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

CENTRE FOR INTERNATIONAL CRIME PREVENTION Office for Drug Control and Crime Prevention. The problem: transnational organized crime. Globalization and new technologies create the same new opportunities for crime as for legitimate activities

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

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  1. CENTRE FOR INTERNATIONAL CRIME PREVENTIONOffice for Drug Control and Crime Prevention [TOCC-PP12E]

  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 [TOCC-PP12E]

  3. 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. Negotiation of the instruments [TOCC-PP12E]

  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 [TOCC-PP12E]

  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 [TOCC-PP12E]

  6. The Convention United Nations Convention against Transnational Organized Crime [TOCC-PP12E]

  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.) [TOCC-PP12E]

  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 [TOCC-PP12E]

  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) [TOCC-PP12E]

  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) [TOCC-PP12E]

  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” [TOCC-PP12E]

  12. Serious Crime • Serious crime (Art.2.b) • conduct designated by national law as an offence • punishable by at least four years [TOCC-PP12E]

  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) [TOCC-PP12E]

  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 [TOCC-PP12E]

  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 [TOCC-PP12E]

  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 State’s legal system • Apply to proceeds of Convention offences, Protocol offences and other “serious crimes”. [TOCC-PP12E]

  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 [TOCC-PP12E]

  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 official’s public duties • participation as an accomplice • Optional offences • corrupting foreign or international public servants • other forms of corruption [TOCC-PP12E]

  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 [TOCC-PP12E]

  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) [TOCC-PP12E]

  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. [TOCC-PP12E]

  22. 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 [TOCC-PP12E]

  23. International Cooperation Extradition(Art. 16) Mutual Legal Assistance(Art. 18) Other forms of cooperation (Art. 20, 26, 27) [TOCC-PP12E]

  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 [TOCC-PP12E]

  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) [TOCC-PP12E]

  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) [TOCC-PP12E]

  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 [TOCC-PP12E]

  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. [TOCC-PP12E]

  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 [TOCC-PP12E]

  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 [TOCC-PP12E]

  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 [TOCC-PP12E]

  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_convention.html E-mail: uncicp_hq@cicp.un.or.at [TOCC-PP12E]

  33. Thank you for your attention [TOCC-PP12E]

  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. [TOCC-PP12E]

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