  • Undercover operations

  • Electronic surveillance

  • Training and technical assistance


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    Collaborating and protected witnesses (and victims)

    Measures to:

    • Encourage witness collaboration

      • Reduction of punishment or immunity

    • Effective protection from potential retaliation or intimidation of:

      • WITNESSES or relatives

      • VICTIMS (compensation)

      • Physical protection

      • Prohibition to disclose information concerning

        • Identity and whereabouts of such persons

        • Testimony through video links


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    How to Investigate Corruption and the link to Organized Crime

    • OC uses a closed and tight-knit structure therefore requiring extraordinary measures to:

      • infiltrate the inner circle

        -or-

      • extract a member from the OC group


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    Electronic Surveillance

    Controlled Delivery

    Obstructing Justice

    O.C.

    VIOLENCE

    CORRUPTION

    Collaborating Witness

    Undercover

    Techniques


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    Understanding the Limit of each Instrument:

    • Undercover & Controlled deliveries

    • Electronic Surveillance

    • Collaborating Witnesses

    • Financial Investigations

    • Use every technique of investigation available.


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    International Cooperation

    • Police-to-Police

    • Interpol

    • Judicial (International Rogatory)

    • Mutual Legal Assistance

    • F.I.U. to F.I.U.


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    The X Mistake

    • Undercover Case

    • Using third parties (no police)

    • Created the most important Marijuana trafficker who never dealt with cocaine

      Mistakes on the conception about the organization and mistakes in the technique used


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    The Evidence in Law

    • In Instantaneous Crimes

      • The fact happens in a moment

      • The evidence consist of proof that these facts happened

      • Murder as an Example:

        Witnesses, ballistic, finger prints, DNA testing, etc...


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    The Evidence in Organized Crime

    • On drug trafficking or Mafia, the bosses rarely come in contact with the drugs and rarely kill personally

    • The Organized Crime group is continuous in its criminal activity

    • The crimes are continued and continuous


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    In Organized Crime Cases, it is NOT Necessary to Prove:

    • That the boss ordered the crime

      It is sufficient to proof:

      * that he/she commands or belongs to an organization that traffics in drugs, order murders or blackmailing, or engages in certain predicate offenses


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    Evidence Integrity(Just like a Gothic Cathedral)

    • It must be harmonic

    • Trying to build modularly a crime and linking it to other crimes

    • Proving the existence of an organization

    • Every piece supports other pieces

    • Relating one to each other


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    Harmonic Evidence Integration

    • A collaborating witness’ statement is not enough

      It is also necessary to confirm as far as possible all that he/she says

    • Electronic surveillance is not enough

      It is hard for prosecutors and judges to interpret and juries can misinterpret

    • It’s also necessary to prove a defendants role and membership in the organization


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    Falcone Check List as an Instrumentto Link Investigations of Complex Cases


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    Other Techniques of Traditional Investigation:

    • Use of informants

    • Police and Prosecutorial Interviews and Interrogation

    • Information given by victims.

    • Use of collaborating witnesses

    • Surveillance

    • Use of Pen-Register (Phone Calls)


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    Other Techniques:

    • Analysis of documents

    • Ballistic tests to determine related homicides.

    • Victim´s analysis to better understand criminal behavior.


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    1 . The Network and its Illegal Activities

    • 1.1. The criminal network

      * 1.1.1Hierarchical or flexible structure

      * 1.1.2Composition: Describe who is part of the network, and what roles they play.

      * 1.2.3Handling of Evidence:

      Forwarlooking and backwardlooking


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    Typologies of Transnational Organized Criminal Groups

    Centre for International Crime Prevention of the United Nations


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    a) Standard Hierarchical Structure

    *This is the most common form of organized criminal group from


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    b) Regional Hierarchical Structure

    *Even if they are part of a hierarchical criminal group with several strict lines of command, there is a level of autonomy for the regional organizations under the group´s control.


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    c) Hierarchical Association

    Association of organized criminal groups with a governing organ or body.


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    d)Central Group

    *Generally consists in a limited number of individuals which form a relatively closed central group to do illicit business.


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    e) Criminal Network

    *They are defined by the illicit activities of clue individuals which frequently change their alliances. Those individuals may not consider themselves as members of a specific criminal group, nor are they considered like that by external individuals. Nevertheless they have ties with a series of illicit projects.


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    1.2 Primary Activities

    • Illicit markets controlled by the criminal network.

    • Types of criminal activity they engage in.


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    2. Modus operandi

    • 2.1Logistic roles of the members of organized crime networks

      • 2.1.1 How are the tasks distributed among members of the network?

      • 2.1.2 What are the specific roles and qualities of the prime suspects?

      • 2.1.3 Do the ‘leaders’ of the network have exclusive contacts or exclusive qualities that are crucial to the criminal network?

  • Handling of evidence:

    All the evidence, forward-looking and backward-looking


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    2.2 Procurement logistics.Preparatory activities of the criminal network.

    • 2.3Production logistics.

      The production phases

      Handling of evidence:

      All the evidence, forwardlooking and backwardlooking:

      Looking for proceeds of the criminal activity and how they are transformed


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    2.4 Marketing logistics

    • How does the criminal network make sure there is a demand for their illegal goods or services?

  • Means of analysis

  • Analysis of the market situation from the information gathered in the investigation.


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    Synthesis of the important elements

    • Understand that Organized Criminal Groups look for a financial gain or profit.

    • Develop the investigation trying to understand the market.

    • What, how and how much does the organization sell?

    • Who is it sold to? And Who buys it?

    • How is it produced?


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    2.5 Financial logistics

    2.5.1 Describe the network’s profit estimates (selling prices minus costs)

    2.5.2 Describe how the network spends the proceeds of crime

    2.5.3 Describe the network’s investments

    2.5.4 Describe any money laundering activities of the network

    2.5.5 Describe the network’s use of underground banking


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    Investigative Techniques

    • It is always easier to start from the criminal organization finishing with the financial analysis.

    • It is also possible to start from the financial analysis, however, it is more difficult.

    • After determining the profits:

      • Analysis of the suspects assets.

      • Analysis of his family assets

      • Know his contacts with the illicit world and other organizations

      • Understand other elements of the network with forward-looking and backwadlooking techniques.


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    Other Elements

    • Relations with their social environment

    • Gathering information from collaborating witnesses.

    • Developing financial analysis of enterprises


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    3. Contacts with the illicit environment

    • 3.1 Contacts with other networks/criminal groups

    • 3.2 Interaction with criminal partners

    • 3.2.1. The Role of facilitators

    • 3.2.2. Cooperation or Competition

      • How the network competes or cooperates with other groups.


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    3.2.3 Methods of concealment- Describe if the network tries to hide its activities from other criminal partners.3.2.4. Territorial deals or disputes- Is the network involved in disputes with other groups.


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    Violence

    • 3.2.5.The use of violence

      - Describe what types of violence are used against other criminals/ criminal groups.

    • Means of analysis and evidence

    • All the violent acts to determine behavior patrons.

    • Comparative analysis of different modus operandi

    • Comparison of ballistic tests and victim-offender analysis.

    • Knowledge of the executional codes of the organizations


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    • 3.3 Interactions with terrorists or separatists groups

      • Does the network have contacts with terrorist groups or separatist movements?


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    4. Illicit Protection

    • 4.1.Shielding against investigation and prosecution

    • 4.2.Corruption

    • 4.3. Contacts with external experts/specialists


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    Analysis and Evidence

    • Determine operative infiltrations

    • Outline of protection

    • Intents of corruption

    • Means of evidence

    • Financial investigation of the civil servant

    • Monitoring of the civil servant

    • Wire Taping

    • Collaborating witnesses

    • Undercover Agents


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    4.4. Interactions with legitimate businesses

    • The existing relationship between the criminal group and legitimate businesses.

      • By agreement

      • By infiltrating the different administrative levels

      • Lack of anti-criminal controls in the business.

      • Sporadic use of services


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    5. Opportunities for Prevention

    • 5.1 Opportunities in the underworld

      • Circumstances or events that make it easy or difficult for the network to perform their illegal ativities.

      • Barriers that can be put against the network‘s activities.

  • 5.2 Opportunities in the legitimate environment

    • Circumstances or lack of rules and regulations that make it particularly easy/attractive for the network to involve its licit environment in its criminal activities.


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    Barriers

    • Why does the network need to involve legitimate businesses, or why does it need to involve persons having a certain job or expertise?

    • What barriers can be put up against the networks interactions with the legitimate world.


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