Commonwealth Numbered Regulations Commonwealth Numbered RegulationsPart 1 United Nations Convention against Transnational Organized Crime
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;
( 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.
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 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 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 money-laundering.
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.
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 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.
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 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, 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.
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.
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 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.
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 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:
( 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 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, 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;
( 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:
( 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, prosecution or
judicial proceeding.
26. Before refusing a request pursuant to
paragraph 21 of this Article or postponing its execution pursuant to
paragraph 25 of this Article, the requested State Party shall consult
with the requesting State Party to consider whether assistance may be
granted subject to such terms and conditions as it deems necessary. If
the requesting State Party accepts assistance subject to those
conditions, it shall comply with the conditions.
27. Without
prejudice to the application of paragraph 12 of this Article, a
witness, expert or other person who, at the request of the requesting
State Party, consents to give evidence in a proceeding or to assist in
an investigation, prosecution or judicial proceeding in the territory
of the requesting State Party shall not be prosecuted, detained,
punished or subjected to any other restriction of his or her personal
liberty in that territory in respect of acts, omissions or convictions
prior to his or her departure from the territory of the requested
State Party. Such safe conduct shall cease when the witness, expert or
other person having had, for a period of fifteen consecutive days or
for any period agreed upon by the States Parties from the date on
which he or she has been officially informed that his or her presence
is no longer required by the judicial authorities, an opportunity of
leaving, has nevertheless remained voluntarily in the territory of the
requesting State Party or, having left it, has returned of his or her
own free will.
28. The ordinary costs of executing a request shall be
borne by the requested State Party, unless otherwise agreed by the
States Parties concerned. If expenses of a substantial or
extraordinary nature are or will be required to fulfil the request,
the States Parties shall consult to determine the terms and conditions
under which the request will be executed, as well as the manner in
which the costs shall be borne.
29. The requested State Party:
( a )
Shall provide to the requesting State Party copies of government
records, documents or information in its possession that under its
domestic law are available to the general public;
( b ) May, at its
discretion, provide to the requesting State Party in whole, in part or
subject to such conditions as it deems appropriate, copies of any
government records, documents or information in its possession that
under its domestic law are not available to the general public.
30.
States Parties shall consider, as may be necessary, the possibility of
concluding bilateral or multilateral agreements or arrangements that
would serve the purposes of, give practical effect to or enhance the
provisions of this Article.
Article 19
Joint investigations
States
Parties shall consider concluding bilateral or multilateral agreements
or arrangements whereby, in relation to matters that are the subject
of investigations, prosecutions or judicial proceedings in one or more
States, the competent authorities concerned may establish joint
investigative bodies. In the absence of such agreements or
arrangements, joint investigations may be undertaken by agreement on a
case-by-case basis. The States Parties involved shall ensure that the
sovereignty of the State Party in whose territory such investigation
is to take place is fully respected.
Article 20
Special
investigative techniques
1. If permitted by the basic principles of
its domestic legal system, each State Party shall, within its
possibilities and under the conditions prescribed by its domestic law,
take the necessary measures to allow for the appropriate use of
controlled delivery and, where it deems appropriate, for the use of
other special investigative techniques, such as electronic or other
forms of surveillance and undercover operations, by its competent
authorities in its territory for the purpose of effectively combating
organized crime.
2. For the purpose of investigating the offences
covered by this Convention, States Parties are encouraged to conclude,
when necessary, appropriate bilateral or multilateral agreements or
arrangements for using such special investigative techniques in the
context of cooperation at the international level. Such agreements or
arrangements shall be concluded and implemented in full compliance
with the principle of sovereign equality of States and shall be
carried out strictly in accordance with the terms of those agreements
or arrangements.
3. In the absence of an agreement or arrangement as
set forth in paragraph 2 of this Article, decisions to use such
special investigative techniques at the international level shall be
made on a case-by-case basis and may, when necessary, take into
consideration financial arrangements and understandings with respect
to the exercise of jurisdiction by the States Parties concerned.
4.
Decisions to use controlled delivery at the international level may,
with the consent of the States Parties concerned, include methods such
as intercepting and allowing the goods to continue intact or be
removed or replaced in whole or in part.
Article 21
Transfer of
criminal proceedings
States Parties shall consider the possibility of
transferring to one another proceedings for the prosecution of an
offence covered by this Convention in cases where such transfer is
considered to be in the interests of the proper administration of
justice, in particular in cases where several jurisdictions are
involved, with a view to concentrating the prosecution.
Article 22
Establishment of criminal record
Each State Party may adopt such
legislative or other measures as may be necessary to take into
consideration, under such terms as and for the purpose that it deems
appropriate, any previous conviction in another State of an alleged
offender for the purpose of using such information in criminal
proceedings relating to an offence covered by this Convention.
Article 23
Criminalization of obstruction of justice
Each State
Party shall adopt such legislative and other measures as may be
necessary to establish as criminal offences, when committed
intentionally:
( a ) The use of physical force, threats or
intimidation or the promise, offering or giving of an undue advantage
to induce false testimony or to interfere in the giving of testimony
or the production of evidence in a proceeding in relation to the
commission of offences covered by this Convention;
( b ) The use of
physical force, threats or intimidation to interfere with the exercise
of official duties by a justice or law enforcement official in
relation to the commission of offences covered by this Convention.
Nothing in this subparagraph shall prejudice the right of States
Parties to have legislation that protects other categories of public
officials.
Article 24
"Protection of witnesses"
1. Each State Party
shall take appropriate measures within its means to provide effective
protection from potential retaliation or intimidation for witnesses in
criminal proceedings who give testimony concerning offences covered by
this Convention and, as appropriate, for their relatives and other
persons close to them.
2. The measures envisaged in paragraph 1 of
this Article may include, inter alia , without prejudice to the rights
of the defendant, including the right to due process:
( a )
Establishing procedures for the physical protection of such persons,
such as, to the extent necessary and feasible, relocating them and
permitting, where appropriate, non-disclosure or limitations on the
disclosure of information concerning the identity and whereabouts of
such persons;
( b ) Providing evidentiary rules to permit witness
testimony to be given in a manner that ensures the safety of the
witness, such as permitting testimony to be given through the use of
communications technology such as video links or other adequate means.
3. States Parties shall consider entering into agreements or
arrangements with other States for the relocation of persons referred
to in paragraph 1 of this Article.
4. The provisions of this
Article shall also apply to victims insofar as they are witnesses.
Article 25
"Assistance to and protection of victims"
1. Each State
Party shall take appropriate measures within its means to provide
assistance and protection to victims of offences covered by this
Convention, in particular in cases of threat of retaliation or
intimidation.
2. Each State Party shall establish appropriate
procedures to provide access to compensation and restitution for
victims of offences covered by this Convention.
3. Each State Party
shall, subject to its domestic law, enable views and concerns of
victims to be presented and considered at appropriate stages of
criminal proceedings against offenders in a manner not prejudicial to
the rights of the defence.
Article 26
Measures to enhance
cooperation with law enforcement authorities
1. Each State Party
shall take appropriate measures to encourage persons who participate
or who have participated in organized criminal groups:
( a ) To
supply information useful to competent authorities for investigative
and evidentiary purposes on such matters as:
(i) The identity, nature, composition, structure, location or activities
of organized criminal groups;
(ii) Links, including international links, with other organized criminal
groups;
(iii) Offences that organized criminal groups have committed or may commit;
( b ) To provide factual, concrete help to competent authorities that
may contribute to depriving organized criminal groups of their
resources or of the proceeds of crime.
2. Each State Party shall
consider providing for the possibility, in appropriate cases, of
mitigating punishment of an accused person who provides substantial
cooperation in the investigation or prosecution of an offence covered
by this Convention.
3. Each State Party shall consider providing for
the possibility, in accordance with fundamental principles of its
domestic law, of granting immunity from prosecution to a person who
provides substantial cooperation in the investigation or prosecution
of an offence covered by this Convention.
4. Protection of such
persons shall be as provided for in Article 24 of this Convention.
5.
Where a person referred to in paragraph 1 of this Article located in
one State Party can provide substantial cooperation to the competent
authorities of another State Party, the States Parties concerned may
consider entering into agreements or arrangements, in accordance with
their domestic law, concerning the potential provision by the other
State Party of the treatment set forth in paragraphs 2 and 3 of this
Article.
Article 27
Law enforcement cooperation
1. States Parties
shall cooperate closely with one another, consistent with their
respective domestic legal and administrative systems, to enhance the
effectiveness of law enforcement action to combat the offences covered
by this Convention. Each State Party shall, in particular, adopt
effective measures:
( a ) To enhance and, where necessary, to
establish channels of communication between their competent
authorities, agencies and services in order to facilitate the secure
and rapid exchange of information concerning all aspects of the
offences covered by this Convention, including, if the States Parties
concerned deem it appropriate, links with other criminal activities;
( b ) To cooperate with other States Parties in conducting inquiries
with respect to offences covered by this Convention concerning:
(i) The identity, whereabouts and activities of persons suspected of
involvement in such offences or the location of other persons
concerned;
(ii) The movement of proceeds of crime or property derived from the
commission of such offences;
(iii) The movement of property, equipment or other instrumentalities used
or intended for use in the commission of such offences;
( c ) To
provide, when appropriate, necessary items or quantities of substances
for analytical or investigative purposes;
( d ) To facilitate
effective coordination between their competent authorities, agencies
and services and to promote the exchange of personnel and other
experts, including, subject to bilateral agreements or arrangements
between the States Parties concerned, the posting of liaison officers;
( e ) To exchange information with other States Parties on specific
means and methods used by organized criminal groups, including, where
applicable, routes and conveyances and the use of false identities,
altered or false documents or other means of concealing their
activities;
( f ) To exchange information and coordinate
administrative and other measures taken as appropriate for the purpose
of early identification of the offences covered by this Convention.
2. With a view to giving effect to this Convention, States Parties
shall consider entering into bilateral or multilateral agreements or
arrangements on direct cooperation between their law enforcement
agencies and, where such agreements or arrangements already exist,
amending them. In the absence of such agreements or arrangements
between the States Parties concerned, the Parties may consider this
Convention as the basis for mutual law enforcement cooperation in
respect of the offences covered by this Convention. Whenever
appropriate, States Parties shall make full use of agreements or
arrangements, including international or regional organizations, to
enhance the cooperation between their law enforcement agencies.
3.
States Parties shall endeavour to cooperate within their means to
respond to transnational organized crime committed through the use of
modern technology.
Article 28
Collection, exchange and analysis of
information on the nature of organized crime
1. Each State Party
shall consider analysing, in consultation with the scientific and
academic communities, trends in organized crime in its territory, the
circumstances in which organized crime operates, as well as the
professional groups and technologies involved.
2. States Parties
shall consider developing and sharing analytical expertise concerning
organized criminal activities with each other and through
international and regional organizations. For that purpose, common
definitions, standards and methodologies should be developed and
applied as appropriate.
3. Each State Party shall consider monitoring
its policies and actual measures to combat organized crime and making
assessments of their effectiveness and efficiency.
Article 29
Training and technical assistance
1. Each State Party shall, to the
extent necessary, initiate, develop or improve specific training
programmes for its law enforcement personnel, including prosecutors,
investigating magistrates and customs personnel, and other personnel
charged with the prevention, detection and control of the offences
covered by this Convention. Such programmes may include secondments
and exchanges of staff. Such programmes shall deal, in particular and
to the extent permitted by domestic law, with the following:
( a )
Methods used in the prevention, detection and control of the offences
covered by this Convention;
( b ) Routes and techniques used by
persons suspected of involvement in offences covered by this
Convention, including in transit States, and appropriate
countermeasures;
( c ) Monitoring of the movement of contraband;
( d
) Detection and monitoring of the movements of proceeds of crime,
property, equipment or other instrumentalities and methods used for
the transfer, concealment or disguise of such proceeds, property,
equipment or other instrumentalities, as well as methods used in
combating money-laundering and other financial crimes;
( e )
Collection of evidence;
( f ) Control techniques in free trade zones
and free ports;
( g ) Modern law enforcement equipment and
techniques, including electronic surveillance, controlled deliveries
and undercover operations;
( h ) Methods used in combating
transnational organized crime committed through the use of computers,
telecommunications networks or other forms of modern technology; and
( i ) Methods used in the protection of victims and witnesses.
2.
States Parties shall assist one another in planning and implementing
research and training programmes designed to share expertise in the
areas referred to in paragraph 1 of this Article and to that end shall
also, when appropriate, use regional and international conferences and
seminars to promote cooperation and to stimulate discussion on
problems of mutual concern, including the special problems and needs
of transit States.
3. States Parties shall promote training and
technical assistance that will facilitate extradition and mutual legal
assistance. Such training and technical assistance may include
language training, secondments and exchanges between personnel in
central authorities or agencies with relevant responsibilities.
4. In
the case of existing bilateral and multilateral agreements or
arrangements, States Parties shall strengthen, to the extent
necessary, efforts to maximize operational and training activities
within international and regional organizations and within other
relevant bilateral and multilateral agreements or arrangements.
Article 30
Other measures: implementation of the Convention through
economic development and technical assistance
1. States Parties shall
take measures conducive to the optimal implementation of this
Convention to the extent possible, through international cooperation,
taking into account the negative effects of organized crime on society
in general, in particular on sustainable development.
2. States
Parties shall make concrete efforts to the extent possible and in
coordination with each other, as well as with international and
regional organizations:
( a ) To enhance their cooperation at various
levels with developing countries, with a view to strengthening the
capacity of the latter to prevent and combat transnational organized
crime;
( b ) To enhance financial and material assistance to support
the efforts of developing countries to fight transnational organized
crime effectively and to help them implement this Convention
successfully;
( c ) To provide technical assistance to developing
countries and countries with economies in transition to assist them in
meeting their needs for the implementation of this Convention. To that
end, States Parties shall endeavour to make adequate and regular
voluntary contributions to an account specifically designated for that
purpose in a United Nations funding mechanism. States Parties may also
give special consideration, in accordance with their domestic law and
the provisions of this Convention, to contributing to the
aforementioned account a percentage of the money or of the
corresponding value of proceeds of crime or property confiscated in
accordance with the provisions of this Convention;
( d ) To encourage
and persuade other States and financial institutions as appropriate to
join them in efforts in accordance with this Article, in particular by
providing more training programmes and modern equipment to developing
countries in order to assist them in achieving the objectives of this
Convention.
3. To the extent possible, these measures shall be
without prejudice to existing foreign assistance commitments or to
other financial cooperation arrangements at the bilateral, regional or
international level.
4. States Parties may conclude bilateral or
multilateral agreements or arrangements on material and logistical
assistance, taking into consideration the financial arrangements
necessary for the means of international cooperation provided for by
this Convention to be effective and for the prevention, detection and
control of transnational organized crime.
Article 31
Prevention
1.
States Parties shall endeavour to develop and evaluate national
projects and to establish and promote best practices and policies
aimed at the prevention of transnational organized crime.
2. States
Parties shall endeavour, in accordance with fundamental principles of
their domestic law, to reduce existing or future opportunities for
organized criminal groups to participate in lawful markets with
proceeds of crime, through appropriate legislative, administrative or
other measures. These measures should focus on:
( a ) The
strengthening of cooperation between law enforcement agencies or
prosecutors and relevant private entities, including industry;
( b )
The promotion of the development of standards and procedures designed
to safeguard the integrity of public and relevant private entities, as
well as codes of conduct for relevant professions, in particular
lawyers, notaries public, tax consultants and accountants;
( c ) The
prevention of the misuse by organized criminal groups of tender
procedures conducted by public authorities and of subsidies and
licences granted by public authorities for commercial activity;
( d )
The prevention of the misuse of legal persons by organized criminal
groups; such measures could include:
(i) The establishment of public records on legal and natural persons
involved in the establishment, management and funding of legal
persons;
(ii) The introduction of the possibility of disqualifying by court order or
any appropriate means for a reasonable period of time persons
convicted of offences covered by this Convention from acting as
directors of legal persons incorporated within their jurisdiction;
(iii) The establishment of national records of persons disqualified from
acting as directors of legal persons; and
(iv) The exchange of information contained in the records referred to in
subparagraphs ( d ) (i) and (iii) of this paragraph with the competent
authorities of other States Parties.
3. States Parties shall
endeavour to promote the reintegration into society of persons
convicted of offences covered by this Convention.
4. States Parties
shall endeavour to evaluate periodically existing relevant legal
instruments and administrative practices with a view to detecting
their vulnerability to misuse by organized criminal groups.
5. States
Parties shall endeavour to promote public awareness regarding the
existence, causes and gravity of and the threat posed by transnational
organized crime. Information may be disseminated where appropriate
through the mass media and shall include measures to promote public
participation in preventing and combating such crime.
6. Each State
Party shall inform the Secretary-General of the United Nations of the
name and address of the authority or authorities that can assist other
States Parties in developing measures to prevent transnational
organized crime.
7. States Parties shall, as appropriate, collaborate
with each other and relevant international and regional organizations
in promoting and developing the measures referred to in this Article.
This includes participation in international projects aimed at the
prevention of transnational organized crime, for example by
alleviating the circumstances that render socially marginalized groups
vulnerable to the action of transnational organized crime.
Article 32
Conference of the Parties to the Convention
1. A Conference of the
Parties to the Convention is hereby established to improve the
capacity of States Parties to combat transnational organized crime and
to promote and review the implementation of this Convention.
2. The
Secretary-General of the United Nations shall convene the Conference
of the Parties not later than one year following the entry into force
of this Convention. The Conference of the Parties shall adopt rules of
procedure and rules governing the activities set forth in paragraphs 3
and 4 of this Article (including rules concerning payment of expenses
incurred in carrying out those activities).
3. The Conference of the
Parties shall agree upon mechanisms for achieving the objectives
mentioned in paragraph 1 of this Article, including:
( a )
Facilitating activities by States Parties under Articles 29, 30 and 31
of this Convention, including by encouraging the mobilization of
voluntary contributions;
( b ) Facilitating the exchange of
information among States Parties on patterns and trends in
transnational organized crime and on successful practices for
combating it;
( c ) Cooperating with relevant international and
regional organizations and non-governmental organizations;
( d )
Reviewing periodically the implementation of this Convention;
( e )
Making recommendations to improve this Convention and its
implementation.
4. For the purpose of paragraphs 3 ( d ) and ( e ) of
this Article, the Conference of the Parties shall acquire the
necessary knowledge of the measures taken by States Parties in
implementing this Convention and the difficulties encountered by them
in doing so through information provided by them and through such
supplemental review mechanisms as may be established by the Conference
of the Parties.
5. Each State Party shall provide the Conference of
the Parties with information on its programmes, plans and practices,
as well as legislative and administrative measures to implement this
Convention, as required by the Conference of the Parties.
Article 33
Secretariat
1. The Secretary-General of the United Nations shall
provide the necessary secretariat services to the Conference of the
Parties to the Convention.
2. The secretariat shall:
( a ) Assist
the Conference of the Parties in carrying out the activities set forth
in Article 32 of this Convention and make arrangements and provide the
necessary services for the sessions of the Conference of the Parties;
( b ) Upon request, assist States Parties in providing information to
the Conference of the Parties as envisaged in Article 32, paragraph 5,
of this Convention; and
( c ) Ensure the necessary coordination with
the secretariats of relevant international and regional organizations.
Article 34
Implementation of the Convention
1. Each State Party
shall take the necessary measures, including legislative and
administrative measures, in accordance with fundamental principles of
its domestic law, to ensure the implementation of its obligations
under this Convention.
2. The offences established in accordance with
Articles 5, 6, 8 and 23 of this Convention shall be established in the
domestic law of each State Party independently of the transnational
nature or the involvement of an organized criminal group as described
in Article 3, paragraph 1, of this Convention, except to the extent
that Article 5 of this Convention would require the involvement of an
organized criminal group.
3. Each State Party may adopt more strict
or severe measures than those provided for by this Convention for
preventing and combating transnational organized crime.
Article 35
Settlement of disputes
1. States Parties shall endeavour to settle
disputes concerning the interpretation or application of this
Convention through negotiation.
2. Any dispute between two or more
States Parties concerning the interpretation or application of this
Convention that cannot be settled through negotiation within a
reasonable time shall, at the request of one of those States Parties,
be submitted to arbitration. If, six months after the date of the
request for arbitration, those States Parties are unable to agree on
the organization of the arbitration, any one of those States Parties
may refer the dispute to the International Court of Justice by request
in accordance with the Statute of the Court.
3. Each State Party may,
at the time of signature, ratification, acceptance or approval of or
accession to this Convention, declare that it does not consider itself
bound by paragraph 2 of this Article. The other States Parties shall
not be bound by paragraph 2 of this Article with respect to any State
Party that has made such a reservation.
4. Any State Party that has
made a reservation in accordance with paragraph 3 of this Article may
at any time withdraw that reservation by notification to the
Secretary-General of the United Nations.
Article 36
Signature,
ratification, acceptance, approval and accession
1. This Convention
shall be open to all States for signature from 12 to 15 December
2000 in Palermo, Italy, and thereafter at United Nations Headquarters
in New York until 12 December 2002.
2. This Convention shall also be
open for signature by regional economic integration organizations
provided that at least one member State of such organization has
signed this Convention in accordance with paragraph 1 of this Article.
3. This Convention is subject to ratification, acceptance or
approval. Instruments of ratification, acceptance or approval shall be
deposited with the Secretary-General of the United Nations. A regional
economic integration organization may deposit its instrument of
ratification, acceptance or approval if at least one of its member
States has done likewise. In that instrument of ratification,
acceptance or approval, such organization shall declare the extent of
its competence with respect to the matters governed by this
Convention. Such organization shall also inform the depositary of any
relevant modification in the extent of its competence.
4. This
Convention is open for accession by any State or any regional economic
integration organization of which at least one member State is a Party
to this Convention. Instruments of accession shall be deposited with
the Secretary-General of the United Nations. At the time of its
accession, a regional economic integration organization shall declare
the extent of its competence with respect to matters governed by this
Convention. Such organization shall also inform the depositary of any
relevant modification in the extent of its competence.
Article 37
Relation with protocols
1. This Convention may be supplemented by one
or more protocols.
2. In order to become a Party to a protocol, a
State or a regional economic integration organization must also be a
Party to this Convention.
3. A State Party to this Convention is not
bound by a protocol unless it becomes a Party to the protocol in
accordance with the provisions thereof.
4. Any protocol to this
Convention shall be interpreted together with this Convention, taking
into account the purpose of that protocol.
Article 38
Entry into
force
1. This Convention shall enter into force on the ninetieth day
after the date of deposit of the fortieth instrument of ratification,
acceptance, approval or accession. For the purpose of this paragraph,
any instrument deposited by a regional economic integration
organization shall not be counted as additional to those deposited by
member States of such organization.
2. For each State or regional
economic integration organization ratifying, accepting, approving or
acceding to this Convention after the deposit of the fortieth
instrument of such action, this Convention shall enter into force on
the thirtieth day after the date of deposit by such State or
organization of the relevant instrument.
Article 39
Amendment
1.
After the expiry of five years from the entry into force of this
Convention, a State Party may propose an amendment and file it with
the Secretary-General of the United Nations, who shall thereupon
communicate the proposed amendment to the States Parties and to the
Conference of the Parties to the Convention for the purpose of
considering and deciding on the proposal. The Conference of the
Parties shall make every effort to achieve consensus on each
amendment. If all efforts at consensus have been exhausted and no
agreement has been reached, the amendment shall, as a last resort,
require for its adoption a two-thirds majority vote of the States
Parties present and voting at the meeting of the Conference of the
Parties.
2. Regional economic integration organizations, in matters
within their competence, shall exercise their right to vote under this
Article with a number of votes equal to the number of their member
States that are Parties to this Convention. Such organizations shall
not exercise their right to vote if their member States exercise
theirs and vice versa.
3. An amendment adopted in accordance with
paragraph 1 of this Article is subject to ratification, acceptance or
approval by States Parties.
4. An amendment adopted in accordance
with paragraph 1 of this Article shall enter into force in respect of
a State Party ninety days after the date of the deposit with the
Secretary-General of the United Nations of an instrument of
ratification, acceptance or approval of such amendment.
5. When an
amendment enters into force, it shall be binding on those States
Parties which have expressed their consent to be bound by it. Other
States Parties shall still be bound by the provisions of this
Convention and any earlier amendments that they have ratified,
accepted or approved.
Article 40
Denunciation
1. A State Party may
denounce this Convention by written notification to the
Secretary-General of the United Nations. Such denunciation shall
become effective one year after the date of receipt of the
notification by the Secretary-General.
2. A regional economic
integration organization shall cease to be a Party to this Convention
when all of its member States have denounced it.
3. Denunciation of
this Convention in accordance with paragraph 1 of this Article shall
entail the denunciation of any protocols thereto.
Article 41
Depositary and languages
1. The Secretary-General of the United
Nations is designated depositary of this Convention.
2. The original
of this Convention, of which the Arabic, Chinese, English, French,
Russian and Spanish texts are equally authentic, shall be deposited
with the Secretary-General of the United Nations.
IN WITNESS WHEREOF,
the undersigned plenipotentiaries, being duly authorized thereto by
their respective Governments, have signed this Convention.
Part 2 Protocol against the Smuggling of Migrants by Land, Sea and Air
Preamble
The States
Parties to this Protocol,
Declaring that effective action to prevent
and combat the smuggling of migrants by land, sea and air requires a
comprehensive international approach, including cooperation, the
exchange of information and other appropriate measures, including
socio-economic measures, at the national, regional and international
levels,
Recalling General Assembly resolution 54/212 of 22 December
1999, in which the Assembly urged Member States and the United Nations
system to strengthen international cooperation in the area of
international migration and development in order to address the root
causes of migration, especially those related to poverty, and to
maximize the benefits of international migration to those concerned,
and encouraged, where relevant, interregional, regional and
subregional mechanisms to continue to address the question of
migration and development,
Convinced of the need to provide migrants
with humane treatment and full protection of their rights,
Taking
into account the fact that, despite work undertaken in other
international forums, there is no universal instrument that addresses
all aspects of smuggling of migrants and other related issues,
Concerned at the significant increase in the activities of organized
criminal groups in smuggling of migrants and other related criminal
activities set forth in this Protocol, which bring great harm to the
States concerned,
Also concerned that the smuggling of migrants can
endanger the lives or security of the migrants involved,
Recalling
General Assembly resolution 53/111 of 9 December 1998, in which the
Assembly 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 of, inter alia, an international instrument addressing
illegal trafficking in and transporting of migrants, including by sea,
Convinced that supplementing the United Nations Convention against
Transnational Organized Crime with an international instrument against
the smuggling of migrants by land, sea and air will be useful in
preventing and combating that crime,
"Have agreed as follows":
I.
General provisions
Article 1
Relation with the United Nations
Convention against Transnational Organized Crime
1. This Protocol
supplements the United Nations Convention against Transnational
Organized Crime. It shall be interpreted together with the Convention.
2. The provisions of the Convention shall apply, mutatis mutandis, to
this Protocol unless otherwise provided herein.
3. The offences
established in accordance with article 6 of this Protocol shall be
regarded as offences established in accordance with the Convention.
Article 2
Statement of purpose
The purpose of this Protocol is to
prevent and combat the smuggling of migrants, as well as to promote
cooperation among States Parties to that end, while protecting the
rights of smuggled migrants.
Article 3
Use of terms
For the
purposes of this Protocol:
( a ) "Smuggling of migrants" shall mean
the procurement, in order to obtain, directly or indirectly, a
financial or other material benefit, of the illegal entry of a person
into a State Party of which the person is not a national or a
permanent resident;
( b ) "Illegal entry" shall mean crossing borders
without complying with the necessary requirements for legal entry into
the receiving State;
( c ) "Fraudulent travel or identity document"
shall mean any travel or identity document:
(i) That has been falsely
made or altered in some material way by anyone other than a person or
agency lawfully authorized to make or issue the travel or identity
document on behalf of a State; or
(ii) That has been improperly
issued or obtained through misrepresentation, corruption or duress or
in any other unlawful manner; or
(iii) That is being used by a person
other than the rightful holder;
( d ) "Vessel" shall mean any type of
water craft, including non-displacement craft and seaplanes, used or
capable of being used as a means of transportation on water, except a
warship, naval auxiliary or other vessel owned or operated by a
Government and used, for the time being, only on government
non-commercial service.
Article 4
Scope of application
This
Protocol shall apply, except as otherwise stated herein, to the
prevention, investigation and prosecution of the offences established
in accordance with article 6 of this Protocol, where the offences are
transnational in nature and involve an organized criminal group, as
well as to the protection of the rights of persons who have been the
object of such offences.
Article 5
Criminal liability of migrants
Migrants shall not become liable to criminal prosecution under this
Protocol for the fact of having been the object of conduct set forth
in article 6 of this Protocol.
Article 6
Criminalization
1. Each
State Party shall adopt such legislative and other measures as may be
necessary to establish as criminal offences, when committed
intentionally and in order to obtain, directly or indirectly, a
financial or other material benefit:
( a ) The smuggling of migrants;
( b ) When committed for the purpose of enabling the smuggling of
migrants:
(i) Producing a fraudulent travel or identity document;
(ii) Procuring, providing or possessing such a document;
( c )
Enabling a person who is not a national or a permanent resident to
remain in the State concerned without complying with the necessary
requirements for legally remaining in the State by the means mentioned
in subparagraph ( b ) of this paragraph or any other illegal means.
2. Each State Party shall also adopt such legislative and other
measures as may be necessary to establish as criminal offences:
( a )
Subject to the basic concepts of its legal system, attempting to
commit an offence established in accordance with paragraph 1 of this
article;
( b ) Participating as an accomplice in an offence
established in accordance with paragraph 1 ( a ), ( b ) (i) or ( c )
of this article and, subject to the basic concepts of its legal
system, participating as an accomplice in an offence established in
accordance with paragraph 1 ( b ) (ii) of this article;
( c )
Organizing or directing other persons to commit an offence established
in accordance with paragraph 1 of this article.
3. Each State Party
shall adopt such legislative and other measures as may be necessary to
establish as aggravating circumstances to the offences established in
accordance with paragraph 1 ( a ), ( b ) (i) and ( c ) of this article
and, subject to the basic concepts of its legal system, to the
offences established in accordance with paragraph 2 ( b ) and ( c ) of
this article, circumstances:
( a ) That endanger, or are likely to
endanger, the lives or safety of the migrants concerned; or
( b )
That entail inhuman or degrading treatment, including for
exploitation, of such migrants.
4. Nothing in this Protocol shall
prevent a State Party from taking measures against a person whose
conduct constitutes an offence under its domestic law.
II. Smuggling
of migrants by sea
Article 7
Cooperation
States Parties shall
cooperate to the fullest extent possible to prevent and suppress the
smuggling of migrants by sea, in accordance with the international law
of the sea.
Article 8
Measures against the smuggling of migrants by
sea
1. A State Party that has reasonable grounds to suspect that a
vessel that is flying its flag or claiming its registry, that is
without nationality or that, though flying a foreign flag or refusing
to show a flag, is in reality of the nationality of the State Party
concerned is engaged in the smuggling of migrants by sea may request
the assistance of other States Parties in suppressing the use of the
vessel for that purpose. The States Parties so requested shall render
such assistance to the extent possible within their means.
2. A State
Party that has reasonable grounds to suspect that a vessel exercising
freedom of navigation in accordance with international law and flying
the flag or displaying the marks of registry of another State Party is
engaged in the smuggling of migrants by sea may so notify the flag
State, request confirmation of registry and, if confirmed, request
authorization from the flag State to take appropriate measures with
regard to that vessel. The flag State may authorize the requesting
State, inter alia:
( a ) To board the vessel;
( b ) To search the
vessel; and
( c ) If evidence is found that the vessel is engaged in
the smuggling of migrants by sea, to take appropriate measures with
respect to the vessel and persons and cargo on board, as authorized by
the flag State.
3. A State Party that has taken any measure in
accordance with paragraph 2 of this article shall promptly inform
the flag State concerned of the results of that measure.
4. A State
Party shall respond expeditiously to a request from another State
Party to determine whether a vessel that is claiming its registry or
flying its flag is entitled to do so and to a request for
authorization made in accordance with paragraph 2 of this article.
5.
A flag State may, consistent with article 7 of this Protocol, subject
its authorization to conditions to be agreed by it and the requesting
State, including conditions relating to responsibility and the extent
of effective measures to be taken. A State Party shall take no
additional measures without the express authorization of the flag
State, except those necessary to relieve imminent danger to the lives
of persons or those which derive from relevant bilateral or
multilateral agreements.
6. Each State Party shall designate an
authority or, where necessary, authorities to receive and respond to
requests for assistance, for confirmation of registry or of the right
of a vessel to fly its flag and for authorization to take appropriate
measures. Such designation shall be notified through the
Secretary-General to all other States Parties within one month of the
designation.
7. A State Party that has reasonable grounds to suspect
that a vessel is engaged in the smuggling of migrants by sea and is
without nationality or may be assimilated to a vessel without
nationality may board and search the vessel. If evidence confirming
the suspicion is found, that State Party shall take appropriate
measures in accordance with relevant domestic and international law.
Article 9
Safeguard clauses
1. Where a State Party takes measures
against a vessel in accordance with article 8 of this Protocol, it
shall:
( a ) Ensure the safety and humane treatment of the persons on
board;
( b ) Take due account of the need not to endanger the
security of the vessel or its cargo;
( c ) Take due account of the
need not to prejudice the commercial or legal interests of the flag
State or any other interested State;
( d ) Ensure, within available
means, that any measure taken with regard to the vessel is
environmentally sound.
2. Where the grounds for measures taken
pursuant to article 8 of this Protocol prove to be unfounded, the
vessel shall be compensated for any loss or damage that may have been
sustained, provided that the vessel has not committed any act
justifying the measures taken.
3. Any measure taken, adopted or
implemented in accordance with this chapter shall take due account of
the need not to interfere with or to affect:
( a ) The rights and
obligations and the exercise of jurisdiction of coastal States in
accordance with the international law of the sea; or
( b ) The
authority of the flag State to exercise jurisdiction and control in
administrative, technical and social matters involving the vessel.
4.
Any measure taken at sea pursuant to this chapter shall be carried out
only by warships or military aircraft, or by other ships or aircraft
clearly marked and identifiable as being on government service and
authorized to that effect.
III. Prevention, cooperation and other
measures
Article 10
Information
1. Without prejudice to articles 27
and 28 of the Convention, States Parties, in particular those with
common borders or located on routes along which migrants are smuggled,
shall, for the purpose of achieving the objectives of this Protocol,
exchange among themselves, consistent with their respective domestic
legal and administrative systems, relevant information on matters such
as:
( a ) Embarkation and destination points, as well as routes,
carriers and means of transportation, known to be or suspected of
being used by an organized criminal group engaged in conduct set forth
in article 6 of this Protocol;
( b ) The identity and methods of
organizations or organized criminal groups known to be or suspected of
being engaged in conduct set forth in article 6 of this Protocol;
( c
) The authenticity and proper form of travel documents issued by a
State Party and the theft or related misuse of blank travel or
identity documents;
( d ) Means and methods of concealment and
transportation of persons, the unlawful alteration, reproduction or
acquisition or other misuse of travel or identity documents used in
conduct set forth in article 6 of this Protocol and ways of
detecting them;
( e ) Legislative experiences and practices and
measures to prevent and combat the conduct set forth in article 6 of
this Protocol; and
( f ) Scientific and technological information
useful to law enforcement, so as to enhance each other's ability to
prevent, detect and investigate the conduct set forth in article 6 of
this Protocol and to prosecute those involved.
2. A State Party that
receives information shall comply with any request by the State Party
that transmitted the information that places restrictions on its use.
Article 11
Border measures
1. Without prejudice to international
commitments in relation to the free movement of people, States Parties
shall strengthen, to the extent possible, such border controls as may
be necessary to prevent and detect the smuggling of migrants.
2. Each
State Party shall adopt legislative or other appropriate measures to
prevent, to the extent possible, means of transport operated by
commercial carriers from being used in the commission of the offence
established in accordance with article 6, paragraph 1 ( a ), of this
Protocol.
3. Where appropriate, and without prejudice to applicable
international conventions, such measures shall include establishing
the obligation of commercial carriers, including any transportation
company or the owner or operator of any means of transport, to
ascertain that all passengers are in possession of the travel
documents required for entry into the receiving State.
4. Each State
Party shall take the necessary measures, in accordance with its
domestic law, to provide for sanctions in cases of violation of the
obligation set forth in paragraph 3 of this article.
5. Each State
Party shall consider taking measures that permit, in accordance with
its domestic law, the denial of entry or revocation of visas of
persons implicated in the commission of offences established in
accordance with this Protocol.
6. Without prejudice to article 27 of
the Convention, States Parties shall consider strengthening
cooperation among border control agencies by, inter alia, establishing
and maintaining direct channels of communication.
Article 12
Security and control of documents
Each State Party shall take such
measures as may be necessary, within available means:
( a ) To ensure
that travel or identity documents issued by it are of such quality
that they cannot easily be misused and cannot readily be
falsified or unlawfully altered, replicated or issued; and
( b ) To
ensure the integrity and security of travel or identity documents
issued by or on behalf of the State Party and to prevent their
unlawful creation, issuance and use.
Article 13
Legitimacy and
validity of documents
At the request of another State Party, a State
Party shall, in accordance with its domestic law, verify within a
reasonable time the legitimacy and validity of travel or identity
documents issued or purported to have been issued in its name and
suspected of being used for purposes of conduct set forth in article 6
of this Protocol.
Article 14
Training and technical cooperation
1.
States Parties shall provide or strengthen specialized training for
immigration and other relevant officials in preventing the conduct set
forth in article 6 of this Protocol and in the humane treatment of
migrants who have been the object of such conduct, while respecting
their rights as set forth in this Protocol.
2. States Parties shall
cooperate with each other and with competent international
organizations, non-governmental organizations, other relevant
organizations and other elements of civil society as appropriate to
ensure that there is adequate personnel training in their territories
to prevent, combat and eradicate the conduct set forth in
article 6 of this Protocol and to protect the rights of migrants
who have been the object of such conduct. Such training shall include:
( a ) Improving the security and quality of travel documents;
( b )
Recognizing and detecting fraudulent travel or identity documents;
(
c ) Gathering criminal intelligence, relating in particular to the
identification of organized criminal groups known to be or suspected
of being engaged in conduct set forth in article 6 of this Protocol,
the methods used to transport smuggled migrants, the misuse of travel
or identity documents for purposes of conduct set forth in article 6
and the means of concealment used in the smuggling of migrants;
( d )
Improving procedures for detecting smuggled persons at conventional
and non-conventional points of entry and exit; and
( e ) The humane
treatment of migrants and the protection of their rights as set forth
in this Protocol.
3. States Parties with relevant expertise shall
consider providing technical assistance to States that are frequently
countries of origin or transit for persons who have been the object of
conduct set forth in article 6 of this Protocol. States Parties shall
make every effort to provide the necessary resources, such as
vehicles, computer systems and document readers, to combat the conduct
set forth in article 6.
Article 15
Other prevention measures
1.
Each State Party shall take measures to ensure that it provides or
strengthens information programmes to increase public awareness of the
fact that the conduct set forth in article 6 of this Protocol is a
criminal activity frequently perpetrated by organized criminal groups
for profit and that it poses serious risks to the migrants concerned.
2. In accordance with article 31 of the Convention, States Parties
shall cooperate in the field of public information for the purpose of
preventing potential migrants from falling victim to organized
criminal groups.
3. Each State Party shall promote or strengthen, as
appropriate, development programmes and cooperation at the national,
regional and international levels, taking into account the
socio-economic realities of migration and paying special attention to
economically and socially depressed areas, in order to combat the root
socio-economic causes of the smuggling of migrants, such as poverty
and underdevelopment.
Article 16
Protection and assistance measures
1. In implementing this Protocol, each State Party shall take,
consistent with its obligations under international law, all
appropriate measures, including legislation if necessary, to preserve
and protect the rights of persons who have been the object of conduct
set forth in article 6 of this Protocol as accorded under
applicable international law, in particular the right to life and the
right not to be subjected to torture or other cruel, inhuman or
degrading treatment or punishment.
2. Each State Party shall take
appropriate measures to afford migrants appropriate protection against
violence that may be inflicted upon them, whether by individuals or
groups, by reason of being the object of conduct set forth in article
6 of this Protocol.
3. Each State Party shall afford appropriate
assistance to migrants whose lives or safety are endangered by reason
of being the object of conduct set forth in article 6 of this
Protocol.
4. In applying the provisions of this article, States
Parties shall take into account the special needs of women and
children.
5. In the case of the detention of a person who has been
the object of conduct set forth in article 6 of this Protocol, each
State Party shall comply with its obligations under the Vienna
Convention on Consular Relations, where applicable, including that of
informing the person concerned without delay about the provisions
concerning notification to and communication with consular officers.
Article 17
Agreements and arrangements
States Parties shall consider
the conclusion of bilateral or regional agreements or operational
arrangements or understandings aimed at:
( a ) Establishing the most
appropriate and effective measures to prevent and combat the conduct
set forth in article 6 of this Protocol; or
( b ) Enhancing the
provisions of this Protocol among themselves.
Article 18
Return of
smuggled migrants
1. Each State Party agrees to facilitate and
accept, without undue or unreasonable delay, the return of a person
who has been the object of conduct set forth in article 6 of this
Protocol and who is its national or who has the right of permanent
residence in its territory at the time of return.
2. Each State Party
shall consider the possibility of facilitating and accepting the
return of a person who has been the object of conduct set forth in
article 6 of this Protocol and who had the right of permanent
residence in its territory at the time of entry into the receiving
State in accordance with its domestic law.
3. At the request of the
receiving State Party, a requested State Party shall, without undue or
unreasonable delay, verify whether a person who has been the object of
conduct set forth in article 6 of this Protocol is its national or has
the right of permanent residence in its territory.
4. In order to
facilitate the return of a person who has been the object of conduct
set forth in article 6 of this Protocol and is without proper
documentation, the State Party of which that person is a national or
in which he or she has the right of permanent residence shall agree to
issue, at the request of the receiving State Party, such travel
documents or other authorization as may be necessary to enable the
person to travel to and re-enter its territory.
5. Each State Party
involved with the return of a person who has been the object of
conduct set forth in article 6 of this Protocol shall take all
appropriate measures to carry out the return in an orderly manner and
with due regard for the safety and dignity of the person.
6. States
Parties may cooperate with relevant international organizations in the
implementation of this article.
7. This article shall be without
prejudice to any right afforded to persons who have been the object of
conduct set forth in article 6 of this Protocol by any domestic law of
the receiving State Party.
8. This article shall not affect the
obligations entered into under any other applicable treaty, bilateral
or multilateral, or any other applicable operational agreement or
arrangement that governs, in whole or in part, the return of persons
who have been the object of conduct set forth in article 6 of this
Protocol.
IV. Final provisions
Article 19
Saving clause
1. Nothing
in this Protocol shall affect the other rights, obligations and
responsibilities of States and individuals under international law,
including international humanitarian law and international human
rights law and, in particular, where applicable, the 1951 Convention
and the 1967 Protocol relating to the Status of Refugees and the
principle of non-refoulement as contained therein.
2. The measures
set forth in this Protocol shall be interpreted and applied in a way
that is not discriminatory to persons on the ground that they are the
object of conduct set forth in article 6 of this Protocol. The
interpretation and application of those measures shall be consistent
with internationally recognized principles of non-discrimination.
Article 20
Settlement of disputes
l. States Parties shall endeavour
to settle disputes concerning the interpretation or application of
this Protocol through negotiation.
2. Any dispute between two or more
States Parties concerning the interpretation or application of this
Protocol that cannot be settled through negotiation within a
reasonable time shall, at the request of one of those States Parties,
be submitted to arbitration. If, six months after the date of the
request for arbitration, those States Parties are unable to agree on
the organization of the arbitration, any one of those States Parties
may refer the dispute to the International Court of Justice by request
in accordance with the Statute of the Court.
3. Each State Party may,
at the time of signature, ratification, acceptance or approval of or
accession to this Protocol, declare that it does not consider itself
bound by paragraph 2 of this article. The other States Parties shall
not be bound by paragraph 2 of this article with respect to any State
Party that has made such a reservation.
4. Any State Party that has
made a reservation in accordance with paragraph 3 of this article may
at any time withdraw that reservation by notification to the
Secretary-General of the United Nations.
Article 21
Signature,
ratification, acceptance, approval and accession
1. This Protocol
shall be open to all States for signature from 12 to 15 December 2000
in Palermo, Italy, and thereafter at United Nations Headquarters in
New York until 12 December 2002.
2. This Protocol shall also be open
for signature by regional economic integration organizations provided
that at least one member State of such organization has signed this
Protocol in accordance with paragraph 1 of this article.
3. This
Protocol is subject to ratification, acceptance or approval.
Instruments of ratification, acceptance or approval shall be deposited
with the Secretary-General of the United Nations. A regional economic
integration organization may deposit its instrument of ratification,
acceptance or approval if at least one of its member States has done
likewise. In that instrument of ratification, acceptance or approval,
such organization shall declare the extent of its competence with
respect to the matters governed by this Protocol. Such organization
shall also inform the depositary of any relevant modification in the
extent of its competence.
4. This Protocol is open for accession by
any State or any regional economic integration organization of which
at least one member State is a Party to this Protocol. Instruments of
accession shall be deposited with the Secretary-General of the United
Nations. At the time of its accession, a regional economic integration
organization shall declare the extent of its competence with respect
to matters governed by this Protocol. Such organization shall also
inform the depositary of any relevant modification in the extent of
its competence.
Article 22
Entry into force
1. This Protocol shall
enter into force on the ninetieth day after the date of deposit of the
fortieth instrument of ratification, acceptance, approval or
accession, except that it shall not enter into force before the entry
into force of the Convention. For the purpose of this paragraph, any
instrument deposited by a regional economic integration organization
shall not be counted as additional to those deposited by member States
of such organization.
2. For each State or regional economic
integration organization ratifying, accepting, approving or acceding
to this Protocol after the deposit of the fortieth instrument of such
action, this Protocol shall enter into force on the thirtieth day
after the date of deposit by such State or organization of the
relevant instrument or on the date this Protocol enters into force
pursuant to paragraph 1 of this article, whichever is the later.
Article 23
Amendment
1. After the expiry of five years from the
entry into force of this Protocol, a State Party to the Protocol may
propose an amendment and file it with the Secretary-General of the
United Nations, who shall thereupon communicate the proposed amendment
to the States Parties and to the Conference of the Parties to the
Convention for the purpose of considering and deciding on the
proposal. The States Parties to this Protocol meeting at the
Conference of the Parties shall make every effort to achieve consensus
on each amendment. If all efforts at consensus have been exhausted and
no agreement has been reached, the amendment shall, as a last resort,
require for its adoption a two-thirds majority vote of the States
Parties to this Protocol present and voting at the meeting of the
Conference of the Parties.
2. Regional economic integration
organizations, in matters within their competence, shall exercise
their right to vote under this article with a number of votes equal to
the number of their member States that are Parties to this Protocol.
Such organizations shall not exercise their right to vote if their
member States exercise theirs and vice versa.
3. An amendment adopted
in accordance with paragraph 1 of this article is subject to
ratification, acceptance or approval by States Parties.
4. An
amendment adopted in accordance with paragraph 1 of this article shall
enter into force in respect of a State Party ninety days after the
date of the deposit with the Secretary-General of the United Nations
of an instrument of ratification, acceptance or approval of such
amendment.
5. When an amendment enters into force, it shall be
binding on those States Parties which have expressed their consent to
be bound by it. Other States Parties shall still be bound by the
provisions of this Protocol and any earlier amendments that they have
ratified, accepted or approved.
Article 24
Denunciation
1. A State
Party may denounce this Protocol by written notification to the
Secretary-General of the United Nations. Such denunciation shall
become effective one year after the date of receipt of the
notification by the Secretary-General.
2. A regional economic
integration organization shall cease to be a Party to this Protocol
when all of its member States have denounced it.
Article 25
Depositary and languages
1. The Secretary-General of the United
Nations is designated depositary of this Protocol.
2. The original of
this Protocol, of which the Arabic, Chinese, English, French, Russian
and Spanish texts are equally authentic, shall be deposited with the
Secretary-General of the United Nations.
IN WITNESS WHEREOF, the
undersigned plenipotentiaries, being duly authorized thereto by their
respective Governments, have signed this Protocol.