1. United Nations Convention against Transnational Organized Crime and Protocols and United Nations Convention against Corruption
World Summit of Prosecutors General, Attorneys General and Chief Prosecutors Bucharest, Romania, March 2009

2. Status of TOC and Protocols
First 3 instruments opened for signature in Palermo, Italy, December 2000
Firearms Protocol adopted and opened for signature in New York in July 2001
Critical number
of ratifications needed
for entry into force
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.

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

4. 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 )
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).

5. International cooperation Extradition (Art. 16)
Mutual Legal Assistance (Art. 18)
Investigative measures and other forms of cooperation (Art. 20, 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

6. (Trafficking Protocol)
Protocol to Prevent, Suppress and Punish Trafficking in Human Beings, especially Women and Children
(Trafficking Protocol)
Status: 117 Signatories, 127 Parties
The Protocol against Trafficking in Persons was developed under the same original General Assembly mandate (Res.53/111, ) as the Convention
It was also negotiated in parallel with the Convention and two other protocols throughout 1999 and 2000.

7. Criminalization (Art. 3)
States must criminalize:
trafficking in human beings
attempting, 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 )
The definition of “trafficking” is a key element of the Protocol
Trafficking is a serious and well-recognized problem, but one which proved difficult to define.
This definition represents the first clear definition at the international level. It will greatly assist in the fight against trafficking by standardizing our approaches to the problem. It will help to ensure that legislation and administrative measures are consistent from country to country, and it will help provide a common basis for statistical and research purposes.
Trafficking consists of a combination of an illicit act, done by certain means, and for the purpose of exploiting the victim.
The language of Article 3(b) on question of consent reflects a compromise. Some countries wanted to make any consent of the victim completely irrelevant to ensure that the victim’s initial consent was not used by traffickers as a defence to charges arising from later exploitation which was not what the victim consented to. Others found this too broad for constitutional and legal purposes.
The resulting language should address both problems. Valid consent of the victim could still be a defence in domestic law, but as soon as such things as threats, coercion or the use of force are established, these would nullify any consent and overcome the defence.

8. Assistance and protection of victims (Art.6)
States obliged to assist and protect victims and witnesses by Convention (Artt )
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 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
The assistance and protection of victims is an important part of the Protocol.
The Ad Hoc Committee recognized at an early stage that trafficking victims are exceptionally vulnerable
In the destination States, they are foreign, often undocumented, and lacking in language skills and basic access to both criminal justice and social support systems
In their states of origin, they may be stigmatized as victims, especially if they were trafficked into prostitution, and they are often vulnerable to the same offenders who originally trafficked them
They may face retaliation for having assisted law enforcement or they may face being trafficked again.

9. Protocol against the Smuggling of Migrants by Land, Sea and Air (Migrants Protocol)
Status: 112 Signatories, 119 Parties
This Protocol was adopted by the General Assembly together with the Convention and the Trafficking Protocol on November 15, 2000.
During the the High Level Signature Ceremony held on December 2000 in Palermo, Italy , 77 countries and EC signed the Protocol.

10. Criminalization (Art. 6)
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
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
During the negotiation, the definition of “smuggling of migrants” was one of the most controversial point. Countries of origin of migrants stressed that the definition of “Smuggling of migrants” should limit to “procurement of illegal entry”, while countries of destination insisted the inclusion of “procurement of illegal residence”. Because without “illegal residence”, migrants who enter legally but stay illegally are excluded.
In the end, it was decided that “procurement of illegal residence” be included under the article 6 on “Criminalization”.
“To obtain direct or indirect…” was added in order to differentiate from NGOs or other organizations which do same kind of activities for humanitarian reasons.

11. International 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)
Under Art. 11, States Parties are requested to strengthen border measures as well as to adopt legislation which prescribes the obligation of commercial carriers and impose sanctions in case of violation.
Articles 12 and 13 prescribes documents control which are common to those in the Trafficking Protocol.

12. Status: 52 Signatories, 77 Parties
Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts, Components and Ammunitions (Firearms Protocol)
Status: 52 Signatories, 77 Parties
The Protocol against the illicit manufacturing of and trafficking in firearms was developed under the same original General Assembly mandate (Res.53/111, ) as the Convention. It was also negotiated in parallel with the Convention and two other protocols throughout 1999 and 2000.
Where the other three instruments were finalised at the 11th session of the Ad Hoc Committee (October 2000) and opened for signature at a signing ceremony at Palermo Italy in December 2000, however, this Protocol required an additional session to finalise. It was finalised at the 12th session of the Ad Hoc Committee (2 March 2001) and adopted by a separate General Assembly resolution – 55/255 on 31 May 2001
As a result, the Protocol has fewer signatures and only one ratification, although additional countries have signed since the September 2001 terrorist attacks and the resulting adoption of Security Council resolution 1373 of 28 Sept. 2001
As of May 2002,
the Convention had 140 signatures and 11 ratifications
the Protocol had 27 signatures and 1 ratification
40 ratifications are needed to bring the Protocol into force, but the Convention must take effect with or prior to the Protocol
The requirements of the Protocol overlap with other political and legal obligations, notably SC/RES/1373 and various initiatives (e.g. OSCE) on small arms and light weapons (SALW). Countries may wish to consider joint implementation in these areas.

13. Structure of the Protocol, key provisions
Definition: Firearm
barrelled weapon
that can expel a shot, bullet or projectile
by the action of an explosive
portable (by one person)
excluded antiques made before 1899
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)
The essential policy underlying the Protocol is that the export of firearms, parts, components and ammunition should be prohibited by each State Party unless, at the time of export, the country into which the items will be imported has legally authorized or issued a permit in respect of the import. This is intended to address diversions which take place in the course of international shipment. To enforce these requirements, the definition of “illicit trafficking”, which States Parties are required to criminalise, includes any transfer from one state to another where “...any of the States Parties concerned...” has not authorized this. (Art.3(e) definition and Art.5(1)(b) offence).
Most of the other elements of the Protocol support this basic policy or are intended to facilitate the investigation and prosecution of the related offences. For example, firearms must be marked to ensure unique identification (Art.8), and records must be kept (Art.7) to ensure that firearms which are diverted can later be traced (Art.3(f) definition and Art.12(4) requirement to assist in tracing).

14. Criminalization (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
The Protocol requires the criminalisation of both the basic offences of “illicit manufacturing” and “illicit trafficking” and other conduct linked to trafficking.
Illicit trafficking includes any transnational transfer for which legal authorization has not been obtained from all of the involved States Parties beforehand.
Illicit manufacturing involves any manufacturing or assembly of firearms without marking or without legal permits or authorization to manufacture issued by the country involved.
An additional offence is established to deter potential traffickers from removing or altering serial numbers or other markings in order to frustrate the identification and/or tracing of a firearm.
The requirements to criminalise attempts, organizing, directing, aiding, abetting, facilitating or counselling Protocol offences are similar (but slightly more detailed than) the provisions of the other Protocols. They were intended to take into account differences in national systems, particularly with respect to conspiracy.
Essentially, the trafficking and manufacturing offences consist of taking the specified actions without having the necessary permit or authorization. They are likely to be similar to other offences already in existence in most countries. Much of the legislative detail of the scheme lies not in the offences but in the legal requirement to obtain permits and the content of permits and applications.
Countries which have domestic gun-control laws imposing licensing restrictions on import, export and domestic possession may modify these to conform and may in some cases already conform, but the Protocol itself only imposes requirements on import and export, not domestic controls such as licensing or registration of firearms.

15. Marking of firearms (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
The basic requirement to mark firearms for the purpose of unique identification and tracing was seen by many countries as a core provision of the Protocol. Since the language of Article 4 (Scope) does not exempt any firearms, including those made for the military forces of States Parties, it also has significant transparency implications for small-arms and conventional arms-control in general.
Some delegations supported additional transparency, in the form of international standards for marking which would have effectively encoded information in a standard format, enabling anyone with a firearm to ascertain basic information such as the country and approximate date of manufacture, and in some proposals, further information about subsequent import, export or other transfers. These did not find consensus, and there was concern on the part of some delegations that even basic alpha-numeric serial numbers would effectively disclose information about the production of firearms.
From a legislative standpoint, countries may codify the marking requirements, but all that is needed is
to criminalise manufacturing without marking to the specified standard (“illicit manufacturing”) and
to criminalise altering, removing or defacing markings.
Countries can adopt the higher standard (unique serial numbers) if they wish - only those already using geometric markings can “maintain” that system.

16. Implementing the Convention and its Protocols: The Conference of the Parties (COP)
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
COP1
2004
COP2
2005
COP3
2006
COP4
2008
COP5
2010
A Conference of the Parties (COP) is established according to Article 32 of the Convention; it aims at improving the capacity of States Parties to combat transnational organized crime and promoting and reviewing the implementation of the Convention and its Protocols.
13th session of the Ad Hoc Committee finalized the draft rules of procedure for the Conference of the Parties to the TOC Convention, which would be submitted to the inaugural session of the Conference for consideration and adoption.
For the first three COPs will be held annually; from then, the COP should be held at least every two years. All States Parties, as well as signatories, are entitled to participate in the COP. The decision-making is consensus-basis. The Conference covers both the Convention and its Protocols in force. Agenda covers all aspects of the Convention and the Protocols thereto. UNODC will serve as the secretariat to the COP.
COP1 is scheduled to be held from 28 June to 9 July 2004 in Vienna. For participating in the COP1, States must deposit (ratification is not enough) their instruments of ratification by 29 May 2004.

17. COP 4 – key decisions
Review 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.
As the inaugural session, COP1 should adopt the rules of procedure for the Conference, as well as agree upon mechanisms for achieving its objectives, including:
(a) Facilitating activities by States Parties under articles 29, 30 and 31 of this Convention, including by encouraging the mobilization of voluntary contributions;
(b) Facilitating the exchange of information among States Parties on patterns and trends in transnational organized crime and on successful practices for combating it;
(c) Cooperating with relevant international and regional organizations and non-governmental organizations;
(d) Reviewing periodically the implementation of this Convention;
(e) Making recommendations to improve this Convention and its implementation.
For the purpose of paragraphs 3 (d) and (e) of this article, the Conference of the Parties shall acquire the necessary knowledge of the measures taken by States Parties in implementing this Convention and the difficulties encountered by them in doing so through information provided by them and through such supplemental review mechanisms as may be established by the Conference of the Parties.

18. The United Nations Convention against Corruption
As the inaugural session, COP1 should adopt the rules of procedure for the Conference, as well as agree upon mechanisms for achieving its objectives, including:
(a) Facilitating activities by States Parties under articles 29, 30 and 31 of this Convention, including by encouraging the mobilization of voluntary contributions;
(b) Facilitating the exchange of information among States Parties on patterns and trends in transnational organized crime and on successful practices for combating it;
(c) Cooperating with relevant international and regional organizations and non-governmental organizations;
(d) Reviewing periodically the implementation of this Convention;
(e) Making recommendations to improve this Convention and its implementation.
For the purpose of paragraphs 3 (d) and (e) of this article, the Conference of the Parties shall acquire the necessary knowledge of the measures taken by States Parties in implementing this Convention and the difficulties encountered by them in doing so through information provided by them and through such supplemental review mechanisms as may be established by the Conference of the Parties.

19. UNCAC - status of ratification
132 Parties (including European Community), 140 Signatories
14 December 2005
30 ratification
entry into force

20. Status of ratification by region (total: 132)

21. Structure of the Convention
Criminalization
Prevention
(Art. 5-14)
International
Cooperation
Asset
Recovery

22. International cooperation
Question of
Dual Criminality
Mandatory
Offences
Optional
Offences
Narrow Dual Criminality
Requirements
In MLAs

23. 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

24. Direct recovery (Art.53) – civil prosecution
States parties
shall be allowed to
Initiate civil action in another party’s courts to establish ownership of property acquired through corruption
Courts
shall be allowed to
Order corruption offenders to pay compensation to another state party
Courts
shall be allowed to
Recognize, in confiscation decisions, another party’s claim as legitimate owner of property
Advantages of civil prosecution:
useful when criminal prosecution in not possible – death or absence of alleged offender
allows to establish liability on the basis of civil standards – different evidentiary requirements

25. Recovery and international cooperation (Art.54-55)
States Parties
shall permit their
competent
authorities to
Give effect to an order of confiscation issued by a court of another Party
Freeze or seize property upon a freezing or seizing order issued by a court of a requesting Party
States Parties
shall consider
measures to
Allow confiscation without criminal conviction – when offender cannot longer be prosecuted because of death, flight or absence

26. Return to requesting Party
Return of assets (art.57)
Return to requesting Party
Embezzled public funds or
laundering of embezzled
public funds
Return to requesting Party if it can
reasonably establishes prior ownership
Proceeds of other
offences of corruption
Confiscated property may be
returned to the requesting Party,
prior legitimate owner or
used for compensating victims
Other cases

27. The work of UNODC to promote the Convention
Effective implementation
Full compliance
Universal ratification
Assistance to
Conferences of the
States Parties
Promotion of ratification
provision of
technical assistance

28. The 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

29. Self-assessing compliance, gaps and needs (CoSP res. 1/2 and 2/1)
UNCAC self-assessment checklist – new survey software launched on 15 June 07
Strong emphasis on technical assistance needs and donors’ coordination
Horizontal review
covering all chapters
Prevention (art. 5, 6, 9)
Criminalization
(art. 15, 16, 17, 23, 25)
International Cooperation
(art. 44, 46)
Asset Recovery
(art. 52, 53, 54, 55, 57)
As a tool to facilitate the provision of information, the Conference decided to use a self-assessment checklist.
It requested the Secretariat to finalize and distribute the self-assessment checklist which was done by 15 June.
The checklist is aimed at a horizontal review of the Convention, covering provisions from all chapters of the Convention.

30. Response to the UNCAC self-assessment checklist
72 reporting States Parties: 55 % response rate
6 reporting signatories

31. Overall technical assistance needs

32. The Stolen Asset Recovery Initiative (StAR)
Launched in New York by the World Bank and UNODC on 17 September 2007

33. StAR: 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
Finance legal representation
Manage cases or make decisions on the conduct of cases

34. StAR’s three components
40%
30%
Global knowledge and
advocacy
Capacity building
Recovery of stolen assets

35. UNCAC and its review mechanism
in the making

36. The review mechanism in the making
The 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 such
supplemental 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 of
paramount importance and urgent (Res. 2/1)

37. Implementing resolution 2/1
CoSP called for proposals for TORs
33 States had submitted proposed TORs
Secretariat 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
Next meeting: Vienna, May 2009

38. Terms of reference – provisional headings
I. Composition
II. Guiding Principles
III. Relationship with the Conference of the States Parties
IV. The Review Process
A. Goals
B. Conduct of the Review
C. Outcome of the review Process
V. Implementation Review Group
VI. Secretariat
VII. Funding
Current negotiations

39. THANK YOU FOR YOUR ATTENTION
For further information:
United Nations Office on Drugs and Crime Vienna International Centre PO Box 500, A-1400 Vienna, Austria
Tel:
Fax:
THANK YOU FOR YOUR ATTENTION
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