Combating Trafficking in Cultural Property Through UN Convention

1. The United NationsConvention against Transnational Organized Crime: a vehicle for effective law enforcement and international cooperation to combat trafficking in cultural property?

2. The problem: the involvement of transnational organized crime in illicit trafficking in culturalproperty • Organized criminal groups have become more deeply involved in theft and export of illicitly-obtained antiquities and other cultural property • The illicit trade in cultural objects via the internet is a very serious growing problem, both for countries of “origin” and “destination” countries • Need for effective and robust international legal framework to address the criminal law aspects of the problem

3. Status of the instruments • First 3 instruments opened for signature in Palermo, Italy, 12-15 December 2000 • Firearms Protocol adopted and opened for signature in New York in July 2001 • TOC Convention (entered into force on 29 September 2003): 151 States parties, 147 Signatories • Trafficking Protocol (entered into force on 25 December 2003): 135 States parties, 117 Signatories • Smuggling Protocol (entered into force on 28 January 2004): 122 States parties, 112 Signatories • Firearms Protocol (entered into force on 3 July 2005): 79 States parties, 52 Signatories (Article 37. Relations with Protocols).

4. Standardized terminology Training and technical assistance 4 basic offences Control measures Prevention Confiscation and seizure Protection of witnesses and victims International Cooperation Structure of the Convention: key provisions

5. Scope of application of the UNTOC(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: • offence is transnational in nature • an organized criminal group is involved

6. 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)

7. 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)

8. 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”

9. Serious Crime • Serious crime (Art.2.b) • conduct designated by national law as an offence • punishable by a maximum deprivation of liberty of at least four years or a more serious penalty

10. Trafficking in cultural property as a serious crime • 1970 UNESCO Convention – art. 3:The import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit. • UNTOC could be applied by States parties that making illicit trafficking in cultural property a serious crime in accordance with article 2.

11. Offences established by the UNTOC that may also be supportive for illicit trafficking in cultural property • 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 in the public sector (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)

12. 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

13. 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

14. 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”.

15. 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

16. Corruption offences (Art.8) • Mandatory offence: • 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

17. 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.

18. Domestic confiscation and seizure powers (Art. 12) • Powers to enable: • Identification • Tracing • Freezing • Seizure of proceeds or property • Production orders / search & seizure powers of: • Bank, commercial & financial records • Bank secrecy is not an excuse • Shifting burden of proof: • Offender may have to prove lawful origin of suspicious proceeds

19. Confiscation: Which Proceeds? • Proceeds of crime derived from convention offences • Proceeds converted into/ intermingled with legitimate proceeds • Income or benefits derived from proceeds • Property of corresponding value • Property, equipment, instrumentalities • Used in or destined for use in convention offences • No prejudice to rights of bona fide third parties

20. 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

21. International Cooperation under UNTOC • Extradition • MLA • Law enforcement cooperation • International cooperation for confiscation

22. Ensure that All Convention and Protocols Offences are Extraditable Offence between States Parties Extradition (Art.16) Limitations in Domestic Law And Existing Treaties Apply Either “Extradite or Prosecute” Own Nationals Grounds of Refusal Simplification of Evidentiary Requirements- Expedited Extradition Procedures No Refusal for Fiscal Offences Fair treatment Discrimination clause Consultation before Refusal

23. the offence is transnational in nature, and involves an organized criminal group (* a structured group of 3 or more persons, • * existing for a period of time • and acting in concert with the aim of committing one or more serious crimes or offences, * in order to obtain, directly or indirectly, a financial or other material benefit) • OR • the offence involves an organized criminal group and the person is located in the territory of the requested State party Extraditable Offences - UNTOC The double criminality requirement is fulfilled AND • Participation in an organized criminal group • Laundering of proceeds of crime • Corruption • Obstruction of justice • Each offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty (serious crime) • Offences foreseen in the Protocols

24. International cooperation Question of Dual Criminality Mandatory Offences Optional Offences Narrow Dual Criminality Requirements In MLA

25. Definition of cultural property and its significance for fulfilling the double criminality requirement • The definition of “cultural property” is at present unified among the States Parties to the 1970 UNESCO Convention and the 1995 UNIDROIT Convention.Both international Conventions define cultural property or objects as “property which, onreligious or secular grounds, is of importance for archaeology, prehistory, history, literature, art or science and which belongs to one of the categories specifically listed in the Conventions”. • States should criminalize the activities related to illicit trafficking in cultural property by using a wide definition applying to all stolen and illicitly exported and imported cultural property. • This would prevent obstacles arising from the strict application of the double criminality requirement in both the requested and requesting States.

26. Widest Measures of Mutual Legal Assistance in Investigations, Prosecution and Legal Proceedings • Designate Central Authority to Receive, Execute and Transmit Request • No Refusal of MLA on the Ground of Bank Secrecy • More direct liaison arrangements permitted for other forms of cooperation Mutual Legal Assistance (Art.18)

27. Cooperation in investigations The Convention calls for: • agreements governing joint investigations(Art.19) • international cooperation in using special investigative techniques(Art.20) • controlled delivery • electronic or other forms of surveillance • undercover operations

28. 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 Law enforcement cooperation (Art.27)

29. International cooperation for purposes of confiscation (Art.13) Obligation for States parties, to the greatest extent possible within domestic legal systems, for: • Taking measures to identify, trace and freeze or seize proceeds of crime for the purpose of eventual confiscation • Directly or indirectly enforcing foreign confiscation orders Article 18 on mutual legal assistance applicable mutatis mutandis. Protection of the rights of bona fide third parties.

30. Disposal of confiscated proceeds of crime or property (Art.14) Proceeds of crime or property confiscated to be disposed in accordance with domestic law and administrative procedures. Disposal to be carried out to the extent permitted by domestic law Priority consideration to requests from other States parties for the return of confiscated assets for use as compensation for victims or restoration to legitimate owners.

31. Prevention (Art.31) States called upon to: • Implement Convention domestically and through international cooperation • Take into account effects of organized crime on societies and sustainable development • Promote training programmes for law enforcement personnel (e.g. prosecutors, investigating magistrates, custom personnel), including secondments and exchange of staff • Enhance cooperation with and financial assistance to developing countries to better enable them to fight organized crime

32. For further information: United Nations Office on Drugs and CrimeVienna International CentrePO Box 500, A-1400 Vienna, Austria Tel: +43-1-26060-4258 Fax: +43-1-26060-75752 legal@unodc.org THANK YOU FOR YOUR ATTENTION THANK YOU FOR YOUR ATTENTION