iii
Foreword
With the signing of the United Nations Convention against Transnational
Organized Crime in Palermo, Italy, in December 2000, the international community
demonstrated the political will to answer a global challenge with a
global response. If crime crosses borders, so must law enforcement. If the rule of
law is undermined not only in one country, but in many, then those who
defend it cannot limit themselves to purely national means. If the enemies of
progress and human rights seek to exploit the openness and opportunities of
globalization for their purposes, then we must exploit those very same factors to
defend human rights and defeat the forces of crime, corruption and trafficking
in human beings.
One of the starkest contrasts in our world today is the gulf that exists
between the civil and the uncivil. By “civil” I mean civilization: the accumulated
centuries of learning that form our foundation for progress. By “civil” I also
mean tolerance: the pluralism and respect with which we accept and draw
strength from the world’s diverse peoples. And finally, I mean civil society: the
citizens’ groups, businesses, unions, professors, journalists, political parties and
others who have an essential role to play in the running of any society.
Arrayed against these constructive forces, however, in ever greater numbers
and with ever stronger weapons, are the forces of what I call “uncivil society”.
They are terrorists, criminals, drug dealers, traffickers in people and others who
undo the good works of civil society. They take advantage of the open borders,
free markets and technological advances that bring so many benefits to the
world’s people. They thrive in countries with weak institutions, and they show
no scruple about resorting to intimidation or violence. Their ruthlessness is the
very antithesis of all we regard as civil. They are powerful, representing entrenched
interests and the clout of a global enterprise worth billions of dollars,
but they are not invincible.
The Millennium Declaration adopted by the Heads of State meeting at the
United Nations in September 2000 reaffirmed the principles underlying our
efforts and should serve to encourage all who struggle for the rule of law. The
Declaration states that “men and women have the right to live their lives and
raise their children in dignity, free from hunger and from the fear of violence,
oppression or injustice”.
At the Millennium Summit, world leaders proclaimed freedom—from fear
and from want—as one of the essential values in the twenty-first century. Yet
the right to live in dignity, free from fear and want, is still denied to millions
iv
of people around the world. It is denied to the child who is working as an
indentured labourer in a sweatshop; to the father who must pay a bribe to get
medical care for his son or daughter; to the woman who is condemned to a life
of forced prostitution.
I believe the trafficking of persons, particularly women and children, for
forced and exploitative labour, including for sexual exploitation, is one of the
most egregious violations of human rights that the United Nations now confronts.
It is widespread and growing. It is rooted in social and economic conditions
in the countries from which the victims come, facilitated by practices that
discriminate against women and driven by cruel indifference to human suffering
on the part of those who exploit the services that the victims are forced to
provide. The fate of these most vulnerable people in our world is an affront to
human dignity and a challenge to every State, every people and every community.
I therefore urge the Member States to ratify not only the United Nations
Convention against Transnational Organized Crime, but also the Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, which can make a real difference in the struggle to eliminate this
reprehensible trade in human beings.
Criminal groups have wasted no time in embracing today’s globalized
economy and the sophisticated technology that goes with it. But our efforts to
combat them have remained up to now very fragmented and our weapons
almost obsolete. The Convention gives us a new tool to address the scourge of
crime as a global problem. With enhanced international cooperation, we can
have a real impact on the ability of international criminals to operate successfully
and can help citizens everywhere in their often bitter struggle for safety and
dignity in their homes and communities.
The signing of the Convention in Palermo in December 2000 was a watershed
event in the reinforcement of our fight against organized crime. I urge all
States to ratify the Convention and the Protocols thereto at the earliest possible
date and to bring these instruments into force as a matter of urgency.
Kofi A. Annan
Secretary-General
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Contents
Page
General Assembly resolution 55/25 of 15 November 2000 . . . . . . . . . . . . . . . . 1
Annexes
I. United Nations Convention against Transnational Organized Crime . 5
II. Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime . . . . . . . . . . . . . . 41
III. Protocol against the Smuggling of Migrants by Land, Sea and Air,
supplementing the United Nations Convention against Transnational
Organized Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
General Assembly resolution 55/255 of 31 May 2001 . . . . . . . . . . . . . . . . . . . . 69
Annex. Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, Their parts and Components and Ammunition,
supplementing the United Nations Convention against
Transnational Organized Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
1
General Assembly resolution 55/25
of 15 November 2000
United Nations Convention against
Transnational Organized Crime
The General Assembly,
Recalling its resolution 53/111 of 9 December 1998, in which it decided
to establish an open-ended intergovernmental ad hoc committee for the purpose
of elaborating a comprehensive international convention against transnational
organized crime and of discussing the elaboration, as appropriate, of international
instruments addressing trafficking in women and children, combating
the illicit manufacturing of and trafficking in firearms, their parts and components
and ammunition, and illegal trafficking in and transporting of migrants,
including by sea,
Recalling also its resolution 54/126 of 17 December 1999, in which it
requested the Ad Hoc Committee on the Elaboration of a Convention against
Transnational Organized Crime to continue its work, in accordance with resolutions
53/111 and 53/114 of 9 December 1998, and to intensify that work in
order to complete it in 2000,
Recalling further its resolution 54/129 of 17 December 1999, in which it
accepted with appreciation the offer of the Government of Italy to host a highlevel
political signing conference in Palermo for the purpose of signing the
United Nations Convention against Transnational Organized Crime (Palermo
Convention) and the protocols thereto, and requested the Secretary-General to
schedule the conference for a period of up to one week before the end of the
Millennium Assembly in 2000,
Expressing its appreciation to the Government of Poland for submitting to
it at its fifty-first session a first draft United Nations convention against
transnational organized crime1 and for hosting the meeting of the inter-sessional
open-ended intergovernmental group of experts, established pursuant to resolution
52/85 of 12 December 1997, on the elaboration of a preliminary draft of
1A/C.3/51/7, annex.
2
a possible comprehensive international convention against transnational organized
crime, held in Warsaw from 2 to 6 February 1998,
Expressing its appreciation to the Government of Argentina for hosting the
informal preparatory meeting of the Ad Hoc Committee, held in Buenos Aires
from 31 August to 4 September 1998,
Expressing its appreciation to the Government of Thailand for hosting the
Asia-Pacific Ministerial Seminar on Building Capacities for Fighting Transnational
Organized Crime, held in Bangkok on 20 and 21 March 2000,
Deeply concerned by the negative economic and social implications related
to organized criminal activities, and convinced of the urgent need to strengthen
cooperation to prevent and combat such activities more effectively at the
national, regional and international levels,
Noting with deep concern the growing links between transnational organized
crime and terrorist crimes, taking into account the Charter of the United
Nations and the relevant resolutions of the General Assembly,
Determined to deny safe havens to those who engage in transnational organized
crime by prosecuting their crimes wherever they occur and by cooperating
at the international level,
Strongly convinced that the United Nations Convention against Transnational
Organized Crime will constitute an effective tool and the necessary
legal framework for international cooperation in combating, inter alia, such
criminal activities as money-laundering, corruption, illicit trafficking in endangered
species of wild flora and fauna, offences against cultural heritage and
the growing links between transnational organized crime and terrorist crimes,
1. Takes note of the report of the Ad Hoc Committee on the Elaboration
of a Convention against Transnational Organized Crime,2 which carried out its
work at the headquarters of the United Nations Office for Drug Control and
Crime Prevention in Vienna, and commends the Ad Hoc Committee for its
work;
2. Adopts the United Nations Convention against Transnational Organized
Crime and the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime, and the Protocol against
2A/AC.254/34.
3
the Smuggling of Migrants by Land, Sea and Air, supplementing the United
Nations Convention against Transnational Organized Crime annexed to the
present resolution, and opens them for signature at the High-level Political
Signing Conference to be held in Palermo, Italy, from 12 to 15 December 2000
in accordance with resolution 54/129;
3. Requests the Secretary-General to prepare a comprehensive report on
the High-level Political Signing Conference to be held in Palermo in accordance
with resolution 54/129;
4. Notes that the Ad Hoc Committee has not yet completed its work on
the draft Protocol against the Illicit Manufacturing of and Trafficking in Firearms,
Their Parts and Components and Ammunition, supplementing the
United Nations Convention against Transnational Organized Crime;
5. Requests the Ad Hoc Committee to continue its work in relation to
this draft Protocol, in accordance with resolutions 53/111, 53/114 and 54/126,
and to finalize such work as soon as possible;
6. Calls upon all States to recognize the links between transnational organized
criminal activities and acts of terrorism, taking into account the relevant
General Assembly resolutions, and to apply the United Nations Convention
against Transnational Organized Crime in combating all forms of criminal
activity, as provided therein;
7. Recommends that the Ad Hoc Committee established by the General
Assembly in its resolution 51/210 of 17 December 1996, which is beginning its
deliberations with a view to developing a comprehensive convention on international
terrorism, pursuant to resolution 54/110 of 9 December 1999, should
take into consideration the provisions of the United Nations Convention
against Transnational Organized Crime;
8. Urges all States and regional economic organizations to sign and ratify
the United Nations Convention against Transnational Organized Crime and
the protocols thereto as soon as possible in order to ensure the speedy entry into
force of the Convention and the protocols thereto;
9. Decides that, until the Conference of the Parties to the Convention
established pursuant to the United Nations Convention against Transnational
Organized Crime decides otherwise, the account referred to in article 30 of the
Convention will be operated within the United Nations Crime Prevention and
Criminal Justice Fund, and encourages Member States to begin making
adequate voluntary contributions to the above-mentioned account for the
4
provision to developing countries and countries with economies in transition of
the technical assistance that they might require for implementation of the Convention
and the protocols thereto, including for the preparatory measures
needed for that implementation;
10. Decides also that the Ad Hoc Committee on the Elaboration of a
Convention against Transnational Organized Crime will complete its tasks
arising from the elaboration of the United Nations Convention against
Transnational Organized Crime by holding a meeting well before the convening
of the first session of the Conference of the Parties to the Convention, in order
to prepare the draft text of the rules of procedure for the Conference of the
Parties and other rules and mechanisms described in article 32 of the Convention,
which will be communicated to the Conference of the Parties at its first
session for consideration and action;
11. Requests the Secretary-General to designate the Centre for International
Crime Prevention of the United Nations Office for Drug Control and
Crime Prevention to serve as the secretariat for the Conference of the Parties to
the Convention in accordance with article 33 of the Convention;
12. Also requests the Secretary-General to provide the Centre for International
Crime Prevention with the resources necessary to enable it to promote in
an effective manner the expeditious entry into force of the United Nations
Convention against Transnational Organized Crime and to discharge the functions
of secretariat of the Conference of the Parties to the Convention, and to
support the Ad Hoc Committee in its work pursuant to paragraph 10 above.
5
Article 1. Statement of purpose
The purpose of this Convention is to promote cooperation to prevent and
combat transnational organized crime more effectively.
Article 2. Use of terms
For the purposes of this Convention:
(a) “Organized criminal group” shall mean a structured group of three 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 established in accordance
with this Convention, in order to obtain, directly or indirectly, a financial or
other material benefit;
(b) “Serious crime” shall mean conduct constituting an offence punishable
by a maximum deprivation of liberty of at least four years or a more serious
penalty;
(c) “Structured group” shall mean a group that is not randomly formed
for the immediate commission of an offence and that does not need to have
formally defined roles for its members, continuity of its membership or a
developed structure;
(d) “Property” shall mean assets of every kind, whether corporeal or
incorporeal, movable or immovable, tangible or intangible, and legal documents
or instruments evidencing title to, or interest in, such assets;
(e) “Proceeds of crime” shall mean any property derived from or
obtained, directly or indirectly, through the commission of an offence;
(f) “Freezing” or “seizure” shall mean temporarily prohibiting the transfer,
conversion, disposition or movement of property or temporarily assuming
custody or control of property on the basis of an order issued by a court or
other competent authority;
Annex I
United Nations Convention against
Transnational Organized Crime
6
(g) “Confiscation”, which includes forfeiture where applicable, shall mean
the permanent deprivation of property by order of a court or other competent
authority;
(h) “Predicate offence” shall mean any offence as a result of which proceeds
have been generated that may become the subject of an offence as defined
in article 6 of this Convention;
(i) “Controlled delivery” shall mean the technique of allowing illicit or
suspect consignments to pass out of, through or into the territory of one or
more States, with the knowledge and under the supervision of their competent
authorities, with a view to the investigation of an offence and the identification
of persons involved in the commission of the offence;
(j) “Regional economic integration organization” shall mean an organization
constituted by sovereign States of a given region, to which its member
States have transferred competence in respect of matters governed by this Convention
and which has been duly authorized, in accordance with its internal
procedures, to sign, ratify, accept, approve or accede to it; references to “States
Parties” under this Convention shall apply to such organizations within the
limits of their competence.
Article 3. Scope of application
1. This Convention shall apply, except as otherwise stated herein, to the
prevention, investigation and prosecution of:
(a) The offences established in accordance with articles 5, 6, 8 and 23 of
this Convention; and
(b) Serious crime as defined in article 2 of this Convention;
where the offence is transnational in nature and involves an organized criminal
group.
2. For the purpose of paragraph 1 of this article, an offence is transnational
in nature if:
(a) It is committed in more than one State;
(b) It is committed in one State but a substantial part of its preparation,
planning, direction or control takes place in another State;
(c) It is committed in one State but involves an organized criminal group
that engages in criminal activities in more than one State; or
(d) It is committed in one State but has substantial effects in another
State.
7
Article 4. Protection of sovereignty
1. States Parties shall carry out their obligations under this Convention
in a manner consistent with the principles of sovereign equality and territorial
integrity of States and that of non-intervention in the domestic affairs of other
States.
2. Nothing in this Convention entitles a State Party to undertake in the
territory of another State the exercise of jurisdiction and performance of functions
that are reserved exclusively for the authorities of that other State by its
domestic law.
Article 5. Criminalization of participation in an
organized criminal group
1. Each State Party shall adopt such legislative and other measures as
may be necessary to establish as criminal offences, when committed intentionally:
(a) Either or both of the following as criminal offences distinct from
those involving the attempt or completion of the criminal activity:
(i) Agreeing with one or more other persons to commit a serious
crime for a purpose relating directly or indirectly to the obtaining
of a financial or other material benefit and, where required
by domestic law, involving an act undertaken by one of the
participants in furtherance of the agreement or involving an
organized criminal group;
(ii) Conduct by a person who, with knowledge of either the aim and
general criminal activity of an organized criminal group or its
intention to commit the crimes in question, takes an active part
in:
a. Criminal activities of the organized criminal group;
b. Other activities of the organized criminal group in the
knowledge that his or her participation will contribute to the
achievement of the above-described criminal aim;
(b) Organizing, directing, aiding, abetting, facilitating or counselling the
commission of serious crime involving an organized criminal group.
2. The knowledge, intent, aim, purpose or agreement referred to in paragraph
1 of this article may be inferred from objective factual circumstances.
3. States Parties whose domestic law requires involvement of an organized
criminal group for purposes of the offences established in accordance with
8
paragraph 1 (a) (i) of this article shall ensure that their domestic law covers all
serious crimes involving organized criminal groups. Such States Parties, as well
as States Parties whose domestic law requires an act in furtherance of the
agreement for purposes of the offences established in accordance with paragraph
1 (a) (i) of this article, shall so inform the Secretary-General of the United
Nations at the time of their signature or of deposit of their instrument of
ratification, acceptance or approval of or accession to this Convention.
Article 6. Criminalization of the laundering of proceeds of crime
1. Each State Party shall adopt, in accordance with fundamental principles
of its domestic law, such legislative and other measures as may be necessary
to establish as criminal offences, when committed intentionally:
(a) (i) The conversion or transfer of property, knowing that such property
is the proceeds of crime, for the purpose of concealing or
disguising the illicit origin of the property or of helping any
person who is involved in the commission of the predicate
offence to evade the legal consequences of his or her action;
(ii) The concealment or disguise of the true nature, source, location,
disposition, movement or ownership of or rights with respect to
property, knowing that such property is the proceeds of crime;
(b) Subject to the basic concepts of its legal system:
(i) The acquisition, possession or use of property, knowing, at the
time of receipt, that such property is the proceeds of crime;
(ii) Participation in, association with or conspiracy to commit,
attempts to commit and aiding, abetting, facilitating and
counselling the commission of any of the offences established in
accordance with this article.
2. For purposes of implementing or applying paragraph 1 of this article:
(a) Each State Party shall seek to apply paragraph 1 of this article to the
widest range of predicate offences;
(b) Each State Party shall include as predicate offences all serious crime
as defined in article 2 of this Convention and the offences established in accordance
with articles 5, 8 and 23 of this Convention. In the case of States Parties
whose legislation sets out a list of specific predicate offences, they shall, at a
minimum, include in such list a comprehensive range of offences associated
with organized criminal groups;
(c) For the purposes of subparagraph (b), predicate offences shall include
offences committed both within and outside the jurisdiction of the State Party
9
in question. However, offences committed outside the jurisdiction of a State
Party shall constitute predicate offences only when the relevant conduct is a
criminal offence under the domestic law of the State where it is committed and
would be a criminal offence under the domestic law of the State Party implementing
or applying this article had it been committed there;
(d) Each State Party shall furnish copies of its laws that give effect to this
article and of any subsequent changes to such laws or a description thereof to
the Secretary-General of the United Nations;
(e) If required by fundamental principles of the domestic law of a State
Party, it may be provided that the offences set forth in paragraph 1 of this article
do not apply to the persons who committed the predicate offence;
(f) Knowledge, intent or purpose required as an element of an offence set
forth in paragraph 1 of this article may be inferred from objective factual
circumstances.
Article 7. Measures to combat money-laundering
1. Each State Party:
(a) Shall institute a comprehensive domestic regulatory and supervisory
regime for banks and non-bank financial institutions and, where appropriate,
other bodies particularly susceptible to money-laundering, within its competence,
in order to deter and detect all forms of money-laundering, which regime
shall emphasize requirements for customer identification, record-keeping and
the reporting of suspicious transactions;
(b) Shall, without prejudice to articles 18 and 27 of this Convention,
ensure that administrative, regulatory, law enforcement and other authorities
dedicated to combating money-laundering (including, where appropriate under
domestic law, judicial authorities) have the ability to cooperate and exchange
information at the national and international levels within the conditions
prescribed by its domestic law and, to that end, shall consider the establishment
of a financial intelligence unit to serve as a national centre for the collection,
analysis and dissemination of information regarding potential moneylaundering.
2. States Parties shall consider implementing feasible measures to detect
and monitor the movement of cash and appropriate negotiable instruments
across their borders, subject to safeguards to ensure proper use of information
and without impeding in any way the movement of legitimate capital. Such
measures may include a requirement that individuals and businesses report the
cross-border transfer of substantial quantities of cash and appropriate negotiable
instruments.
10
3. In establishing a domestic regulatory and supervisory regime under
the terms of this article, and without prejudice to any other article of this
Convention, States Parties are called upon to use as a guideline the relevant
initiatives of regional, interregional and multilateral organizations against
money-laundering.
4. States Parties shall endeavour to develop and promote global, regional,
subregional and bilateral cooperation among judicial, law enforcement and
financial regulatory authorities in order to combat money-laundering.
Article 8. Criminalization of corruption
1. Each State Party shall adopt such legislative and other measures as
may be necessary to establish as criminal offences, when committed intentionally:
(a) The promise, offering or giving to a public official, directly or indirectly,
of an undue advantage, for the official himself or herself or another
person or entity, in order that the official act or refrain from acting in the
exercise of his or her official duties;
(b) The solicitation or acceptance by a public official, directly or indirectly,
of an undue advantage, for the official himself or herself or another
person or entity, in order that the official act or refrain from acting in the
exercise of his or her official duties.
2. Each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as criminal offences conduct referred
to in paragraph 1 of this article involving a foreign public official or international
civil servant. Likewise, each State Party shall consider establishing as
criminal offences other forms of corruption.
3. Each State Party shall also adopt such measures as may be necessary
to establish as a criminal offence participation as an accomplice in an offence
established in accordance with this article.
4. For the purposes of paragraph 1 of this article and article 9 of this
Convention, “public official” shall mean a public official or a person who
provides a public service as defined in the domestic law and as applied in the
criminal law of the State Party in which the person in question performs that
function.
Article 9. Measures against corruption
1. In addition to the measures set forth in article 8 of this Convention,
each State Party shall, to the extent appropriate and consistent with its legal
11
system, adopt legislative, administrative or other effective measures to promote
integrity and to prevent, detect and punish the corruption of public officials.
2. Each State Party shall take measures to ensure effective action by its
authorities in the prevention, detection and punishment of the corruption of
public officials, including providing such authorities with adequate independence
to deter the exertion of inappropriate influence on their actions.
Article 10. Liability of legal persons
1. Each State Party shall adopt such measures as may be necessary, consistent
with its legal principles, to establish the liability of legal persons for
participation in serious crimes involving an organized criminal group and for
the offences established in accordance with articles 5, 6, 8 and 23 of this
Convention.
2. Subject to the legal principles of the State Party, the liability of legal
persons may be criminal, civil or administrative.
3. Such liability shall be without prejudice to the criminal liability of the
natural persons who have committed the offences.
4. Each State Party shall, in particular, ensure that legal persons held
liable in accordance with this article are subject to effective, proportionate and
dissuasive criminal or non-criminal sanctions, including monetary sanctions.
Article 11. Prosecution, adjudication and sanctions
1. Each State Party shall make the commission of an offence established
in accordance with articles 5, 6, 8 and 23 of this Convention liable to sanctions
that take into account the gravity of that offence.
2. Each State Party shall endeavour to ensure that any discretionary legal
powers under its domestic law relating to the prosecution of persons for offences
covered by this Convention are exercised to maximize the effectiveness of law
enforcement measures in respect of those offences and with due regard to the
need to deter the commission of such offences.
3. In the case of offences established in accordance with articles 5, 6, 8
and 23 of this Convention, each State Party shall take appropriate measures, in
accordance with its domestic law and with due regard to the rights of the
defence, to seek to ensure that conditions imposed in connection with decisions
on release pending trial or appeal take into consideration the need to ensure the
presence of the defendant at subsequent criminal proceedings.
12
4. Each State Party shall ensure that its courts or other competent
authorities bear in mind the grave nature of the offences covered by this Convention
when considering the eventuality of early release or parole of persons
convicted of such offences.
5. Each State Party shall, where appropriate, establish under its domestic
law a long statute of limitations period in which to commence proceedings for
any offence covered by this Convention and a longer period where the alleged
offender has evaded the administration of justice.
6. Nothing contained in this Convention shall affect the principle that
the description of the offences established in accordance with this Convention
and of the applicable legal defences or other legal principles controlling the
lawfulness of conduct is reserved to the domestic law of a State Party and that
such offences shall be prosecuted and punished in accordance with that law.
Article 12. Confiscation and seizure
1. States Parties shall adopt, to the greatest extent possible within their
domestic legal systems, such measures as may be necessary to enable confiscation
of:
(a) Proceeds of crime derived from offences covered by this Convention
or property the value of which corresponds to that of such proceeds;
(b) Property, equipment or other instrumentalities used in or destined for
use in offences covered by this Convention.
2. States Parties shall adopt such measures as may be necessary to enable
the identification, tracing, freezing or seizure of any item referred to in paragraph
1 of this article for the purpose of eventual confiscation.
3. If proceeds of crime have been transformed or converted, in part or
in full, into other property, such property shall be liable to the measures referred
to in this article instead of the proceeds.
4. If proceeds of crime have been intermingled with property acquired
from legitimate sources, such property shall, without prejudice to any powers
relating to freezing or seizure, be liable to confiscation up to the assessed value
of the intermingled proceeds.
5. Income or other benefits derived from proceeds of crime, from
property into which proceeds of crime have been transformed or converted or
from property with which proceeds of crime have been intermingled shall also
13
be liable to the measures referred to in this article, in the same manner and to
the same extent as proceeds of crime.
6. For the purposes of this article and article 13 of this Convention, each
State Party shall empower its courts or other competent authorities to order that
bank, financial or commercial records be made available or be seized. States
Parties shall not decline to act under the provisions of this paragraph on the
ground of bank secrecy.
7. States Parties may consider the possibility of requiring that an offender
demonstrate the lawful origin of alleged proceeds of crime or other
property liable to confiscation, to the extent that such a requirement is consistent
with the principles of their domestic law and with the nature of the judicial
and other proceedings.
8. The provisions of this article shall not be construed to prejudice the
rights of bona fide third parties.
9. Nothing contained in this article shall affect the principle that the
measures to which it refers shall be defined and implemented in accordance
with and subject to the provisions of the domestic law of a State Party.
Article 13. International cooperation for purposes of confiscation
1. A State Party that has received a request from another State Party
having jurisdiction over an offence covered by this Convention for confiscation
of proceeds of crime, property, equipment or other instrumentalities referred to
in article 12, paragraph 1, of this Convention situated in its territory shall, to
the greatest extent possible within its domestic legal system:
(a) Submit the request to its competent authorities for the purpose of
obtaining an order of confiscation and, if such an order is granted, give effect
to it; or
(b) Submit to its competent authorities, with a view to giving effect to it
to the extent requested, an order of confiscation issued by a court in the territory
of the requesting State Party in accordance with article 12, paragraph 1, of
this Convention insofar as it relates to proceeds of crime, property, equipment
or other instrumentalities referred to in article 12, paragraph 1, situated in the
territory of the requested State Party.
2. Following a request made by another State Party having jurisdiction
over an offence covered by this Convention, the requested State Party shall take
measures to identify, trace and freeze or seize proceeds of crime, property,
14
equipment or other instrumentalities referred to in article 12, paragraph 1, of
this Convention for the purpose of eventual confiscation to be ordered either
by the requesting State Party or, pursuant to a request under paragraph 1 of this
article, by the requested State Party.
3. The provisions of article 18 of this Convention are applicable, mutatis
mutandis, to this article. In addition to the information specified in article 18,
paragraph 15, requests made pursuant to this article shall contain:
(a) In the case of a request pertaining to paragraph 1 (a) of this article,
a description of the property to be confiscated and a statement of the facts relied
upon by the requesting State Party sufficient to enable the requested State Party
to seek the order under its domestic law;
(b) In the case of a request pertaining to paragraph 1 (b) of this article,
a legally admissible copy of an order of confiscation upon which the request is
based issued by the requesting State Party, a statement of the facts and information
as to the extent to which execution of the order is requested;
(c) In the case of a request pertaining to paragraph 2 of this article, a
statement of the facts relied upon by the requesting State Party and a description
of the actions requested.
4. The decisions or actions provided for in paragraphs 1 and 2 of this
article shall be taken by the requested State Party in accordance with and subject
to the provisions of its domestic law and its procedural rules or any bilateral or
multilateral treaty, agreement or arrangement to which it may be bound in
relation to the requesting State Party.
5. Each State Party shall furnish copies of its laws and regulations that
give effect to this article and of any subsequent changes to such laws and
regulations or a description thereof to the Secretary-General of the United
Nations.
6. If a State Party elects to make the taking of the measures referred to
in paragraphs 1 and 2 of this article conditional on the existence of a relevant
treaty, that State Party shall consider this Convention the necessary and
sufficient treaty basis.
7. Cooperation under this article may be refused by a State Party if
the offence to which the request relates is not an offence covered by this
Convention.
8. The provisions of this article shall not be construed to prejudice the
rights of bona fide third parties.
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9. States Parties shall consider concluding bilateral or multilateral
treaties, agreements or arrangements to enhance the effectiveness of international
cooperation undertaken pursuant to this article.
Article 14. Disposal of confiscated proceeds of crime or property
1. Proceeds of crime or property confiscated by a State Party pursuant
to articles 12 or 13, paragraph 1, of this Convention shall be disposed of by that
State Party in accordance with its domestic law and administrative procedures.
2. When acting on the request made by another State Party in accordance
with article 13 of this Convention, States Parties shall, to the extent permitted
by domestic law and if so requested, give priority consideration to returning
the confiscated proceeds of crime or property to the requesting State
Party so that it can give compensation to the victims of the crime or return such
proceeds of crime or property to their legitimate owners.
3. When acting on the request made by another State Party in accordance
with articles 12 and 13 of this Convention, a State Party may give special
consideration to concluding agreements or arrangements on:
(a) Contributing the value of such proceeds of crime or property or funds
derived from the sale of such proceeds of crime or property or a part thereof
to the account designated in accordance with article 30, paragraph 2 (c), of this
Convention and to intergovernmental bodies specializing in the fight against
organized crime;
(b) Sharing with other States Parties, on a regular or case-by-case basis,
such proceeds of crime or property, or funds derived from the sale of such
proceeds of crime or property, in accordance with its domestic law or administrative
procedures.
Article 15. Jurisdiction
1. Each State Party shall adopt such measures as may be necessary to
establish its jurisdiction over the offences established in accordance with
articles 5, 6, 8 and 23 of this Convention when:
(a) The offence is committed in the territory of that State Party; or
(b) The offence is committed on board a vessel that is flying the flag of
that State Party or an aircraft that is registered under the laws of that State Party
at the time that the offence is committed.
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2. Subject to article 4 of this Convention, a State Party may also establish
its jurisdiction over any such offence when:
(a) The offence is committed against a national of that State Party;
(b) The offence is committed by a national of that State Party or a stateless
person who has his or her habitual residence in its territory; or
(c) The offence is:
(i) One of those established in accordance with article 5, paragraph
1, of this Convention and is committed outside its territory
with a view to the commission of a serious crime within its
territory;
(ii) One of those established in accordance with article 6, paragraph
1 (b) (ii), of this Convention and is committed outside its
territory with a view to the commission of an offence established
in accordance with article 6, paragraph 1 (a) (i) or (ii) or (b) (i),
of this Convention within its territory.
3. For the purposes of article 16, paragraph 10, of this Convention, each
State Party shall adopt such measures as may be necessary to establish its jurisdiction
over the offences covered by this Convention when the alleged offender
is present in its territory and it does not extradite such person solely on the
ground that he or she is one of its nationals.
4. Each State Party may also adopt such measures as may be necessary to
establish its jurisdiction over the offences covered by this Convention when the
alleged offender is present in its territory and it does not extradite him or her.
5. If a State Party exercising its jurisdiction under paragraph 1 or 2 of
this article has been notified, or has otherwise learned, that one or more other
States Parties are conducting an investigation, prosecution or judicial proceeding
in respect of the same conduct, the competent authorities of those States
Parties shall, as appropriate, consult one another with a view to coordinating
their actions.
6. Without prejudice to norms of general international law, this Convention
does not exclude the exercise of any criminal jurisdiction established by
a State Party in accordance with its domestic law.
Article 16. Extradition
1. This article shall apply to the offences covered by this Convention or
in cases where an offence referred to in article 3, paragraph 1 (a) or (b), involves
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an organized criminal group and the person who is the subject of the request
for extradition is located in the territory of the requested State Party, provided
that the offence for which extradition is sought is punishable under the domestic
law of both the requesting State Party and the requested State Party.
2. If the request for extradition includes several separate serious crimes,
some of which are not covered by this article, the requested State Party may
apply this article also in respect of the latter offences.
3. Each of the offences to which this article applies shall be deemed to
be included as an extraditable offence in any extradition treaty existing between
States Parties. States Parties undertake to include such offences as extraditable
offences in every extradition treaty to be concluded between them.
4. If a State Party that makes extradition conditional on the existence of
a treaty receives a request for extradition from another State Party with which
it has no extradition treaty, it may consider this Convention the legal basis for
extradition in respect of any offence to which this article applies.
5. States Parties that make extradition conditional on the existence of a
treaty shall:
(a) At the time of deposit of their instrument of ratification, acceptance,
approval of or accession to this Convention, inform the Secretary-General of the
United Nations whether they will take this Convention as the legal basis for
cooperation on extradition with other States Parties to this Convention; and
(b) If they do not take this Convention as the legal basis for cooperation
on extradition, seek, where appropriate, to conclude treaties on extradition with
other States Parties to this Convention in order to implement this article.
6. States Parties that do not make extradition conditional on the existence
of a treaty shall recognize offences to which this article applies as extraditable
offences between themselves.
7. Extradition shall be subject to the conditions provided for by the
domestic law of the requested State Party or by applicable extradition treaties,
including, inter alia, conditions in relation to the minimum penalty requirement
for extradition and the grounds upon which the requested State Party may
refuse extradition.
8. States Parties shall, subject to their domestic law, endeavour to expedite
extradition procedures and to simplify evidentiary requirements relating
thereto in respect of any offence to which this article applies.
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9. Subject to the provisions of its domestic law and its extradition
treaties, the requested State Party may, upon being satisfied that the circumstances
so warrant and are urgent and at the request of the requesting State
Party, take a person whose extradition is sought and who is present in its
territory into custody or take other appropriate measures to ensure his or her
presence at extradition proceedings.
10. A State Party in whose territory an alleged offender is found, if it does
not extradite such person in respect of an offence to which this article applies
solely on the ground that he or she is one of its nationals, shall, at the request
of the State Party seeking extradition, be obliged to submit the case without
undue delay to its competent authorities for the purpose of prosecution. Those
authorities shall take their decision and conduct their proceedings in the same
manner as in the case of any other offence of a grave nature under the domestic
law of that State Party. The States Parties concerned shall cooperate with each
other, in particular on procedural and evidentiary aspects, to ensure the
efficiency of such prosecution.
11. Whenever a State Party is permitted under its domestic law to extradite
or otherwise surrender one of its nationals only upon the condition that the
person will be returned to that State Party to serve the sentence imposed as a
result of the trial or proceedings for which the extradition or surrender of the
person was sought and that State Party and the State Party seeking the extradition
of the person agree with this option and other terms that they may deem
appropriate, such conditional extradition or surrender shall be sufficient to
discharge the obligation set forth in paragraph 10 of this article.
12. If extradition, sought for purposes of enforcing a sentence, is refused
because the person sought is a national of the requested State Party, the requested
Party shall, if its domestic law so permits and in conformity with the
requirements of such law, upon application of the requesting Party, consider the
enforcement of the sentence that has been imposed under the domestic law of
the requesting Party or the remainder thereof.
13. Any person regarding whom proceedings are being carried out in
connection with any of the offences to which this article applies shall be guaranteed
fair treatment at all stages of the proceedings, including enjoyment of all
the rights and guarantees provided by the domestic law of the State Party in the
territory of which that person is present.
14. Nothing in this Convention shall be interpreted as imposing an obligation
to extradite if the requested State Party has substantial grounds for
believing that the request has been made for the purpose of prosecuting or
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punishing a person on account of that person’s sex, race, religion, nationality,
ethnic origin or political opinions or that compliance with the request would
cause prejudice to that person’s position for any one of these reasons.
15. States Parties may not refuse a request for extradition on the sole
ground that the offence is also considered to involve fiscal matters.
16. Before refusing extradition, the requested State Party shall, where
appropriate, consult with the requesting State Party to provide it with ample
opportunity to present its opinions and to provide information relevant to its
allegation.
17. States Parties shall seek to conclude bilateral and multilateral agreements
or arrangements to carry out or to enhance the effectiveness of extradition.
Article 17. Transfer of sentenced persons
States Parties may consider entering into bilateral or multilateral agreements
or arrangements on the transfer to their territory of persons sentenced to
imprisonment or other forms of deprivation of liberty for offences covered by
this Convention, in order that they may complete their sentences there.
Article 18. Mutual legal assistance
1. States Parties shall afford one another the widest measure of mutual
legal assistance in investigations, prosecutions and judicial proceedings in relation
to the offences covered by this Convention as provided for in article 3 and
shall reciprocally extend to one another similar assistance where the requesting
State Party has reasonable grounds to suspect that the offence referred to in
article 3, paragraph 1 (a) or (b), is transnational in nature, including that victims,
witnesses, proceeds, instrumentalities or evidence of such offences are
located in the requested State Party and that the offence involves an organized
criminal group.
2. Mutual legal assistance shall be afforded to the fullest extent possible
under relevant laws, treaties, agreements and arrangements of the requested
State Party with respect to investigations, prosecutions and judicial proceedings
in relation to the offences for which a legal person may be held liable in
accordance with article 10 of this Convention in the requesting State Party.
3. Mutual legal assistance to be afforded in accordance with this article
may be requested for any of the following purposes:
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(a) Taking evidence or statements from persons;
(b) Effecting service of judicial documents;
(c) Executing searches and seizures, and freezing;
(d) Examining objects and sites;
(e) Providing information, evidentiary items and expert evaluations;
(f) Providing originals or certified copies of relevant documents and
records, including government, bank, financial, corporate or business records;
(g) Identifying or tracing proceeds of crime, property, instrumentalities or
other things for evidentiary purposes;
(h) Facilitating the voluntary appearance of persons in the requesting
State Party;
(i) Any other type of assistance that is not contrary to the domestic law
of the requested State Party.
4. Without prejudice to domestic law, the competent authorities of a
State Party may, without prior request, transmit information relating to criminal
matters to a competent authority in another State Party where they believe
that such information could assist the authority in undertaking or successfully
concluding inquiries and criminal proceedings or could result in a request
formulated by the latter State Party pursuant to this Convention.
5. The transmission of information pursuant to paragraph 4 of this
article shall be without prejudice to inquiries and criminal proceedings in the
State of the competent authorities providing the information. The competent
authorities receiving the information shall comply with a request that said information
remain confidential, even temporarily, or with restrictions on its use.
However, this shall not prevent the receiving State Party from disclosing in its
proceedings information that is exculpatory to an accused person. In such a
case, the receiving State Party shall notify the transmitting State Party prior to
the disclosure and, if so requested, consult with the transmitting State Party. If,
in an exceptional case, advance notice is not possible, the receiving State Party
shall inform the transmitting State Party of the disclosure without delay.
6. The provisions of this article shall not affect the obligations under any
other treaty, bilateral or multilateral, that governs or will govern, in whole or
in part, mutual legal assistance.
7. Paragraphs 9 to 29 of this article shall apply to requests made pursuant
to this article if the States Parties in question are not bound by a treaty of
mutual legal assistance. If those States Parties are bound by such a treaty, the
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corresponding provisions of that treaty shall apply unless the States Parties agree
to apply paragraphs 9 to 29 of this article in lieu thereof. States Parties are
strongly encouraged to apply these paragraphs if they facilitate cooperation.
8. States Parties shall not decline to render mutual legal assistance pursuant
to this article on the ground of bank secrecy.
9. States Parties may decline to render mutual legal assistance pursuant
to this article on the ground of absence of dual criminality. However, the
requested State Party may, when it deems appropriate, provide assistance, to the
extent it decides at its discretion, irrespective of whether the conduct would
constitute an offence under the domestic law of the requested State Party.
10. A person who is being detained or is serving a sentence in the territory
of one State Party whose presence in another State Party is requested for
purposes of identification, testimony or otherwise providing assistance in obtaining
evidence for investigations, prosecutions or judicial proceedings in relation
to offences covered by this Convention may be transferred if the following
conditions are met:
(a) The person freely gives his or her informed consent;
(b) The competent authorities of both States Parties agree, subject to such
conditions as those States Parties may deem appropriate.
11. For the purposes of paragraph 10 of this article:
(a) The State Party to which the person is transferred shall have the
authority and obligation to keep the person transferred in custody, unless otherwise
requested or authorized by the State Party from which the person was
transferred;
(b) The State Party to which the person is transferred shall without delay
implement its obligation to return the person to the custody of the State Party
from which the person was transferred as agreed beforehand, or as otherwise
agreed, by the competent authorities of both States Parties;
(c) The State Party to which the person is transferred shall not require the
State Party from which the person was transferred to initiate extradition proceedings
for the return of the person;
(d) The person transferred shall receive credit for service of the sentence
being served in the State from which he or she was transferred for time spent
in the custody of the State Party to which he or she was transferred.
12. Unless the State Party from which a person is to be transferred in
accordance with paragraphs 10 and 11 of this article so agrees, that person,
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whatever his or her nationality, shall not be prosecuted, detained, punished or
subjected to any other restriction of his or her personal liberty in the territory
of the State to which that person is transferred in respect of acts, omissions or
convictions prior to his or her departure from the territory of the State from
which he or she was transferred.
13. 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. Where a State Party has a special region or territory with a separate
system of mutual legal assistance, it may designate a distinct central authority
that shall have the same function for that region or territory. Central authorities
shall ensure the speedy and proper execution or transmission of the requests
received. Where the central authority transmits the request to a competent
authority for execution, it shall encourage the speedy and proper execution of
the request by the competent authority. The Secretary-General of the United
Nations shall be notified of the central authority designated for this purpose at
the time each State Party deposits its instrument of ratification, acceptance or
approval of or accession to this Convention. Requests for mutual legal assistance
and any communication related thereto shall be transmitted to the central
authorities designated by the States Parties. This requirement shall be without
prejudice to the right of a State Party to require that such requests and communications
be addressed to it through diplomatic channels and, in urgent
circumstances, where the States Parties agree, through the International
Criminal Police Organization, if possible.
14. Requests shall be made in writing or, where possible, by any means
capable of producing a written record, in a language acceptable to the requested
State Party, under conditions allowing that State Party to establish authenticity.
The Secretary-General of the United Nations shall be notified of the language
or languages acceptable to each State Party at the time it deposits its instrument
of ratification, acceptance or approval of or accession to this Convention. In
urgent circumstances and where agreed by the States Parties, requests may be
made orally, but shall be confirmed in writing forthwith.
15. A request for mutual legal assistance shall contain:
(a) The identity of the authority making the request;
(b) The subject matter and nature of the investigation, prosecution or
judicial proceeding to which the request relates and the name and functions of
the authority conducting the investigation, prosecution or judicial proceeding;
(c) A summary of the relevant facts, except in relation to requests for the
purpose of service of judicial documents;
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(d) A description of the assistance sought and details of any particular
procedure that the requesting State Party wishes to be followed;
(e) Where possible, the identity, location and nationality of any person
concerned; and
(f) The purpose for which the evidence, information or action is sought.
16. The requested State Party may request additional information when
it appears necessary for the execution of the request in accordance with its
domestic law or when it can facilitate such execution.
17. A request shall be executed in accordance with the domestic law of
the requested State Party and, to the extent not contrary to the domestic law
of the requested State Party and where possible, in accordance with the procedures
specified in the request.
18. Wherever possible and consistent with fundamental principles of
domestic law, when an individual is in the territory of a State Party and has to
be heard as a witness or expert by the judicial authorities of another State Party,
the first State Party may, at the request of the other, permit the hearing to take
place by video conference if it is not possible or desirable for the individual in
question to appear in person in the territory of the requesting State Party. States
Parties may agree that the hearing shall be conducted by a judicial authority of
the requesting State Party and attended by a judicial authority of the requested
State Party.
19. The requesting State Party shall not transmit or use information or
evidence furnished by the requested State Party for investigations, prosecutions
or judicial proceedings other than those stated in the request without the prior
consent of the requested State Party. Nothing in this paragraph shall prevent the
requesting State Party from disclosing in its proceedings information or evidence
that is exculpatory to an accused person. In the latter case, the requesting
State Party shall notify the requested State Party prior to the disclosure and, if
so requested, consult with the requested State Party. If, in an exceptional case,
advance notice is not possible, the requesting State Party shall inform the
requested State Party of the disclosure without delay.
20. The requesting State Party may require that the requested State Party
keep confidential the fact and substance of the request, except to the extent
necessary to execute the request. If the requested State Party cannot comply with
the requirement of confidentiality, it shall promptly inform the requesting State
Party.
21. Mutual legal assistance may be refused:
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(a) If the request is not made in conformity with the provisions of this
article;
(b) If the requested State Party considers that execution of the request is
likely to prejudice its sovereignty, security, ordre public or other essential
interests;
(c) If the authorities of the requested State Party would be prohibited by
its domestic law from carrying out the action requested with regard to any
similar offence, had it been subject to investigation, prosecution or judicial
proceedings under their own jurisdiction;
(d) If it would be contrary to the legal system of the requested State Party
relating to mutual legal assistance for the request to be granted.
22. States Parties may not refuse a request for mutual legal assistance on
the sole ground that the offence is also considered to involve fiscal matters.
23. Reasons shall be given for any refusal of mutual legal assistance.
24. The requested State Party shall execute the request for mutual legal
assistance as soon as possible and shall take as full account as possible of any
deadlines suggested by the requesting State Party and for which reasons are
given, preferably in the request. The requested State Party shall respond to
reasonable requests by the requesting State Party on progress of its handling of
the request. The requesting State Party shall promptly inform the requested
State Party when the assistance sought is no longer required.
25. Mutual legal assistance may be postponed by the requested State
Party on the ground that it interferes with an ongoing investigation, prosecu