United Nations Convention United Nations Convention against against Transnational Organized Transnational Organized Crime and Crime and Protocols and Protocols and United Nations Convention United Nations Convention against Corruption against Corruption World Summit of Prosecutors General, Attorneys General and Chief World Summit of Prosecutors General, Attorneys General and Chief Prosecutors Prosecutors Bucharest, Romania, 23-25 March 2009 Bucharest, Romania, 23-25 March 2009
Transcript
United Nations Convention against United Nations Convention against Transnational Organized Crime andTransnational Organized Crime and
Protocols andProtocols andUnited Nations Convention United Nations Convention
against Corruptionagainst Corruption
World Summit of Prosecutors General, Attorneys General and Chief ProsecutorsWorld Summit of Prosecutors General, Attorneys General and Chief ProsecutorsBucharest, Romania, 23-25 March 2009Bucharest, Romania, 23-25 March 2009
22
Status of TOC and ProtocolsStatus of TOC and Protocols 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
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117112
52
147
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20
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60
80
100
120
140
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TOC Convention(entered into force on29 September 2003)
Trafficking Protocol(entered into force on
25 December 2003)
Smuggling Protocol(entered into force on
28 January 2004)
Firearms Protocol(entered into force on 3
July 2005)
Signatories Parties
Critical number of ratifications needed for entry into force
33
Structure of the Convention: key featuresStructure of the Convention: key features
PreventionControl
measures
Protection ofwitnesses and
victims
Standardized terminology 4 basic
offences
Training andtechnical
assistance
InternationalCooperation
Confiscationand seizure
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Four basic offencesFour 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)
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International cooperationInternational cooperation
Extradition (Art. 16)Mutual Legal Assistance (Art. 18)Investigative measures and other forms of cooperation (Art. 20, 26, 27)
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Protocol to Prevent, Suppress and Protocol to Prevent, Suppress and Punish Trafficking in Human Beings, Punish Trafficking in Human Beings,
especially Women and Children especially Women and Children (Trafficking Protocol)(Trafficking Protocol)
Status: 117 Signatories, 127 Parties
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Criminalization Criminalization (Art. 3)(Art. 3)
States must criminalize: trafficking in human beingsattempting, participating as an accomplice in, and organizing or directing others to commit the offence(s) of trafficking
Definition: Trafficking in persons means (Art. 3.a)
the recruitment, transportation, transfer, harboring, or receipt of persons
by means of the threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim
for the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labor, slavery or similar practices, and the removal of organs
consent of the victim is irrelevant where illicit means are established, but criminal law defenses are preserved (Protocol, Art. 3. b, Convention Art. 11. 6)
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Assistance and protection of victims Assistance and protection of victims (Art.6)(Art.6)
States obliged to assist and protect victims and witnesses by Convention (Artt. 24-25)
Protocol recognizes that trafficking victims are particularly vulnerable and contains additional measures for protection and support:
protection of privacy and identity where possible
information about proceedings and assistance in presenting views and concerns
endeavor to provide for safety of victims
programmes to protect victims from re-victimization (Art. 9. 1. b)
Protocol calls for additional measures to support physical, psychological and social recovery, taking account of special needs of children:
legal and other counseling medical, psychological, material and housing assistance possibility of obtaining compensation
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Protocol against the Protocol against the Smuggling of Migrants Smuggling of Migrants
by Land, Sea and Airby Land, Sea and Air(Migrants Protocol)(Migrants Protocol)
Status: 112 Signatories, 119 Parties
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States must criminalize: The smuggling of migrants Producing, procuring, providing or possessing fraudulent travel or identity documents for the purpose of smuggling migrants Enabling a person to remain illegally Attempting, participating, organizing or directing others to commit Protocol offences
Aggravating circumstances: circumstances that endanger safety inhuman or degrading treatment
Criminalization Criminalization (Art. 6)(Art. 6)
Definition: Smuggling of migrants means (Art. 3. a)
procurement of illegal entry
into a State Party of which the person is not a national or a permanent resident
to obtain direct or indirect financial or other material benefit
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International cooperationInternational cooperation
States shall:
cooperate to prevent the smuggling of migrants by sea (Art. 7)
exchange information relating to smuggling of migrants (Art. 10)
verify the legitimacy and validity travel or identity documents (Art. 13)
consider the conclusion of bilateral or regional agreements (Art. 17)
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Protocol against the Illicit Manufacturing of and Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Trafficking in Firearms, their Parts, Components their Parts, Components
and Ammunitionsand Ammunitions(Firearms Protocol)(Firearms Protocol)
Status: 52 Signatories, 77 Parties
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Structure of the Protocol, key provisionsStructure of the Protocol, key provisions
Standardizes terminology (Art. 3)
Standard definitions of “firearm”, “trafficking”, “tracing”
Linking export to subsequent import permit (Art. 3. e, 10. 2)
Requiring marking and record-keeping to support identification and tracing (Artt.7, 8)
Security measures against diversion (Art. 11)
Criminal offences for illicit manufacturing, trafficking and defacing firearm
markings (Art. 5)
International cooperation in tracing and other matters (Artt.12, 13)
Definition: Firearmbarrelled weapon that can expel a shot, bullet or projectile by the action of an explosiveportable (by one person)excluded antiques made before 1899
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Criminalization Criminalization (Art.5)(Art.5)
States must criminalize:
Illicit trafficking
Illicit manufacturing
Falsifying, obliterating, removing or altering markings
Attempts, participation as an accomplice, organizing or directing others to commit Protocol offences
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Marking of firearms Marking of firearms (Art.8)(Art.8)
States Parties must require unique marking which provides the name of manufacturer, the country or place of manufacture and the serial number
Countries which presently combine simple geometric symbols and a numeric or alpha numeric code may maintain this practice
Firearms must be marked at time of manufacture, import, and when transferred from government to private hands
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Implementing the Convention and its Protocols: Implementing the Convention and its Protocols: The Conference of the Parties (COP)The Conference of the Parties (COP)
COP12004
COP22005
COP32006
COP42008
COP52010
Established by articles 32 and 33 to: Promote and review implementation
Make recommendations to improve Convention
Consider means of implementing and difficulties encountered by States
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COP 4 – key decisionsCOP 4 – key decisionsReview of implementation: group of experts to consider possible review mechanism
International cooperation: focus on confiscation and seizure of proceeds of organized crime, international cooperation for the purpose of confiscation, extradition and mutual legal assistance
Trafficking, Smuggling and Firearms Protocols
Technical assistance: proposals for action on criminalization; international cooperation in criminal matters; central authorities dealing with requests for mutual legal assistance and/or extradition; protection of victims; and protection of witnesses.
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The United Nations Convention against CorruptionThe United Nations Convention against Corruption
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UNCAC - status of ratificationUNCAC - status of ratification132 Parties (including European Community), 140 Signatories
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54
80
93
117
132
108
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20
40
60
80
100
120
140
Dec-0
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Apr-0
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Aug-0
4
Dec-0
4
Apr-0
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Aug-0
5
Dec-0
5
Apr-0
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Aug-0
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Dec-0
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Apr-0
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Aug-0
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Dec-0
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Apr-0
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Aug-0
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Dec-0
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14 December 200514 December 200530 ratification 30 ratification entry into forceentry into force
2020
Status of ratification by region (total: 132)Status of ratification by region (total: 132)
Group of African States: 41 (31%)
Group of Asian States: 27 (21%)
Group of Eastern
European States: 20 (15%)
Group of Latin American and
Caribbean States: 24 (18%)
Western European and Other States
(including EC): 20 (15%)
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Structure of the ConventionStructure of the Convention
Prevention(Art. 5-14)
InternationalCooperation
AssetRecovery
Criminalization
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International cooperation
Mandatory Offences
Optional Offences
Narrow Dual Criminality Requirements
In MLAs
Question of Dual Criminality
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Prevention of transfer of proceeds of crime (Art. 52)Prevention of transfer of proceeds of crime (Art. 52)
States Parties must require their financial institutions to:
Verify the identity of customers
Determine the identity of beneficial owners of high-level accounts
Apply enhanced scrutiny to accounts maintained by prominent public officials
Report suspicious transactions to competent authorities
Prevent the establishment of banks with no physical presence – “shell banks”
The implementation of these provisions may require legislation
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Direct recovery (Art.53) Direct recovery (Art.53) – civil prosecution– civil prosecution
Courts shall be allowed to
Courts shall be allowed to
Recognize, in confiscation decisions, another party’s claim as legitimate owner of property
Courts shall be allowed to
Courts shall be allowed to
Order corruption offenders to pay compensation to another state party
States parties shall be allowed to
States parties shall be allowed to
Initiate civil action in another party’s courts to establish ownership of property acquired through corruption
Advantages of civil prosecution: useful when criminal prosecution in not possible – death or absence of alleged offenderallows to establish liability on the basis of civil standards – different evidentiary requirements
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Recovery and international cooperation (Art.54-55)Recovery and international cooperation (Art.54-55)
States Parties shall permit their
competent authorities to
States Parties shall permit their
competent authorities to
Give effect to an order of confiscation issued by a court of another PartyFreeze or seize property upon a freezing or seizing order issued by a court of a requesting Party
States Parties shall consider
measures to
States Parties shall consider
measures to
Allow confiscation without criminal conviction – when offender cannot longer be prosecuted because of death, flight or absence
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Return of assets (art.57)Return of assets (art.57)
Other cases
Proceeds of other offences of corruption
Embezzled public funds or laundering of embezzled public funds
Return to requesting Party
Return to requesting Party if it can reasonably establishes prior ownership
Confiscated property may be returned to the requesting Party,
prior legitimate owner or used for compensating victims
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The work of UNODC to promote the ConventionThe work of UNODC to promote the Convention
Promotion of ratificationprovision of
technical assistance
Effective implementationFull compliance
Universal ratification
Assistance toConferences of the
States Parties
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The road to Doha, 9-13 November 2009The road to Doha, 9-13 November 2009
Review of implementation: towards the establishment
of the mechanism
Asset recovery: generating knowledge and
building capacity
Technical assistance: demand driven
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Self-assessing compliance, gaps and needs (CoSP res. 1/2 and 2/1)Self-assessing compliance, gaps and needs (CoSP res. 1/2 and 2/1)
The Stolen Asset Recovery Initiative The Stolen Asset Recovery Initiative (StAR)(StAR)
Launched in New York by the World Bank and UNODC on 17 September 2007Launched in New York by the World Bank and UNODC on 17 September 2007
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Finance legal representation
Manage cases or make decisions on the conduct of cases
StAR: can do’s and can’t do’sStAR: can do’s and can’t do’s
Provide training on asset recovery Provide technical assistance to help collect and analyze
information on cases: financial analysis, legal research, planning
Facilitate collaboration between states
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StAR’s three componentsStAR’s three components
Global knowledge andadvocacy
Capacity building
Recovery of stolen assets
40% 30%
30%
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UNCAC and its review mechanism UNCAC and its review mechanism in the makingin the making
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The review mechanism in the makingThe review mechanism in the makingThe Conference of the States Parties shall acquire the necessary knowledge of measures taken by States Parties in implementing this Convention through information provided by them and through suchsupplemental review mechanisms as may be established by the Conference (Art. 63, 5)
First Conference (Jordan, 2006): Political Decision It is necessary to establish a mechanism to assist in the review of implementation of the Convention
Second Conference (Indonesia, 2008)
The effective and efficient review of the implementation of the Convention is ofparamount importance and urgent (Res. 2/1)
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CoSP called for proposals for TORs33 States had submitted proposed TORsSecretariat consolidated proposals
Working Group on Review of Implementation met in Vienna from 22 to 24 September and from 15 to 17 December 2008
Provisional headings formulated Informal meeting held on 26 and 27 February 2009
