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

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


1
CENTRE FOR INTERNATIONAL CRIME
PREVENTIONOffice for Drug Control and Crime
Prevention
2
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

3
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.

4
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

5
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

6
The Convention
  • United Nations
  • Convention against
  • Transnational Organized Crime

7
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.)

8
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

9
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)

10
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)

11
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

12
Serious Crime
  • Serious crime (Art.2.b)
  • conduct designated by national law as an offence
  • punishable by at least four years

13
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)

14
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

15
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

16
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.

17
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

18
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

19
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

20
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)

21
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.

22
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

23
International Cooperation
Extradition (Art. 16) Mutual Legal Assistance
(Art. 18) Other forms of cooperation (Art. 20,
26, 27)
24
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

25
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)

26
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)

27
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

28
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.

29
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

30
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

31
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

32
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

33
Thank you for your attention
34
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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