United Nations Convention Against Transnational Organized CrimeMinakshi Das, Shahid Khan, Akira Irie

Agendas

1. Background history

2. Overview and Member States

3. Creation of domestic criminal offences

4. International cooperation framework of the Convention

5. Extradition

6. Mutual Legal Assistance (MLA)

7. Confiscation of the proceeds of crime

8. Law Enforcement

9. Problems and future prospects

10. Conclusion

1 Background history

1. November 1994: NAPLES, ITALYWorld Ministerial Conference on Organized Transnational Crime adopted the “Political Declaration and Global Action Plan against Organized Transnational Crime”

2. December 1998 :UN General Assembly established the Ad Hoc Committee to draft the TOC Convention plus its 3 Protocols

3. 15 November 2000 :UN General Assembly adopted the Convention

4. 12-15 December 2000 :At a High-level Political Conference- signed by the member states- in Palermo, Italy

5. 29 Sep 2003 :Convention entered in to force (in accordance with Art 38)

2 Overview and Member States

• Aim: promote cooperation to prevent and combat transnational organized crime more effectively

• Significance: it is the main international instrument to combat transnational organized crime

• Signatories : 147 states• Parties : 164 states

(as of 3 Nov 2011)• NOTE: Not all signatories have ratified the Convention

yet

UNODC offices around the globe

• Key Provisions: Structure of the Convention:• PREVENTION• PROTECTION of WITNESSES and VICTIMS• INTERNATIONAL COOPERATION• CONFISTICATION & SEIZURE• CONTROL MEASURES• TRAINING AND TECHNICAL ASSISTANCE• STANDARDISED TERMINOLOGY• CRIMINALIZATION of OFFENCES

3 Creation of Domestic Criminal Offences

• The convention targets certain activities perceived to constitute either acts of transnational organised crime or manifestations of it, and singles them out for universal criminalisation. It requires states parties to proscribe:① participation in an organized criminal group, including conspiracy to

commit organized crime (Art 5)

② money laundering (Art 6)

③ corruption (Art 8)

④ obstructing the course of justice (Art 23)Member states are obliged to create domestic laws to implement the

Convention (to construct a basis for international cooperation)Transnationality and involvement of an organized criminal group are

NOT an element in legislating domestic laws

4 International cooperation framework of the Convention

International Cooperation

Extradition

(Art 16)

Confiscation

(Art 12-14)

Mutual Legal Assistance

(Art 18)

Law Enforcement

(Art 27)

TRANSNATIONAL ORGANISED CRIME is one of “THE TEN THREATS” warned by the HIGH LEVEL THREAT PANEL of the UN

Scope of the Convention (Art 3)

• The Convention framework applies to the prevention, investigation and prosecution of:1. the offences established by this Convention (e.g. money

laundering)

2. Serious crime (offences punishable by a minimum deprivation of liberty of at least four years or more)

where the offence is 1) transnational in nature and 2) involves an organized criminal group (Art 3.1)

Transnationality

• When is it Transnational in nature?• An offence is transnational in nature if- 1). It is

committed in more than one State; 2). It is committed in one state but a substantial part is of its preparation, planning, direction or control takes place in another State; 3).it is committed in one state but involves an organized criminal group that engages in criminal activities in more than one state; 4) it is committed in one state but has substantial effects in another state.

• LOUISE I. SHELLEY • Director of the TERRORISM TRANSNATIONAL CRIME AND

CORRUPTION (TraCCC) CENTRE at GEORGE MASON UNIVERSITY. According to him:

• “Transnational Crime will be defining issue of the 21st century for policymakers-as defining as the Cold War for the 20th century and colonialism was for the 19th. Terrorists and transnational crime groups will proliferate because these crime groups are major beneficiaries of globalization. They take advantage of increased travel, trade, rapid money movements, telecommunications and computer links, and are well positioned for growth”.

• Note: This art. Incorporates text from the US Dept. of State, it is believed to be in the public domain

• Courtesy: Wikipedia.

4 International cooperation framework of the Convention

• The Convention framework applies to the prevention, investigation and prosecution of 1. the offences established by this Convention (e.g. money

laundering)

2. Serious crime (offences punishable by a minimum deprivation of liberty of at least four years or more)

where the offence is 1) transnational in nature and 2) involves an organized criminal group (Art 3.1)

5 Confiscation

prevent the illicit gains to

be used for maintaining future TOCs

deliver message that TOC is not

remunerative

Conviction and

punishment

Confiscation outline (Art 12-14)

Items subject to

confiscation

(Art 12)

• proceeds of crime derived from offences covered by Convention

• property, equipment or instruments used to commit offences covered by Convention

Regime for international cooperation

(Art 13)

• one State enforces a confiscation order from another State or;

• one State obtains a confiscation order based on request by other State

Disposal of confiscated

items

(Art 14)

• Returning of confiscated items

• Asset sharing

Proceeds or property subject to confiscation (Art 12)

• Proceeds of crime derived from offences covered by Convention (Art 12.1(a))

• Property, equipment or instruments used to commit offences covered by Convention (Art 12.1(b))

• Transformed or converted property of proceeds of crime (Art 12.3)

• Proceeds intermingled with legitimately obtained property (Art 12.4)

• Courts or other competent authorities must be given power to seize bank, commercial records - states can not refuse cooperation on the ground of bank secrecy (Art 12.6)

Regime for international cooperation (Art 13)

• The Convention provides two alternatives in order to allow flexibility in the way states give effect to requests for confiscation (states have different legal structure concerning confiscation)① confiscation by which specific property is trace as derived

from or used to commit an offence (13.1(a))

② confiscation of value of the proceeds or instrumentalities (the calculated value is subject to confiscation (13.1.(b))

• Difference in confiscation legislation is not an obstacle in confiscating overseas assets

Disposal of confiscated items (Art 14)

• Consideration should be given to returning proceeds to a requesting state for compensation of, or return to victims (Art 14.2)• states should enact legislation to enable sharing of

confiscated assets with domestic and overseas victims

• Special consideration to sharing confiscated assets with other state parties on a regular day-to-day basis (Asset sharing Art 14.3(b))• encourages enhanced cooperation among law enforcement

authorities, as assisting authorities may receive a portion of the funds subsequent to confiscation

Goryokai loan shark case

• The greatest loan shark case in Japan conducted by Goryokai – a Japanese yakuza group (dissolved in 2003)- led by “Loan shark emperor” Susumu Kajiyama (sentenced to seven years imprisonment for violation of the Act Regulating the Receipt of Contributions, Receipt of Deposits and Interest Rates and money laundering)

Goryokai loan shark case

Goryokai(Kajiyama)

victim

victim

victim

Bank in Switzerland

Swissauthority

Japanese authority

money laundering

app. 29 billion yen

app. 51 billion yen

Goryokai loan shark case

• Asset sharing: who keeps the money?• Victim compensation v Facilitating cooperation

• Further problems• procedure for returning assets• identification of victims (esp. overseas)

6 Extradition

• A formal and most frequently, a treaty based process (developed since the late 19th century)• existing treaties play an important role

• The Convention sets a basic minimum standard for extradition for the offences it covers• different from the EAW (mutual recognition has not been

established)

Grounds for extradition (Art 16.1)

Extradition

Offence is referred to in Article 3.1 (a) or (b) and is transnational in nature and involves an organized crime group

Offence is referred to in Art 3.1 (a) or (b),

involves an organized criminal group and the person is located in the requested State party

Dual Criminality

*only becomes a problem in cases concerning “serious crime” or offences established by Art 5 (conspiracy offences)

Effects to existing regimes

• Extraditable offences are automatically incorporated in to extradition treaties existing between member states (Art 16.3)

• States that do not require extradition treaties (states that provide extradition pursuant to a statute) must include extraditable offences in to their legislation (Art 16.6)

Refusal to extradition

• Grounds for refusal and other conditions are governed by the treaties between requesting and requested states (Art 16.7)• minimum penalty required for an offence to be considered

extraditable• nature of punishment (cf death penalty)

• No refusal for fiscal offences (Art 16.15)• State parties may not refuse a request for extradition on the

sole ground that the offense is also considered to involve fiscal matters

• Consultation prior to refusing (Art 16.16)• gives requesting states opportunity to present additional

information or explanations

Extradite or Prosecute (Art 16.10)

• States may refuse to extradite a person on grounds that the person is its national

• However, if the requesting state request, the requested state must submit the case to its competent authority for the purpose of prosecution

• Prevents creating safe havens for offenders• obtaining evidence for prosecution could be cumbersome

and problems of admissibility of evidence may arise…

State A State B

1. request

3. prosecution2. refusal

Extradition procedure

Court (Requesting state)

MOJ (Requesting

state)

MOJ (Requested

State)

Court (Requested

State)

ARREST,

DETENTION

MOJ (Requested

State)

MOJ (Requesting

state)

Diplomatic way is used (may be cumbersome)

Decision by judiciary

Final Decision

7 Mutual Legal Assistance

The Convention builds on the above initiatives and calls for the widest measure of MLA in investigations, prosecutions and judicial proceedings

Treaties effective in particular region (e.g. European Convention on MLA in criminal

matters)

Treaties aimed at particular offence

(e.g. OECD Convention against Foreign Bribery)

Grounds for requesting MLA (Art 18.1)

MLA

Offence is referred to in Article 3.1(a) or (b) and

is transnational in nature and involves an organized crime group

Offence is referred to in Article 3.1(a) or (b)

and there are reasonable grounds to suspect that victims,

witnesses, proceeds are located in requested state and involve an organized criminal

Assistance sought by MLA (Art 18.3)

• taking evidence or statements• providing documents and records• executing searches and seizures• examining objects and sites• tracing the proceeds of crime• providing information• Spontaneous transmission of information (Art 18.4)

• facilitating the appearance of witnesses• any other assistance not barred by domestic law

Procedure when MLAT is absent (Art 18.7)

• Rules of MLA in the Convention (Art 18.9-29) apply when MLAT is absent between member states (Art 18.7)

• No implementing legislation will be needed (if the legal system of the member state permit direct application of treaties)

• Facilitates MLA between many countries

A BMLAT

UNTOCArt 18.9-29

Procedure when MLAT is absent (cont.)

• Rules that apply include, inter alia:• refusal on the ground of absence or dual criminality (Art

18.9)• rules for transferring detained persons (Art 18.10)• designating central authority (Art 18.13)• format for making a MLA request (Art 18.15)• requests should be executed in accordance with the

procedures specified by the requesting state to the extent it is not contrary with domestic law of the requested state (Art 18.17)• evidence obtained by wire tapping, immunity, plea bargaining?

• using video conference in hearings (Art 18.18, optional)• evidence obtained from MLA can not be used for other

purposes unless the requested party consents (Art 18.19)

No refusal on ground of bank secrecy (Art 18.8)

• States have NO right to refuse MLA on the ground of bank secrecy• Art 18.8 is NOT included among the paragraphs that apply in the

absence of a MLAT (applies to every member state with existing MLATs)

• existing MLATs that permit such refusal will be invalidated• member states with legislation that allows such refusal must make

amendments to remedy this

MLA procedure (model)

Requesting state

Central Authority

(Requested state)

Competent Authority

(Requested State)

EVIDENCE

Central Authority

(Requested state)

diplomatic route is not necessary (but states may retain its use)

8 Law enforcement

• Background concept – Art.27 • Establish/enhance channels of communication &

facilitate rapid exchange of information.• Enquiries – Identity, activities and whereabouts of

suspects.• Proceeds – Movement of proceeds and property derived

from criminal activity or intended for use to commit offences.

• Information Exchange – Specific means and methods, routes, false documents and concealment methods used by organised criminal groups.

Law enforcement 2

• Agreements – States to consider bi/multilateral agreements on direct cooperation between law enforcement agencies.

• Absence of agreement? – States may consider UNTOC as basis for mutual law enforcement.

• Encourages States to fully use agreements to enhance co operation of enforcement agencies.

• Rationale – From moral obligation and favours to creation of legitimacy.

9 Problems and future prospects

• Dual Criminality – Restrictive interpretations and safe harbours. • Harmonisation – Substantial correspondence of elements of crime.• Some countries find it difficult to ratify the Convention due to

domestic law principles e.g. criminalising conspiracy

• Effective monitoring and review – measure of cooperation and compliance. Signatures and ratification enough? Self Assessment checklist.

• Empirical data – capture day to day effectiveness?• Recovery and return of proceeds – Disposal v Return.

cf UN Convention against Corruption- “the one who seizes, returns” policy – Difference?

10 Conclusion

• UNTOC opens the gate to international cooperation for many countries

• Gradual change through legitimacy rather than force• Not used alone – works alongside other treaties and

provides a basis for future instruments• Flexible – crimes not apparent at the moment can be

subject to the convention• cyber crime• cyber terrorism