While transnational organized crime takes many forms, organized criminal groups share several characteristics. Such groups are often flexible, dynamic, innovative and resilient; they adapt and respond quickly to law enforcement measures, easily identifying new markets, commodities, routes and methods of operation, forming new alliances when necessary and engaging in a growing range of illicit activities. The result of this situation is a complex and volatile transnational threat. Those who want to curb transnational organized crime effectively must strive to develop proactive strategies that are as flexible and dynamic as the activities of the criminal groups. In the fight against transnational organized crime, prevention is essential and requires targeted efforts.
It is increasingly recognized that treating organized crime as a matter of security is insufficient and that a comprehensive strategy to face this phenomenon needs to take into account sustainable development consistent with human rights. In other words, to successfully fight against criminal organizations, people and communities need to be provided with opportunities for a dignified economic, social and political life (Stack et al., 2019). The prevention of organized crime is therefore no longer understood as the sole responsibility of law enforcement agencies (Fijnaut and Paoli, 2004; Harfield, 2006; Levi, 2006). Organized crime has multiple causes and many sectors of society can have an impact on crime levels and thus a responsibility to act to help prevent it. It is only through a multi-sectoral, multi-disciplinary and integrated approach that organized crime can be prevented and tackled effectively.
Because of the relevance of prevention in the fight against organized crime, the Organized Crime Convention dedicates one article – article 31 – to this issue. As its sole mandatory requirement, article 31 requests that States provide the Secretary-General of the United Nations with the details of national authorities that can assist other States in developing preventative measures against transnational organized crime (article 31 (6)). The article also encourages States to adopt a series of optional measures. The main mandatory and optional requirements detailed in article 31 are summarized below.
|
Article 31 of the Organized Crime Convention: Prevention Main requirements Article 31(1) encourages States parties to develop and evaluate national projects as well as establishing and promoting best practices to prevent transnational organized crime. Under article 31(2), States parties must endeavour to reduce, in accordance with fundamental principles of domestic law, existing or future opportunities for organized criminal groups to participate in lawful markets using the proceeds of crimes. The preventative measures under article 31(2) should focus on the specific measures listed in subparagraphs (a)–(d). Article 31(3) encourages States parties to promote the reintegration of people convicted of offences under the Organized Crime Convention into society. Article 31(4) encourages States parties to periodically evaluate their relevant legal instruments and administrative practices in order to detect their vulnerabilities to misuse by organized criminal groups. Article 31(5) encourages States parties to promote public awareness regarding the existence, causes, gravity of and the threat posed by transnational organized crime. Article 31(6) requires States parties to provide the Secretary-General of the United Nations with the details of national authorities that can assist other States in developing preventative measures against transnational organized crime. Article 31(7) requires States parties to engage in collaboration with each other and relevant regional and international organizations, as they deem appropriate, in order to promote and develop the preventative measures outlined above.
Source: Updated Legislative Guide for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocol thereto (2015). |
The requirements highlighted in article 31 find diverse representations in theoretical frameworks developed to systematize organized crime prevention approaches. Notably, Levi and Maguire (2004) have presented an overview of some of the most significant ‘non-traditional’ approaches to organized crime prevention, building on the research produced by Schneider (2001). These approaches are sometimes also referred to as non-penal approaches or administrative approaches. As Levi and Maguire point out, and much like Cornish and Clarke’s techniques for situational crime prevention, Schneider’s typology is not analytical in character, but is simply a kind of ‘natural history’ classification of broad intervention methods, each of which may work in different context and in various combinations.
The typology proposed represents three main ‘non-traditional’ approaches: community approaches; regulatory, disruption and non-justice system approaches; and private sector involvement. The interventions included in each category might in fact belong to different approaches depending on the lenses used to analyse them (for instance, some policy and programmes adopted to prevent money-laundering could fall within “regulatory, disruption and non-justice system approaches” or be considered as part of “private sector involvement”). The table below is based on Levi and Maguire’s findings:
| Community approaches |
|
| Regulatory, disruption and non-justice system approaches |
|
| Private sector involvement |
|
Source: Modified from Levi and Maguire (2004)
Community approaches
Community approaches, and particularly community crime prevention, were already considered in other sections of this Module. The focus of this type of crime prevention is on strengthening communities through the provision of services that build connections between community members and link them with external resources and services that can help them combat crime generally, and organized crime specifically. This approach focuses on residential communities and neighbourhoods and seeks to change the social conditions associated with crime. It therefore requires addressing all the complex reasons why populations turn to illegality, including deficiencies in law enforcement, as well as physical and economic insecurity, and social marginalization.
|
Building community resilience against organized crime Generally speaking, resilience is the capacity to respond to and recover from shocks and stressors. When working with communities, resilience has been described as “a community’s ability to respond to adversity while retaining its functional capacities. It refers to the collective competency of a community to absorb change, transform and seize opportunities to improve conditions. It includes the community’s capacity for concerted actions as well as its ability to solve problems and build consensus towards coordinated responses” (Walker et al, 2010).According to Vanda Felbab-Brown (2011) improving communities’ resilience to organized crime requires a multifaceted approach, which includes:
|
While both active and passive citizen participation strategies focus on the role civil society can play in the fight against organized crime, they differ in the level of involvement generally required by governmental agencies and other agents. Passive citizen participation includes raising public awareness about the hazards, characteristics and manifestations of transnational organized crime, as well as setting up hotlines to acquire information on relevant incidents. These community-oriented initiatives, which figure prominently in national strategies to combat this type of criminal behaviour, generally see a high-level of involvement of State agencies. Examples of campaigns for the prevention of organized criminal behaviour also include training teachers and school resource officers to raise the civic and legal awareness of school children; others intend to promote awareness of the threats posed by transnational organized crime and the consequences for offenders. Often, these initiatives highlight successes in combating transnational organized crime, such as the conviction of offenders or the confiscation and/or seizure of illicit assets, as a way to build public confidence and trust in law enforcement and public institutions, foster cross-sectoral partnerships as well as deter potential offenders.
On the other hand, active citizen participation encompasses a broad range of civil society-led activities, organizations and groups connected to the fight against organized crime. These initiatives have addressed issues such as greater transparency in both government and business sector decision-making procedures, fighting impunity and demanding justice to ensure that the public interest receives primary attention. A well-known example of such movements is Transparency International, a civil society organization created in 1993 by a few individuals who decided to take a stance against corruption. Now present in over 100 countries, the movement promotes transparency, accountability and integrity at all levels and across all sectors of society (Transparency International, 2020). Other initiatives have been designed to improve law enforcement interactions with the public, community understanding of the problem as well as victim assistance (EU, 2015; Ralchev, 2004; Schneider and Schneider, 2012). A major thrust of civil society organizations is also to promote awareness and education of citizens, government, and business concerning the need for, and value of, integrity and fair treatment of citizens in crime prevention and criminal justice processes.
|
The role of art and education in preventing organized crime A central problem to the persistence of organized crime is the public’s tolerance for it, often connected with a lack of understanding of the negative implications of this problem and the ways it affects our everyday lives. Public education and art are fundamental to spread knowledge and understanding of this phenomenon. A recent project of the University of Milan (Italy) and the “Piccolo” Theatre is an example of how this can be done in practice. Dieci storie proprio così is the name of a theatre show that resulted from a collaboration between penitentiary institutions, universities and civil society at large. The show centres on the transversal presence of the mafia, which operates in the dark to destroy collective conscience and the ability of people and communities to understand its negative impact and react. It narrates true stories of victims of organized crime, as well as stories of civic commitment, social redemption, and of individual and collective responsibility. |
Regulatory, disruption and non-justice system approaches
This category includes a broad range of activities, all of which involve State agencies at different levels that are not part of the formal criminal justice system. For ease of exposition and taking Levi and Maguire’s categorization (2004) into account, such approaches are analysed as follows: firstly, those focused on fiscal and financial strategies and secondly, those centred on the use of regulatory powers to disrupt ‘criminal business’ (although these two categories are certainly not clearly delimited or mutually exclusive).
Fiscal and financial strategies
The operations of legitimate markets can be undermined by organized criminal groups and their activities, such as money-laundering and corruption. These crimes interfere with economic and other policies, distort market conditions, and ultimately produce severe systemic risks. The proactive pursuit of criminal assets is a crucial component of the fight against organized crime and plays an important role in any effective strategy to prevent organized crime. The recovery of the proceeds of crime can make a significant contribution to crime reduction as it prevents criminals from funding further operations and conveys a message of deterrence to those who might otherwise seek to engage in organized criminal activity. However, the identification and recovery of criminal proceeds is a difficult process as they are often hidden by their illegitimate owners, for instance, in foreign bank accounts. A more detailed discussion on asset recovery is available in Module 12 of the Module Series on Anti-Corruption.
Despite the challenges, effective strategies for organized crime prevention include the confiscation of the proceeds of crime. Initially constructed mainly in terms of post-conviction remedies (i.e. conviction-based confiscation), confiscation is now increasingly seen also as a civil or administrative measure, independent of criminal prosecution (i.e. non-conviction-based confiscation) (also see Module 10 of the Teaching Module Series on Organized Crime). This type of confiscation is generally carried out by an investigator or authorized agency and involves a procedure for confiscating assets used or involved in the commission of the offence. Non-conviction-based confiscation most often takes place in one of two ways. The first is confiscation within the context of criminal proceedings but without the need for a conviction or finding of guilt. In these situations, non-conviction-based confiscation laws are often incorporated into existing criminal codes, as well as anti-money-laundering acts or drug laws, and are regarded as proceedings to which the criminal procedural laws apply. The second means is confiscation outside criminal proceedings, such as in a civil or administrative proceeding. This is a separate proceeding that can occur independently of or in conjunction with any related criminal proceedings (UNODC, 2019).
An UNODC examination of organized crime cases from multiple countries found that money-laundering and confiscation are often closely related, and money-laundering was investigated or charged in almost half of the cases involving the seizure and confiscation of the proceeds of crime (UNODC, 2012(a)). This finding suggests that comprehensive prevention and investigations of organized crime should include a parallel financial investigation on related money-laundering activities (on this topic, please also see Module 4 of the Teaching Module Series on Organized Crime). In recent years, given the threats of transnational crime, corruption, and terrorism, many countries have expanded their money-laundering control efforts beyond banks, to include other businesses that might exchange or move large amounts of cash (e.g., check-cashing companies, money transmitters, jewellers, pawnbrokers, casinos, credit card companies, and traveller’s check and money order issuers).
In the international sphere, a substantial mutual evaluation apparatus has been set up for checking the quality of anti-laundering provisions, which includes periodic inspections by members of the Financial Action Task Force (FATF). Where national provisions and implementation fail to satisfy these global standards, warnings may be issued worldwide to financial institutions to exert special caution and due diligence when dealing with transactions from such jurisdictions. This makes the country’s financial dealings slower and more expensive, thus also reducing some of the benefits for money-launderers and money-hiders (Levi and Maguire, 2004).
As highlighted in a 2014 United Nations report, strengthening cooperation between relevant national authorities involved in countering the proceeds of crime, such as law enforcement and taxation authorities, and relevant private entities is another important element of strategies targeting crime proceeds (UN, 2014). The report also stresses that, in addition to building interdisciplinary expertise and specialized skills under the umbrella of a single financial intelligence unit (FIU), other venues for enhanced cooperation between relevant government bodies and with private sector entities should be established and utilized. For instance, efforts to identify and confiscate criminal proceeds may require taxation information, thereby requiring the cooperation of taxation and law enforcement authorities. International and domestic cooperation are considered in further detail in a dedicated section.
The use of regulatory powers to disrupt ‘criminal business’
The powers of regulatory agencies are widely used to make it harder for organized criminal groups to establish and organize themselves as well as operate in certain areas. The wide array of measures that can be taken in this context include special legislation as well as screening and/or monitoring procedures.
As considered in detail in Module 2 of the Teaching Module Series on Organized Crime, countries around the world have used different types of offences to criminalize the conduct of participation in an organized criminal group, prosecuted either as conspiracy or criminal association – or a combination of both – depending on the legal tradition. Some countries have gone one step further and passed specific legislation to address the distinctive elements of organized criminal activities. For instance, the Racketeer-Influenced Corrupt Organizations (RICO) legislation, adopted in the United States in 1970, provides for extended penalties for crimes committed as part of an ongoing criminal enterprise. Another example is the offence of “mafia-type unlawful association” spelled out in article 416bis of the Italian Penal Code, which was introduced in 1982 to complement the provisions of article 416 – “unlawful association to commit a crime” – as this offence showed to be insufficient to effectively tackle the rapid spread of mafia-type criminal activity (Grandi, 2016).
In addition to the adoption of legislation aimed at criminalizing participation in an organized criminal group, countries have also introduced specific instruments to screen and monitor persons and legal entities in an attempt to exclude criminals from public procurement and construction contracts and, in some cases, specifically prevent the infiltration of organized crime in business and government. These measures might include the screening of applicants for licenses, subsidies, tenders and, more broadly, all those allowing administrative authorities to screen persons before they enter regulated sectors. An example of these instruments is the Public Administration (Probity Screening) Act (BIBOB Act) passed in the Netherlands in 2013, which aims to prevent public authorities from unintentionally facilitating criminal offences by granting permits, licences, tenders or subsidies in certain sectors, considered at high-risk of infiltration (e.g. gambling arcades, coffee shops, bars and restaurants, including fast food, and the sex business) (Spapens, Peters, Van Daele, 2015). Apart from laws and policies at the national level, local authorities may also formulate guidelines for extensive background checks. Nonetheless, it needs to be noted that the power to screen or monitor and subsequently refuse or revoke licences and permits or exclude companies from public bids puts considerable restrictions on the freedom of economic activity. That is why, whenever such measures are implemented, appropriate legislation needs to be in place to regulate these powers and protect public interests.
Other instruments adopted to disrupt criminal business encompass the use of administrative authorities’ powers to maintain public order in their territory. For instance, they can inspect businesses if there is a reasonable suspicion that they are used for organized crime activity, impose fines and close premises when administrative regulations are violated. Indications of violations may follow from inspections performed by their own staff, but also from information supplied by law enforcement agencies or financial authorities. In devising such an approach, it is crucial to ensure that the public administrators themselves are not corrupt. Otherwise, the system could serve as an instrument of an organized crime group against others, as well as against the national or local government (Levi and Maguire, 2004).
Private sector involvement
The private sector can play a fundamental part in preventing organized crime and corruption. This is particularly true in today’s society, in which globalization and the revolution in communications brought about by technology resulted in an increased power and significance of the corporate sector worldwide.
According to a study (GITOC, 2017), the private sector is substantially affected by organized criminal groups in various ways, either as a target or facilitator of organized criminal activity. For instance, sectors can be the targets of fraud or asset theft or be used to facilitate crime unintentionally, such as launder criminal proceeds, traffic illicit goods and services, or target victims. Recent studies also underline the high economic impact on firm profitability, performance, and investments of having another company in the same market affiliated with a criminal organization (Calamunci, Drago, 2020). Despite the magnitude of the problem – estimated in the trillions of dollars – research also highlights that NGOs, governments and the private sector tend to look at crimes in isolation and there are very few examples of successful public and private sector cooperation in this field (GITOC, 2017). Private sector organizations complain that communication with law enforcement is often one-way and that the regulatory reporting burden can act as a deterrent to cooperation instead of facilitating it. Nonetheless, the same 2017 study points out that tangible results have been achieved when industries take the lead on anti-organized crime measures and highlights the Transported Asset Protection Association (TAPA) as a positive example in this context. A worldwide coalition of manufacturers, shippers, carriers, insurers, service providers, law enforcement and government agencies, TAPA’s members work together to, among other things, prevent cargo crime and minimize cargo losses through the development and application of global security standards, recognized industry practices, technology and regulatory collaboration.
Given the extremely high cost of organized crime to the private sector, it is hardly surprising that companies and private organizations around the world are willing to play a part in tackling this phenomenon. It is indeed true that many corporations, large and small, have extensive commercial offerings designed for security and – organized – crime prevention. This tendency is also reflected in the increasing importance of the market for private security, which in the last decades took over a substantial part of public sector responsibilities and established itself as a leader in organized crime analysis and strategy development. Increased pressures upon the law enforcement community have resulted in many places around the world in the “privatization” of some police functions, with the civilian private security industry filling the gaps left by the overstretched police and playing a growing role in general crime prevention and community safety.
Although this trend provides an answer to a concrete need, UNODC’s Expert Group on Civilian Private Security Services (2011) highlighted that, in some States, there has been evidence of problems associated with the expansion in size and role of the private security industry. These vary from State to State, but have included, among others: the criminal infiltration and involvement of organized crime in the industry, corruption, little or no training for civilian private security guards, the abuse of authority and excessive use of force by personnel, inadequate legal accountability mechanisms and non-compliance with the law. Many States have responded to the growth of the civilian private security industry by enacting legislation to regulate it. For instance, in some countries, private security personnel are given special rights and powers (e.g. carry firearms or non-lethal weapons, request identification, to use force, to conduct searches, etc.). Nevertheless, it is equally important that legislation sets out what private security is prohibited from doing to prevent abuse and ensure that the rights of other citizens are protected (prohibitions might include intercepting communications, intervening in political and labour conflicts and generally, acting in a way that might harm the rights and freedoms, life, health, reputation, dignity, property or lawful interests of persons). The 2011 report prepared by UNODC’s Expert Group on Civilian Private Security Services recommends considering the adoption of codes of conduct/ethics with accompanying sanctions for infractions to effectively regulate the conduct of private security personnel.
Regarding self-regulation, it is desirable to draw up professional rules according to which specific categories of professionals (including lawyers, accountants, etc.) are prevented from behaving in compromising ways in relation to organized crime. In the corporate world, this would encompass the integration of socially responsible investing and behaviour in the company culture. Corporate social responsibility - a fairly recent phenomenon both in social development and in business organizational culture – is centred on the important role companies can play in improving the quality of life of citizens and communities and could have a significant impact on effective organized crime prevention (on this topic see, for instance, Avina, 2011; Capobianco, 2005; UNODC, 2013).
|
Corporate social responsibility As defined by the World Business Council for Sustainable Development, corporate social responsibility refers to ‘the continuing commitment by business to behave ethically and contribute to economic development while improving the quality of life of the workforce and their families as well as of the local community and society at large’ (WBC, 2000) |
Besides measures taken voluntarily by the private sector, there is also a significant number of examples of legislation to make private companies responsible for monitoring and reducing organized crime (Levi and Maguire, 2004). Most of this takes the form of encouragement or requirement to engage in systematic ‘surveillance’ of businesses to spot and report signs of illegal activity or suspicious transactions. While anti-money-laundering and anti-corruption measures have been touched upon in a separate section of this Module, another relevant area of operation for the private sector is the field of cybersecurity and the protection of individuals from cybercrime. In this context, clear, transparent and easily accessible reporting mechanisms should be in place for private actors to report indications and manifestations of transnational organized crime activity.
At the same time, it should not be forgotten that the private sector can be part of the problem, instead of the solution, when trafficking offences and associated serious crimes are knowingly committed through or under the cover of legal entities. For this reason, as analysed in Module 4 of the Teaching Module Series on Organized Crime, article 10 of the Organized Crime Convention requires that States parties adopt such measures as necessary to establish the liability of legal persons for participation in serious crimes involving an organized criminal group. The legal nature of their liability is left to each State to decide, with article 10 (2) specifying that liability for legal persons may be criminal, civil or administrative.
