GROUP 3

MEASURES TO DEPRIVE RINGLEADERS AND CRIMINALORGANIZATIONS OF CRIME PROCEEDS AND PUNISH THEM
EFFECTIVELY
Chairperson
Co-Chairpersons
Rapporteur
Co-Rapporteurs
Members
Visiting Experts
Advisers

Mr. Shinichi Suzushima
Mr. Yusuke Endo
Mr. Netipoom Maysakun
Mr. Sikandar Hayat
Ms. Ayako Sakonji
Mr. Aung Htay Myint
Mr. Leonardo Ernesto Paul Aparicio
Mr. Giuliano Turone
Deputy Director Keisuke Senta
Prof. Satoko Ikeda
Prof. Ichiro Sakata
Prof. Hiroyuki Shinkai(Japan)(Japan)(Thailand)(Pakistan)(Japan)(Myanmar)(Panama)(Italy)(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
The Group agreed to conduct its discussion in accordance with the following agenda:

A. Measures to Deprive Criminals of Criminal Proceeds
1. Confiscation:
1.1 Measures to secure confiscation:(a) Measures for identifying and tracing proceeds of crime;(b) Measures for freezing and seizure of proceeds of crime;
1.2 Burden of proof concerning the scope of “proceeds”.
2. Use of Money Laundering Offence;
3. Inter-agency Co-ordination and Co-operation with FIU and others;
4. International Co-operation:
4.1 Mutual legal assistance to identify, trace, freeze and confiscate proceeds of crime, and return theproceeds or share the assets;
4.2 International co-operation between FIUs.
B. Measures to hold Ringleaders and Criminal Legal Persons Accountable
1. Use of the Offences of Conspiracy/Criminal Organization or Accomplice Clauses;
2. Application of Effective, Proportionate and Dissuasive Sanctions for Criminals and Legal Persons.
II. MEASURES FOR IDENTIFYING AND TRACING PROCEEDS OF CRIME
A. The Current Situation in Participants’ Countries
Mr. Endo began by stating that, in Japan, there are three methods to identify and trace the proceeds ofcrime. Firstly, the public prosecutors start the investigation by receiving the reports concerning suspicioustransactions from the Financial Intelligence Unit (FIU). Nevertheless, there is no law concerning theminimum amount of cash transaction that the commercial banks have a legal obligation to report to the FIU.
Secondly, the tax agency reports the tax evasion cases to the public prosecutors. Lastly, the publicprosecutors may initiate investigation of the proceeds of crime by themselves.
Mr. Maysakun stated that there are two ways to identify and trace the proceeds of crime in Thailand.
First of all, the financial institutions have a legal obligation to report all cash transactions of 2,000,000 (ThaiBaht) (approximately US$50,000) or more, or any suspicious transaction, to the Anti-Money Laundering
Office (AMLO). After receiving transaction reports, the AMLO will process, examine and analyse thereports, followed by an investigation if necessary. Finally, after the police or the Department of Special
Investigation personnel (DSI) have arrested the suspects for committing the predicate offences, the policeor the DSI may report to the AMLO that the suspects’ assets are related to the predicate offences.

115

RESOURCE MATERIAL SERIES No.73

Mr. Sikandar stated that in Pakistan the commercial banks have a legal obligation to report any suspicioustransaction to the Central Bank. However, there is no single law concerning the minimum amount of cash
involved before the commercial banks have an obligation to report to the Central Bank. Mr. Paul stated that,in Panama, the financial institutions have a legal obligation to report all cash transactions worth more than
US$10,000, or any suspicious transactions, to the Financial Analysis Unit (FAU). After receiving the reports,
the FAU will process, examine and analyse the reports.
Many participants suggested that in order to identify and trace the proceeds of crime effectively,
investigators need to utilize FIU’s records to support their investigations.
However, Visiting Expert Mr. Turone suggested that investigation of money flow is much more thanobtaining information from FIUs. In many cases, detailed and strategic investigation in a conventionalmanner can reveal circumstantial evidence for money flows even if the transaction was made in small
amounts.
After a long discussion, all participants unanimously agreed that in order to identify and trace theproceeds of crime effectively, the law in respective countries should be amended or added to. Firstly, every
country should establish an FIU. Secondly, the law should state that financial institutions, such ascommercial banks, have a legal obligation to keep records of transactions for a substantial time and to reportcertain minimum amounts of cash transactions and any suspicious transaction to the FIU.

B. Opening a Bank AccountMs. Sakonji, Mr. Suzushima and Mr. Endo stated that Japan does not have a national identification (ID)system in place. Therefore, a photo ID card is not a prerequisite for a Japanese citizen to open a bankaccount. If a Japanese citizen would like to open a bank account, he or she needs to provide a driver’s
licence, an insurance card or other means of identification to the bank employee. Opening a bank accountusing a false name is very common practice in Japan. If caught, the perpetrator will be charged with afraudulent offence. However, if a foreigner who resides in Japan would like to open a bank account, he or she
has to provide an alien registration card to the bank employee. The municipality has the sole authority toissue the alien registration card to the foreigner. A passport is not a prerequisite for a foreigner to open abank account in Japan. An ad hoc lecturer, Mr. Sadahiro, stated that if a bank’s customer transfers ¥2,000,000
or more to a bank account in foreign country, a bank has a legal obligation to report this transaction to therespective authority. Moreover, if a bank’s customer would like to withdraw money worth more than¥100,000 yen, he or she connot do so by Automated Teller Machine (ATM). Under a recent regulation, he or
she must be present at the bank to withdraw more than ¥100,000. Unsurprisingly, this new regulation
receives numerous complaints from business circles because it is troublesome and time-consuming both forthe banks and the customers.
The participant from Thailand stated that, in order to comply with the FATF Recommendations forfinancial institutions to obtain information about the true identity of the person with whose name an accountis opened, Thailand has implemented a Know Your Customer measure. So, if a Thai citizen would like toopen a bank account, he or she needs to provide a photo citizen identification card or other identification
cards issued by any government agency to the bank employee. In the case of a foreigner residing in Thailand
wanting to open a bank account, he or she needs to provide a passport and a local address to the bank
employee.
The participant from Panama stated that if a Panamanian wants to open a bank account, a citizen photo
identification card is required. On the other hand, a foreigner must provide a passport, a local address and acredit reference to a bank employee if he or she wants to open a bank account in Panama.
The participant from Pakistan stated that if a Pakistani would like to open a bank account, he or she needs
to provide a photo identification card to the bank. However, if a foreigner who resides in Pakistan wants toopen a bank account, he or she has to provide a passport and a local address to the bank employee.
The participant from Myanmar stated that if a Myanmar citizen would like to open a bank account, he or
she needs to provide the name, address, occupation, Citizen Scrutiny Card number, and National
Registration Certificate number to the bank personnel. On the other hand, if a foreigner wants to open abank account, he or she is required to provide his or her Foreigner’s Registration Certificate number,116

134TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

passport number and visa number to the bank employee.
All participants unanimously concluded that in compliance with the Customer Identification measures of
FATF Recommendations, documents such as a photo identification card should be a prerequisite to open abank account; a prospective customer’s permanent address also has to be provided to the bank personnel,
and appropriate measures to prevent and tackle fake identifications should be put in place.

III. MEASURES FOR FREEZING AND SEIZURE OF PROCEEDS OF CRIME
A. Procedures for Freezing Criminal Proceeds in Participants’ Countries
The participant from Panama stated that the public prosecutor in Panama can freeze all kinds of proceedsof crime, but in case of bank accounts, the public prosecutor needs approval from the court. However, thepublic prosecutor should have probable cause that the assets are related to the crime before freezing theassets.
The participant from Thailand stated that in Thailand, before filing the petition to the court, if the AMLO
(the Transaction Committee) has probable cause to believe that the assets related to the predicate offences
may be transferred, distributed, placed, layered or concealed, the AMLO has the power to seize the assets
temporarily for a period not exceeding 90 days. Moreover, after the public prosecutor files a petition toforfeit the assets, if there is probable cause to believe that there may be a transfer, distribution, or placementof any assets related to the predicate offences, the public prosecutor might file a petition to the court toorder a temporary seizure of the assets.
The participant from Myanmar stated that in Myanmar if the public prosecutor has probable cause tobelieve that the assets are related to the crime, the public prosecutor can temporarily freeze the assets.
The participants from Japan stated that in Japan, before filing a lawsuit or if a trial is pending, if the publicprosecutor has probable cause to believe that the assets are derived from crime, the public prosecutor may
request the court to temporarily freeze the proceeds of crime.
All the participants agreed that confiscation of crime proceeds is as important as the punishment ofcriminals itself. In addition, investigation of crime and confiscation of crime proceeds should be carried out
simultaneously. More importantly, it is essential to have necessary measures to temporarily freeze theassets even before trial.

B. Confiscation of Proceeds of Crime
The Group learned that under Article 12 of the United Nations Convention against Transnational
Organized Crime: “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 thisConvention; 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 otherproperty, 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, suchproperty 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 ofcrime, 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 thisarticle, in the same manner and to the same extent as proceeds of crime.”
Participants from Japan, Thailand, Myanmar, Pakistan and Panama all stated that their legislations are, in
general, in accordance with Article 12 of the TOC Convention numbers 1-5.
The participant from Pakistan stated that there are two laws in Pakistan concerning the proceeds ofcrime. Firstly, the Control of Narcotic Substances Act of 1997 (ANF) specifies that if the court convicts a

117

RESOURCE MATERIAL SERIES No.73

defendant in a drug-related case, the investigating officer will write an application for forfeiture of the
defendant’s assets. The investigating officer will provide details of the defendant’s assets including his or
her associate’s assets. If the court is satisfied that the assets were obtained through drug trafficking, thecourt can order the forfeiture of the assets to the Federal Government. Lastly, the National Accountability
Bureau Ordinance of 1999 provides that politicians and federal and local officers who commit corruption or
embezzlement offences could be fined amounts equal to the amount embezzled or acquired throughcorruption.
One of the participants suggested that the investigator has to identify the proceeds of crime at theearliest opportunity in order to temporarily freeze the assets and prevent the offender from transferring theassets to the third person.
One of the participants from Japan stated that the criminal justice agencies disproportionately focus on
the punishment of the defendants and pay little attention to the confiscation of the proceeds of crime. This
trend should be changed. The Group agreed that the criminal justice agencies should also pay much needed
attention to the confiscation of proceeds of crime in order to discourage the offenders from acquiring assets
through crime.
All the participants agreed that legislation should empower courts to confiscate assets when transferred
to a third person or when intermingled with property from legal sources. The current awareness of theconfiscation of proceeds of crime among investigative agencies and judges is very limited. More training
should be provided to them in order to combat transnational organized crime effectively.
All the participants also stated that after the court forfeits the proceeds of crime, the proceeds of crime
will go to the State’s treasury. Some of the participants expressed the necessity of creating a system to
distribute at least a part of confiscated assets to the victims.

C. Burden of Proof Concerning the Scope of “Proceeds”
The participant from Thailand stated that, in Thailand, the burden of proof will be on the publicprosecutor to prove preponderance of evidence that the assets named in the petition are related to thepredicate offences. If the public prosecutor can meet that standard of proof, the judge must order theforfeiture of the assets to the State.
The participants from Japan stated that, in Japan, the burden of proof will be on the public prosecutor toprove beyond reasonable doubt that the defendant committed a predicate offence or a money laundering
offence, and that the defendant’s assets are related to the predicate offence(s).
The participant from Panama stated that, in Panama, in drug-related cases, the burden of proof will beshifted to the defendant to prove how he or she acquired the assets. The defendant has to prove in a court oflaw that the assets were acquired through legitimate means. If the defendant cannot prove this, the judge
will forfeit his or her assets to the State. However, in other criminal cases, the burden of proof will be on the
public prosecutor to prove beyond reasonable doubt that the defendant committed a crime, and that thedefendant’s assets are related to the crime.
The participant from Pakistan stated that, in Pakistan, the burden of proof for the confiscation of proceedsof crime will be shifted to the defendant to prove that his or her assets are not related to the crime.
The visiting expert, Mr. Turone, stated that in regular criminal confiscation, the public prosecutor has toprove beyond reasonable doubt that the defendant committed a major crime, such as criminal associations,and that the defendant’s assets are derived from major crime without any inversion of the burden of proof.
It can be compared to the common law ‘forfeiture in personam ’. However, he also stated that in order tosolve this problem, the Italian legislature introduced two different legal remedies which are conceived insuch a way as to reach and confiscate the consolidated sections of criminal economy. The first remedy, thejudicial remedy, which is called the special criminal confiscation of unjustified assets, is a very peculiar
mechanism introduced by the Italian legislators which provides a further instance for compulsory criminal
confiscation, suitable for striking at sections of the consolidated criminal economy, and allowing some118

134TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

inversion of the burden of proof under a number of strict conditions. Moreover, this law applies only topersons convicted of major organized crime offences such as drug trafficking, mafia association, trafficking inpersons, extortion and money laundering. The second remedy, the old administrative confiscation, is the one
provided by an older anti-mafia statute which allows the public prosecutors to seize and confiscate criminal
assets outside criminal proceedings, and with a looser rule of evidence. This possibility, concerning mafia
crimes and drug crimes, is provided through a non-penal and administrative procedure judicially guaranteed,as it is ruled by law and controlled and decided by a judge. This old legal instrument, unlike the first remedy,
is applied without any need for criminal conviction of the affected person. This legal remedy is somehow
similar to the common law ‘forfeiture in rem ’.
Mr. Endo stated that, in Japan, the burden of proof for confiscating the proceeds of crime is too difficult toprove. The public prosecutor has to prove beyond reasonable doubt that the proceeds of crime are related tothe predicate crime. In his opinion, in order to confiscate the proceeds of crime, the burden of proof should
be on the public prosecutor to prove preponderance of evidence that the proceeds of crime are related to thepredicate crime. Besides, one of the participants suggested that the burden of proof should be shifted to thedefendant to prove how he or she acquired the assets. However, shifting the burden of proof requirement
should not apply to the third person who acts in good faith.

D. Procedure of Confiscation
Mr. Turone also commented that there are two main legal procedures of the confiscation of the proceedsof crime. Firstly, the criminal confiscation is known in the common law system as ‘forfeiture in personam.’This is the regular confiscation, which concerns a convicted person, with respect to assets directly proven to
be criminal assets without any inversion of the burden of proof. The second procedure of the confiscation is
known in the common law system as ‘forfeiture in rem.’ This unique procedure applies without any need fora criminal conviction of the affected person. A confiscation principle similar to the in rem procedure is in use
in the Italian legal system and he believed that all members of the Council of Europe adopted a similar
procedure because the signatory States abide by the Convention on Laundering, Search, Seizure andConfiscation of the Proceeds from Crime to adopt the same legal remedy as other signatory States.
IV. INTER-AGENCY CO-ORDINATION AND CO-OPERATION WITH FIUs AND OTHERS
The participants from Japan stated that, in Japan, the tax agency, the police force and the publicprosecutor’s office work hand in hand to identify, trace and examine the proceeds of crime.
The participant from Panama stated that, in Panama, the public prosecutor’s office has a good working
relationship with the banks and other financial institutions. Bank employees also receive comprehensive
training from experts concerning how to identify fake photo identification cards and how to identify
suspicious transactions.
The participant from Thailand stated that the police force has harmonious co-operation with the AMLO
because many of AMLO’s personnel came from the police force; the incumbent Secretary-General of AMLO
is also former police officer.
All the participants agreed that co-operation and co-ordination among agencies is indispensable infighting transnational organized crime in order to deprive criminals of illicit proceeds.

A. International Co-operation between FIUs
The participant from Thailand stated that Thailand is a member of the Egmont Group, which is aninternational group of Financial Intelligence Units (FIU) from 95 member countries. It serves as a coordinating centre for the exchange of information on financial transactions in the prevention and suppressionof money laundering. To date, Thailand has signed the Memorandum of Understanding Concerning Cooperation in the Exchange of Financial Intelligence Related to Money Laundering (MOU) with 23 countries.
In addition, Thailand is also a founding member of the Asia-Pacific Group on Money Laundering (APG),
which is a regional anti-money laundering group. The APG was established in 1997 to help jurisdictions
within the Asia-Pacific region to adopt and enforce internationally accepted standards. This includes enacting
laws which criminalize the laundering of the proceeds of crime, and dealing with mutual legal assistance,
confiscation, forfeiture and extradition. It also provides guidance for setting up systems to report and119

RESOURCE MATERIAL SERIES No.73

investigate suspicious transactions.
Mr. Sadahiro from JAFIO, in his lecture, stated that information exchange among FIUs by utilizing ahighly encrypted network system is faster than that of the investigative authorities. However, the Japanese
FIU is not allowed to exchange information with foreign FIUs unless Japan establishes an informationexchange agreement with those foreign countries. Currently, Japan has made such agreements with eight
countries’ FIUs: Australia, Belgium, Canada, Hong Kong, Singapore, South Korea, Thailand and the UK.
The participant from Myanmar stated that transnational organized crime is a threat that cannot be fought
in isolation and cannot be solved by a single State. Myanmar inevitably needs to establish an FIU in order to
identify, detect, examine and analyse suspicious transactions. To date, Myanmar has not established an FIU.
However, Myanmar is willing to co-operate with foreign countries concerning exchange of information
among FIUs.
The participant from Pakistan stated that the Pakistani Government has placed the Anti-Money
Laundering Bill 2005 before the national assembly, proposing four-year imprisonment sentences for money
laundering. The bill would also establish a Financial Intelligence Unit (FIU) which will be known as the
National Financial Intelligence Center (NFIC) in the State Bank of Pakistan, the country’s central bank.
The NFIC will operate under the supervision of the Minister of Finance. Until now, the national assembly
has not yet enacted this law, but it is widely expected that the national assembly will pass this law before theend of this year. However, Pakistan regularly exchanges information with all friendly and non-hostile States,
whether they are coalition partners and have signed extradition treaties with Pakistan or not. Moreover,Pakistan also regularly exchanges information and shares intelligence concerning criminal matters withthose countries.
All the participants unanimously agreed that nowadays we live in a borderless world. One country, nomatter how powerful it is, cannot fight transnational organized crime alone. International co-operation
among FIUs becomes more and more necessary, even indispensable, if all countries want to completely
eradicate transnational organized crime.

V. MUTUAL LEGAL ASSISTANCE TO IDENTIFY, TRACE, FREEZE AND CONFISCATEPROCEEDS OF CRIME, AND RETURN THE PROCEEDS OR SHARE THE ASSETS
Deputy Director Senta stated that there are two important methods of international co-operation. First ofall, law enforcement co-operation is a channel for international co-operation which is a very quick andefficient way to get information.
Secondly, mutual legal assistance and extradition are formal channels for international co-operation sothey require legal procedures, sometimes lengthy. However, this method is essential in obtaining evidence
that is admissible in a court of law because the information obtained through law enforcement co-operation
is in many cases inadmissible in court.
Ideally, in order to obtain key evidence located in a foreign country the relevant countries need toconclude a Mutual Legal Assistance Treaty (MLAT). But in the real world, it is almost impossible for eachcountry to sign an MLAT with every other country on the world map. Therefore, the reciprocity of mutual
legal assistance without signing a treaty is the answer for obtaining evidence that is admissible in a court oflaw because it is quick, informal in nature and merely requires the willingness of the two countries toengage in this practice. However, the reciprocity of mutual legal assistance without signing a treaty is notapplicable in every country. In some countries, their Constitutions and their legal principles may not permit
them to utilize the method of reciprocity of mutual legal assistance without signing a treaty. Therefore, in
those countries, the only way to obtain evidence located in a foreign country, and make sure that it isadmissible in a court of law, is by signing an MLAT with that foreign country, or to regard universal
conventions, such as the TOC Convention, as a legal basis for international co-operation.
Participants from Thailand and Panama also stated that if evidence is located in a foreign country and if theinvestigator merely uses a formal channel, the evidence might be destroyed. Therefore, the investigator needs
the co-operation of his or her counterpart in the foreign country to preserve the evidence. The prosecutor

120

134TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

might call his or her counterpart to preserve the evidence before the formal request reaches the competentagency in the respective country. This kind of practice is called informal law enforcement co-operation.
Participants from Thailand and Japan commented that if the evidence is located in a foreign country, mostinvestigators will give up trying to collect that evidence because most investigators believe that using
formal requests is complicated and time-consuming.
Professor Senta commented that investigators have to change their mindset and should not give up when
they find important evidence out of their own countries. According to his experience, he has succeeded inmany cases in overcoming the difficulties of both formal and informal international co-operation, which at
first seemed to be impossible. The easiest and most effective way is to make a phone call to a concerned
agency to find out the best way to proceed. He repeatedly stressed that investigators must change theirmindset. If they face any difficulty, they should never give up the international co-operation methods.
Visiting Expert Mr. Turone stated too that investigation and prosecution of the proceeds of crime must beallowed to develop beyond national borders. He also emphasized that legal reciprocal agreement between
countries, bilateral and multilateral agreements concerning identifying, tracing, freezing and confiscatingproceeds of crime and returning the proceeds and sharing the assets are extremely critical if all countries
want to tackle this problem effectively. He also stated that, in 1990, the Council of Europe promoted theInternational Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime. The
main purpose of this Convention is to seize and confiscate criminal assets on an international scale, since theConvention requires each signatory State, on the request of another signatory State, to seize assets in viewof a request for international confiscation and also to permit the confiscation of criminal assets in its own
territory. He emphasized that the Convention of the Council of Europe on money laundering is based on aphilosophy which strongly favours a network of interconnected asset investigations to be expanded on aninternational scale in view of a series of international confiscations as the most effective investigative tool
against transnational organized crime and its profit-oriented dimension. He also pointed out that a request
based on the reciprocity of mutual legal assistance without a treaty is not as effective as a request based on atreaty. Because of the informality of a request not backed by a treaty, the requested State does not have theobligation to co-operate with the requesting State. Many participants stated that regardless of the existenceof an MLAT, making a request is an important mode of international co-operation to fight transnationalorganized crime. The investigators must creatively utilize all modes of international co-operation available ifthey want to eradicate transnational organized crime.

VI. MEASURES TO HOLD RINGLEADERS AND CRIMINAL LEGALPERSONS ACCOUNTABLE
A. Use of Offences of Conspiracy/Criminal Organization or Accomplice Clauses
Professor Ikeda began by stating that Article 5 of the United Nations Convention against Transnational
Organized Crime (TOC Convention) provides that each State Party shall adopt either a conspiracy offence ora participation offence as a criminal offence in their domestic laws. The conspiracy offence is a common law
concept. On the other hand, the participation offence is a civil law concept. They simply mean that one ormore other persons agree to commit a serious crime for a purpose relating directly or indirectly to theobtaining of a financial or other material benefit. She also stated that the main purpose of a conspiracy
offence or a participation offence is to punish the ringleaders.
The participant from Thailand stated that section 210 of the Thai Penal Code provides that whenever fivepersons or more conspire to commit any offence in the Thai Penal Code punishable with a maximum term of
imprisonment of one year or more, any such person is said to be a member of a criminal association, andshall be punished with imprisonment not exceeding five years or a fine not exceeding 10,000, or both. In
addition, if it is a conspiracy to commit an offence punishable with death, imprisonment for life or
imprisonment of ten years or more, the offender shall be punished with imprisonment of two to ten years
and fine of 4,000 to 20,000.
He also stated that this law has some flaws. Firstly, in order to commit a conspiracy offence, five persons
or more must conspire to commit any offence in the Thai Penal Code, but the Thai Penal Code has beenpromulgated since 1956. Inevitably, it does not cover all the major criminal offences such as drug trafficking,121

RESOURCE MATERIAL SERIES No.73

tax evasion, customs evasion, bid rigging and share manipulation. For instance, if five persons or more
conspire to commit a drug trafficking offence, under Thai law, those persons do not commit a conspiracy
offence. Therefore, Thailand needs to enact new legislation that clearly states the definition of theconspiracy offence in order to comply with the TOC Convention. Secondly, it is extremely difficult to provein a court of law that the suspects committed a conspiracy offence because the serious crime that thepersons agreed to commit has not actually occurred.
The participants from Japan stated that Japan has not enacted the conspiracy offence Bill yet. Currently,
the Bill is pending in the Diet. In addition, they firmly stated that in order to comply with the TOC
Convention, Japan has to pass this Bill as soon as possible.
The participant from Pakistan stated that Pakistan has adopted the conspiracy offence. Section 120A of
the Pakistan Penal Code provides that when two or more persons agree to do an illegal act such an
agreement is designated a criminal conspiracy.
The participant from Panama stated that in the Penal Code of his country, under the name Illicit
Association (section 242, 242-A, and 242-B) the conspiracy offence is a crime, in compliance with Article 5 of
the TOC Convention.
The participant from Myanmar stated that the conspiracy offence exists in Myanmar. Section 565 of
the Myanmar Penal Code provides that when three persons or more conspire to commit a crime, it is said
that they commit a conspiracy offence.
Most participants agreed that to tackle transnational organized crime at its root, the ringleaders have to
be severely punished and their assets have to be confiscated. Typically, most organized crimes arecommitted by so-called ‘small fish’ who receive the order from the ringleaders. When the crime is detected,
the small fish will be caught and punished. The ringleaders will get away with impunity. This trend has to bechanged. The ringleaders have to be held accountable and severely punished for their involvement. Most
participants also believe that one of the most efficient tools to combat ringleaders is to adopt the conspiracy
and participation offence legislation in order to allow the investigators to search, freeze and seize theringleaders’ assets at the earliest opportunity.
However, many participants stated that the conspiracy and participation offence also creates some
controversy. First of all, it is very difficult to prove in court that the suspects committed the conspiracy
offence because the serious crime that the persons agreed to commit has not actually occurred. Secondly, inorder to prove in court that the defendants committed a conspiracy or participation offence, the investigators
desperately need special investigative techniques such as electronic surveillance to build up solid evidence
against the offenders. However, electronic surveillance is not allowed in many countries. For instance, inPakistan, it is illegal to wiretap or intercept a phone. Thirdly, the conspiracy offence may in some countries
be against constitutional or legal principles because it punishes persons for mere agreement to commit acrime, not for committing a crime per se.

B. Application of Effective, Proportionate and Dissuasive Sanctions for Criminals and Legal Persons
All the participants acknowledged the importance of not allowing criminals to disguise their offences
under legal entities. Therefore the Group agreed that their domestic law and measures concerning theliability of legal persons should be placed in accordance with Article 10 of the TOC Convention.
VII. CONCLUSION
All the participants unanimously agreed that:(a) In order to identify and trace the proceeds of crime effectively, the law in respective countries should
be amended or added to. Firstly, every country should establish an FIU. Secondly, the law should
state that financial institutions, such as commercial banks, have a legal obligation to keep records oftransactions for a substantial period of time afterwards and to report a certain minimum amount ofcash transactions and any suspicious transaction to the FIU;

122

134TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(b) States need to comply with the Customer Identification measures of FATF Recommendations, suchas a photo identification card to be a prerequisite to open a bank account, a prospective customer’s
permanent address also to be provided to the bank personnel, and appropriate measures put in place
to prevent and tackle fake identifications;(c) Confiscation of crime proceeds is as important as the punishment of criminals. In addition,
investigation of crime and confiscation of crime proceeds should be carried out simultaneously. More
importantly, it is essential to have necessary measures to temporarily freeze the assets even before
a trial;(d) Legislation should empower courts to confiscate the illicit assets when they are transferred toa third person or become intermingled with property from legal sources;(e) Awareness of the methods of the confiscation of proceeds of crime among investigative agencies andjudges is also very limited. More training should be provided to them in order to combat
transnational organized crime effectively;(f) Shifting of the burden of proof from the public prosecutor may raise concerns for the principle ofpresumed innocence. However, the level of proof shall be eased to the preponderance of evidence
that the proceeds of crime are derived from the predicate crime, if the domestic legal principle allows
such a measure;(g) Co-operation and co-ordination among agencies, such as police, public prosecutors and FIUs is
indispensable in fighting transnational organized crime in order to deprive the criminals of illicit
proceeds;(h) Nowadays we live in a borderless world. One country, no matter how powerful it is, cannot fighttransnational organized crime alone. International co-operation among FIUs is more and morenecessary, even indispensable, if all countries want to completely eradicate transnational organizedcrime;(i) Regardless of the existence of an MLAT, making a request is the most important mode ofinternational co-operation to fight transnational organized crime. The investigators must creatively
utilize all modes of international co-operation available if they want to eradicate transnationalorganized crime;(j) To tackle transnational organized crime at its root, the ringleaders have to be severely punished andtheir assets have to be confiscated. The Group considered the conspiracy and participation offences
as some of the most efficient tools to combat ringleaders in order to allow the investigators tosearch, freeze and seize the ringleaders’ assets at the earliest opportunity.
In conclusion, all participants acknowledged that it is extremely crucial to have a uniform attitude toward
transnational organized crime under the guidance of the TOC Convention so that there is no safe haven for
criminals.

123