Transcript United Nations Crime Prevention and Criminal Justice Programme

CENTRE FOR INTERNATIONAL
CRIME PREVENTION
Office for Drug Control and Crime
Prevention
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The problem:
transnational organized crime

Globalization and new technologies create the same new
opportunities for crime as for legitimate activities

Crimes such as money-laundering, trafficking in human
beings and corruption are a serious and growing problem

Groups are bigger, more transnational, with indications of
networking, and involved in a wider range of criminal
activities

Transnational nature of the problem requires a
transnational solution
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Negotiation of the instruments
December
1994
General Assembly approves Naples Declaration
and Global Action Plan (Res/49/159)
December
1996
Poland proposes draft framework Convention to
General Assembly, other proposals circulated
1997-98
Original draft Convention developed by expert
group and 7th session of UN Crime Commission
December
1998
General Assembly creates open-ended
intergovernmental Ad Hoc Committee (Res/53/111)
1999-2001
Over 120 States successfully complete
Convention and 3 Protocols in only two years and
12 sessions.
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Adoption of the Instruments

United Nations Convention against Transnational
Organized Crime
• Protocol to Prevent, Suppress and Punish Trafficking in
Persons Especially Women and Children
• Protocol against the Smuggling of Migrants by Land,
Sea and Air
• Protocol against the Illicit Manufacturing of and
Trafficking in Firearms, their Parts and Components and
Ammunition

All 4 instruments open for signature until 12 December
2002 (afterward by accession)
* General Assembly Resolutions 55/25,
15 November 2000 and 55/255, 31
May 2001
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Status of the Instruments
First 3 instruments (GA/RES/55/25) opened for
signature at Palermo Italy 12-15 December 2000.
Third (firearms) Protocol adopted and opened for
signature in New York in July 2001
As of 13 November 2002:*
• 142 States and the European Community had signed the Convention
and 26 had ratified it
• 108 States and the European Community had signed the Protocol on
Trafficking in persons and 19 had ratified it
• 105 States and the European Community had signed the protocol on
smuggling of migrants and 18 had ratified it
• 45 States and the European Community had signed the protocol on
firearms and 3 had ratified it
* For up to date status see: http://www.odccp.org/crime_cicp_convention.html
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United Nations
Convention against
Transnational Organized Crime
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Structure of Convention
• Defines and standardizes terminology
• Requires States to have specific crimes
• Specific control measures (money-laundering,
corruption etc.)
• Forfeiture of proceeds of crime
• Cooperation (extradition, legal assistance, investigative
measures etc.)
• Training, research, information measures
• Prevention
• Technical provisions (signature, ratification etc.)
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Scope of application
(Art. 2 a.b)
 Convention
applies to the “prevention,
investigation and prosecution” of
• offences established by the convention (Art. 5, 6, 8 and 23)
• Other serious crimes defined in Art.2
• Protocol offences (Protocols, Art.1)
 Only
when:
– transnational in nature
– an organized criminal group is involved
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Transnational in nature
 Offence
is transnational in nature if:
• Committed in more than in one State;
• Substantial part of preparation, planning, direction or
control takes place in another state;
• Involves an organized criminal group engaging in
criminal activities in more than one State; or
• Has substantial effects in another State.
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(Art.3.2)
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Organized criminal group
 Organized
criminal group
• structured group
• three or more persons
• existing for a period of time
• acting in concert
• aim of committing:
– serious crime(s) or Convention offences
– to obtain direct or indirect financial or other
material benefit (Art. 2.a)
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Structured group
 Structured
group (Art. 2.c)
• Not necessarily formal organization, membership or
structure, but
• more than just “…randomly formed for the immediate
commission of an offence”
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Serious Crime
 Serious
crime (Art.2.b)
• conduct designated by national law as an
offence
• punishable by at least four years
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Offences established by the Convention

Convention requires States Parties to have four basic
offences:
• Participation in an organized criminal group (Art. 5)
• Laundering of proceeds of crime (Art. 6)
• Corruption (Art. 8)
• Obstruction of justice (Art. 23)

Transnationality or involvement of an organized
criminal group must not be made elements of these
offences in domestic law (Art.34.2)
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Offence of participating in an
organized criminal group (Art.5)
 Either
• agreeing to commit a serious crime for financial or
material benefit
or
• knowingly taking part in criminal or related activities of
an organized criminal group to contribute to criminal aim

Options take account of different approaches to conspiracy,
association etc.

States shall insure that domestic law covers all serious crimes
committed by organized groups
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Offence - obstructing justice (Art.23)

Using force, threats or intimidation
or
promising, offering or giving undue advantage
• to interfere with giving of evidence or testimony
• to interfere with exercise of duties of judicial or lawenforcement official
• in connection with proceedings on any Convention or
Protocol offence

Supports other measures to protect victims and witnesses
(Art.24-25)

States can have laws to protect other public officials
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Money laundering offences (Art.6)
 Offences
of laundering of proceeds of crime (Art. 6)
• Conversion or transfer to conceal criminal origins
• Concealment of nature, source, location, disposition, movement or
ownership
• Knowing acquisition of proceeds*
• Participation, association, conspiracy, attempts, aiding, abetting
facilitating etc*
* Subject to basic concepts of each State’s legal system
 Apply
to proceeds of Convention offences,
Protocol offences and other “serious crimes”.
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Money laundering measures (Art.7)
 Comprehensive
regulatory regime for banks and
financial institutions
 Identify
customers, keep records, identify
suspicious transactions
 Cooperation
with other States
• financial intelligence units
• monitor cross-border movement of cash and
instruments
 Guidelines
from regional, interregional or
multilateral initiatives
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Corruption offences (Art.8)
 Mandatory
•
•
•
•
•
offences:
promise, offer, give, solicit or accept
any undue advantage to/by a public official
to act or refrain from acting
any matter relating to official’s public duties
participation as an accomplice
 Optional
offences
• corrupting foreign or international public servants
• other forms of corruption
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Corruption measures (Art.9)
 Legislative
or other measures
• to promote integrity
• to prevent, detect and punish corruption of public
officials
• to ensure effective action by officials
• as appropriate and consistent with legal system
 Provide
anti-corruption authorities with sufficient
independence to deter undue influence
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Liability, prosecution and sanctions
• Criminal, civil or administrative liability for legal persons
(Art.10)
• Sanctions or punishments must be dissuasive and take into
account the gravity of the offence (Art.10.4, 11.1)
• Discretion should be used to maximise law enforcement
effectiveness (Art.11)
• Measures to provide for seizure, confiscation, forfeiture
and disposal of proceeds of crime (to the extent possible)
(Art.12)
• Bank secrecy cannot be used as an obstacle to confiscation
or mutual legal assistance (Art.12.6, 18.8)
• Existing criminal defences are preserved (Art.11)
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Jurisdiction (Art.15)
Convention seeks to ensure that every State Party
connected to a transnational organized crime
offence will have adequate jurisdiction.
Offenders should have no place to hide from
investigation and prosecution.
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Jurisdiction (Art.15)
 Mandatory/compulsory
jurisdiction
• offences on a State’s territory, vessel or aircraft
• where offender not extradited because of nationality
 Optional
jurisdiction
• offender or victim are nationals of the State
• offence of participating in organized criminal group
with a view to committing serious crime in the State
• any other circumstances set by domestic law
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International Cooperation
Extradition (Art. 16)
Mutual Legal Assistance (Art. 18)
Other forms of cooperation (Art. 20, 26, 27)
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Extradition (Art.16)

Extradition available for all Convention and
Protocol offences

Convention extradition provisions harmonize with
existing treaties and arrangements

No refusal on the sole ground of fiscal matters

Limitations in domestic law and existing treaties
apply

Parties must either “Extradite or prosecute” own
nationals

Where extradition is refused, the States involved,
the States involved should consult
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Mutual Legal Assistance

“States Parties shall afford one another the widest
measure of mutual legal assistance…” (Art.18.1)

Most requirements are operational, not legislative, but
Parties must have legal powers needed to produce and
deliver assistance

States Parties are required to designate a central
authority to receive, execute or transmit legal
assistance requests

No right to refuse MLA on the ground of bank secrecy

More direct liaison arrangements permitted for other
forms of cooperation (Art.18.13, Art.19, 27)
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Investigative measures
Convention calls for:
• agreements governing joint investigations (Art.19)
• domestic and cooperative use of special investigative
techniques (Art.20)
– controlled delivery
– electronic or other forms of surveillance
– undercover operations
• measures to encourage those involved in transnational
organized crime to cooperate with law enforcement
(Art.26)
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Law Enforcement and other Cooperation
(Art.27)

States parties called upon to:
• enhance and establish channels of communication;
• cooperate in inquiries concerning
– the identity, whereabouts and activities of suspects;
– the movement of proceeds of crime or
instrumentalities
• exchange information on
– specific means and methods used by organized
criminal groups
– general trends, analytical techniques, definitions,
standards and methodologies
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Protection of Victims and Witnesses
(Art.24, 25)

Must provide effective protection for witnesses, within
available means:
• physical protection
• domestic or foreign relocation
• special arrangements for giving evidence.

Within available means, must also assist with:
• procedures for claiming compensation and restitution
• opportunities to present views and concerns at
appropriate stage of criminal proceedings.

Both articles apply to victims who are also witnesses.
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Technical and other assistance
(Art.29-30)
 State
Parties called upon to:
• implement Convention domestically and through
international cooperation
• take into account effects of organized crime on societies
and sustainable development
• to enhance financial and material assistance to
developing countries
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Prevention
(Art. 31)
States Parties called upon to develop, implement and
share both direct and indirect prevention methods
• administrative and regulatory controls to prevent abuses
in key areas (professions, corporations)
• rehabilitation/reintegration of former offenders
• public awareness campaigns (domestic and international)
• social programs to alleviate conditions that make groups
vulnerable to recruitment or victimization by transnational
organized crime groups
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Conference of the parties
(Art. 32, 33)

Convention establishes a Conference of the Parties to:
• promote and review implementation
• make recommendations to improve convention
• consider means of implementing and difficulties encountered by
States

Conference will meet within one year of entry into force

Initial meeting of Conference will adopt rules of
procedure, a draft of which will be prepared by the Ad Hoc
Committee that carried out the negotiations
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For further information:
United Nations Centre for International Crime Prevention
Office for Drug Control and Crime Prevention
P.O. Box 500, A - 1400 Vienna, Austria
Telephone
+43 - 1 - 26060 - 4534
Fax
+43 - 1 - 26060 - 6711
Web:
http://www.odccp.org/crime_cicp_convention.html
E-mail: [email protected]
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Thank you for your attention
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Disclaimer
 The
purpose of this presentation is to provide
an overview of the U.N. Convention against
Transnational Organized Crime and the
Protocols thereto. It is not intended to
constitute legal advice or reflect the exact
meaning of the instruments. For more detailed
information, the texts of the instruments should
be consulted.
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