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打击有组织犯罪中的国际合作

  The use of letters rogatory as a means to secure the assistance of another country in such an investigation has several advantages to the requesting country.
  (1)The request can be addressed to countries which have 1egal systems which are different than that of the requesting country.
  (2)The technique can be used as needed on a case by case basis without the need for prior negotiation of a mutual assistance agreement or treaty.
  (3)The fact that letters rogatory invoke the inherent power of issuing orders by the court of the requested country,permits the testimony and production of documents to be compelled from an otherwise uncooperative witness or institution.Testimony authenticating documents which are produced can also be compelled,usually in a form which can be used in court.
  However,the use of letters rogatory also presents some procedural disadvantages, among which are the following:
  (1)Execution of requests is usually discretionary in the courts of the requested country.The absence of prior undertaking of cooperation i.e.treaty by the requested country means there is no assurance that the evidence will ultimately be obtained.
  (2)In many countries,particularly those whose legal system is based on English common 1aw.1etters rogatory requests will not be honoured during the investigation stage.Assistance is limited to those instances where criminal charges have been filed.
  (3)Similarly,if the laws of the requesting state provide an opportunity for defendant or accused to cross examine,a request for assistance made during the investigation stage may have to be repeated after charges are filed to permit the defendant or accused to exercise his right of cross examination.
  (4)Use of letters rogatory is a time consuming process.An application must be made by the investigating or prosecuting authority of the requesting country to a competent domestic court or tribunal.The tribunal then transmits the request to a court of the requested country,which in turn executes the request. If the laws of the requested country provide for notice of the request to the defendant or accused,a challenge to the execution of the request may create further delay.Challenges to the proceeding made by uncooperative witnesses may also create a delay in execution of the request.
  Despite the problems and delays which can arise in the use of letters rogatory to secure international assistance,such requests are still a particularly useful tool in transnational crime cases.Use of letters rogatory enables the requesting country to compel production of evidence which resides in the requested country,and which may not be otherwise available.
  Courts in some countries like USA.have been given statutory authority to honour letters rogatory requests from courts and tribunals from other countries.
  Letters rogatory requests may be used to secure such matters as testimony, production of documents, etc.Requests may be granted also to provide evidence in both civil and criminal proceedings.
  For avoidance of any problem which may arise due to different legal systems between the requesting and requested countries,courts have discretion to permit a representative of the requesting court or tribunal to participate in or supervise the taking of testimony and the production of tangible evidence during the execution of a request.
  The international judicial assistance through the medium of letters rogatory among states is desirable in order to fight organized crime jointly.
  (b) Agreement between states on controlled delivery
  Under article II of The UN Convention Against Illicit Trafficking Narcotic Drugs and Psychotropic Substances which was adopted in Vienna 1988,transit states,if permitted by the basic principles of their respective domestic legal systems, shall take the necessary measures within their possibilities to allow for the appropriate use of controlled delivery at the international level on the basis of agreements or arrangements mutually consented to, with a view to identifying persons involved in drug offences and to take legal action against them.
  Japan has already enacted new law which provides provisions on controlled delivery.Controlled delivery is therefore a procedure or technique of allowing illicit or suspected consignments of narcotics to pass through or into the territory of one or more countries with the knowledge and under supervision of their competent authorities with the view to identify not only the trafficker but the receiver and entire syndicate if possible.
  The group agreed that the policy is good as a countermeasure against both demand and supply of narcotic drugs.Some members explained that they do not have domestic laws on controlled delivery but such a control is done domestically as a method of investigation through surveillance.
  However, the group noted that for the control of delivery to be effective internationally,it requires thorough cooperation between states through international organizations like Interpol to communicate quickly and circulate information on any suspected consignment destined for a certain place.Surveillance of such consignment can start right from the source to the point of delivery.This also calls for an improved means of communication in the member states.
  (e)Cooperation in forfeiture or confiscation of illicit proceeds
  It is a known fact that illicit proceeds of crimes are often transferred to foreign countries.therefore international mutual assistance is necessary for their effective deprivation.
  The most important event in the area of international cooperation regarding forfeiture or deprivation of illicit proceeds is the adoption of the Vienna Convention 1988 which focuses on the deprivation of illicit proceeds,and execution of foreign sentences of forfeiture.It is a great change from past conventions relating to narcotic drugs which mainly control production or flow.


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