Proposal for recommendations concerning drug-related offences committed via COUNCIL OF THE EUROPEAN UNION
Brussels, 26 July 2000 (23.08)
STUP 1 1
to : Working Party on Drug Trafficking
No. prev. doc : SCH/stup(99) 14, 7430/00 STUP 3
Subject: Proposal for recommendations concerning drug-related offences committed via
· Common Position (EC) No 56/98 adopting a multiannual Community action plan on promoting safer use of the Intemet by combating illegal and harmful content on global networks (98/C360/03);
· document from the German Presidency (SCH/STUP (99) 14);
· Europol questionnaire (No 2564-82);
· document from the Portuguese Presidency (7430/00 STUP 3);
· summary of replies to the Europol questionnaire (meeting document – Working Party on Dnig Trafficking on 30 June 2000).
The development of the Intemet has revolutionised techniques for communicating and circulating information around the world, and criminals have rapidly seized the potential benefits to be obtained by using the system’s many possibilities.
The decentralised architecture of networks such as the Intemet and the extremely ephemeral nature of the data circulating on it argue against adopting a purely national approach to the new forms of offences introduced by these new technologies. The cross-frontier nature of the Intemet makes it necessary to harmonise legislation and strengthen international cooperation to combat illicit content and practices effectively.
In implementation of the objectives of the European Union’s anti-drug action plan (2000-2004) and in the context of the German and Portuguese Presidencies, discussions and work have taken place within the European Union’s Working Party on Drug Trafficking (Mixed Committee) in order, on the one hand, to evaluate the threat of use of the Internet for drug-related illicit purposes and to review the legal provisions existing in the Member States and, on the other hand, to determine a series of measures and practices to combat the development of this new form of crime.
At the meeting on 6 December 1999 the Working Party on Drug Trafficking (Mixed Committee) circulated a questionnaire on drug-related crime committed via the Internet (Europol File No 2564-82). The replies to that questionnaire are to serve as a basis for considering the development of common strategies for combating the spread of this particular form of crime. The replies were summarised by Europol and circulated to delegations at the meeting of the Working Party on Drug Trafficking (Mixed Committee) on 30 June 2000.
This questionnaire dealt with three major topics concerning drug trafficking over the Intemet: the legislation in force, the techniques used and the experience gained in the various European Union Member States, Iceland and Norway.
The summary of the replies shows many legislative shortcomings in all the countries concerned, the most salient features of which are as follows.
LEGISLATION IN FORCE
In general, the countries have not drafted any specific legislation to date.
· The countries concerned have not drafted any particular legislation enabling them to intervene to establish offences related to the Inlemet. If an offence is committed the applicable law Is determined by the nature of the offence. Common criminal law applies in conjunction with the law on telecommunications and/or that on data processing.
· Intemet access-providers operate without a specific legal framework. As the majority, are telecommunications operators, the legislation on telecommunications applies to them without reference to the Intemet. In practice, these access-providers are not supervised by the telecommunications authorities.
· There is cooperation between police forces and Internet access-providers, but only on an informal basis.
· In the event of an offence, the customary rules for police and judicial cooperation between the Member States of the European Union make it possible for a Member State to take action with an access-provider established on its own territory at the request of another country. Use of letters rogatory does not seem appropriate.
· The countries concerned have not prepared any specific legislation on the use of undercover techniques but the use of such techniques is not prohibited.
· Some countries have departments specialising in the detection of various aspects of crime committed via the Intemet.
· The lack of a legal framework does not prevent the use by specialised departments of sniffer software.
· Practically no country has recorded any drugs cases in which traffickers communicate via the Intemet. However, some countries have no information enabling them to evaluate this phenomenon.
· As regards offences against drugs legislation, the Internet is chiefly used as a means of communication and to exchange information on the production and sale of narcotic substances.
· All but two countries have already had to face offenders using decryption software.
· Virtually all the countries have set up contact points for crimes committed via the Internet. The administrations responsible vary from one country to another: customs, police, telecommunications departments, and units investigating cybercrime.
The French Presidency recommends that Europol implement an action programme drawn up in concert with the delegations, comprising:
– the drawing up of a list of national contact points specifying for each country concerned the contact details of the competent departments which are able to maintain links with access-providers;
– the establishment of an early-waming system, centralised at Europol enabling operational information to be gathered and circulated, in particular concerning new modus operandi, sites of criminal networks, etc.;
– regular publication by Europol of an information bulletin covering various trends: legislation, cases pending, list of suspect access-providers, etc.;
– training and exchange of experience and know-how organised by Europol for the various law-enforcement agencies concerned. Criminal investigations into an electronic environment require technical skills and specialised procedures; they must have a legal basis. If any countries have published manuals containing technical, scientific and procedural instructions as to how to conduct investigations in order to minimise the disappearance of evidence and to ensure that evidence is admissible in court, Europol could pinpoint the best practices observed in that area in the European Union. This work could serve as the basis for designing training modules;
– setting up working files and specific analysis files for any cases requiring this.
The French Presidency notes the absence of specific legislation and disparities in the treatment of offences against legislation on narcotics committed via the Internet in the countries of the European Union. It therefore makes the following recommendations:
– the establishment of specific legal frameworks designed to organise effectively the fight against drugs crime linked to the Internet in those countries where they are lacking;
– greater simplification and effectiveness of judicial, police and customs cooperation procedures between the Member States of the European Union;
– if necessary, the organisation of a meeting bringing together experts from the Member States concerned in order to iron out any legal or technical problems associated with defining effective strategies for joint action.