The document provides an overview of the United Nations Convention Against Transnational Organized Crime (UNTOC). It discusses the background and creation of the Convention, its key provisions around criminalization of offenses, international cooperation frameworks, extradition, and mutual legal assistance. It also examines some implementation challenges around dual criminality requirements and monitoring state compliance. The Convention aims to foster international cooperation to more effectively prevent and combat transnational organized crime.

1. United Nations
Convention Against
Transnational
Organized Crime
Minakshi Das, Shahid Khan, Akira Irie

2. 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
Agendas

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. 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
yet
2 Overview and Member States

5. UNODC offices around the globe

6. • 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

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 laws
3 Creation of Domestic Criminal Offences

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 UN
4 International cooperation
framework of the Convention

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. • 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. • 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. • 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. Conviction
and
punishment
deliver
message that
TOC is not
remunerative
prevent the
illicit gains to
be used for
maintaining
future TOCs
5 Confiscation

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
sharing
Confiscation outline (Art 12-14)

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. • 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
Regime for international cooperation (Art 13)

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 confiscation
Disposal of confiscated items (Art 14)

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. victim app. 51 billion yen
Goryokai money
victim laundering Bank in Switzerland
(Kajiyama)
victim
Japanese app. 29 Swiss
authority billion yen authority
Goryokai loan shark case

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. • 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. 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. • 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. • 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
Refusal to extradition

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. refusal
Extradite or Prosecute (Art 16.10)

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. 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 widest
measure of MLA in investigations, prosecutions and judicial proceedings
7 Mutual Legal Assistance

28. Offence is referred to
in Article 3.1(a) or (b)
Offence is referred to in and there are
Article 3.1(a) or (b) and reasonable grounds to
is transnational in suspect that victims,
nature and involves an witnesses, proceeds are
organized crime group located in requested
state and involve an
organized criminal
MLA
Grounds for requesting MLA (Art 18.1)

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 law
Assistance sought by MLA (Art 18.3)

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 B
Procedure when MLAT is absent (Art 18.7)

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. • 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
No refusal on ground of bank secrecy (Art 18.8)

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. • 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. • 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. • 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 future
prospects

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 terrorism
10 Conclusion