United
Nations Convention against Transnational Organized Crime
(New York, 15 November 2000)
Recognizing that organized crime is a serious and growing problem for all
countries, the Convention aims at promoting international cooperation to prevent
and combat transnational organized crime. As
the first comprehensive international legal instrument for the fight against
organized crime, the Convention, together with its Protocols, provides law
enforcement and judicial authorities with unique tools to combat this problem.
It is also intended to provide greater coordination of national policy,
legislative, administrative and enforcement approaches to organized crime.
Key Provisions
The Convention standardizes terminology and concepts, creating a common
basis for national crime-control frameworks.
Such concepts include “organized criminal group”, a definition of
which was internationally agreed upon for the first time. The Convention
establishes four specific crimes (participation in organized criminal groups,
money-laundering, corruption and obstruction of justice) to combat areas of
criminality which are commonly used in support of transnational organized crime
activities. Under the Convention, members shall criminalize these offences in
accordance with the provisions of the Convention.
The Convention contains
specific provisions for preventing, investigating and prosecuting these offences
as well as serious crimes when they are transnational in nature and involve an
organized criminal group.
States Parties
to the Convention are obliged to
adopt domestic laws and practices which would prevent or suppress certain types
of organized crime related activities. To combat money laundering, countries
would have to require their banks to keep accurate records and make them
available for inspection by domestic law enforcement officials. It should be
noted that bank secrecy could not be used to shield criminal activities.
States
Parties to the Convention are also required to take appropriate action to
confiscate illicitly acquired assets. In particular, the Convention created an
asset sharing mechanism under which States Parties are encouraged to contribute
confiscated assets to bodies working for the fight against organized crime.
One
of the most important international cooperation components of the Convention is
its extradition provision. This
provision is vital to ensuring that there are “no safe havens” to which
offenders can flee. Under the Convention, fiscal matters should not be a sole
ground for refusing extradition.
Mutual legal assistance is
another important judicial cooperation tool provided for by the Convention.
Under this article, it is highly recommended that assistance be channeled
through central authorities to regulate the process. One of its innovative
elements is that the Convention allows for electronic transmission of requests
for quicker processing. Bank
secrecy should not be a ground for refusing assistance.
In specific areas, such as law enforcement action, international
cooperation could take much more direct and less formal form to enhance its
effectiveness.
The nature of transnational
organized crime makes the protection of victims and witnesses a matter of such
importance that the Convention also requires States Parties to adopt appropriate
measures to protect witnesses from potential intimidation or retaliation.
This includes physical protection, relocation, and within legal
constraints, concealment of identities.
The Convention further calls on States to support the efforts of
developing countries to fight transnational organized crime and assist them to
implement the Convention through technical cooperation as well as financial and
material assistance.
As
regards the implementation mechanism, the
Convention establishes a Conference of the Parties to improve the capacity of
States Parties to combat transnational organized crime.
The Conference will first meet within the first year of the entry into
force of the Convention.
Entry into Force
The Convention is not yet into
force. It shall enter into force on the ninetieth day after the date of deposit
of the fortieth instrument of ratification, acceptance, approval or accession.
For this purpose, any instrument deposited by a regional economic integration
organization shall not be counted as additional to those deposited by member
States of such organization.
How to Become a Party
The Convention is open for
signature until 12 December 2002 by all States and by regional economic
integration organizations provided that at least one member State of such
organization has signed the Convention. The Convention is subject to ratification, acceptance or
approval. The Convention is open for accession by any State or any regional
economic integration organization of which at least one member State is a Party.
Optional and/or Mandatory Declarations
States whose domestic law
requires involvement of an organized criminal group for purposes of the offences
established in accordance with article 5, paragraph 1 (a) (i), of the Convention
and States
whose domestic law requires an act in furtherance of the agreement for purposes
of the offences established in accordance with article 5, paragraph 1 (a) (i),
of the Convention shall so inform the depositary.
States that make extradition conditional on the existence of a treaty
shall inform whether they will take this Convention as the legal basis for
cooperation on extradition with other States Parties to this Convention.
Each State Party shall designate a central authority that shall have the
responsibility and power to receive requests for mutual legal assistance and
either to execute them or to transmit them to the competent authorities for
execution.
Each
State Party shall notify
the depositary of the language or languages acceptable for purposes of mutual
legal assistance.
A regional economic integration organization shall declare the extent of
its competence with respect to matters governed by the Convention.
Reservations
States may declare that they
do not consider themselves bound by article 35.2, according to which disputes
among States Parties relating to the interpretation or application of the
Protocol which are not settled by negotiation will be submitted to arbitration
and, failing agreement on the organization of the arbitration six months after
the date of the request for arbitration, to the International Court of Justice.
Withdrawal/Denunciation
Each State Party may denounce
the Convention by written notification to the Secretary-General of the United
Nations. Such denunciation shall become effective one year after the date of
receipt of the notification by the Secretary-General.
A
regional economic integration organization shall cease to be a Party to the
Convention when all of its member States have denounced it.
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