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  This module is a resource for lecturers  

 

Administrative approach

 

The administrative approach to transnational organized crime forms part of a multidisciplinary approach. It can be defined as follows:

Box 1

An administrative approach to serious and organized crime involves preventing the facilitation of illegal activities by denying criminals the use of the legal administrative infrastructure as well as coordinated interventions ('working apart together') to disrupt and repress serious and organized crime and public order problems.

Leuven Institute of Criminology, Tilburg University and Dutch Ministry of Security and Justice, Administrative Approaches to Crime (2015)

The administrative approach should complement other responses (such as judicial measures) that States implement against transnational organized crime. See, for instance, the Action Plan to Combat Organised Crime adopted by the European Council on 28 April 1997, which stated that "prevention is no less important than repression in any integrated approach to organised crime, to the extent that it aims at reducing the circumstances in which organised crime can operate. The Union should have the instruments to confront organised crime at each step on the continuum from prevention to repression and prosecution" (for an overview of key approaches to crime prevention, please see Module 2 of the University Module Series on Crime Prevention and Criminal Justice).

It is important to bear in mind that what falls under the realm of the administrative approach to tackle transnational organized crime varies according to the State in question. This is because the scope and content of administrative law also varies from country to country. The administrative approach may include several instruments that can affect both people and legal persons, including personal preventive measures and the seizure of assets (see also UNODC legislative guide for the implementation of the United Nations Convention against Transnational Organized Crime, in particular article 7 on measures to combat money-laundering; article 9 on corruption; article 10 on liability of legal persons; and article 14 on disposal of confiscated assets).

The effectiveness of the administrative approach will depend on the level of corruption within public institutions in any given country. The less prone institutions are to corruption, the more promising will be the administrative approach's prospects of success. Of course, this is applicable to basically all efforts aimed at countering criminality.

Just to give an example, the Netherlands has a very well developed administrative approach to crime. It is a component of the country's holistic response to organized crime. It is based on the complementary use of law enforcement and fiscal and administrative measures. This methodology requires cooperation and information exchange between the competent authorities. The primary goal of the Dutch administrative approach is to bolster and protect the integrity of the Government against infiltration and co-option by organized criminals. That is, to prevent public bodies from unknowingly and/or unintentionally facilitating criminal activities (see also European Crime Prevention Network, EUCPN Toolbox Series No. 5 Administrative approach - towards a general framework).

Box 2

The Netherlands

In the 1990s, a scandal involving police investigative tactics, the subsequent parliamentary enquiry and a study into the scope and forms of organized crime spurred the development of the Dutch administrative approach. The study by the Van Traa Committee revealed that criminal groups had infiltrated the illegal and legal economy of the City of Amsterdam. This prompted the city to tackle crime systematically using both traditional law enforcement instruments and available administrative tools. These initial policies emphasized the range of options open to local administrative authorities to act against crime and nuisance, such as screening of natural and legal persons applying for permits, subsidies or tenders. In the early 2000s the administrative approach became more and more embedded in national policy. The current national policy program, Nederland Veiliger [Making the Netherlands Safer], prioritizes several organized crime categories, including human trafficking, drugs trafficking, money laundering, cybercrime and child pornography. Unlike the other selected countries (apart from Italy), the Netherlands has developed a complex legislative framework for screening and monitoring: The Public Administration (Probity Screening) Act (2002) ([a.k.a.]: BIBOB legislation).

Leuven Institute of Criminology, Tilburg University and Dutch Ministry of Security and Justice, Administrative Approaches to Crime (2015)

A legal and empirical study carried out in the European Union (Leuven Institute of Criminology and others, 2015, p.427-428) identified economic sectors at heightened risk of infiltration by organized criminal groups:

  • hotel, restaurant and bar sector
  • gambling sector
  • production of alcohol products
  • production of prescription drugs
  • waste collection and processing
  • the building sectors
  • distribution of alcohol products
  • currency exchange offices
  • banking sector
  • credit reporting operations
  • prostitution sector
  • real property sector
  • persons working with children
  • (private) security sector
  • lawyers
  • police personnel
  • auditors
  • penitentiary staff
  • notaries (Spain, Czechia)
  • taxi services
  • commercial (goods and passengers) transportation
  • trade in explosives, firearms and ammunition
  • trade in used goods
  • public events

In the framework of the administrative approach, the economic sectors to which a country dedicates more or less attention will vary according to the policies, priorities and specific circumstances of the State. Lecturers might consider asking students which economic sectors are most at risk of criminal infiltration in their respective countries.

The same study presented several tools used in the implementation of the administrative approach. These include:

  • Screening and monitoring instruments - In the scope of business and economic activities, government authorities can be permitted by law to screen natural and legal persons before permitting them to engage in such activities, for instance by granting a licence, concession, permit or issuing some other positive decision. Many administrative decisions, such as business licences or permissions to enter certain professions, require the applicant to submit documents certifying their good conduct. This usually involves screening the applicant's criminal background. Some States allow such documents to be requested in the scope of an administrative decision. In Italy, for instance, legal and natural persons subject to a preventive measure or convicted of participation in a mafia-type organization, kidnapping for ransom or drug trafficking cannot obtain any kind of subsidy, concession, licence, tender, police authorization or other financial contribution from Italy's public administration. Other examples of monitoring are screenings in the context of giving subsidies to commercial activities or enterprises or for public procurement. The boxes below show the potential relevance of this approach to countering smuggling of migrants, given the infiltration of organized criminal groups in the asylum system, which is State funded.
Box 3

'Migrants are more profitable than drugs': how the Mafia infiltrated Italy's asylum system

Joy, a young Nigerian woman, (…) had left her family in a small village in Edo state in Nigeria at the age of 15, and gone to work for a wealthy woman who owned a beauty salon in Benin City, [who she called 'maman']. She had since come to suspect that her parents had sold her to raise money for their younger children. (…) When Joy turned 16, she went through a ceremony that bound her to the maman by a curse: if she disobeyed the maman, her family would die. [She was sent/smuggled to Italy supposedly to work with the maman's' sister]. [Once in Italy], she applied for asylum the morning after she arrived, using her own birth date and the name of her younger sister. Once migrants apply for asylum, they can come and go from the [reception] center at designated times, while they wait for word about their application, which can take months. After three days, a man Joy didn't recognize came to find her in the camp and told her she was to wait at a roundabout down the road from the entrance every morning, and eventually someone would come for her. (…)

Posing as asylum seekers, traffickers lure women out of the center on the pretext of shopping trips or other excursions, and deliver them to the Nigerian women who control forced prostitution rings. They are then forced into sex work under the threat of violence, most of them - like Joy - terrorized by a curse that binds them into slavery. Several centers have become the subject of criminal investigations, revealing corruption at local and state level, and infiltration by powerful crime syndicates. Always quick to exploit new opportunities, the mafia is making vast profits off the backs of migrants. (…)

Many of the Nigerian women and girls rescued from the smugglers' boats by charities or coastguard vessels are from small villages around Benin City. Most are single and travelling alone. Many of those trafficked for sex slavery are assured by their "sponsors" that they will take care of getting the necessary documents for them once they leave the centers. Others are provided with false personal details that they are told to use for their applications. Most of the trafficked women end up with fake documents provided by Italian organized-crime groups. (…)

In 2014, an  investigation known as "Mafia Capitale" found that a criminal group had been running Rome's municipal government for years. The group, which prosecutors defined as a mafia-style association, had siphoned off millions of euros intended to fund public services. The group had also infiltrated asylum centers across the country, buying and selling names and details of migrants who had long disappeared, to keep the per-person state funding coming.

During the investigation, one of the alleged bosses of the group, Salvatore Buzzi, was caught on a wiretap bragging about how much money he made off the backs of asylum seekers. "Do you have any idea how much I earn on immigrants?" he was heard telling an associate. "They're more profitable than drugs." Buzzi and his associates were sentenced to decades in prison after a trial that ended in 2017, although their sentences were reduced on appeal. Another appeal is under way. In 2017,  anti-mafia police arrested 68 people, including the local parish priest, in the Calabrian town of Isola di Capo Rizzuto, where one of the country's largest migrant and refugee reception centers has been in operation for more than a decade. Investigators say the criminals stole tens of millions of euros in public funds intended for asylum seekers to live on while their applications were heard. Gen Giuseppe Governale, chief of the anti-mafia forces, said the center was a lucrative source of funds for the Calabrian mafia, the 'Ndrangheta. Prosecutor Nicola Gratteri said detectives had filmed appalling conditions inside the center. "There was never enough food, and we managed to film the food that was on offer," he said. "It was the kind of food we usually give to pigs." The local mafia had set up shell companies that were being paid to provide services including feeding the migrants. (…)

The Guardian, 31 January 2018
 
  • Public order powers - Local administrative authorities (municipalities as well as institutions with mandates to supervise specific sectors, such as food or health) have a responsibility for keeping public order. They can be empowered to do so by national legislation, but they can also regulate themselves by issuing decrees or local regulations. Public order powers include powers of inspection and the power to intervene when public order is disturbed, for example through repeal or closure of premises or levying of administrative fines.
Box 4

Belgium

Article 134 quinquies of the New Municipality Act relates to the policing competence of the Mayor in the fight against [smuggling of migrants]. To tackle such phenomena administratively, the Mayor has been given the authority to close down establishments (…) if there are serious indications that incidents of (…) migrant smuggling are taking place in the establishment concerned. Whereas article 9bis of the Drugs Act, (…) refers to private premises which are open to the public, article 134quinquies of the New Municipality Act gives no further qualification of the establishments. It could be argued that based on the latter provision the Mayor can also close down premises that are not open to the public. On this point, this competence would be broader than the aforementioned competence to temporarily close an establishment open to the public by virtue of article 134quater of the New Municipality Act. A decision to close can only be made if the (…) migrant smuggling offences actually take place in the establishment concerned, meaning that the mere use of this establishment to enable or facilitate (…) smuggling in human beings is not sufficient. Given the gravity of the crimes, however, a one-time determination of the serious indications required is sufficient to close the establishment down.

Leuven Institute of Criminology, Tilburg University and Dutch Ministry of Security and Justice, Administrative Approaches to Crime (2015)
 
  • Forfeiting assets outside the scope of criminal law - While some States regulate such measures mainly through criminal law (such as the Netherlands and Spain), others address them under both criminal law and civil and/or administrative law (such as Sweden, England and Wales, Czechia, Italy and Germany). In the latter group of States, civil and/or administrative seizure of assets is complementary to seizure under criminal law. Forfeiting assets outside the scope of criminal law might remove important revenues to smugglers, for example by seizing a vehicle used to smuggle migrants to prevent further use of that vehicle for criminal activity.
  • Other measures - These include (i) dissolution of city councils, (ii) residence prohibition and (iii) prohibition of association, among others (Leuven Institute of Criminology and others, 2015, p. 453-454).

Importantly, the application of measures under the administrative approach should not disregard fundamental rights and legal safeguards that protect against unjust decisions by government, such as the right to a fair trial and to judicial review. Potential subjects of an administrative sanction should be entitled to a fair hearing prior to the administrative decision. The right to be heard allows the person to contest facts and the intended decision or measure. The decision of the administrative authority should be properly justified, with reasons provided to the affected party.

The administrative approach (with its legal framework and practical tools) may be applied both to prevent and suppress crime. Competent administrative authorities may apply their respective powers independently, as well as cooperating with other public bodies in discharging their functions. Administrative authorities may also cooperate with private bodies while pursuing interventions aimed at reducing crime.

Note: The Leuven Institute of Criminology, the Tilburg University and the Dutch Ministry of Security and Justice carried out a comprehensive study on the application of the administrative approach to crime (Leuven Institute of Criminology and others, 2015). Given the still limited range of comprehensive sources on the matter and the fact that the afore-mentioned study is particularly rich in practical examples, it is often resorted to as a source of illustration in this Module. Clearly, this does not prevent the lecturer from complementing or replacing the examples provided with others, mostly if they are regionally or country focused. Indeed, the lecturer is advised to do so.

 
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