United Nations Convention Against Transnational Organized Crime.


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United Nations Convention Against Transnational Organized Crime.

  1. 1. United NationsConvention AgainstTransnationalOrganized CrimeMinakshi Das, Shahid Khan, Akira Irie
  2. 2. 1. Background history2. Overview and Member States3. Creation of domestic criminal offences4. International cooperation framework of the Convention5. Extradition6. Mutual Legal Assistance (MLA)7. Confiscation of the proceeds of crime8. Law Enforcement9. Problems and future prospects10. ConclusionAgendas
  3. 3. World Ministerial Conference on Organized Transnational Crime adopted the “Political Declaration and Global Action Plan against Organized Transnational Crime” UN General Assembly established the Ad Hoc Committee to draft the TOC Convention plus its 3 Protocols UN General Assembly adopted the Convention At a High-level Political Conference- signed by the member states- in Palermo, Italy Convention entered in to force (in accordance with Art 38)1 Background history
  4. 4. promote cooperation to prevent and combat transnational organized crime more effectively it is the main international instrument to combat transnational organized crime 147 states 164 states(as of 3 Nov 2011)• NOTE: Not all signatories have ratified the Convention yet2 Overview and Member States
  5. 5. UNODC offices around the globe
  7. 7. • 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 laws3 Creation of Domestic Criminal Offences
  8. 8. Extradition (Art 16) Law International Confiscation Enforcement Cooperation (Art 12-14) (Art 27) Mutual Legal Assistance (Art 18) is one of “ ” warned by the HIGH LEVEL THREAT PANEL of the UN4 International cooperationframework of the Convention
  9. 9. • 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)Scope of the Convention (Art 3)
  10. 10. • When is it ?• An offence is transnational in nature if- 1). It is committed ; 2). It is committed in but a ; 3).it is committed in but ; 4) it is committed in .Transnationality
  11. 11. • 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.
  12. 12. • 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)4 International cooperation framework of the Convention
  13. 13. Conviction and punishment deliver message that TOC is not remunerative prevent the illicit gains to be used for maintaining future TOCs5 Confiscation
  14. 14. Items subject • proceeds of crime derived from to offences covered by Convention confiscation • property, equipment or instruments (Art 12) used to commit offences covered by Convention • one State enforces a Regime for confiscation order from international another State or; cooperation • one State obtains a (Art 13) confiscation order based on request by other State Disposal of • Returning of confiscated confiscated items items (Art 14) • Asset sharingConfiscation outline (Art 12-14)
  15. 15. • 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) Proceeds or property subject to confiscation (Art 12)
  16. 16. • 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 assetsRegime for international cooperation (Art 13)
  17. 17. • 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 confiscationDisposal of confiscated items (Art 14)
  18. 18. • 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
  19. 19. victim app. 51 billion yen Goryokai moneyvictim laundering Bank in Switzerland (Kajiyama)victim Japanese app. 29 Swiss authority billion yen authorityGoryokai loan shark case
  20. 20. • Asset sharing: who keeps the money? • Victim compensation v Facilitating cooperation• Further problems • procedure for returning assets • identification of victims (esp. overseas)Goryokai loan shark case
  21. 21. • 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)6 Extradition
  22. 22. 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 Offence is referred to in Article 3.1 (a) or (b) and is transnational in Dual nature and involves an organized crime group Criminality *only becomes a problem in cases concerning “serious Extradition crime” or offences established by Art 5 (conspiracy offences)Grounds for extradition (Art 16.1)
  23. 23. • 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)Effects to existing regimes
  24. 24. • 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 explanationsRefusal to extradition
  25. 25. • 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… 1. request 3. prosecution State A State B 2. refusalExtradite or Prosecute (Art 16.10)
  26. 26. Court (Requesting state) MOJ MOJ (Requesting (Requesting state) state) Diplomatic way is used (may be cumbersome) MOJ MOJ (Requested (Requested State) State)Final Decision ARREST, Court (Requested DETENTION State) Decision by judiciary Extradition procedure
  27. 27. Treaties aimed at Treaties effective in particular offence (e.g. particular region (e.g. OECD Convention European Convention against Foreign on MLA in criminal Bribery) matters) The Convention builds on the above initiatives and calls for the widestmeasure of MLA in investigations, prosecutions and judicial proceedings 7 Mutual Legal Assistance
  28. 28. Offence is referred to in Article 3.1(a) or (b)Offence is referred to in and there areArticle 3.1(a) or (b) and reasonable grounds to is transnational in suspect that victims,nature and involves an witnesses, proceeds areorganized crime group located in requested state and involve an organized criminal MLAGrounds for requesting MLA (Art 18.1)
  29. 29. • 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 lawAssistance sought by MLA (Art 18.3)
  30. 30. • 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 UNTOC Art 18.9-29 A MLAT BProcedure when MLAT is absent (Art 18.7)
  31. 31. • 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)Procedure when MLAT is absent (cont.)
  32. 32. • 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 thisNo refusal on ground of bank secrecy (Art 18.8)
  33. 33. Requesting state Central Central Authority Authority (Requested state) (Requested state) Competent Authority EVIDENCE (Requested State)diplomatic route is not necessary (but states may retain its use)MLA procedure (model)
  34. 34. • 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.8 Law enforcement
  35. 35. • 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.Law enforcement 2
  36. 36. • 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?9 Problems and futureprospects
  37. 37. • 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 terrorism10 Conclusion