The Organized Crime Convention is considered to be the principal international instrument in the fight against transnational organized crime. Its structure and characteristics are the result of a negotiation process that saw the active participation of both developed and developing nations from all regions of the world. Such involvement was fundamental because of the very nature of transnational organized crime. Tackling transnational organized crime means facing criminal groups that seek the most favourable conditions for their operations and seek profit through the exploitation of countries' risks, benefits and market opportunities. Therefore, a successful strategy demands no weak links and the commitment of the highest possible number of countries.
The first issue that States had to face was the very definition of a transnational organized crime, and it became clear that attempting to provide a universal definition would have been a futile exercise (Vlassis, 2001). The Convention-an international legally binding instrument on ratifying nations-is meant to provide a response to present and future criminal justice needs. Organized criminal groups constantly adapt to the changes at local and international levels and shift their activities on the basis of a cost-benefit analysis of available illicit opportunities. Thus, attempting to draft a list of all organized crime activities would have greatly limited the potential reach of the Convention. Instead of defining the crimes, States chose to define the actors. The definition of organized criminal group, contained in article 2(a) of the Convention, is analysed in detail in Module 1. It is therefore sufficient here to recall that it was built on four criteria:
The concept of serious crime, examined in Module 1, was discussed at length during the negotiation of the Convention. Since countries could not agree on the viability of the concept, the United Nations Secretariat was tasked to carry out an analytical study on how it was reflected in national jurisdictions. Finally, it was agreed to include it and to define it as "the conduct constituting a criminal offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty" (article 2 (b) of the Organized Crime Convention). The concept of serious crime is a central one for the definition of the scope of application of the Organized Crime Convention. For the Convention to be applicable, the specific crime committed by the organized criminal group has to meet the criteria defined and be punishable by a maximum deprivation of liberty of at least four years in national legislation. In other words, the maximum penalty (as opposed to the minimum penalty) prescribed by the law for the specific crime has to be at least four years. If this threshold is not met, the Convention is not applicable.
The Convention is legally-binding, which means that States that ratify the Convention agree to be bound by its provisions. In particular, States parties of the Convention are obliged to criminalize four major offences:
This central provision of the Convention was very carefully crafted. It reflects different legal traditions by including both the concept of "conspiracy," typically found in common law systems, and "criminal association," predominantly used in countries with civil law traditions. For an analysis of the issue of participation in an organized criminal group, please see Module 2.
Before the adoption of the Organized Crime Convention, the criminalization of money laundering was included in the 1988 Vienna Drug Convention, and thus limited to drug-related offences. The Convention broadens the scope of application to cover all serious crimes. For an analysis of the issue of money laundering, please see Module 4.
The insertion of corruption in the Convention was the subject of considerable debate, due to the fact that corruption is in itself a very broad and complex issue. Considering that it is one of the methods used by organized criminal groups to infiltrate political, economic and social spheres all over the world, States finally agreed to include a provision in the Convention, but with the understanding that the Organized Crime Convention could not cover the issue in a comprehensive manner. Building on these premises, the Convention was later complemented by the United Nations Convention against Corruption, which is the subject of a separate section of this Module as well as of a self-standing course. For an analysis of the issue of corruption, please see Module 4.
This provision was included to protect the integrity of the criminal justice process. It is evident that justice cannot be achieved if judges, law enforcement officials, witnesses or victims are intimidated, threatened or corrupted. It is equally clear that national and international cooperation will not be effective if crucial participants in the investigation and law enforcement process are not protected sufficiently to allow them to perform their roles and provide their accounts without obstruction. This provision thus requires the criminalization of the use of physical force, threats or intimidation in offering, promising, or giving an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence. It also requires the criminalization of the use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official. For an analysis of obstruction of justice, please see Module 2.
The scope of application of the Organized Crime Convention is clearly defined in article 3 and covers the prevention, investigation and prosecution of the offences listed above, as well as serious crimes. Article 3 also includes two additional requirements to delimit the scope of application of the Convention: the offences covered have to be transnational in nature and involve an organized criminal group.
The way the Convention deals with the element of transnationality is particularly interesting. In general terms, transnational crimes are crimes planned, directed, controlled, executed or with effects across national borders.
|
The element of transnationality in the Organized Crime Convention As specified in article 3 (2) of the Organized Crime Convention, the offence is transnational in nature if: (i) It is committed in more than one State; (ii) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; (iii) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or (iv) It is committed in one State but has substantial effects in another State. |
However, the Convention was carefully drafted also to avoid loopholes in domestic legislation. For this reason, article 34(2) specifies that, at the domestic level, States are required to legislate independently of the transnational nature of the crime or the involvement of an organized criminal group.
The key feature of the Organized Crime Convention is its emphasis on international cooperation, analysed in Modules 8 and 11. Comprehensive, multi-agency, and flexible cross-border cooperation is essential to ensure the appropriate investigation and prosecution of transnational organized crime. International cooperation in criminal justice occurs when States share information, resources, investigators, and prosecutors to achieve the common goal of combating organized criminal groups and their criminal activities. The Organized Crime Convention contains a range of measures to enable and facilitate this cooperation between States parties. These measures include:
The Convention also contains several provisions to ensure its effective application and operation, in particular, of its criminalization requirements. This includes provisions relating to:
The reach of international cooperation also extends to some of these provisions. For instance, article 24 which specifically addresses the issue of witness protection, includes a provision that calls upon States to consider entering into agreements with other States for the relocation of witnesses. These frameworks and provisions allow for the Convention to be flexible and adaptable to a broad range of crimes.
The inclusion of provisions concerning international cooperation are important to address emerging types of crime, such as wildlife crime, falsified medical products, trafficking in cultural property (all analysed in detail in Module 3), and cybercrime (dealt with in Module 13). Provided that such crimes meet the criteria of serious crime as defined in article 2(b) - i.e., they are punishable by a maximum deprivation of liberty of at least four years - emerging crimes fall under the scope of the Convention, and the international cooperation provisions are thus applicable. Thanks to these fundamental provisions, the Convention became a flexible, adaptable instrument and remains relevant with the diversification of criminal activities of organized criminal groups.
Complementing the provisions on international cooperation, the Organized Crime Convention also includes specific articles on technical cooperation, encompassing the exchange of information (article 28), cooperation for the development of specific training programmes (article 29), as well as in order to enhance financial and material assistance and cooperation, particularly directed at developing countries (article 30).
Besides its adaptability, the Organized Crime Convention presents other interesting features. Building on historical momentum, States were able to include in the Convention some innovative elements, such as the provision on prevention of organized crime. The issue is covered by article 31 (and Module 12), which transfers to the global level efforts already discussed or undertaken at the regional level. (Vlassis, 2001) It is included to encourage countries to take appropriate measures to shield their legal markets from the infiltration of organized criminality. The article foresees, inter alia, the promotion and development of standards and procedures designed to safeguard the integrity of public and private entities, codes of conduct for relevant professions, as well as the prevention of the misuse of legal persons by organized criminal groups.
The issue of liability of legal persons is another intriguing feature of the Convention (article 10; analysed in Module 4). Serious and organized crime is frequently committed through or under the cover of legal entities, such as companies or charitable organizations. In order to remove this instrument and shield of transnational organized crime, the Organized Crime Convention requires the establishment of liability for legal entities. Article 10 on the liability of legal persons is an important recognition of the role that legal persons may play in the commission or facilitation of transnational organized crime.
