Tutor

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Red Europea de Formación Judicial
(REFJ) European Judicial Training Network
(EJTN) Réseau Européen de Formation Judiciaire
(REFJ)
Module V Bilateral and multilateral instruments
of judicial cooperation in criminal
matters International criminal jurisdiction

• Tutor
• Ignacio U. González Vega

Criminal Justice 2008 With financial support from
Criminal Justice Programme European Commission
Directorate-General Justice, Freedom and Security
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Unit14MULTILATERAL INSTRUMENTS IN THE SPHERE OF
THE UNITED NATIONS
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Unit 14

• CONVENTIONS, RESOLUTIONS AND OTHER UNITED NATIONS
  INSTRUMENTS
• Charter of the United Nations and Statute of the
  International Court of Justice
• Pacific Settlement of International Disputes
• Human Rights
• Minors
• Discrimination
• Bioethics
• Refugees and stateless persons
• Narcotic Drugs and Psychotropic Substances
• Trafficking in persons
• Diverse criminal matters
• Corruption and organised crime
• Terrorism
• Criminal justice
• Air and maritime safety
• International Criminal Courts

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Unit 14International criminal jurisdiction

• AD HOC INTERNATIONAL CRIMINAL COURTS
• BACKGROUND
• THE NÜREMBERG AND TOKYO COURTS
• THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE
  FORMER YUGOSLAVIA AND RWANDA
• Created for specific situations and on a
  temporary basis by resolutions of the UN Security
  Council.
• Competent to try serious violations of
  International Humanitarian Law committed in the
  respective territories.
• Jurisdiction only over physical persons and not
  organisations, political parties or other legal
  entities.
• The general regime of jurisdiction immunity for
  criminal matters acknowledged to senior
  representatives of states (heads of state or
  government) is not applicable.
• With preferential jurisdiction over national
  courts in the event both have concurrent
  jurisdiction.
• Obligation for State Parties to cooperate.

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Unit 14International Criminal Jurisdiction

• THE INTERNATIONAL CRIMINAL COURT
• Independent judicial body, of a permanent nature
  and with a potentially universal scope.
• Judicial institution with the power to
  investigate and try physical persons accused of
  the most serious crimes genocide, crimes against
  humanity and war crimes. These crimes are not
  time-barred.
• It is not competent to prosecute states or legal
  persons or to prosecute isolated events.
• The general regime of jurisdiction immunity for
  certain state representatives does not apply.
• Its jurisdiction is limited exclusively to the
  states parties. Unless the situation has been
  sent to the office of the Prosecutor of the ICC
  by the UN Security Council or when the state
  accepts its jurisdiction even though it is not a
  party to the Rome Statute.
• Its jurisdiction is complementary to that of
  national jurisdictions.
• The position of victims of crimes represents a
  new development as they are entitled to
  participate in the trials.

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Unit 14International criminal jurisdiction

• INTERNATIONALISED COURTS
• Hybrid nature and different types
• Courts set up for mass crimes (Sierra Leone,
  Cambodia, East Timor, Kosovo, Iraq and
  Bosnia-Herzegovina) or for specific offences (the
  Lebanon).
• Autonomous special courts (Sierra Leone and the
  Lebanon) coexist with special or mixed courts
  that form part of the internal legal systems and
  that apply both domestic law criminal rules and
  international law (Cambodia and East Timor).
• THE UNIVERSAL CRIMINAL JURISDICTION OF STATES
• The basis for the same is the decentralised
  defence of the interests and values of the
  International Community as a whole and not purely
  those of states or individuals.
• Universal justice complements, as well as
  excepting, the principle of territoriality,
  declaring the competence of the criminal
  jurisdiction of a state for prosecuting crimes
  committed outside its territory, regardless of
  the nationality or residence of the perpetrator,
  the victim and the state in which the crime was
  committed.
• TRANSITIONAL JUSTICE
• Judicial and other strategies adopted in states
  where there have been serious human rights
  violations. The purpose of the same is to achieve
  reconciliation and justice among the opposing
  parties and guarantee the development of a
  lasting peace and a democratic society.

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Unit 15

• ORGANISED CRIME
• UN Convention against transnational organized
  crime, approved in New York on 15 November 2000
  and signed in Palermo on 13 December 2000.
• Protocol to Prevent, Suppress and Punish
  Trafficking in Persons, Especially Women and
  Children , supplementing the United Nations
  Convention against Transnational Organized Crime.
  New York ,15 November 2000
• Additional Protocol against the Smuggling of
  Migrants by Land, Sea and Air, supplementing the
  United Nations Convention against Transnational
  Organized Crime. New York, 15 November 2000
• Protocol against the Illicit Manufacturing and
  Trafficking in Firearms, Their Parts and
  Components and Ammunition, which supplements the
  United Nations Convention against Transnational
  Organized Crime. New York, 31 May 2001.

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Unit 15

• ORGANISED CRIME
• The Convention applies to serious offences of a
  transnational nature that involve an organized
  criminal group, reflected in conduct constituting
  an offence punishable by a maximum deprivation of
  liberty of at least four years or a more serious
  penalty, as well as laundering the proceeds of
  crime, corruption and obstruction of justice.
• The Convention urges states to establish the
  criminal liability of legal persons that
  participate in serious crimes or that are
  involved in an organised criminal group and
  commit the crimes envisaged in the Convention.
• Special investigation techniques
• controlled deliveries,
• covert operations,
• electronic surveillance,
• witness protection.

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Unit 15 CORRUPTION
Convention Adoption Entry into force Open to
Inter-American Convention Against Corruption 29/3/1996 6/3/1997 Member States of the Organisation of American States (34 states, with the exception of Cuba, which is a member of the OAS but whose participation has been vetoed since 1962), and any other state may become a party.
OECD Convention on the fight against the corruption of public officials in international commercial transactions 17/12/1997 15/2/1999 The 30 OECD countries and 6 non-members (Argentina, Brazil, Bulgaria, Chile, Slovenia and Estonia). Other applications to become parties are being studied.
Criminal Convention on corruption of the Council of Europe 4/11/1998 1/7/2002 All Council of Europe Member States and 6 non-member countries (Belarus, Canada, USA, Japan, Mexico and the Holy See).
UN Convention against transnational organized crime 15/11/2000 29/9/2003 All countries and regional economic organisations
Civil Convention on corruption of the Council of Europe 4/11/1999 1/11/2003 Council of Europe Member States non-members who participated in the drafting of the draft convention other non-members upon invitation.
UN Convention against Corruption 31/10/2003 14/12/2005 All countries and regional economic organisations
Convention of the African Union for preventing and combating corruption 11/6/2003 4/8/2006 Member States of the African Union
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Unit 15 CORRUPTION

• PREVENTION
• Non-governmental organisations Transparency
  International.
• Council of Europe Group of States against
  Corruption (GRECO). Permanent control mechanism
  for the twenty guiding principles and the two
  conventions of the Council of Europe on
  Corruption.
• The Organisation for Economic Co-operation and
  Development (OECD) performs periodic cycles of
  evaluation of member states in order to monitor
  the adaptation of the internal mechanisms of
  countries to the legal instruments established by
  the Convention.
• European Union Communication of 26 August 2003,
  On a Comprehensive EU Policy Against Corruption
  and the Stockholm Programme, approved on 2
  December 2009, make the fight against corruption
  a priority. Among the different measures
  proposed, it is intended to improve judicial
  persecution of tax evasion and corruption in the
  private sector as well as increasing the
  transparency of legal persons.

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Unit 15

• DRUGS
• UN Conventions on drugs
• Single Convention on Narcotic Drugs. New York, 30
  March1961. It intended, by means of a single
  document, to reduce the number of international
  bodies existing and ensure global control of the
  raw materials used for narcotics, establishing
  what products and substances needed to be
  controlled worldwide.
• Convention on Psychotropic Substances. Vienna, 21
  February 1971. It completed the scope of
  application of the 1961Convention, albeit not
  without differentiating between legal and illegal
  psychotropic substances and the conditioning
  factors.
• Convention against Illicit Traffic in Narcotic
  Drugs and Psychotropic Substances. Vienna, 20
  December1988. It represents a powerful
  international instrument linked to the mechanisms
  to be adopted by the states, so that the serious
  consequences of drug trafficking and, above all,
  international trafficking, could be combated.

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Unit 16 TERRORISM

• There is as yet insufficient international
  consensus to establish a universal definition of
  terrorism or a single global and universal
  convention on terrorism.
• The universal system of cooperation in the fight
  against terrorism consists of
• Sector-specific UN conventions 16 (133)
  instruments conventions, protocols and
  additional amendments.
• General obligations established in these
  treaties
• To incorporate the crimes defined in the
  different treaties into national criminal
  systems.
• To establish a kind of universal jurisdiction"
  over these offences.
• Obligation to extradite or prosecute.
• Non-consideration of these offences as political
  crimes.
• Establishing forms of international cooperation
  to prevent and prosecute offences.
• Establishing clauses on the protection of and
  respect for human rights.
• Other UN instruments Resolutions of the General
  Assembly and the Security Council.
• Sector-specific conventions on a regional level
  special reference to Europe.
• The actions and legal framework on terrorism in
  the EU and the Council of Europe are
  complementary to those of the UN.
• EU Council Common position 2001/931/ CFSP, dated
  27 December 2001, on the application of specific
  measures to combat terrorism Council Framework
  Decision 2002/475/JHA of 13 June 2002 on
  combating terrorism and Council Framework
  Decision 2008/919/JHA of 28 November 2008,
  amending the former.
• Council of Europe European Convention for the
  suppression of terrorism and its Protocol
  Convention on the Prevention of Terrorism and
  the Convention on Laundering, Search, Seizure and
  Confiscation of the Proceeds from Crime and on
  the Financing of Terrorism.

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Unit 16 MONEY LAUNDERING AND TERRORIST
FINANCING

• UN Convention on the Illicit Trafficking of
  Narcotic Drugs and Psychotropic Substances,
  Vienna, 20 December 1988.
• Council of Europe Convention on Laundering,
  Search, Seizure and Confiscation of the Proceeds
  from Crime, Strasbourg, 8 November 1990.
• UN Convention against Transnational Organized
  Crime.
• The Financial Action Task Force on Money
  Laundering (FATF), whose purpose is to ensure the
  harmonious development of national legislations
  in the fight against money laundering.
• From a formal point of view, the 40
  Recommendations of the FATF are little more than
  mere advice from a task force of experts, but in
  practice they have great authority and prestige.
  These Recommendations have considerable political
  influence among states, above all if one takes
  into account that the countries that fail to
  comply with them are classed as non-cooperative
  in the fight against money laundering.

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Unit 16 MONEY LAUNDERING AND TERRORIST FINANCING

• Community Directives
• FIRST DIRECTIVE. Council Directive 91/308/EEC of
  10 June 1991 on prevention of the use of the
  financial system for the purpose of money
  laundering The influence of the system of FATF
  Recommendations is considerable. It has become
  the most effective instrument in preventing money
  laundering in the financial system, starting with
  the basic principle that the financial
  institution must know the client, it being
  necessary to fully identify clients and determine
  the origin of the clients securities or capital.
• SECOND DIRECTIVE. Directive 2001/97/EC of the
  European Parliament and of the Council of 4
  December 2001 amending Council Directive
  91/308/EEC on prevention of the use of the
  financial system for the purpose of money
  laundering. It amends the earlier Directive in
  relation, mainly, to the extension of the
  catalogue of institutions or persons obliged by
  the Directive, the extension of the offence
  preceding the money laundering and banking
  secrecy.
• THIRD DIRECTIVE. Directive 2005/60/EC of the
  European Parliament and the Council of 26 October
  2005, on the prevention of the use of the
  financial system for the purpose of money
  laundering and terrorist financing. It includes
  terrorist financing, introduces the concept of
  beneficial owner as the natural person(s) who
  ultimately owns or controls the customer and/or
  the natural person on whose behalf a transaction
  or activity is being conducted, as well as the
  concept of politically exposed persons, meaning
  natural persons with certain personal,
  professional or economic circumstances who must
  be subject to more or less strict surveillance
  and control by credit institutions, financial
  institutions or obliged persons under the money
  laundering prevention system. It also establishes
  that all Member States must create a Financial
  Intelligence Unit (FIU) that must receive,
  analyse and communicate to the competent
  authorities the financial information they hold
  in relation to potential money laundering,
  potential terrorist financing or as required by
  legal or regulatory provisions.
• Directive 2008/20/EC of the European Parliament
  and of the Council of 11 March 2008 amending
  Directive 2005/60/EC on the prevention of the use
  of the financial system for the purpose of money
  laundering and terrorist financing, as regards
  the implementing powers conferred on the
  Commission.

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Unit 17

• BILATERAL AND EUROPEAN UNION CONVENTIONS WITH
  THIRD COUNTRIES AND INTERNATIONAL ORGANISATIONS
• AGREEMENTS BETWEEN THE EU AND THIRD COUNTRIES AND
  INTERNATIONAL ORGANISATIONS
• Conventions between the Member States of the
  European Union may be established for adoption by
  them in matters concerning Police and Judicial
  Cooperation in Criminal Matters (Article 34 of
  the EU Treaty).
• The EU can also enter into agreements with third
  countries and organisations, pursuant to the
  provisions of Articles 24 and 38 of the EU
  Treaty, on matters relating to the Common Foreign
  and Security Policy (CFSP) and police and
  judicial cooperation in criminal matters.
• The Agreement between the International Criminal
  Court (ICC) and the European Union on cooperation
  and assistance signed on 10 April 2006.
• Agreements between the EU and the USA, on
  Extradition and Mutual Legal Assistance in
  criminal matters, signed in June 2003 in
  Washington.
• The Agreement between the European Union and the
  Republic of Iceland and the Kingdom of Norway on
  the application of certain provisions of the
  Convention of 29 May 2000 on mutual assistance in
  criminal matters between the Member States of the
  European Union and the 2001 protocol, of 19
  December 2003.
• Agreement between the EU and Japan on cooperation
  in criminal matters, of 3 November 2009.

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Unit 17

• SPECIAL REFERENCE TO THE EU-USA CONVENTION
• These agreements supplement the bilateral
  agreements between the USA and the EU Member
  States.
• AGREEMENT ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL
  MATTERS BETWEEN THE EU AND THE USA
• Identification of bank information will not be
  refused on grounds of banking secrecy.
• Joint investigation teams operating in the
  respective territories of each Member State and
  the USA.
• The Parties undertake to adopt the measures
  necessary to allow the use of videoconferencing
  technology between each Member State and the USA
  in proceedings where it is possible to provide
  legal assistance for taking statements of
  witnesses or experts (not for the accused)
  located in a requested State.
• It includes a rule on legal assistance for
  administrative authorities investigating conduct
  for the purposes of the criminal prosecution of
  the same or for sending the results of said
  investigation to the Public Prosecutors office
  or the criminal investigation authorities.
• It establishes practical limits designed to
  protect personal data.
• AGREEMENT ON EXTRADITION BETWEEN THE EU AND THE
  USA
• It contains provisions on the acts that give rise
  to extradition, the transmission and
  authentication of documents, capital punishment,
  extradition applications submitted by several
  states and the sensitive information contained in
  an application.
• It contains the classical principles of dual
  criminality and a minimum sentence (deprivation
  of liberty with a maximum limit of one years
  imprisonment).
• Requests for extradition and legal assistance are
  to be transmitted via diplomatic channels.

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Unit 17

• AGREEMENT BETWEEN THE EU AND JAPAN ON COOPERATION
  IN CRIMINAL MATTERS
• Agreement signed in Brussels on 30 November 2009
  and in Tokyo on 15 December 2009.
• Its object is to provide judicial assistance in
  investigations, trials and other procedures,
  including legal proceedings, in criminal matters.
• Extradition, transfer of proceedings in criminal
  matters and enforcement of sentences other than
  confiscation envisaged in Article 25 of said
  Agreement are excluded.
• The scope of assistance will cover
• taking testimony or statements
• enabling the hearing by videoconference
• obtaining items, including through the execution
  of search and seizure
• obtaining records, documents or reports of bank
  accounts
• examining persons, items or places
• locating or identifying persons, items or places
• providing items in the possession of the
  legislative, administrative or judicial
  authorities of the requested State as well as the
  local authorities thereof
• serving documents and informing a person of an
  invitation to appear in the requesting State
• temporary transfer of a person in custody for
  testimony or other evidentiary purposes
• assisting in proceedings related to freezing or
  seizure and confiscation of proceeds or
  instrumentalities
• any other assistance permitted under the laws of
  the requested State and agreed upon between a
  Member State and Japan.
• Requests should always be executed pursuant to
  the legislation of the requested State.