Mejora el aprendizaje a través de problemas

In the previous sections we examined the legal requirements for the use of various investigative powers in the Netherlands and the United States. What we must also take into account in judging whether the use of (electronic) surveillance is authorised, is the phase in which the investigation is in.

40 Terrorist Surveillance Act of 2006, S. 2455, 109th U.S. Congress (2005-2006);Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006, S. 3001, 109th U.S. Congress (2005- 2006).

5.11.1 The Netherlands

In Dutch criminal law we can distinguish the following three phases in an investigation: (1) the gathering of information to maintain a general level of intelligence, (2) the exploratory investigation, and (3) the ‘normal’ criminal investigation (Sietsmaet al.2002, p. 34).

General information gathering

Law enforcement agencies need to maintain a certain level of intelligence in order to execute the task of law enforcement, and to this end they may conduct surveillance. While many of the investigative powers that may be used in a criminal investigation are codified within the rules of criminal procedure, there is no exhaustive list of surveillance methods that may be used for general intelligence gathering in the Netherlands. The authority to conduct surveillance in order to execute the normal police task can be derived from article 2 of the Police Act of 1993. The determining factor in deciding what investigative methods may be used in the execution of the normal police task is that the impact the investigative method has on the privacy of individuals.

The exploratory investigation41

In order to combat serious forms of crime in certain sectors, law enforcement may conduct an exploratory investigation prior to an actual criminal investiga- tion. An exploratory investigation covers the gathering and further processing of data from police and other records. Exploratory investigations are not investigations and as such investigative powers may not be applied. The rules concerning the exploratory investigation are codified in article 126ggCCP. Criminal investigation

Article 132aCCPdefines the term ‘criminal investigation’ in the Dutch criminal procedure. The article states the following:

“A criminal investigation is an investigation headed by the public prosecutor for the purpose of taking decisions in a criminal procedure. A criminal investigation must be based on the reasonable suspicion that a crime has been committed or crimes described in article 67 paragraph 1CCPare being planned or perpetrated in association that, considering their nature or their connection to other crimes planned or perpetrated in association, constitute a serious threat to law and order.”

When a criminal investigation has been started, coercive measures and investi- gative powers may be used, provided they are used in compliance with the rules of criminal procedure.

41 The exploratory investigation, verkennend onderzoek in Dutch, is also oftentimes translated as the phenomenon investigation.

When it comes to aiming a criminal investigation against a criminal organisation (including terrorist organisations) investigative powers may be used pro-actively. The investigative powers that may be used to gather in- formation and evidence against a criminal organisation pro-actively are governed by a special Title in the law of criminal procedure.

5.11.2 The United States

In the United States we can distinguish three different phases in an investiga- tion too. TheAttorney General’s Guidelines on General Crimes, Racketeering Enter- prise, and Terrorism Enterprise Investigations(DOJ2002) describes these various phases. It distinguishes between the checking of leads, the preliminary inquiry, and the full criminal investigation.

Checking of leads

The lowest level of investigative activity is the prompt and extremely limited checking out of initial leads. The checking of leads is undertaken whenever information is received of such a nature that some follow-up as to the possibil- ity of criminal activity is warranted (DOJ 2002, p. 2). This limited form of investigative activity is conducted with an eye toward promptly determining whether further investigation (either a preliminary inquiry or a full investiga- tion) should be conducted.

The preliminary inquiry

A preliminary inquiry is undertaken when there is information or an allegation which indicates the possibility of criminal activity and whose responsible handling requires some further scrutiny beyond checking initial leads. This authority allows federal agents to respond to information that is ambiguous or incomplete (DOJ2002, p. 2). In this stage far-reaching investigative techniques may already be used, including running informants and conducting undercover activities. However, the use of electronic surveillance in this phase is explicitly prohibited.

Full investigations

We can distinguish between two types of full investigations: general crimes investigations and criminal intelligence investigations. Whether a general crimes investigation can be initiated or a criminal intelligence investigation depends on the information and the investigative focus. A general crimes investigation may be initiated where facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed. Preventing future criminal activity, as well as solving and prosecuting crimes that have already occurred, is an explicitly authorised objective of general crimes investigations (DOJ2002, p. 2). Furthermore, under the Guidelines a general crimes investiga-

tion is also allowed when there is not yet a current substantive or preparatory crime, but where facts or circumstances reasonably indicate that such a crime will occur in the future.

The second type of full investigation authorized under the Guidelines is the criminal intelligence investigation. The focus of criminal intelligence investigations is the group or enterprise, rather than just individual participants and specific acts. The immediate purpose of a criminal intelligence investiga- tion is to obtain information concerning the nature and structure of the enter- prise (including information relating to the group’s membership, finances, geographical dimensions, past and future activities, and goals) with a view toward detecting, preventing, and prosecuting the enterprise’s criminal ac- tivities (DOJ2002, p. 2). A criminal intelligence investigation is warranted in two instances: investigations into racketeering enterprises and investigations into terrorism enterprises.