1. The United Nations Convention 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 cultural property
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
The negotiation of the Convention against Transnational Organized Crime reflects the recognition of many countries that this form of crime is growing in scale, scope and degree of sophistication.
Criminal groups are able to expand, communicate with one another and coordinate their operations on a global basis, using modern technologies in much the same way as legitimate operations use them.
They are also able to use many of the security methods developed for legitimate users to protect their communications from surveillance by law enforcement agencies.
As transnational crimes become easier to commit, volumes of offences increase, straining existing frameworks for cooperation, which do not extend to all of the new types of offending and are not available in many parts of the world.
The Convention addresses this by expanding both the scope of cooperation available, and by inducing many States which have not found it necessary to develop bilateral or regional cooperation agreements to subscribe instead to a global instrument.
The concerns of States, the mandate of the General Assembly, and the instrument itself extend only to transnational crime which involves what the Convention defines as “organized criminal groups”, but transnational crimes committed by individuals are also increasing.
Many of the Convention provisions deal specifically with organized crime and would not be appropriate for dealing with individual crime, so separate instruments would be needed in areas such as computer crime and corruption, although many Convention provisions could serve as useful precedents in whole or in part.

3. Status of the instruments
First 3 instruments opened for signature in Palermo, Italy, 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).
As called for by resolution 55/25, the Centre for International Crime Prevention began efforts to assist countries in their efforts to ratify the instruments.
During 2001, a series of regional and sub-regional meetings were held to inform countries about the content of the instruments and to assess specific needs for pre-ratification assistance.
During specific issues will be identified and assistance will focus more on individual countries.
Generally, early assistance will focus on the development of legislative changes, such as new laws creating Convention and Protrocol offences or modifying existing offences to conform, and laws establishing the powers and procedures needed to meet commitments in areas such as extradition and mutual legal assistance,
Later assistance is expected to focus more on the development of the administrative structures needed to support the legal requirements. Some of this may take the form of post-ratification assistance with the implementation and administration of the instruments once they have come into force.
Each instrument comes into force 90 days after the 40th country has ratified it, except that the Protocols cannot take effect until the parent Convention does.

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

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
Article 2 of the Convention sets general rules for application, which are then varied slightly in some of the specific provisions
Article 14, for example, makes it possible to obtain mutual legal assistance where transnational organized crime involvement is only suspected, not established.
This is because in many cases, the very purpose of seeking the assistance of another State will be to determine whether the offences or groups involved are transnational or not.
The scope of application of the Convention also applies to the Protocols, mutatis mutandis (TOCC Art.37, Prot.Art.1). The Protocols then set additional conditions. Thus, the Convention applies to all forms of transnational organised crime, including those covered by Protocols, while each Protocol only applies to the forms of crime to which it is specifically addressed.
The extent to which the Convention would apply to terrorism was discussed extensively during the negotiations. It was ultimately decided to limit the definition of “organised criminal group” to groups which have the aim of committing one or more “serious crimes” “…in order to obtain…a financial or other material benefit”, which excludes groups with purely non-material objectives. The Convention may, however be used to deal with specific criminal activities associated with terrorism, such as money-laundering, corruption and firearms-trafficking. The Committee noted that the Convention would be effective in combatting the growing links between transnational organised crime and terrorism.
See: Traxaux préparatoires, A/55/383/Add.1, para.7
Report to UNGA, A/55/383, paragraphs 82 and 89

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)
The offences must be “transnational in nature” for the Convention to apply.
This requirement can be met in a number of ways, listed in Article 3.
The intention is to ensure that the Convention will be available for use in all of the circumstances in which foreign assistance is actually needed to investigate or prosecute a case.
Generally, this includes cases in which the actual offence has effects in m ore than one State, cases where an international group is committing purely domestic crimes in different countries, and cases where offences are planned or prepared in one place and committed in another.

7. 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)
The concerns of governments which led to the Convention were about the new abilities of criminals to organize themselves into groups on a transnational basis
For this reason, the negotiations and the Convention itself are limited to organized crime cases. It was not thought necessary to deal with crimes committed by individuals. This is one reason a separate convention (and not a Protocol) is being developed to deal with corruption: the separate instrument can be applied to individual as well as organised corruption.
The definition of “organised criminal group” also limits the scope of application of the instrument to groups whose actions have
“…the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit” 
This excludes groups whose activities or objectives are purely non-material, such as some terrorist groups, but the Convention may still apply to material crimes committed by terrorist groups and the links between terrorism and organised crime.
For more detail, see the slide scope of application.

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”
This provision clarifies the degree of organization which is needed to invoke the Convention.
Negotiators have developed a standard broad enough to include any case where crimes involve any element of organized preparation or commission that must be investigated, but not so broad as to include offences committed by groups on an ad hoc basis.

9. Serious crime (Art.2.b) Serious Crime
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
The Convention also applies to other “serious crimes” if they are transnational in nature and committed by an organized criminal group.
These crimes are defined in domestic law, providing flexibility in applying the Convention in different legal systems.
Countries do not need to define “serious crime” in domestic law, and should avoid any possibility for inconsistency.
If a national crime falls within the scope of “serious crime” as defined by the Convention, then the Convention will apply to it - provided that the other application requirements (transnationality + organised criminal group) are met.
In ratifying the Convention, countries may, however, wish to review existing criminal offences to ensure that those commonly associated with organised crime meet the criteria of “serious crimes”, to ensure that the Convention will apply.

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.
The Convention also applies to other “serious crimes” if they are transnational in nature and committed by an organized criminal group.
These crimes are defined in domestic law, providing flexibility in applying the Convention in different legal systems.
Countries do not need to define “serious crime” in domestic law, and should avoid any possibility for inconsistency.
If a national crime falls within the scope of “serious crime” as defined by the Convention, then the Convention will apply to it - provided that the other application requirements (transnationality + organised criminal group) are met.
In ratifying the Convention, countries may, however, wish to review existing criminal offences to ensure that those commonly associated with organised crime meet the criteria of “serious crimes”, to ensure that the Convention will apply.

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)
The Convention itself establishes these 4 basic offences. States Parties must adopt these offences in their domestic law s if they are not already present, or amend existing offences to conform.
The following principles should be considered:
Domestic crimes may be broader in scope or more severe, as long as all conduct specified by the Convention is made a crime (Art.34(3)). If the full range of conduct is already covered, no amendments are needed.
These offences will often apply in conjunction with other offences in domestic law and/or established by the Protocols, and legislative drafters should ensure consistency with existing laws.
The Convention itself applies to offences only if they are “transnational in nature” and involve an “organized criminal group”, but legislators should not apply the same principle in drafting implementing legislation. This makes the offences narrower and more difficult to enforce (prosecutors would have to prove transnational and organised crime elements) and is not required by the Convention: Art. 34(2) states that domestic crimes adopted pursuant to the Convention should not require elements of transnationality or organised criminal group involvement. The sole exception is the offence of participating in an organised criminal group (Art.5).

12. Offence of participating in an organized 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
Article 5 takes account of two major variations between national legal systems.
While some countries would have chosen to criminalise mere membership in an organised criminal group many countries would have been prevented from doing so by constitutional or other provisions guaranteeing the freedom of association. For this reason, conduct beyond mere membership, such as agreeing to commit crimes or taking active part in group activities, is required.
The two alternative options of Art.5(1)(a)(i) and (ii) were created to reflect the fact that some countries have laws criminalising conspiracy to commit crimes, while others do not. The options allow for effective action against organised criminal groups without requiring the creation of conspiracy where the legal concept has not previously existed.
Note that while this offence must involve transnationality to invoke the cooperation provisions of the Convention, this should not be made elements of the domestic offence (Art.34(2))

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
The travaux préparatoires note that “proceeding” has a broad meaning, including pre-trial proceedings. Note that the “inducing” of such things as false testimony could occur at any time prior to the testimony, whether formal “proceedings” were then in progress or not.
The obligation is to create offences which apply to official duties or proceedings only if these are linked to offences “covered by the Convention”
This includes all “serious crimes” in national law, the 4 offences established by the Convention itself, and the offences established by the Protocols
While the Convention offence of obstructing justice is limited, countries which have more general offences, such as those for intereference with criminal investigations or proceedings of any kind and those covering bribery of public officials may already in complete or partial compliance with this Article.
Note that while obstruction cases must involve transnationality and organised crime to invoke the cooperation provisions of the Convention, these should not be made elements of the domestic offence (Art.34(2))

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”.
The Convention money-laundering offence is intended to apply to the concealment or laundering of proceeds from crimes which include those established by the Convention and its protocols, as well as other “serious crimes”. - Art.6(2)(b)
Paragraph 2(a) requires States Parties to seek to apply the offence to the “widest range of predicate offences”, and the travaux préparatoires further clarify that this should include, at minimum, those crimes committed by organised groups.
Generally, countries which limit the application of money-laundering measures to a list of predicate offences will find it necessary to amend these lists to include new offences created by the Convention and Protocols as well as any other “serious crimes” which are not already listed.
The offence should apply to laundering the proceeds of offences committed in other jurisdictions, provided that the predicate offence is considered a crime in both places. Art.6(2)(c)
The constitutions of some countries do not permit the prosecution of an offender for both the predicate offence and laundering the proceeds of the same offence, and subparagraph 6(2)(e) allows for such exclusions, but only where necessary.
Art.6(2)(c) requires States Parties to provide copies of legislation establishing this offence to the Secretary General, and to update this in the case of future amendments.
Note that while money-laundering must involve transnationality and organised crime to invoke the cooperation provisions of the Convention, these should not be made elements of the domestic offence (Art.34(2))

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
The Convention also requires measures to prevent money-laundering.
These generally involve safeguards incorporated into a country ’s financial infrastructure, and implementation will depend to a large degree on the nature and sophistication of local financial institutions.
Thus the basic obligation is to institute a domestic regulatory and supervisory regime within the competence of the country involved. Countries are required to ensure a basic level of ability to cooperate and assist one another, but only to “consider” establishing financial intelligence units, which requires greater commitments of resources and expertise.
Countries may already have anti-money-laundering offences and controls in place which can be expanded or modified to conform with the requirements of Articles 6 and 7 (money laundering) as well as (confiscation, seizure and disposal of proceeds).
Some actions taken to conform to Articles 6 and 7 may also bring countries into conformity with portions of Security Council Resolution 1373, paragraph 1 (28/Sept./02, funding and financing of terrorism) or provide the means for them to conform.

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
The language of Article 8 is similar (but not identical) to the offences established by existing international instruments such as:
The Inter-American Convention against Corruption (1996, res.1398)
The OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transnactions DAFFE/IME/BR(97)20
Countries which have implemented these may already be inconformity or require only minor changes to conform
Legislative precedents or advice may also be obtained from countries which have implemented these instruments, the UN Global Prgramme against Corruption, or other international organisations active in the field.
The meaning of “public official” , set out in Art. 8(4), limits the meaning to officials in the country under the laws of which they derive their official status. Thus a domestic offence adopted pursuant to Art.8(1) would only make it a crime to accept or solicit bribes relating to officials of the country which adopted the offence.
The question of bribery involving officials of other countries (“foreign public officials”) and international public servants are dealt with in Art.8(2), which is not mandatory.
The Convention does not deal with private-sector corruption.
Note that while corruption must involve transnationality and organised crime to invoke the cooperation provisions of the Convention, these should not be made elements of the domestic offence (Art.34(2))

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.
This is important both as a means of alleviating the impact of transnational organized crime on vulnerable individuals and groups, and for the very practical reason that witnesses need to be protected in order to assure their willingness to assist in investigations and provide evidence against offenders.
Implementation may require:
Legislation to permit giving of evidence incognito or from remote locations (video-evidence)
Legislation creating powers to conceal identities, establish security etc.
Legislation expanding existing witness-protection systems to include foreign witnesses and witnesses in all TOCC-related proceedings
The protection of victims is particularly important in cases of trafficking in human beings, and further safeguards for trafficking victims are in the Protocol against Trafficking in Persons (Protocol, Art.6-7)

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
Parties must establish jurisdiction where the offence involved is actually committed in their territory (including vessels or aircraft). They must also have jurisdiction to prosecute offences committed elsewhere if the offender is one of their nationals who cannot be extradited for prosecution elsewhere for that reason: aut dedere aut judicare/”extradite or prosecute” (Art.15(3) and 16(10))
Parties are also encouraged to establish jurisdiction in the discretionary areas set out in Art.15(2), but are not obliged to do so. The major argument in favour of extending jurisdiction into these areas is that it helps to ensure that offenders who harm their nationals or national interests do not escape liability.

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

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

23. The double criminality requirement is fulfilled AND
Extraditable Offences - UNTOC
The double criminality requirement is fulfilled AND
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
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
the offence involves an organized criminal group and the person is located in the territory of the requested State party

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, on religious 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.
The negotiation of the Convention against Transnational Organized Crime reflects the recognition of many countries that this form of crime is growing in scale, scope and degree of sophistication.
Criminal groups are able to expand, communicate with one another and coordinate their operations on a global basis, using modern technologies in much the same way as legitimate operations use them.
They are also able to use many of the security methods developed for legitimate users to protect their communications from surveillance by law enforcement agencies.
As transnational crimes become easier to commit, volumes of offences increase, straining existing frameworks for cooperation, which do not extend to all of the new types of offending and are not available in many parts of the world.
The Convention addresses this by expanding both the scope of cooperation available, and by inducing many States which have not found it necessary to develop bilateral or regional cooperation agreements to subscribe instead to a global instrument.
The concerns of States, the mandate of the General Assembly, and the instrument itself extend only to transnational crime which involves what the Convention defines as “organized criminal groups”, but transnational crimes committed by individuals are also increasing.
Many of the Convention provisions deal specifically with organized crime and would not be appropriate for dealing with individual crime, so separate instruments would be needed in areas such as computer crime and corruption, although many Convention provisions could serve as useful precedents in whole or in part.

26. Mutual Legal Assistance (Art.18)
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

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. Law enforcement cooperation (Art.27)
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

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
The Convention recognizes that full implementation will require technical cooperation and assistance – and that without full implementation by almost all countries, it will not be an effective instrument.
Art call for cooperation through financial, material and technical assistance.
Similar provisions call for cooperation and assistance in each of the Protocols
Assistance is expected to be made available at two stages of the process:
assistance with requirements prior to ratification (now ongoing)
assistance with implementation and ongoing administration after the instruments are in force.
Art. 29 States Parties are obliged to:
establish necessary programmes to train their own personnel (Art.29(1))
assist one another in research and training (Art.29(2))
promote training and technical assistance in areas linked to extradition and legal assistance
strengthen regional and international training activities
special discussion on needs of “transit States” (Art.29(2))
Art.30 Contains more general assistance provisions requiring countries which can assist to “…make concrete efforts to the extent possible…” to cooperate, provide technical assistance and “financial and material assistance”.
Art. 30(c) calls for contributions to UN implementation account (see also GA/RES/55/25, paragraph 9)

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For further information:
United Nations Office on Drugs and Crime Vienna International Centre PO Box 500, A-1400 Vienna, Austria
Tel:
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