GROUP 2
PHASE 2CRIMINALIZATION OF PARTICIPATION IN AN ORGANIZEDCRIMINAL GROUP AND CONSPIRACY, IMMUNITY SYSTEM,
AND WITNESS AND VICTIM PROTECTION PROGRAMMESChairperson

Mr. Zafarullah Khan

(Pakistan)

Co-Chairperson

Mr. Yasunari Hataguchi(Japan)Rapporteur

Mr. Sittipong Tanyapongpruch(Thailand)

Co-Rapporteur

Mr. Takashi Maruoka(Japan)Members

Mr. Nouphanh Mahaphonh(Laos)Mr. Zainal Rashid Bin Hj Abu Bakar(Malaysia)

Mr. Bhola Prasad Kharel(Nepal)Mr. Muchwangali Charles(Uganda)Mr. Takao Hamada(Japan)Prof. Yasuhiro Tanabe(UNAFEI)

Prof. Hiroshi Tsutomi(UNAFEI)

Prof. Mikiko Kakihara(UNAFEI)

Advisers

I. INTRODUCTION
Nulla poena sine lege (no person may
be punished except in pursuance of astatute which prescribes a penalty)1 is awell established criminal law concept
which is followed by the majority of theworld community. However, to bring themembers of organized crime groups tojustice is more difficult than one can
expect. Organized criminal groups do
exist in some countries for a certain
period of time, and the authorities in suchcountries try every effort to cope withthem . Efforts have be en made by
applying the concept of “conspiracy” and/or creating the new offence of“participation in an organized criminalgroup” in order to get the culprits toj u st ic e . O n c e th e s u sp e c t ha s b e e n
1

Jerome Hall, General Principles of Criminal Law,
2nd edition, Bobbs-Merrill Company, Inc. 1960.

a rre sted , the le ga l p ro ce ed ing thenbegins, and, the final stage of criminal
proceeding is to prove beyond reasonable
doubt th at su ch cr imes hav e beencommitted by certain defendants.
Against this background, the United
Nations
Convention
againstTransnational Organized Crime(hereinafter “TOC Convention”) requires
State Parties to ensure that their laws
crim inalize either co nspiracy orparticipation in an organized criminalgroup, or both in Article 5 (see appendix).
It is basically un de rst oo d th at th isprovision offers the State Parties two
options and comes from the precedingarguments and practices of the European
Union.
In addition, organized criminal groups’
activities are not easy to detect.
Generally, the witness may be an insider
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RESOURCE MATERIAL SERIES No. 59
o r a c c i d e n t a l ly w it n e s s t h e c r i m e .
However, they have the tendency to avoid
involvement in any legal proceedings forfear of their safety. Therefore, special
tools, namely an Immunity System andWitness and V ictim Protection
Programmes, carefully constructed toease this obstacle is indeed important.
Hence, this report is the production ofefforts of the members of Group 2 to try
and explore some difficulties in applying
the concept of “conspiracy” and“participation” as well as making these
two too ls available in the m emb ers’jurisdictions.
II. CRIMINALIZATION OF
PARTICIPATION IN AN
ORGANIZED CRIMINAL GROUP
AND CONSPIRACY
In effectively tackling the threat oft r a n s n a t i o n a l o r g a n i z e d c r im e , i nparticular, criminal justice authorities
ha ve a need to intervene a s soo n as
possible in order to prevent crime, breakup criminal organizations and apprehend
the offenders. It is ideal that they shouldbe able to arrest offenders before an
offence has been committed. Otherwise,
there is the considerable risk that theoffenders will be able to carry out theo f f e nc e a n d e s ca p e a c r o ss na tio n a lborders, thus evading justice.2
In civil law countries, the concepts ofa tte m p t a nd in ci te m e n t ar e w id e ly
recognized, but conspiracy is not. The
general position in civil law countries isthat mere planning of an offence, without
an overt act to put the plan into
operation, is not criminal. For example,
mere planning of a robbery, and even2such preliminary stages as an
examination of the premises,arrangement for a getaway car or the
recruiting of assistants, do not constitutecriminal conduct. The offenders may bearrested and brought to trial only when
they have gone so far.
The concept of conspiracy arose inco mmon law during the 1600s in
England, from where it spread to otherco mmon law countries. According toEnglish common law, the mere
agreem ent to commit an offence
constitutes conspira cy. I n a dd ition,
several civil law countries have enacted
legislation dir ecte d at m o re tightly
defined forms of participation orconspiracy in the case of particularly
serious offences. Finally, several civil law
countries have enacted legislation thatcriminalizes active participation in an
organized criminal group.
It was this joint action which
contributed to the definition adopted in
the TOC Convention.
A. TOC Convention
Article 5 is one of only fourcriminalization obligations contained in
the TOC Convention adopted at Palermo,
Italy. As mentioned above, it requires
State Parties to ensure that their laws
criminalize either conspiracy orparticipation in an organized criminalgroup, or both.
Conspiracy is thus defined as:••Group 2 is much indebted to visiting expert, Dr.
Matti Joutsen. He contributed greatly to our
discussion by participation in our group discussion
as well as giving us lectures and papers.

646•

Intentionally agreeing with one ormore other persons,
To commit a serious crime for a
purpose relating directly or indirectly
to the obtaining of a financial or othermaterial benefit and,
Where required by domestic law,
involving an act undertaken by one of

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
the participants in furtherance of theagreement or involving an organizedcriminal group.
Participation is defined as:•••

Conduct by a person who,
With knowledge of either the aim andgeneral criminal activity of ano r g a ni z e d c r im in a l g r o u p o r i ts
intention to commit the crimes inquestion,
Intentionally takes an active part in:
Either the criminal activities of theorganized criminal group or
O ther a ctivities of the orga nize dcriminal group in the knowledge that
his or her participation willcontribute to the achievement of theabove-described criminal aim.

B. Analysis of Current Situation
I n L a o s, M a la y s ia , P a k i sta n a n d
Uganda, the concept of conspiracy has
been adopted. In addition to that, under
the Pakistan Penal Code, participation in
an offence in any capacity is criminalized
under Section 34, 149, 120 and 120A of
the Pa kistan Pena l Code. M oreo ver,according to Section 120B of the Malaysia
Pe na l Cod e, w hoever is a pa rty to acriminal conspiracy to commit an offence
punishable with death, imprisonment fora term of 2 years or upwards, shall bepunished in the same manner as if he had
abetted such an offence.
I n N e p a l , n e i th e r t h e c o n c e p t o fconspiracy nor participation has been
adopted so far. In Japan, the situation is
the same as Nepal in principle, although
there are several conspiracy provisions
exceptionally as regards some extremely
serious offences in the Penal Code andsome laws such as Subversive Activities
Prevention Act and Explosive Control
A ct, and only preparation is also
p u nis ha b le r eg a r di ng s om e se r io us

offences. In addition, in Japan, Anti
Boryokudan Law prohibits designatedcrimina l organiz ation from co ercing
p e o p l e to j o i n t h e B o r y o k ud a n a n dobstructing voluntary withdrawal fromm e m b e r sh ip , o r d e m a n d m o ne y f o r
withdrawal. If a member of designatedorganization violates the prohibition, thepolice may issue an order not to do so.
They can be punished if they do not obey
the order.
In Thailand, the concept
participation has been adopted.

ofC. Benefits
As expected, the application of theabove mentioned concepts has broughtlots of benefits as follows:3
a. The criminal justice authorities would
have the possibility of intervening at
a n e a r lie r s ta g e o f t he c r im i na lactivity;b. All people concerned could be charged
with conspiracy or participation even
if their roles had been marginal;c. The prosecutor need not prove
complicity in each and every act ofcrime;
d. The concepts of conspiracy andparticipation allow, in effect, double
punishment: one for conspiracy orparticipation, and one for the offencesco mm itte d in f urt her a nce of theconspiracy or participation;e. Legislation referring to conspiracy
and organized criminal groups could
provide the framework for the use ofcivil measures in addition topunishment;
f. The citizens could be kept away from
criminal acts and organized criminalgroups (deterrent effect).

3

Dr. Matti Joutsen’s lecture (except f)

647

RESOURCE MATERIAL SERIES No. 59
D. Drawbacks
Through the experience and practice ofEU countries, drawbacks are pointed out
as follows:4
a. The concepts are ambiguous andconfusing, in particular if juries arein vo lve d. T he leg a l p r actic e hass h o w n th a t t h e c o n c e p t s c a n b e
confusing even to trained lawyers;b. There is a possibility that theconcepts might violate the principle oflegality, which requires definition of
p recise ly wha t a cts or o missions
constitute criminal conduct;c. This ambiguity raises concerns
regarding legal safeguards, such as
ensuring that the defendant knows
exactly what conduct he or she ischarged with having committed;
d. The ambiguity also raises concernsthat the concepts w ill be used to
expand the scope of criminal behavior
to an unacceptable extent; ande. The concept of conspiracy has been
used, in the view of some, to “convert
innocent acts, talk and association
into felonies”. The discussion within
the European Union regarding thejoint action requiring Member Statesto criminalize participation in an
organized criminal group shows thatthese same qualms exist regarding
this latter concept. The concern hereis that the concepts may be abused byover-zealous prosecutors.
III. IMMUNITY SYSTEM
Effective investigation and successfulprosecution play an important role in thesystem of criminal justice administration.
Evidence is the most important factor toconvict the criminals and the court will
always seek concrete evidence to convict a
criminal which plays a significant role in
4

Dr. Matti Joutsen’s lecture648

the court of law. So the testimony of somepersons such as police, general witnesses,
the victims and sometimes the accusedalso is essential to prove the charge toother accused or a suspect or a member ofa criminal group. In general, immunity
refers to the process of exempting oro m it ti n g f r o m p r o se cu t i o n o f so m eaccused.
A. TOC Convention
Article 26 of the TOC Convention (seeannex) is particularly encouraged withthe measures to enhance co-operation of
the accused with law enforcement
authorities. There are various reasons
why immunity is suggested. Principally,
the statement of a person who is involvedin crime is very reliable because of his
relationship with his co-accused. If any
statement obtained from him has thecredibility and materiality, it can always
strengthen a case. At the tim e ofinvestigation, a state witness can reveal
the identity of other suspects which leads
to further investigation to arrest thecriminal, seize and forfeiture of crime
proceeds, etc. In such a situation his
statement can also assist the investigatorfor investigation.
B. Analysis of Current Situation
In Pakistan and India (according to theP e n a l C o d e ) , t hi s sy s te m h a s b e e nprovided by law in the High Court andCourt of Sessions according to the tenureof imprisonment.
In Pakistan, according to Sec. 337 of
the Penal Code, in the High Court or in
the Court of Se ssions, the tend er ofpardon can be given as to any offence
punishable with imprisonment extending
to 10 years or any offence punishable
under Sec. 211 of the Code withimprisonment extending to 7 years.

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Likewise, in India, Sec. 306 of the Codeof Criminal Procedure 1973 provides for
obtaining evidence of an accomplice bytender of pardon subject to his voluntarily
making a full disclosure of the facts andcircumstances relevant to the offence forwhich the accomplice and co-accused arebeing charged with or investigated for.
This provision is applicable for an offence
punishable with imprisonment of 7 years
or more.
Whereas in Japan this system has notbeen adopted in legislation, in some cases
the court has reduced the punishment on
t he a cc u se d b y c o n si d e ri ng h is/ h e r
w i l li n g n e s s t o c o - o p e r a te w i th t h eprosecution. Moreover, in Japan, there isa preced ent that a co nf ession is not
ad m issible if it was ind uc ed by th epromise made by the authorities thatthey would not indict him/her. Thus,
because the grant of immunity seems to
be inconsistent w ith this rule, muchconsideration would be needed to
introduce this system in Japan.
In Laos, Malaysia, Nepal, Thailandand Uganda, the immunity system has
not been applied. In these countries only
the mitigation of punishment for someaccused persons can be considered if thea cc u se d as si sts th e in ve s tig at o r t oinvestigate the crime.
C. Benefits
Granting immunity from prosecution
has actually led to solving many serious
crimes. The victim may also benefit fromthis system if it is properly used. The
investigator can investigate the crime
easily. Organized criminal groups andorganized crime may decrease from thisworld.
D. Drawbacks
The possibility the criminal can escapefrom his/her liability is very high in thissystem. If prosecutors a buse his/her
power to grant immunity, it may increase
negative perceptions of criminal justice inthe general public. It is also violation ofequality and rule of law of the country.
The citizen may not have confidence inth e j u d i ci a ry a n d la w e n f o r c e m e n t
authorities of that country.
As for the unjust evasion of criminal
responsibility, for example, the federal
immunity statute in the U.S. is construed
as “use and derivative-use immunity”,
that is to say, the federal government
must be prohibited from making any useof immunized testimony and its fruits in
any later prosecution against him/her,and therefore, as long as all evidence iswholly derived from legitimate
independent sources, he/she ma y be
sub je ct e d t o f u tur e p ro se c uti on . I nparticular, in case the offence involved
was heinous and some impo rtant
evidence was found independently after
he/she had given immunized testimony, it
can be said that he/she deserves to be
p r o se c u t e d a n d p u n is h e d f r o m t h eviewpoint of the interests of justice. In
light of the effectiveness of immunity inobtaining credible testimony, there issome argument that witnesses are lesswilling to testif y if im munity is no tcomplete and he/she might be faced withsubsequent prosecution. On the other
hand, proponents of immunity say thatsuch immunity can rather encourage thewitnesses to provide as much detail as
possible in order to make it difficult toprove that prosecutors make no use ofthat testimon y in any subs equ en t
prosecution.
Regarding the possibility of abuse of
power, any appropriate procedure should
be required. For example, in the U.S., theUnited States Attorney Manual describes
som e fa cto rs to be consid ere d whengranting immunity in order to make sure649

RESOURCE MATERIAL SERIES No. 59
it meets the public interest. On the other
hand, as mentioned previously, inPakistan, the role of judges in making
such decisions is more active, which
m ight also be advisable for othercountries.
IV. WITNESS AND VICTIMPROTECTION PROGRAMMESThe courts go by evidence on record toe s ta b li s h t h e g u il t o f t h e a c c u s e d .
Because of the violent nature of organizedcrime/terrorism, witness intimidation is asignificant problem as many witnesses
are reluctant to testify in open court forfear of reprisal at the hand of criminalgroups/terrorists. Ca ses of threat orc r im in a l i nt im id a ti o n o n p o t e n ti a lwitnesses are often recounted and insome instances, some of them have evenbeen killed by related criminal organized
g roups/terroris ts. In T hailand forexample, every year, 20% of all criminalcases are dismissed because the prime
witnesses are too afraid to take the stand.
A. Need for Reform
It is essential to protect witnesses fromthe wrath of crimina l groups. Hencelegal, physical and financial protection
should be provided to important
witnesses especially in sensitive cases sothat they can feel comfortable without
any fear in the court. It is not only toprevent threats/violence to the witnesses
b ut a l s o a s a gua ra nt e e t o ga i n t heconfidence of witnesses in supporting theprevention and detection of organizedcrime. Article 25 of TOC Convention (seea nnex) e ncoura ges na tio ns to a do pt
m e asur es wh ic h will g uarante e th eprotection of witnesses from threats,
intimidation, corruption or bodily injury
in relation to testimony given in cases
involving transnational organized crime.

B. Analysis of Current Situation
After discussion, Group 2 realized that
the Witness Protection Programme could
be categorized as:••••Countries with Witness Protection
Programmes in their legislation
Countries with Witness Protection
Programmes annexed as a new article
in an existing Act
Countries that are still in the processof drafting the BillCountries that are still considering
the implementation of a Witness
Protection Programme

T h e U n i t e d S t a t e s s t a r t e d t h e ir
Federal Witness Security Programme in
19 70 w hich sought to gua ra ntee thesafety of witnesses who agreed to testify
for the government in organized crime
cases. Witnesses are admitted to theprogramme when they are able to supply
significant evidence in important cases
and there is a perceived threat to theirsecurity. From 1 970 to 199 8, a total
number of 6,818 witnesses with 8,882 of
their families were given this protection
and US$75,000 per witness per year and
US$125,000 per family has been spent. 5
Even though the programme is costly, theresult has made it worth the cost. Over
10,000 defendants have been convicted
through the testimony of witnesses and it
is said that after the enactment of thisA ct, th e auth or ity co uld sec ure theconviction of several notorious mafia
leaders.
In Brazil, the national programme forthe protection of victims and witnesses
took effect in August 1999. The persons
who may benefit from this programme
5Frank J. Marine, “Response to the Threats Posed
by Transnational Crime and Organized Crime
Group”, Visiting Expert, 108th International
Course.

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119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
are those without decreed imprisonment
and their relatives who live with them.
The programme includes the following
measures:
•
•
•
•
•
•
•
•

Transferring the residence of thewitness;
Monthly financial aid for each
witness;
Supply of food and clothing;
Police protection when traveling;
Helping the witness find a job in thework market;
Retention of benefits by a public
employee who is removed from theservice;
Social, psychological and medical
assistance; andChange of identity.

Italy has enacted legislation whichs p e c i f i c a l ly p r o v i d e s f o r w i tn e ss e sprotection and relocation.
In the Philippines, the Witness
Protection, Security and Benefit Act(Republic Act No. 6981) was enacted on
21 April 1991, with the Department ofJustice as the lead implementing agency.
As a result of admission into the Witness
P r o te c tio n a nd B en e f it P r o gr a m m e(WPP), which (in addition to the above
mentioned benefits) has a substantial
budgetary allocation, the witness shallenjoy the following benefits:6•••

Secure housing facility until he has
testified or until the threat,
intimidation or harassm ent
disap pears or is reduced to a
manageable or tolerable level;
Travel expenses and subsistence
allowance during the inquiry;
Burial benefits, in case of death due
to his participation in the WPP; and•Free education for children, fromprimary to college level in any Stateor private school, college oruniversity, if the witness dies or
becomes permanently incapacitatedto work.

The protection could be extended toany mem ber of the witness’ fam ily. 7
However, a witness admitted into theprogramme shall have the duties andresponsibilities, such as, to testify before
and provide information to all
appropriate law enforcement officials
concerning all appropriate proceedings inconnection with or arising from theactivities involved in the offense charged,
to avoid the commission of a crime, tocomply with legal obligations and civil
judgments against him, etc.8
I n J a p a n, the W itn ess Pr ote ction
Programme has been embodied in the
Code of Criminal Procedure (CCP), Ruleof Criminal Procedure, Constitution,
Penal Code and Anti-organized Crime
Law. For example, exception to bail (arequest for bail may be rejected when
there are reasonable grounds for
suspecting that the defendant may injure
the body or damage the property of thewitness or his relative, or threaten themas stipulated in Article 89(5) of the CCP;
Order for the defendant to leave thecourtroom (Article 281-2 of the CCP),
Ord er fo r the sp ecta tor to le ave thecourtroom (Article 202 of the Rule of
Criminal Procedure), Trials conductedprivately (Article 82 C lause 2 of theConstitution), Intimidation of a witness(Article 105-2 of the Penal Code, Article
7(3) of the Anti-Organized Crime Law).

7

Section 3, the Witness Protection, Security and
Benefit Act (Republic Act No. 6981)

6

Section 8, the Witness Protection, Security and
Benefit Act (Republic Act No. 6981)

8

Section 5, the Witness Protection, Security and
Benefit Act (Republic Act No. 6981)

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RESOURCE MATERIAL SERIES No. 59
A presiding judge may control any
questions asked by persons concerned in
the trial, if the questions relate to thedwelling or the office of a witness or his/her relative, where he/she or they areusually staying and there are reasonablegrounds for suspecting that they or theirproperty may be damaged (Article 295
C lause 2 of the C CP ). H ow eve r, theinformation to identify witnesses may beseen as the constitutional rights of the
defendants, so he/she can have the fullopportunity to examine all the witnesses,
so it could be difficult to hide completely
all information to identify the witness
from the defendant.
Article 157-4 Clause 1(3) of the CCP
provides that a court may, if it deems
necessary, according to the circumstancesof the crime and the witness, examine thewitness with a video link system. The
method involves taking the witness toanother room and exa mining him bymeans of audio-visual tools.
Article 1 57-3 Cla use 1 of the CC P
provides the court may, where the court
believes a witness would be unable totestify fully with the pressures of being
before the defendant and according to thec ircum sta n ce s o f the c rim e a nd th ew itne ss, ord er a scre en to b e set up
between the witness and the defendant tomake the witness invisible during theexamination. Moreover, Clause 2 of theabove article also provides that a court
may order a screen to be set up between
the witness and the public gallery.
A r t i c l e 4 o f th e L a w C o n c e r n i n g
Measures Accompanied with Criminal
P roc ed ure fo r Pr otec tio n o f V ictims
provides that a victim can request the
court in criminal cases to record themutual consent between him/her and thedefendant in the record of trial in order toobtain compensation.

652

The Law to Provide Compensation for
the Victims of Crime provides that statecompensation may be supplied to thevictims of crime whose relatives havebeen killed, or who have suffered serious
injuries from a criminal act.
In Thailand, the Witness Protection
Bill proposed by the Ministry of Justice isunder discussion at the Pa rliament.
Under the draft bill, the protection will be
the responsibility of the police to carryout this task until the Witness Protection
Office is esta blished. There shall be
general and special measures for witness
protection. I n general cases, theinvestiga to r or prosecutor, w ith therequest from the witness, may asked the
Witness Protection Office to order theprotection for up to 30 days subject to thenecessity of the case. However, in an
emergency situation, the investigator orprosecutor would be empowered to orderthe police protection for their witness forup t o 5 d a ys a t a t i m e . T h e s p e c i a lmeasures are designed to apply to cases
involving trading in narcotics, womenand children. The Minister of Justice mayorder the use of special measures forwitness protection. The measures include
relocation of witness residence, changing
of witness identity and record, as well as
pro vid ing living allow a nces a nd jo b
training for up to 2 years. Both generaland special measures can be extended to
the witness’s spouse, parent, children andperson in close relationship with such
witness. Although there is the worry
about the shortage of budget, this witness
pr ote ction p rogr a mm e is in evita b ly
necessary to combat organized crimes.
Moreover, to reduce the fear of witnesses
in taking the witness stand and having to
confront the defendant whom may be an
influential person or a member of anorganized crime group, the use of videoconferencing where a witness testifies in
fro nt of the vide o ca m era in a ro om

119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
separately from the trial room is also
introduced. This should make the witness
feel more relaxed and comfortable to tell
the whole truth. The proposed bill toamend the Thai Criminal Procedure Codefor allowing the use of video conferencing
is being scrutinized by the Office of theCouncil of State.
W e learned that Nepal is now
considering utilizing the Witness
Protection Programme. Anyhow there arestill many countries that do not have thisprogramme.
C. Benefits
W itness and Victim Protection
P ro gr a mm e s will en co urag e the c o operation of people in the fight against
transnational organized crimes, since
they are assured that in giving evidence
their life, property or that of their family
will be safe from the criminalorganization in question. The protection
can be given d uring the time ofinvestigation, proceeding or thereafter.
Therefore the witness may be either theaccused who is granted immunity, thevictim or a third party.
D. Drawbacks
Due to the large amount of finances
required and human resource constraints
to devise or even implem ent thisprogramme, many countries may fail toadopt it.
It is also difficult to define the scope of
the witness protection. It is not clear as
when and for how long the witness should
be provided with this protection
programme. A question also arises as towhether the protection should be limited
only to the witness or should be extended
to his family. It is also not clear as to howmuch assistance should be provided.

V. CONCLUSION
All states should be required to ensure
th a t t h e i r l e g i sl a t io n c r im i n a l i z e s
conspiracy and/or participation in an
organized criminal group. The definitionof participation was drawn to require‘active participation.’ It was this joint
action which contributed to the definition
adopted in the TOC Convention in Article
5.
Furthermore, in responding to thethreat of transnational crime, criminal
justice authorities have felt it necessary
to intervene as soon as possible in orderto p revent crim e, brea k-up crimina lorganizations and apprehend offenders
before they ma ke go od their escape.
S t a te s p a r ti e s a r e a l s o r e q u i r e d t ocarefully choose the best options, keeping
in mind their domestic legal and social
systems.
I m m unity ge ne r a lly r e fe rs to theprocess of exemption from prosecuting aperson accused of a crime. It seems that
immunity from prosecution has actually
led to the solving of many serious crimes
in countries such as Pakistan and India.
Detailed immunity systems of othercountries like Malaysia, Uganda andThailand were also discussed. In Japanthe system is not legislated. The absenceor existe nce of a n im munity systemdepended on a country’s culture, history,
national sentiment and their domestic
laws.
Regarding witness and victim
protection, we identified participant
states into 4 categories as above
mentioned. It was appreciated that thestatement of accomplices has proved
useful in prosecution involving organizedcrime cases, as it helps law enforcement
agencies to penetrate such gangs. In
response to this, some countries have653

RESOURCE MATERIAL SERIES No. 59
found it advantageous to enact legislation
to protect witnesses and/or oblige
w itn esse s to tes tif y truth fu lly , an dprovide sanctions if they refuse to do so.
It was identified that although someco untries c urr ently ha ve no serious
problems with transnational organizedcrime, the state of affairs may change inview of the rapid and continuing spreadof it. It is therefore important to establish
li ne s o f c om m u nic a tio n a n d sha r e dunderstand ing of co mmon goals
throughout the world.
These strategies have been endorsedby the TOC Convention since the year
2000. Since the TOC Convention provides
and covers all effective countermeasuresagainst transnational organized crime forus, it is imperative to ratify andimplement the Convention as soon as
po ssible , taking into due accountharmony with the domestic legal systemof each country.

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119TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

APPENDIX
Article 5
Criminalization of participation in an
organized criminal group
1. Each State Party shall adopt such
legislative and other measures as
ma y be necessary to establish as
criminal offences, when committed
intentionally:(a) Either or both of the following as
criminal offences distinct fromthose involving the attempt orcompletion of the criminal
activity:(i) Agreeing with one or moreothe r p erso ns to c om mit 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
unde rtak en by o ne of theparticipants in furtherance of
the agreement or involving anorganized criminal group;(ii) Conduct by a person who, withknowledge of either the aim
and general criminal activityof an organized criminal groupor its intention to commit thecrimes in question, takes anactive part in:a. Criminal activities of theorganized criminal group;b. Other activities of theorganized criminal groupin the knowledge that hisor her participation willcontributetotheachievement of the abovedescribed criminal aim;(b) Organizing, directing, aiding,abetting,
facilitatingor
counselling the commission ofserious crime involving anorganized criminal group.
2. The knowledge, intent, aim, purpose
or agreement referred to in paragraph
1 of this article may be inferred fromobjective factual circumstances.
3. States Parties whose domestic law
requires involvement of an organizedcriminal group for purposes of theoffences established in accordancewith paragraph 1 (a) (i) of this article
shall ensure that their domestic law
covers all serious crimes involvingorga niz ed crimina l gr oups. Such
States Pa rties , a s w el l a s Sta te sParties whose domestic law requires
an act in furtherance of theagreement for purposes of theoffences established in accordancewith paragraph 1 (a) (i) of this article,
shall so inform the Secretary-Generalof the United Nations at the time of
their signature or of deposit of theirinstrument of ratification, acceptanceor approval of or accession to thisConvention.
Article 25
Assistance to and protection of victims
1. EachState
Party shalltake
ap pr op riate m ea sure s w ithin its
mea ns t o pro vid e a ss i s ta nce a ndpr ote ctio n to victim s of of f en ce s
covered by t his Con venti on , inp a r t i c u l a r in c a s e s o f t h r e a t o f
retaliation or intimidation.
2. Each State Party shall establish
appropriate procedures to provide
access to comp ensation andrestitution for victims of offences
covered by this Convention.
3. Each State Party shall, subject to its
d o m e s ti c l a w , e n a b l e v ie w s a n dconcerns of victims to be presented

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RESOURCE MATERIAL SERIES No. 59
and considered at appropriate stageso f c r im i n a l p r o c e e d i ng s a ga in st
offenders in a manner not prejudicial
to the rights of the defence.
Article 26
Measures to enhance cooperation withlaw enforcement authorities
1. Each
State
Party
shall
take
appropriate measures to encourage
persons who participate or who haveparticipated in organized criminalgroups:(a) To supply information useful tocompetent authoritie s forinvestigative and evid entiary
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 organizedcriminal 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 organizedcriminal groups of their resources
or of the proceeds of crime.
2. Each State Party shall consider
p r o v id in g f o r t he p o s si b il ity , inap p ro pr iate ca se s, o f m itigating
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
p r o v id in g f o r t he p o s si b il ity , inaccordance with fundamental
principles of its dom estic la w, o fgranting immunity from prosecution
to a person who provides substantial
cooperation in the investigation or656

prosecution of an offence covered bythis Convention.
4. Protection of such persons shall be as
pro vid ed fo r i n a rt i cle 2 4 of t hi s
Convention.
5. Where a person referred to inparagraph 1 of this article located in
one State Party can provide
substantial coo peration to thecompetent a uthorities of anotherS t a t e P a r t y , t h e S t a te s P a r t ie s
concerned may consider entering intoa gre em e nts o r a rra nge m en ts, inaccordance with their domestic law,concerning the potential provision by
the other State Party of the treatment
set forth in paragraphs 2 and 3 of thisarticle.