VISITING EXPERTSʼ LECTURESTHE UNITED NATIONS AND THE FIGHT AGAINST ORGANIZEDCRIME: THE UNITED NATIONS CONVENTION AGAINSTTRANSNATIONAL ORGANIZED CRIME
AND THE PROTOCOLS THERETO
Dr. Francesco Testa＊

I. BACKGROUND
The fifth United Nations Congress on Crime Prevention, held in Geneva in 1975 was the first context inwhich the United Nations examined and discussed matters related to organized crime. The Congress devoted
a session (entitled “changes in the form and in the dimension of crime at the transnational and national level”)
to crime as a form of “business” at all levels. However, it was in the seventh Crime Congress held in Milan in1985 that States definitely realized that the increase of the activities of organized crime represents a serious
threat at the global level. In particular, the Congress took stock of the fact that organized crime had reached acompletely new geographical extension, international dimension and diversification in different lucrative
activity.
Furthermore, the eighth Crime Congress held in Havana in 1990 discussed matters pertaining toorganized crime under the agenda item “national and international actions against organized crime andterrorist activities”. The Congress examined the situation in light of some new historical developments. In
fact, the quick increase of the number of countries reaching their independence, together with the expansionof many criminal activities beyond national borders, made clear the need of new international institutions to
adopt measures to strengthen the effectiveness of efforts in preventing and combating organized crime andto assist Member States in this endeavor.
Upon recommendation of the eighth Congress, the General Assembly in 1991 took a first fundamental stepfor this political process, establishing the Commission on Crime Prevention and Criminal Justice, as afunctional Commission of the Economic and Social Council, composed by the representatives of 40 States so
as to ensure the direct involvement of governments in the decisional process and in the supervision of its
activities.
The Crime Commission has become since then the leading entity of the United Nations for the definition
and the adoption of the universal policies in the areas of prevention of crime and criminal justice.
The first session of the Crime Commission was held in 1992, and in the same year the Economic and Social
Council (Res. 1992/22) established that the Commission would have to address with high priority the mattersrelated to transnational crime, organized crime, economic crimes, including money-laundering, andenvironmental crimes.
The matter of the elaboration of a specific convention against transnational organized crime turned backat the forefront of the UN agenda thanks to resolution of the General Assembly no. 51/120 of 12 December
1996, which followed the initiative of Poland to submit to the Assembly the text of a draft convention against
transnational organized crime.
During its sixth session (1997), the Crime Commission decided to establish a “in-sessional open-ended
working group” with the objective to consider the possibility to elaborate a convention or more conventions
against transnational organized crime and to select all the elements that should have been included therein.
The Working Group recognized that it would have been appropriate to elaborate a convention ascomprehensive as possible. Of course, it was clear since the very beginning of negotiations that it would have＊

Chief Prosecutor, Chieti Prosecutorʼs Office, Italy.

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been very difficult to reach a common and shared definition of “organized crime”.
Many States were of the view that such definition was not the most important element of the convention
and that the instrument could have been elaborated and put in place even without such definition. In this vein,
it was also mentioned that organized crime was evolving in such a quick manner that the elaboration of adefinition would have the only effect to limit the scope of application of the Convention. Other States, on theother hand, noted that the lack of a definition would have sent a wrong signal about the political commitmentof the international community in this regard.
It was also noted that the Convention should have been a “capacity-building” tool for States and the United
Nations itself, so that it should have included provisions on collection, analysis and exchange of information on
programmes, plans and practices put in place by States Parties. Besides, the convention had to provide
measures against money-laundering, as well as to include provisions to set the obligations of States to seize
and confiscate illicit assets, and to regulate bank secrecy by limiting its use.
The Convention, finally, had to guarantee the protection of human rights and to ensure conformity to thefundamental national legal principles. During the seventh session of the CCPCJ (1998), Member States also
raised issues that also deserved attention at the international level, especially under the legal point of view.
Argentina proposed the elaboration of a new convention against the trafficking of minors (even though thediscussion widened very soon, so as to first include trafficking of women and then trafficking of humanbeings). Austria introduced the draft of an international convention to the Commission against “smuggling of
migrants”, while Italy introduced a draft of an additional protocol against smuggling of migrants by sea. Japanand Canada represented the idea that the discussion related to the illegal production and illegal trafficking of
firearms were sufficiently mature to be considered at a normative level.
The political consensus found recognized the close connection between these proposals and the one
related to the adoption of a convention against transnational organized crime. In this regard, it was preferred
to make reference to “additional instruments” with respect to the new proposed tools.
As a consequence, the General Assembly (Res. 53/111 of 9 December 1998), established an “open-ended
intergovernmental to hoc committee” to elaborate a comprehensive international convention against
transnational organized crime and to further discuss the elaboration of additional tools on trafficking of
human beings, on illegal production and illegal trafficking of firearms, their components and ammunition andon smuggling of migrants (also by sea).
It was this Committee to negotiate the text of the Convention and of its Protocols, that were finallyadopted in 2000 by General Assembly resolutions 55/25 (The Convention and the Protocols on Smuggling of
Migrants and Trafficking in Persons) and 55/255 (Firearms Protocol).

II. PURPOSE AND CONTENTS OF THE CONVENTION AND
THE PROTOCOLS THERETO
We can certainly affirm that the Palermo Convention is the most innovative, complete and balanced
international tool in criminal matters available at a universal level. To date, it counts 178 States Parties out ofa total of 193 States Members of the United Nations.
But the Convention is, above all, a flexible tool, that does not fall under the traditional “thematic”
classification of multilateral treaties. On the contrary, it is applicable to every form of transnational criminal
activity (as specified in paragraph n. 6 of Res. 55/25 of the General Assembly, that refers to “all forms ofcriminal activity”). Therefore, it potentially has as boundless scope of application, being able to cover all kindsof criminal phenomena.
The purpose of the Convention̶well described in its art. 1̶is to promote cooperation among States
Parties in preventing and fighting transnational organized crime in a more effective way. Aware of the threat
posed by many forms of organized crime crossing national frontiers, the international community has taken
conscience of the need to make, as far as possible, homogeneous and mutually compatible the plans of actionof Member States, first of all by providing the conventional obligation to criminalize certain typologies of4

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illegal activities put in place by international criminal groups (and also the mere participation in them, as
stated in article 5) and the provision of advanced forms of mutual legal assistance and law enforcement
cooperation, so as to make investigations and gathering of evidence more effective and to ease all theprocedures of international cooperation, extradition, transfer of criminal proceedings, as well as seizure andconfiscation of proceeds of crime. The existence of a common obligation to criminalize illegal activities
committed in an organized form must be appreciated on the basis that the legal and cultural tradition ofmany States did not recognize the concept of criminal association as an independent and autonomous form ofcrime. The Italian system, for instance, since 1930 criminalizes certain kinds of so called “multi-person
delinquency”, from the most elementary form of cooperation in a crime to the more complex criminal
associations.
Other particular forms of criminal aggregations were subsequently criminalized like, among others,
criminal associations for the smuggling of tobacco products; mafia-type associations; criminal associations totraffic drugs; sexual violence committed in groups; crimes committed for the purpose of racial discrimination;
all of them make use of the terms criminal organization, criminal association or criminal group.
The UNTOC Convention has been ratified in Italy by Law no. 146/2006. According to the Italian law,“transnational crime” is considered as one punishable by a maximum deprivation of liberty of at least four
years, if an organized criminal group is involved and the crime: a) is committed in more than a State; b) is
committed in a State, but a substantial part of its preparation, planning, direction or control takes place inanother State; c) is committed in a State, but with the involvement of a criminal group operating in more thana State; or d) is committed in a State but has substantial effects in another State.”
The “transnationality”, in the Italian system, is not a constitutive element of an autonomous crime. On thecontrary, it is considered a peculiar modality of commission of any kind of crime. In particular, our legislation
attaches the transnational nature of a crime to the fulfillment of three different parameters.
The first parameter is related to the gravity of crime, in accordance with the measure of penalty (not lessthan four years of imprisonment maximum). It is therefore a non-flexible factor of gravity, in accordance tothe definition of “serious crime” embedded in art. 2 of the Convention.
The second parameter refers to the “involvement” of an organized criminal group. The term thatappears in the text of the Convention (“involves”) actually has a generic meaning, but it was chosen as tomake this provision able to encompass, with this wide formulation, different models of incrimination of the“multi-person” criminal phenomena, like the French “association de malfaiteurs” (usually elaborated in civil
law legal systems), the mafia-type associations elaborated in the Italian system, and the conspiracy,
traditionally provided by common law criminal systems in which, as you know, less clear is the distinction
between the participation of more than one person to a crime and an organized criminal group.
The third parameter is connected to one of the elements that the Convention requires in alternative
form: a) commission of the crime in more than one State; b) commission in a State, but with substantial part ofits preparation, planning, direction or control in another State; c) commission in a State but with the
involvement in it of a criminal group operating in more than one State; d) commission in a State, withproduction of substantial effects in other State.
The characteristic of transnationality in the Italian system does not remain merely descriptive, but brings
remarkable effects both from substantive and procedural points of view.
Such effects certainly implicate that transnational crime is considered more serious in comparison to theordinary form, due to a coefficient of great dangerousness that the criminal justice system assigns to it.
Among others, the Italian law: allows to prosecute legal persons involved in transnational organizedcrime; requests the mandatory confiscation of illicit assets, even for equivalent valve; provides extraordinary
financial investigation powers of the Public Prosecutor in order to seize all the proceeds of crime; provides
the possibility to transfer criminal proceedings, in line with art. 21 of the Convention and within the limits ofinternational agreements.

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Besides, the Italian law states that offences punishable in accordance with the Convention, in thecommission of which has given its contribution a criminal group operating in more than a State, the penalty is
increased from a third to half. As you might see, a special aggravating circumstance for the “serious” crimethat is committed with the “contribution” of an organized criminal group has been introduced. But what doesit mean “organized criminal group” in the Convention? The concepts “criminal association”, as defined inmany legal systems, and “organized criminal group”, beyond their improper use made in current language, do
not express, in legal terms, homogeneous or conceptually overlapping entities.
For the concept of “organized criminal group” we make reference to the definition offered by the same
Convention, that to the art. 2, a) defines organized criminal group as “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, afinancial or other material benefit.”
Point e) of the same art. 2, set forth the definition of structured group as 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”. It is a complex concept, indeed, but we cancertainly affirm that it is clearly different both from the conspiracy and the criminal association set forth inother legal systems.
According to the Italian System, “Organized criminal group” is certainly more than the mere
participation of more than a person in a crime, but it is certainty less than a criminal association. UNTOC
requires only a certain level of stability of relationships between the participants and a minimum oforganization, without any specification of their roles. In fact, an organized criminal group may occur wheneven a single crime is envisaged, provided that a financial or other material advantage is pursued by theparticipants.
On the contrary, for the purpose of “criminal association or organization”, including mafia-typeorganizations, an articulated organization is requested, even though in elementary form; the membership of
the group must be potentially stable and permanent; a precise division of roles and the planning of anindefinite series of crimes is also required. In short, this kind of criminal group must be seen as functional tothe commission of an indefinite number of crimes, even though none of them was concretely committed.
Furthermore, the Italian offence of “criminal association” does not require the financial or other material
benefit element requested by UNTOC.
It is obvious that, when the “organized criminal group” brings together all these characteristics, it
becomes a criminal association, and in such case the offences will coincide.

III. MODERNITY OF THE UNTOC
Other relevant provisions of the Convention. Tools provided by UNTOC and their correspondence to theEuropean level of integration (summary).
1) Confiscation of proceeds of crime for equivalent valve (art. 12 UNTOC) and reversal of the burden of
the proof (art. 12 paragraphs 7 UNTOCs);
2) Non-conviction based confiscation (preventive measures; see UNCAC art. 54 paragraphs 1 lett. c), andEU Directive no. 2014/42);
3) Extension of national jurisdictions and “universality” of transnational organized crimes (art. 15 UNTOC:
paragraph 2: “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 anational of that State Party [....]; or (c) The offence is: (i) One of those established in accordance witharticle 5, paragraph 1, of this Convention and is committed outside its territory with a view to thecommission of a serious crime within its territory; [....].
4) Joint investigation teams (EU Decision no. 2002/465; see. Art. 19 UNTOC);
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5) Special investigation techniques (controlled deliveries, electronic surveillance and undercover
operations; see art. 20 UNTOC);
6) Transfer of criminal proceedings (art. 21 UNTOCs);
7) Criminalization of obstruction of justice (art. 23 UNTOC);
8) Freezing of assets and the European seizure warrant (EU decision 2003/577 - see Art. 13 UNTOC).

IV. OTHER TOPICS UNDER DISCUSSION IN THE UNITED NATIONSTechnical assistance to developing countries and connections with the sustainable development. Essential
role of the UNTOC in the promotion of the programmes of technical assistance (art. 30 UNTOC: legislativereforms, capacity building and awareness raising).
I have already said that the Convention UNTOC is a flexible tool, able to cover any kind of criminal
phenomenon. For instance, I would like to particularly recall the results achieved with two resolutions on
smuggling of migrants (Ris. n. 2014/23 ECOSOC) and on trafficking in cultural property (Ris. n. 69/196 GA International Guidelines) adopted over the last two years.
But from time to time the international community discusses about the possibility to consider UNTOC
applicable to the so-called “new and emerging form of crimes”, like environmental crimes (among which thetrafficking of protected species, poaching, trafficking in precious metals and trafficking in hazardous waste),trafficking in cultural property, counterfeiting of trademark goods, trafficking in organs, piracy and mostrecently also cybercrime and transnational tax and corporate crimes (see the Doha Declaration).
Is it possible to make use of the Palermo Convention to fight modern international terrorist groups? The
discussion is open to different interpretations, each of them bringing political consequences. However, if welook at the current reality, I would certainly say yes, as “traditional organized groups” and “terrorist groups”
concepts narrowed down over the last 10 years, so that, in my opinion, they can be now considered
completely overlapping (common elements: structured group composed of more individuals with a view tocommitting serious crimes, normally punished with more than four years of imprisonment; criminal activity
conducted by criminal groups in more countries, with a relevant international profile; profit-oriented crimes,
with ideological component progressively fading or straight inconsistent).
Of course, these are politically sensitive themes that involve different sensibilities, histories, cultures andlegal traditions, having great consequences on the economic order of whole regions.

V. THE PROCESS TOWARD THE ESTABLISHMENT OF THE REVIEWMECHANISM (ART. 32 PARAGRAPHS 3, D) OF THE CONVENTION
As stated in art 32 of the Convention, the Conference of States Parties to the Convention shall adopt,
among others, a mechanism for the periodic revision of the implementation of the Convention.
It is a provision similar to the one contained in other multilateral instruments (for instance UNCAC or theConvention of the Council of Europe against corruption), but the history of the UNTOC has been extremely
difficult ever since the entry into force of the Convention. Negotiations on the review mechanism failed twice,in 2010 and in 2012, and only in 2014 (Resolution 7/1, adopted upon initiative of Italy) the process re-started
with the establishment of a group of intergovernmental experts mandated to find out a practicable andconsensual solution. Further, the Conference of the Parties in Resolution 8/2 adopted in October 2016 thefundamental lines and the structure of the review mechanism, together with the multiyear workplan and theclusters of articles to be reviewed in the different steps of the process. Now the procedural rules of themechanism remain to be finalized, and a new intergovernmental expert group has been convened in Vienna
for this purpose.
Every existing review mechanism of multilateral instruments is based on three fundamental pillars: 1.
Collection of information; 2. analysis of information provided by States Parties; 3. a timetable for the review of
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the implementation of the provision of the legal instrument. Controversial issues for the UNTOC review
mechanism include:a) characteristics and purposes of the review mechanism (intergovernmental/political or technicalprocess) ‒ identification of challenges and gaps in national legislation and needs of technical assistance;b) level of participation of civil society in the exercise;c) financing and costs (regular budget or voluntary contributions?).
Many States, as Italy, are strongly supporting the adoption of the mechanism for the review of theimplementation of the Convention and its Protocols. These are the main reasons:
1) it provides an evaluation of the state of implementation of the instrument in all States Parties; it is the
only way to identify possible gaps in our national legislation, thus allowing States to adopt the mostappropriate measures (legislative or administrative). As you might understand, filling gaps in theimplementation of the Convention is an obligation for every Party of a binding instrument;2) the mechanism is the only “scientific” tool available to identify technical assistance need of developing
countries. The review mechanism may definitely help UN agencies and donors to direct their efforts in
the right direction;3) the mechanism produces an asset of information on all the aspects regulated by the Convention and theProtocols, which States can reasonably rely on to take steps forward, especially from the political side,and to improvement international cooperation among countries;
Some practical examples (from my personal experience as a Public Prosecutor, as complete information inthis respect will be not available until the launch of the review mechanism):-

Regulation of the joint investigative teams in Italy (this important tool has been introduced in ourlegal system many years too late);-

the use of the home searches at night - as an essential investigation tool against serious crime;-

criminalization and definition of crime of migrant smuggling (still lacking in many countries);-

financial investigation powers and strong limitation to access banking accounts and banking records(in some countries these information can be available to law enforcement agencies and prosecutors
only when investigating on crimes punishable with very high levels of imprisonment, thus
hampering the fruitful collection of evidence on “serious crimes”, due to the fact that complex
investigations on organized crime usually represent the development of investigations on lowercase crimes, such as a robbery or a mere financial infringement);-

the functioning of the “dual criminality” clause with regard to extradition, mutual legal assistanceand transfer of criminal proceedings. As you know, these are two fundamental tools in the area of
judicial assistance, but they normally work only when the requisite of the double incrimination issatisfied.

As you might see, here we have factors that involve fundamental aspects of the legal systems of States, or
aspects related to their sovereignty, but that play at the same time a key role in the concrete functioning of
the international cooperation tools.
For these reasons negotiations on the establishment of the review mechanism will probably take somemore time, be hard and complex, and the final results could not perhaps correspond to our expectations. We
must be ready to accept a compromise, as it very often happens in the multilateral trials, but its
establishment will represent an impressive step forward of the international community in preventing andcombating transnational organized crime worldwide.
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