114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

INTERNATIONAL COOPERATION IN THE
DRAFT UNITED NATIONS CONVENTIONAGAINST TRANSNATIONAL CRIME
Michael Plachta*
I. SYSTEM OF COOPERATION
A complete system of international
cooperation in criminal matters consists ofthe following forms:
1. extradition;
2. mutual legal assistance;
3. transfer of criminal proceedings;
4. recognition of foreign criminal
judgments;
5. enforcement of foreign criminal
sentences:(a) transfer of prisoners,(b) transfer of supervision of
persons conditionally sentenced or
conditionally released;(c) enforcement of other sanctions;
6. search, seizure and confiscation ofproceeds of crime.
The draft Convention against
Transnational Crime (hereinafter the “TOC
Convention”) will likely be the mostcomprehensive instrument of international
cooperation in criminal matters as it willcontain and regulate all of the above forms,
except for the transfer of supervision. On
the other hand, the degree of specificity of
the relevant provisions varies significantly.
The most general terms which are void of
any measure of obligation, have been used
to define the transfer of sentenced persons(Article 10 bis) . It provides that States
Parties “may consider” entering intobilateral or multilateral agreements, either
ad hoc or general, on the transfer to theirterritory of persons sentenced to* Gdansk University, Faculty of Law, First Vice-Dean,
Chair of Criminal Procedure, Poland

imprisonment or other forms of deprivationof liberty, in order that they may complete
their sentences there.
Similarly, Article 16 foresees merely apossibility of the transfer of criminal
proceedings: States Parties shall giveconsiderations to the possibility oftransferring to one another proceedings forthe criminal prosecution of an offence
covered by the Convention in cases wheresuch transfer is considered to be in theinterests of the proper administration ofjustice, in particular in cases where morejurisdictions are involved, with the view toconcentrating the prosecution.
Nevertheless, it should be pointed outthat the TOC Convention has a chance tobecome the most modern instrument, for
its drafters, while relying on solutions
adopted in the existing multilateralconventions, make efforts to take into
consideration and, wherever possible, toinclude new ideas, options and measures.
Of particular interest are provisions on
extradition and mutual legal assistance.
These two forms of cooperation have been
elaborated to the point that while Article
10 can be called a “mini extradition treaty”,
Article 14 has become a “comprehensive
MLAT within the TOC Convention”.
As opposed to offences covered by theConvention, the category of “offences
established under the Convention” islimited to the following four offences: (i)participation in an organized criminalgroup as well as organizing, directing,aiding, abetting, facilitating or counselling
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the commission of serious crime involving
an organized criminal group (Article 3); (ii)laundering offences (Article 4); (iii)
corruption in the context of organized crime(Article 4 ter); (iv) obstruction of justice(Article 17 bis).

the methods, forms and measures in thefollowing areas (levels):II. WHAT’S NEW IN THE TOCCONVENTION?

In addition to that, the TOC Convention
will address the problem of prevention andthe cooperation of its signatories in thisarea.

Extradition:• simplified extradition;• strengthening of the principle aut
dedere aut judicare;• principle aut dedere aut poenam
persequi;
Mutual legal assistance:• extended scope of application,
covering legal persons;• mechanism of a spontaneouscommunication of information;• bank secrecy - no bar to granting
assistance;• limited scope of dual criminality;• transfer of persons in custody;• modem techniques of transmission ofrequests;• legal regime of the execution ofrequests;• video-link and modern means ofcommunication;• rule of speciality;• confidentiality of requests;• political and fiscal offences;• consultations.
III. COMPREHENSIVE SYSTEM OF
COOPERATION IN THE TOCCONVENTION
Another reason why the draft TOC
Convention has a potential to “make adifference” in the international system ofcooperation is its comprehensiveness. The
Convention is not limited to the traditional
forms of cooperation. Instead, it will include

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I. judicial cooperation,
II. law enforcement cooperation,
III. technical cooperation and assistance.

The effectiveness of the new Convention
as a tool in the fight against organizedcrime will depend to a large degree on
whether the provisions on law enforcement
cooperation will really enable, facilitateand encourage police and other agencies
to undertake cooperative initiatives. Article
19 provides that the Convention may beconsidered by its Parties as the basis formutual law enforcement cooperation in
respect of any offence covered by thisi n s t r u m e n t . M o r e o v e r, w h e n e v e r
appropriate, its signatories should makefull use of agreements or arrangements,
including international (such as
INTERPOL) or regional organizations(such as EUROPOL or BALTCOM), toenhance this cooperation.
One of the forms and manifestations ofsuch cooperation are joint investigations.
However, in view of the diverging opinions
among delegations on the appropriatenessof such “ventures”, the drafters of the TOC
Convention had to proceed with caution.
They only managed to encourage States
Parties to consider, on a reciprocal basis,concluding bilateral or multilateralagreements or understandings for thispurpose; any form of obligation or even astronger language were not acceptable.
Based on such agreements or
arrangements, in cases where criminal
proceedings are being carried out in one ormore countries, the judicial authorities

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
concerned may, where necessary with
police authorities, after informing thecentral authority established for the
purpose of mutual legal assistance, act
together within joint investigative bodies.
In the absence of such agreements orunderstandings, the joint investigations
may be undertaken by agreement on acase-by-case basis, In carrying out suchjoint operations, the states involved will
have to ensure that the sovereignty of thestate in whose territory the investigation
takes place is fully respected.
Another area and example of law
enforcement cooperation envisioned by the
TOC Convention are special investigativetechniques, such as controlled delivery,
electronic or other forms of surveillance orundercover operations. Here, again, States
Parties are encouraged to makeappropriate bilateral or multilateralarrangements for using such techniques in
the context of international level. Sucharrangements have to comply with and be
carried out in accordance with the principleof sovereign equality of states. It wasagreed that decisions to use such special
investigative techniques at theinternational level shall be made on a caseby-case basis and may, when necessary,take into consideration financial
arrangements and understandings withrespect to the exercise of jurisdiction by thestates concerned.
Additionally, the States Parties shalladopt effective measures to enhance and,
where necessary, to establish channels ofcommunication between their competentauthorities, agencies and services as wellas to cooperate with one another in
conducting inquiries concerning theidentity, whereabouts and activities of
persons suspected of involvement inorganized criminal groups, the movementof proceeds or property derived from thecommission of such offences, and the

movement of intrumentalities used orintended for use in the commission of suchoffences. For this purpose, in appropriate
cases and if not contrary to domestic law,
the States Parties should establish joint
teams, taking into account the need toprotect the security of persons andoperations.
Finally, the TOC Convention provides
that States Parties shall assist one anotherin planning and implementing researchand training programmes designed toshare expertise in various areas, such ascollection of evidence, modern law
enforcement equipment and techniques,
methods used in combating transnationalorganized crime committed through the useof computers, telecommunications
networks or other forms of modern
technology, detecting and monitoring of themethods used for the transfer, concealment
or disguise of proceeds derived from suchoffences.
States Parties shall promote training
and technical assistance that will facilitate
extradition and mutual assistance. Suchtraining and technical assistance may
include language training, secondments
and exchanges between personnel incentral authorities or relevant agencies.
States Parties may conclude bilateral or
multilateral agreements on material andlogistical assistance, taking into
consideration the financial arrangements
necessary for the means of international
cooperation provided for by the Convention
to be effective and for the prevention andcontrol of transnational organized crime.
States Parties shall make concrete
efforts to the extent of their capacities andin coordination with international agencies
to establish a special United Nations fund
for technical cooperation in order to provide
technical assistance to developing
countries and countries with economies in

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transition to assist them in meeting theirneeds for the implementation of the TOC
Convention. States shall endeavour tomake adequate and regular voluntary
contributions to the fund. States Parties
shall also consider, in accordance with theirdomestic legislation, contributing to thefund a percentage of the money or of thecorresponding value of illicit assets
confiscated in accordance with theprovisions of the Convention.
An importance of the proposed
provisions on technical cooperation andassistance cannot be overestimated. Theirsignificance derives from the fact that oneof the weakest links in the system of tools
and measures to fight organized crime isthe education and training at the local
level. Public administrators who are awarethat organized crime exists in theircommunity, are not spending sufficient
time on educating and training citizens,law enforcement officers and othermembers of the criminal justice system.
Consequently, local persons with interestin curbing organized crime are left to theirown resources in securing information
about those engaged in organized crime.
There are three modus for transmitting
information to those concerned withorganized crime control. These are: (1)education in academic institutions; (2)specialized training for law enforcement
officers; and (3) greater publie cooperation.
Ideally, all three of them should be
developed as a harmonious system.
IV. SHORTCOMINGS, GAPS AND
RESTRICTIONS
A. Extradition• no provision on concurrent requests;• no provision on the extradition of
persons sentenced in absentia;• rejected proposal on political andfiscal offence exceptions - according to90

the proposal, the offences establishedunder the Convention would not be
regarded as a political offence or as
an offence connected with a politicaloffence or as an offence inspired bypolitical offence, nor as a fiscal offence;• rejected jurisdictional clause - it was
proposed that the offences establishedunder the Convention be treated, forthe purposes of extradition between
States Parties, as if they had beencommitted not only in the place inwhich they occurred but also in the
territory of the state that havejurisdiction in accordance with theprovisions adopted in the Convention;• rejected proposal aimed at extending
the scope of application of Article 10;• provision on accessory extradition;• rejected proposal regarding
consultation between the requestingstate and the requested state before
the latter refuses to surrender the
person sought;• unclear scope of the principle aut
dedere aut judicare.
B. Mutual legal assistance• repetition of clauses referring todomestie legal system (1egislation) as
well as clauses designed to protect
state sovereignty;• lack of harmonization with some otherarticles of the Convention (e.g. with
Article 24: Relation with otherconventions);• possible practical difficulties in theimplementation of the Article 14
caused by the abolition of the dual
criminality rule;• unclear final version of the provisionon the temporary transfer of persons
in custody;• controversies over the functions ofcentral authority;• traditional provision on the contents
of a request for mutual legal

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
assistance;• unclear final version of the provision
on video link;• extended catalogue of grounds forrefusal, e.g. anti-discriminatory
clause and political offence;• unwillingness of delegations to abolishthe fiscal offence exception;• unclear final version of the provisionon the disclosure of government
records, documents or information,
available to the general public.
V. PROPOSALS ADOPTED AT THE
XVIth CONGRESS OF AIDP
The last Congress of the Association
Internationale de Droit Penal(International Association of Penal Law),
which was held in September 1999 in
Budapest, Hungary, was devoted to thefight against organized crime. Its Section
IV debated international cooperation inthis area. Below are the most pertinent
resolutions which were not only adopted,
but also addressed to the UN Ad Hoc
Committee for the elaboration of the TOC
Convention for its consideration.
A. Concurrent jurisdiction• Where more than one state has
jurisdiction to prosecute an offender
for the same offence, the choice of theforum should be made by aninternational pre-trail chamber. Thisnew body should also have jurisdiction
to decide in cases of transnationalorganized crime where two or morestates have jurisdiction and theauthorities of one of those states wish
to settle the case by means of an outof-court settlement.

B. Judicial cooperation• Dual criminality as a condition of
extradition should be retained. For
mutual legal assistance, it should bemaintained in so far as the assistanceis requested for coercive measures.
• States should adopt the“transformative interpretation
method” in interpreting thisrequirement.
• In order to make judicial assistanceeffective, the collecting of evidence inthe requested state should satisfy therequirements of the requesting state,
as long as this is not incompatible
with the fundamental principles
recognized in the requested state andthe basic rights of the defendants.
• Direct contact between the judicial
authorities of the requesting and of
the requested state is recommended.
• New technologies, such as video-links
to take evidence abroad, should be
encouraged.
• Where appropriate, it should bepossible for judges to transport
themselves to other states, not onlyin the pre-trial stage of proceedings,
but also during trial. The practice of“travelling national courts” should be
encouraged.
C. Police cooperation• Police cooperation should beformalized through international
conventions regulating recent
developments in this area, such as
new communication channels (e.g.
liaison officers), new investigative
activities (e.g. joint investigative
teams), and new technologies andtechniques (e.g. international
wiretapping, cross border observation
by satellite).

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RESOURCE MATERIAL SERIES No. 57• International proactive policing
should abide by the principles ofl e g a l i t y 1, p r o p o r t i o n a l i t y 2 a n d
subsidiarity3. Such activities should
be monitored by the authorities incharge of criminal investigations at
the national level of the countries theparticipating police officers belong to.
• Unilateral actions on the territory of
another state (i.e. investigative or
operational actions undertaken bypolice officers without authorisationof the local authorities) should beprohibited. Evidence obtained inviolation of the local rules and/or
without proper authorisation of thecompetent local authorities should be
excluded only if the lex forum would
also require the exclusion of evidence
obtained in this manner in a purely
domestic manner.
• When police officers operate or act inwhatever capacity on foreign soil, thisshould take place only on thecondition that the foreign officers will
be under an obligation to testify incourt should they be called on to give
evidence. Foreign police officers
should have the same obligations andprivileges in proceedings before thecourts in which they are acting as thepolice officers of that country.

1 That means, proactive techniques must be based
pronouncements.
2 That means, such actions may only be undertaken
and measures used if there is sufficient reason tosuspect that serious and determined offences
relating to organized crime will occur in the near
future.
3 That means, proactive techniques may not be used
if alternative means of obtaining evidence can beapplied to detect and investigate such offences.

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