29 October 2011
The UNODC In-depth training manual on investigating and prosecuting the smuggling of migrants is the product of criminal justice expertise gathered from around the world. Three expert group meetings were held in three different continents. The first expert group meeting was convened in Vienna, Austria from 21 to 25 June 2010, the second in Bangkok, Thailand from 27 to 29 September 2010 and the third and final meeting was held in Pretoria, South Africa, from 18 to 20 January 2011. During these meetings, experts discussed issues ranging from investigative techniques to international cooperation and protection of smuggled migrants, to decide upon and elaborate content that other practitioners could benefit from.
The depth of experience of the investigators and prosecutors involved in the process, combined with the diversity of their country contexts ensures that the Manual reflects content of relevance to practitioners in countries of origin, transit and destination. The Manual builds upon and complements the material covered in the UNODC Basic training manual for investigating and prosecuting the smuggling of migrants, published in 2010.
It provides specialized and detailed information for experts and practitioners with existing, basic understanding of the subject matter.
Purpose and Target Audience
The Manual aims to assist States to fulfill their obligations under the United Nations Convention against Transnational Organized Crime (UNTOC), and its supplementary Protocol against the Smuggling of Migrants by Land, Sea and Air (Smuggling of Migrants Protocol). This being the case, the Manual should be used alongside these legal instruments, relevant provisions of which have been extracted throughout.
The diversity of those involved in the process of elaborating the Manual reflects its target audience of criminal justice practitioners including investigators, examining judges, investigating judges, prosecutors, magistrates, law enforcement officers, border agents and all other professionals who are involved in the criminal justice system.
At a broad level, the manual aims to promote common understanding of relevant concepts and encourage States to take a mutually reinforcing approach in their responses to the transnational organized crime of smuggling of migrants. More specifically, the aim of the manual is to offer its users a theoretical understanding and a practical approach to the investigation and prosecution of migrant smuggling, relevant to all countries regardless of their legal system or whether they are countries of origin, transit or destination for migrant smuggling.
The Manual elaborates promising practices in every phase of criminal justice response to smuggling of migrants, and stands as a practical guide and training tool for capacity building activities to criminal justice practitioners. Complementary, UNODC is in the process of developing trainers notes and guidelines based on the In-Depth Training Manual.
Each module can be used immediately by practitioners, but the full value can be realised by adaption at the national level. UNODC is prepared to assist States with the adaption of this Training Manual.
This publication is made possible through funding received from the European Union.
Modules in the Manual:
The first module explains the offence of migrant smuggling and related conduct in the context of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (the Smuggling of Migrants Protocol). The module sets out elements of the offence according to the Smuggling of Migrants Protocol, and discusses alternative offences which may be charged in where migrant smuggling has not been criminalized in accordance with the Smuggling of Migrants Protocol. The module also discusses how migrant smuggling is organized, from simple ad hoc structures to the more complex hierarchical ventures which may involve organized crime groups. The different roles of various actors within these processes are discussed, as well as the relationships between them and the relationship between smuggling actors and migrant smugglers. Finally, the module discusses conduct that is not considered to be migrant smuggling, including movement of migrants by humanitarian actors or family members of migrants who do not receive financial or material benefit.
This module discusses the constitute elements of the crime of Trafficking in Persons as defined by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the Trafficking in Persons Protocol). The module goes on to differentiate the crime of trafficking in persons from that of migrant smuggling based on three key issues: the source of profit, the fact that migrant smuggling is a transnational crime, and issues of victimization and consent. Finally, while the elements of the offences are clearly different, the module discusses overlaps between trafficking in persons and migrant smuggling which investigators must be aware of in order to appropriately approach investigations.
Since it is often difficult to identify smuggled migrants and smugglers, it is helpful to discuss situations in which law enforcement officers are likely to encounter migrant smuggling. This module identifies a list of common indicators which can be used by investigators as a guide to developing profiles or commonalities which can help officers to identify smuggled migrants, smugglers and smuggling activities. Effective investigation and prosecution of migrant smuggling requires a multidisciplinary approach which supports cooperation between law enforcement, prosecutors, NGOs and the judiciary. Members at all levels of law enforcement and from all relevant agencies should regularly share information relating to migrant smuggling situations so that indicators and profiling considerations will be as complete and current as possible, and in the hands of those who will be required to use them in the course of their work. It is important to note that the situations and considerations discussed in this module are not exhaustive, but aim only to assist investigators to arrive at a starting point for further investigation and corroboration.
This module discusses different types of investigations and investigative techniques, including proactive and reactive investigations, as well as the use of disruptive techniques. The module also discusses the importance of having a command structure and investigative plan in place, particularly for large international migrant smuggling operations against organized crime groups.
This module offers various approaches to risk assessment in the migrant smuggling context. It sets out specific considerations in assessing risk in joint and reactive investigations and offers some key considerations in situations of smuggling via sea, land and air. The various roles played by criminal justice practitioners in responding to risk are explored, as are some actions they may take to mitigate risk. It is important to stress that the considerations set out in this module are simplified and generalized; different risks will be present in different migrant smuggling scenarios and may continually change.
One of the three explicit purposes of the Smuggling of Migrants Protocol is to protect the rights of the smuggled migrants. Specific obligations of States Parties to protect and assist migrants are set out in article 16. 2 In-depth training manual on investigating and prosecuting the smuggling of migrants Many distinct protection and assistance issues arise where migrant smuggling occurs at sea, where smuggled migrants have special needs, where smuggled migrants are victims of and/or witnesses to crime, or where smuggled migrants are refugees seeking asylum. Such considerations may also be applicable to persons who are not smuggled migrants, but require protection from criminal smugglers nonetheless, such as members of the public or smugglers themselves who have become witnesses in the criminal justice process. These issues are discussed in turn in this module.
The purpose of this module is to discuss some of the general considerations that may apply to international cooperation in the investigation and prosecution of migrant smuggling. In light of the general approach taken by this module, it is important for criminal justice practitioners to understand the specific provisions of other relevant treaties and domestic legislation that may also be relevant to individual cases.
The fact that migrant smuggling is a crime that crosses borders, means that law enforcers are often required to investigate, share information, collect evidence and prosecute in more than one jurisdiction. This module is concerned with operational cooperation between law enforcement actors in different jurisdictions, which may include exchange of information and documents, assistance with investigative operations or even may involve running joint operations across jurisdictions. The module presents different types of law enforcement cooperation and discusses some of the challenges involved in achieving effective law enforcement cooperation and potential responses to those challenges.
This module considers the role that various types of intelligence play in migrant smuggling investigations. Intelligence is information that has gone through an intelligence process, called the intelligence cycle. The intelligence cycle involves tasking, collection, evaluation, collation, analysis, inference development and dissemination. This module considers the steps involved in this process with regard to migrant smuggling investigations. The importance of protecting information and its source is stressed throughout the module. Depending on the jurisdiction, there may be only one organization mandated to gather and act on intelligence. Alternatively, there may be various organizations gathering intelligence and other organizations acting on it. The information contained in this module is generalized for practical application in either system.
This module considers the use of covert investigative techniques in migrant smuggling investigations. In UNTOC, article 20 refers to covert investigative techniques as special investigative techniques. The module outlines the use of covert investigative techniques in migrant smuggling investigations, including the topics: Informants; Undercover officers; Controlled deliveries; Technical surveillance and detection tactics.
This module discusses the element of "financial or material benefit". The financial element of migrant smuggling is difficult to prove, as smugglers receive financial payments or material benefits in many different forms that are hard to trace. This module explains some types of transactions, and discusses various techniques that can be used to investigate them. The module also demonstrates various approaches to collecting admissible evidence and seizing assets and proceeds to deter future migrant smuggling activities and reduce the operational capacity of smuggling organizations. The role of money-laundering and corruption in the context of financial investigations of migrant smuggling is also addressed, as are the financial aspects that may arise in respect of prosecutorial issues.
This module explains the relevance of "crime scene" investigations to effectively prosecute migrant smuggling offences. Physical evidence collected from the scene of the crime can provide significant independent and corroborative evidence that can be used to prove the offence. It must therefore be preserved and analysed so as to afford the best possible evidence at trial. The module describes types of crime scenes commonly encountered in migrant smuggling investigations and the physical evidence discovered at those crime scenes. The module also addresses safety considerations in approaching a crime scene, the importance of preserving the integrity of the crime scene, and maintaining continuity and chain-of-custody of physical evidence.
Information relevant to the investigation and prosecution of migrant smuggling may be provided by smuggled migrants, migrant smugglers, civilians and others who have witnessed criminal acts. Debriefing, interviews and testimony are all methods for obtaining information. The way such methods are used can be the difference between a successful prosecution of migrant smugglers and a failed investigation. To effectively apply these techniques, experts need to be appropriately trained, aware of procedures and limitations in their jurisdiction, special considerations that may apply and possible measures that can overcome challenges. While it is acknowledged that in some jurisdictions, migrants may be investigated and prosecuted for other crimes (such as immigration-related offences), it is important to recall that the focus of this module in line with the Smuggling of Migrants Protocol, is on smugglers as the target of criminal investigations.
This module discusses prosecutorial procedures and some of the common legal issues encountered in migrant smuggling investigations and prosecutions. Given that migrant smuggling is a transnational crime, the issue of jurisdiction will arise and can be particularly complex. This module discusses how jurisdiction is determined in respect of migrant smuggling investigations and prosecutions. The module also addresses approaches to proving the elements of the migrant smuggling offence that can be particularly difficult to prove, namely financial or other material gain, knowledge, border crossings, enabling stay, identity and authentication of documents. The importance of practitioners familiarizing themselves with domestic migrant smuggling legislation and how the offence is interpreted in jurisprudence is stressed. Practitioners preparing for a migrant smuggling prosecution are also advised to consider legislation governing criminal procedure, collection and admission of evidence, and any relevant constitutional and/or legislative human rights protections. The module particularly stresses the importance of collecting evidence during investigations that is later admissible at trial and can support the prosecution of migrant smugglers. There are different criminal procedures specific to each jurisdiction. The intention of this module is not to capture any one particular approach to criminal procedure but rather to provide general guidelines with the expectation that specific criminal procedures will be applied relevant to each jurisdiction.
This module recalls the key principles of sentencing, discusses the effect of aggravating and mitigating factors on sentencing, describes the way in which evidence gathered during the investigative phase may assist in sentencing decisions in migrant smuggling cases and explain the role of members of the judiciary, prosecutors and investigators at the sentencing stage The sentencing phase is an important part of investigating and prosecuting migrant smuggling and should not be overlooked. There are different philosophies behind sentencing and punishment of criminal offenders in different jurisdictions and legal systems. In some jurisdictions, the emphasis is on punishment and retribution, while in others the focus is on rehabilitation and deterrence. In most jurisdictions the justice system embraces a combination of these elements.
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English In-Depth Training Manual on Investigating and Prosecuting the Smuggling of Migrants
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