CENTRE FOR INTERNATIONAL CRIME PREVENTION Office for Drug Control and Crime Prevention

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CENTRE FOR INTERNATIONAL CRIME
PREVENTIONOffice 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
• December 1996
• 1997-98
• December 1998
• 1999-2001

• General Assembly approves Naples Declaration and
  Global Action Plan (Res/49/159)
• Poland proposes draft framework Convention to
  General Assembly, other proposals circulated
• Original draft Convention developed by expert
  group and 7th session of UN Crime Commission
• General Assembly creates open-ended
  intergovernmental Ad Hoc Committee (Res/53/111)
• 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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The Convention

• 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.
  (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 anorganized 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 law-enforcement 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 States
  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 officials 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 States 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
  PreventionOffice for Drug Control and Crime
  PreventionP.O. Box 500, A - 1400 Vienna,
  Austria
• Telephone 43 - 1 - 26060 - 4534
• Fax 43 - 1 - 26060 - 6711
• Web http//www.odccp.org/crime_cicp_conventio
  n.html
• E-mail uncicp_hq_at_cicp.un.or.at

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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.