1. LEGAL RESPONSES TO GLOBAL CRIME THREATS
Law School
University of Roma Tre
April- May 2018
UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME
Ambassador Dr Uglješa Ugi Zvekić

2. What Is UNTOC?
UNTOC – Convention against Transnational Organized Crime
It is a global, flexible and practical legal instrument with the aim of promoting cooperation to prevent and combat transnational organized crime more effectively

3. Approaching universal ratification
Organized Crime Convention (187 Parties)
Trafficking in Persons (170 Parties)
Smuggling of Migrants (142 Parties)
Trafficking in Firearms (114 Parties)

4. Negotiation of the Organized Crime Convention and its Protocols
December General Assembly approves Naples Declaration and Global Action Plan
December Poland proposes draft framework Convention to General Assembly
February Expert group develops original content of draft Convention in Warsaw
December General Assembly creates open-ended intergovernmental Ad Hoc Committee
Over 100 States successfully complete Convention and 3 Protocols in only months and 11 sessions.
On the recommendation of a 1994 ministerial conference on organised crime, the General Assembly called on the Commission for Crime Prevention and Criminal Justice to seek the views of States about a possible instrument against transnational organised crime. [GA/RES/49/159]
Consensus gradually developed that an instrument should be created, and discussion turned to the content of such an instrument. By 1996 ideas for possible provisions began to circulate.
In December 1997, the Assembly established an open-ended intergovernmental expert group to produce a preliminary text [GA/RES/52/85]
The text was reviewed by the Crime Commission at its 7th (1988) Session and by an informal preparatory committee which met in Buenos Aires in Aug.-Sept 1988.
In December 1998 [GA/RES/53/111], the Assembly established the Ad Hoc Committee and called upon it to complete the Convention and three Protocols by the end of 2000
The Committee finished the Convention at its 10th session [July 2000], and two Protocols at its 11th session [Oct.2000]. The third (firearms) Protocol required a 12th session and was finished March 2nd 2001.
The General Assembly adopted the first 3 instruments in November 2000 [GA/RES/55/25] and the last Protocol in May 2001 [GA/RES/55/255]
The adopting resolutions keep all of the instruments open for signature until 12 December 2002, 2 years after the opening of the first 3 instruments at Palermo, Italy. After that date, States can still become Parties by accession.

5. Adoption of the instruments
United Nations Convention against Transnational Organized Crime
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children
Protocol against the Smuggling of Migrants by Land, Sea and Air
(Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition)
All 4 instruments open for signature until 12 December (afterward by accession)
* General Assembly Resolutions 55/25, 15 November and 55/255, 31 May 2001
At its meetings in July and October of 2000, the Ad Hoc Committee finalised 3 of the 4 instruments on its agenda. To permit adoption by the Millennium Assembly, the Convention and the Protocols dealing with trafficking in persons and the smuggling of migrants were referred to the General Assembly in October 2000.
The General Assembly adopted these instruments by its resolution 55/25, on 15 November 2000.
Resolution 55/25 also called for the holding of a high-level signing conference at Palermo, Italy in December 2000, and called on the Ad Hoc Committee to resume its work in order to finalise the remaining Protocol as soon as possible.
The fourth (firearms) Protocol was finalised at the 12th session of the Ad Hoc Committee (26 February - 2 March 2001) and adopted by the General Assembly by its resolution 55/255, on 31 May 2001.
All four instruments (including the firearms protocol) remain open for signature for 2 years from the date at which the first 3 were opened for signature at Palermo: 12 December December Countries wishing to become Parties after that date may still accede to them.
The Palermo Conference resulted in the signature of the instruments by a record number of countries:
124 States and the European Community signed the Convention
80 States and the European Community signed the Protocol on Trafficking in persons
77 States and the European Community signed the protocol on smuggling of migrants

6. The problem: transnational organized crime
Globalization and new technologies create the same new opportunities for crime as for legitimate activities – it is mostly about markets, not mafias
Regulatory systems come behind (new forms and dimensions of organized crime)
Transnational nature of the problem requires a transnational solution
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.
Three key findings emerge from TOCTA 2010.
1) our current understanding of TOC may be too focused on groups, when in fact the real threat are the dynamic TOC markets. Demand for drugs, counterfeit products, wildlife and so on is high, and someone will meet this demand. Even if some groups are eliminated, the trade will continue, as the profit motive remains. Counter-strategies should not be conceived to address sectors (supply, demand, trafficking) separately. Rather, they should be based on an integrated approach that takes into account all elements of the markets and the manner in which they interact.
2) The second point is that the current regulatory system has not kept up with the pace of growth seen in international trade. This has generated several ‘grey zones’ where TOC can thrive. Eliminating these ‘grey zones’ could reduce the demand for contraband goods significantly as consumers would quickly discern the origin of their products.
3) The third point is that TOC markets are global problems, and susceptible to displacement as a result of country or even regional responses. To tackle these issues, global, comprehensive responses are needed. And national or regional interventions must be conceived in the framework of counter-strategies on the scale of these transnational markets.

7. Structure of Convention
Defines and standardizes terminology
Requires States to criminalize specific conduct
Specific control measures (money-laundering, corruption etc.)
Confiscation of proceeds of crime
Cooperation (extradition, legal assistance, joint investigations, special investigative techniques, law enforcement cooperation etc.)
Training, research, information measures
Prevention
Technical provisions (signature, ratification etc.)

8. Scope of application (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:
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 18, 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

9. 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 more 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.

10. 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.

11. 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.

12. Serious crime (Art.2.b) Serious Crime
conduct designated by national law as an offence
punishable by at least four years
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.

13. Offences established by the Convention
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 (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).

14. 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.
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))

15. 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 interference 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))

16. 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))

17. 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))

18. Jurisdiction (Art.15)
Offenders should have no place to hide from investigation and prosecution.
“Jurisdiction” may be seen as including jurisdiction related to both persons and events such as offences
Jurisdiction to investigate offences is closely linked with in Art. 2-3 and is relatively broad in scope: the various powers and obligations to investigate and assist other countries apply to offences which are “transnational in nature”. This includes offences which are linked in virtually any significant way with their territories such that investigative measures may be taken there. Parties are not obliged to prosecute such offences, but are generally obliged to assist other Parties when requested to do so.
Jurisdiction to prosecute and punish offenders is dealt with in Art.15. This is narrower, reflecting the likely scenario in which there will be cases in which many Parties will be called upon to cooperate in the investigation, but only a few of the most extensively-involved jurisdictions will be in a position to actually prosecute the offenders.

19. 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.

20. International Cooperation
Extradition (Art. 16)
Mutual Legal Assistance (Art. 18)
Other forms of cooperation (Art. 19, 20, 21, 26, 27)
One of the fundamental purposes of the Convention is the establishment of a framework for international cooperation
The Convention and Protocols contain a series of provisions obliging or requesting States Parties to cooperate in prevention, investigation and prosecution

21. Extradition (Art.16)
Extradition available for all Convention and Protocol offences
Convention extradition provisions harmonize with existing treaties and arrangements
No refusal on the sole ground of fiscal matters
Limitations in domestic law and existing treaties apply
Parties must either “Extradite or prosecute” own nationals
Before refusing an extradition request, the States involved should consult
The Convention breaks some new ground on extradition, but its major impact may well be the fact that it is expected to extend a code of viable extradition rules and practices to many States which do not presently have them.
The Extradition provision has slightly narrower rules for application, leaving the possibility that cases may occur in which other forms of international cooperation may be obtained to investigate a case, but extradition cannot be obtained. (e.g., subject to domestic law/other treaties, Art.16(7))
If dual-criminality is present, offenders can be extradited for one of the 4 Convention offences or a “serious crime” even if the offence itself is not “transnational in nature” Art.16(1))
Generally, the extradition provisions are designed to ensure that the Convention supports and complements pre-existing extradition arrangements and does not detract from them.
The Convention is intended to set a basic minimum standard. It encourages States to go beyond this in bilateral or regional extradition arrangements to supplement Article 16. (See also Art.34(3) about harsher measures).
If extradition is conditional on another treaty, SG must be notified as to what basis for extradition will be. (Art.16(5)).
Countries must “extradite or prosecute” their own nationals. If extradition is refused exclusively due to nationality, then a prosecution must be brought with due diligence (Art.16(10)). Parties are obliged to establish the jurisdiction to prosecute, even where the offence took place elsewhere, by Art.15(3).

22. Mutual Legal Assistance
“States Parties shall afford one another the widest measure of mutual legal assistance…” (Art.18.1)
Most requirements are operational, not legislative, but Parties must have legal powers needed to produce and deliver assistance
States Parties are required to designate a central authority to receive, execute or transmit legal assistance requests
No right to refuse MLA on the ground of bank secrecy
More direct liaison arrangements permitted for other forms of cooperation (Art.18.13, Art.19, 27)
The basic premise is that assistance will be applied broadly, and that formal assistance will be channeled through central authorities to regulate the process. Less formal cooperation is provided for in other Articles (19, 27-29).
The Article on mutual legal assistance is the longest and most comprehensive in the Convention, but most of the requirements will arise at the implementation/operational stage and not prior to ratification.
The major legislative/ratification requirement is that Parties will need to create or adjust legal powers to deliver the assistance listed in Art.18(3):
search, seizure and “freezing” of evidence based on foreign request
obtaining, certifying and providing documents and other evidence
rules for obtaining witness statements or testimony
rules needed to trace and identify proceeds of crime and instrumentalities.
Upon ratification, Parties are required to establish or modify Central Authorities and notify the Secretary General of their existence. When the Convention takes effect, they will require the infrastructure needed to accept requests, relay them to the domestic agencies responsible for obtaining the requested assistance, and transmit the assistance back to the requesting State Party.
In many cases existing rules and agencies (e.g. for narcotics) may be expanded to meet these requirements.
The Travaux Preparatiores address a number of MLA issues, including clarifying that different “central authorities” may be used at different stages of proceedings (separate authorities may also be used for some Protocol matters). (A/55/383/Add.1, paras.36-43)

23. Joint investigations
The competent authorities may establish joint investigative bodies
Through agreements or
On a case-by-case basis
Sovereignty fully respected

24. Special investigative techniques
Controlled delivery
Electronic or other forms of surveillance
Undercover operations
Through agreements or
On a case-by-case basis

25. Law enforcement cooperation
Identity, nature, composition, structure, location or activities of organized criminal groups
Links, including international links, with other organized criminal groups
Offences that organized criminal groups have committed or may commit

26. Conference of the parties (Art. 32, 33)
Convention establishes a Conference of the Parties to:
promote and review implementation
make recommendations to improve convention
consider means of implementing and difficulties encountered by States
8th COP took place in Vienna October 2016
The Convention is a bold new step at the international level to address a serious and growing crime problem.
Many of its provisions are novel, and it was recognized that a forum will be needed in which States Parties can assemble to discuss mutual problems and solutions.
The Conference will set its own priorities within the mandate set out in Article 32, but generally, it will allow States to coordinate their implementation strategies and measures, and it will be able to consider further changes to the Convention, if they are needed.
The mandate of the Conference of States Parties also extends to the Protocols under Article 1 of each Protocol.

27. Thank you