20040429

Decizia Consiliului

din 29 aprilie 2004

privind încheierea, în numele Comunității Europene, a Convenției Organizației Națiunilor Unite împotriva criminalității transnaționale organizate

(2004/579/CE)

CONSILIUL UNIUNII EUROPENE,

având în vedere Tratatul de instituire a Comunității Europene, în special articolele 47, 55, 95 și 179, coroborate cu articolul 300 alineatul (2) prima teză și articolul 300 alineatul (3) primul paragraf,

având în vedere propunerea Comisiei,

având în vedere avizul Parlamentului European [1],

întrucât:

(1) Elementele convenției care sunt de competența Comunității au fost negociate de Comisie, cu autorizarea Consiliului, în numele Comunității.

(2) De asemenea, Consiliul a încredințat Comisiei negocierea aderării Comunității la convenția în cauză.

(3) Negocierile au fost finalizate și instrumental rezultant a fost semnat de Comunitate la 12 decembrie 2000, în conformitate cu Decizia 2001/87/CE [2] a Consiliului.

(4) Unele state membre sunt părți la convenție, în timp ce în alte state convenția este în curs de ratificare.

(5) Condițiile care permit Comunității să depună instrumentul de aprobare, prevăzut la articolul 36 alineatul (3) din convenție, sunt reunite.

(6) Convenția ar trebui să fie aprobată pentru a permite Comunității să devină parte la aceasta, în limitele competenței sale.

(7) În momentul depunerii instrumentului de ratificare de către Comunitate, aceasta depune și o declarație privind întinderea competenței sale în chestiunile reglementate de convenție, în conformitate cu articolul 36 alineatul (3) al convenției,

DECIDE:

Articolul 1

Convenția Organizației Națiunilor Unite împotriva criminalității transnaționale organizate este ratificată în numele Comunității.

Textul convenției este prezentat în anexa I.

Articolul 2

Președintele Consiliului este autorizat să desemneze persoana(ele) împuternicit(e) să depună instrumentul de confirmare oficială în scopul exprimării consimțământului acesteia de a se obliga. Instrumentul de confirmare oficială cuprinde o declarație de competență, prevăzută la anexa II, în conformitate cu articolul 36 alineatul (3) din convenție. Acesta cuprinde, de asemenea, o declarație, prevăzută în anexa III.

Articolul 3

Prezenta decizie se publică în Jurnalul Oficial al Uniunii Europene.

Adoptată la Luxemburg, 29 aprilie 2004.

Pentru Consiliu

Președintele

M. McDowell

[1] Aviz emis la 13 ianuarie 2004 (nepublicat încă în Jurnalul Oficial).

[2] JO L 30, 1.2.2001, p. 44.

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20040429

ANEXA I

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20040429

United Nations Convention against Transnational Organised Crime

Article 1

Statement of purpose

The purpose of this Convention is to promote cooperation to prevent and combat transnational organised crime more effectively.

Article 2

Use of terms

For the purposes of this Convention:

(a) "organised criminal group" shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;

(b) "serious crime" shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty;

(c) "structured group" shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure;

(d) "property" shall mean assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to, or interest in, such assets;

(e) "proceeds of crime" shall mean any property derived from or obtained, directly or indirectly, through the commission of an offence;

(f) "freezing" or "seizure" shall mean temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority;

(g) "confiscation", which includes forfeiture where applicable, shall mean the permanent deprivation of property by order of a court or other competent authority;

(h) "predicate offence" shall mean any offence as a result of which proceeds have been generated that may become the subject of an offence as defined in article 6 of this Convention;

(i) "controlled delivery" shall mean the technique of allowing illicit or suspect consignments to pass out of, through or into the territory of one or more States, with the knowledge and under the supervision of their competent authorities, with a view to the investigation of an offence and the identification of persons involved in the commission of the offence;

(j) "regional economic integration organisation" shall mean an organisation constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Convention and which has been duly authorised, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to it; references to "States Parties" under this Convention shall apply to such organisations within the limits of their competence.

Article 3

Scope of application

(1) This Convention shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of:

(a) the offences established in accordance with Articles 5, 6, 8 and 23 of this Convention; and

(b) serious crime as defined in article 2 of this Convention;

where the offence is transnational in nature and involves an organised criminal group.

(2) For the purpose of paragraph 1 of this Article, an offence is transnational in nature if:

(a) it is committed in more than one State;

(b) it is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;

(c) it is committed in one State but involves an organised criminal group that engages in criminal activities in more than one State; or

(d) it is committed in one State but has substantial effects in another State.

Article 4

Protection of sovereignty

(1) States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.

(2) Nothing in this Convention entitles a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law.

Article 5

Criminalisation of participation in an organised criminal group

(1) Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:

(i) agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organised criminal group;

(ii) conduct by a person who, with knowledge of either the aim and general criminal activity of an organised criminal group or its intention to commit the crimes in question, takes an active part in:

a. criminal activities of the organised criminal group;

b. other activities of the organised criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim;

(b) organising, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organised criminal group.

(2) The knowledge, intent, aim, purpose or agreement referred to in paragraph 1 of this Article may be inferred from objective factual circumstances.

(3) States Parties whose domestic law requires involvement of an organised criminal group for purposes of the offences established in accordance with paragraph 1(a)(i) of this article shall ensure that their domestic law covers all serious crimes involving organised criminal groups. Such States Parties, as well as States Parties whose domestic law requires an act in furtherance of the agreement for purposes of the offences established in accordance with paragraph 1(a) (i) of this article, shall so inform the Secretary-General of the United Nations at the time of their signature or of deposit of their instrument of ratification, acceptance or approval of or accession to this Convention.

Article 6

Criminalisation of the laundering of proceeds of crime

(1) Each State Party shall adopt, in accordance with fundamental principles of its domestic law, such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) (i) the conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of his or her action;

(ii) the concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime;

(b) subject to the basic concepts of its legal system:

(i) the acquisition, possession or use of property, knowing, at the time of receipt, that such property is the proceeds of crime;

(ii) participation in, association with or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this Article.

(2) For purposes of implementing or applying paragraph 1 of this Article:

(a) each State Party shall seek to apply paragraph 1 of this Article to the widest range of predicate offences;

(b) each State Party shall include as predicate offences all serious crime as defined in Article 2 of this Convention and the offences established in accordance with Articles 5, 8 and 23 of this Convention. In the case of States Parties whose legislation sets out a list of specific predicate offences, they shall, at a minimum, include in such list a comprehensive range of offences associated with organised criminal groups;

(c) for the purposes of subparagraph (b), predicate offences shall include offences committed both within and outside the jurisdiction of the State Party in question. However, offences committed outside the jurisdiction of a State Party shall constitute predicate offences only when the relevant conduct is a criminal offence under the domestic law of the State where it is committed and would be a criminal offence under the domestic law of the State Party implementing or applying this Article had it been committed there;

(d) each State Party shall furnish copies of its laws that give effect to this Article and of any subsequent changes to such laws or a description thereof to the Secretary-General of the United Nations;

(e) if required by fundamental principles of the domestic law of a State Party, it may be provided that the offences set forth in paragraph 1 of this Article do not apply to the persons who committed the predicate offence;

(f) knowledge, intent or purpose required as an element of an offence set forth in paragraph 1 of this Article may be inferred from objective factual circumstances.

Article 7

Measures to combat money-laundering

(1) Each State Party:

(a) shall institute a comprehensive domestic regulatory and supervisory regime for banks and non-bank financial institutions and, where appropriate, other bodies particularly susceptible to money-laundering, within its competence, in order to deter and detect all forms of money-laundering, which regime shall emphasise requirements for customer identification, record-keeping and the reporting of suspicious transactions;

(b) shall, without prejudice to Articles 18 and 27 of this Convention, ensure that administrative, regulatory, law enforcement and other authorities dedicated to combating money-laundering (including, where appropriate under domestic law, judicial authorities) have the ability to cooperate and exchange information at the national and international levels within the conditions prescribed by its domestic law and, to that end, shall consider the establishment of a financial intelligence unit to serve as a national centre for the collection, analysis and dissemination of information regarding potential money-laundering.

(2) States Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross-border transfer of substantial quantities of cash and appropriate negotiable instruments.

(3) In establishing a domestic regulatory and supervisory regime under the terms of this Article, and without prejudice to any other Article of this Convention, States Parties are called upon to use as a guideline the relevant initiatives of regional, interregional and multilateral organisations against money-laundering.

(4) States Parties shall endeavour to develop and promote global, regional, subregional and bilateral cooperation among judicial, law enforcement and financial regulatory authorities in order to combat money-laundering.

Article 8

Criminalisation of corruption

(1) Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) the promise, offering or giving to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties;

(b) the solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.

(2) Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences conduct referred to in paragraph 1 of this Article involving a foreign public official or international civil servant. Likewise, each State Party shall consider establishing as criminal offences other forms of corruption.

(3) Each State Party shall also adopt such measures as may be necessary to establish as a criminal offence participation as an accomplice in an offence established in accordance with this Article.

(4) For the purposes of paragraph 1 of this Article and Article 9 of this Convention, "public official" shall mean a public official or a person who provides a public service as defined in the domestic law and as applied in the criminal law of the State Party in which the person in question performs that function.

Article 9

Measures against corruption

(1) In addition to the measures set forth in Article 8 of this Convention, each State Party shall, to the extent appropriate and consistent with its legal system, adopt legislative, administrative or other effective measures to promote integrity and to prevent, detect and punish the corruption of public officials.

(2) Each State Party shall take measures to ensure effective action by its authorities in the prevention, detection and punishment of the corruption of public officials, including providing such authorities with adequate independence to deter the exertion of inappropriate influence on their actions.

Article 10

Liability of legal persons

(1) Each State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in serious crimes involving an organised criminal group and for the offences established in accordance with Articles 5, 6, 8 and 23 of this Convention.

(2) Subject to the legal principles of the State Party, the liability of legal persons may be criminal, civil or administrative.

(3) Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offences.

(4) Each State Party shall, in particular, ensure that legal persons held liable in accordance with this Article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.

Article 11

Prosecution, adjudication and sanctions

(1) Each State Party shall make the commission of an offence established in accordance with Articles 5, 6, 8 and 23 of this Convention liable to sanctions that take into account the gravity of that offence.

(2) Each State Party shall endeavour to ensure that any discretionary legal powers under its domestic law relating to the prosecution of persons for offences covered by this Convention are exercised to maximise the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences.

(3) In the case of offences established in accordance with Articles 5, 6, 8 and 23 of this Convention, each State Party shall take appropriate measures, in accordance with its domestic law and with due regard to the rights of the defence, to seek to ensure that conditions imposed in connection with decisions on release pending trial or appeal take into consideration the need to ensure the presence of the defendant at subsequent criminal proceedings.

(4) Each State Party shall ensure that its courts or other competent authorities bear in mind the grave nature of the offences covered by this Convention when considering the eventuality of early release or parole of persons convicted of such offences.

(5) Each State Party shall, where appropriate, establish under its domestic law a long statute of limitations period in which to commence proceedings for any offence covered by this Convention and a longer period where the alleged offender has evaded the administration of justice.

(6) Nothing contained in this Convention shall affect the principle that the description of the offences established in accordance with this Convention and of the applicable legal defences or other legal principles controlling the lawfulness of conduct is reserved to the domestic law of a State Party and that such offences shall be prosecuted and punished in accordance with that law.

Article 12

Confiscation and seizure

(1) States Parties shall adopt, to the greatest extent possible within their domestic legal systems, such measures as may be necessary to enable confiscation of:

(a) proceeds of crime derived from offences covered by this Convention or property the value of which corresponds to that of such proceeds;

(b) property, equipment or other instrumentalities used in or destined for use in offences covered by this Convention.

(2) States Parties shall adopt such measures as may be necessary to enable the identification, tracing, freezing or seizure of any item referred to in paragraph 1 of this Article for the purpose of eventual confiscation.

(3) If proceeds of crime have been transformed or converted, in part or in full, into other property, such property shall be liable to the measures referred to in this Article instead of the proceeds.

(4) If proceeds of crime have been intermingled with property acquired from legitimate sources, such property shall, without prejudice to any powers relating to freezing or seizure, be liable to confiscation up to the assessed value of the intermingled proceeds.

(5) Income or other benefits derived from proceeds of crime, from property into which proceeds of crime have been transformed or converted or from property with which proceeds of crime have been intermingled shall also be liable to the measures referred to in this Article, in the same manner and to the same extent as proceeds of crime.

(6) For the purposes of this Article and Article 13 of this Convention, each State Party shall empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized. States Parties shall not decline to act under the provisions of this paragraph on the ground of bank secrecy.

(7) States Parties may consider the possibility of requiring that an offender demonstrate the lawful origin of alleged proceeds of crime or other property liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law and with the nature of the judicial and other proceedings.

(8) The provisions of this Article shall not be construed to prejudice the rights of bona fide third parties.

(9) Nothing contained in this Article shall affect the principle that the measures to which it refers shall be defined and implemented in accordance with and subject to the provisions of the domestic law of a State Party.

Article 13

International cooperation for purposes of confiscation

(1) A State Party that has received a request from another State Party having jurisdiction over an offence covered by this Convention for confiscation of proceeds of crime, property, equipment or other instrumentalities referred to in Article 12(1), of this Convention situated in its territory shall, to the greatest extent possible within its domestic legal system:

(a) submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such an order is granted, give effect to it; or

(b) submit to its competent authorities, with a view to giving effect to it to the extent requested, an order of confiscation issued by a court in the territory of the requesting State Party in accordance with Article 12(1), of this Convention insofar as it relates to proceeds of crime, property, equipment or other instrumentalities referred to in Article 12(1), situated in the territory of the requested State Party.

(2) Following a request made by another State Party having jurisdiction over an offence covered by this Convention, the requested State Party shall take measures to identify, trace and freeze or seize proceeds of crime, property, equipment or other instrumentalities referred to in Article 12(1), of this Convention for the purpose of eventual confiscation to be ordered either by the requesting State Party or, pursuant to a request under paragraph 1 of this Article, by the requested State Party.

(3) The provisions of Article 18 of this Convention are applicable, mutatis mutandis, to this Article. In addition to the information specified in Article 18(15), requests made pursuant to this Article shall contain:

(a) in the case of a request pertaining to paragraph 1(a) of this Article, a description of the property to be confiscated and a statement of the facts relied upon by the requesting State Party sufficient to enable the requested State Party to seek the order under its domestic law;

(b) in the case of a request pertaining to paragraph 1(b) of this Article, a legally admissible copy of an order of confiscation upon which the request is based issued by the requesting State Party, a statement of the facts and information as to the extent to which execution of the order is requested;

(c) in the case of a request pertaining to paragraph 2 of this Article, a statement of the facts relied upon by the requesting State Party and a description of the actions requested.

(4) The decisions or actions provided for in paragraphs 1 and 2 of this Article shall be taken by the requested State Party in accordance with and subject to the provisions of its domestic law and its procedural rules or any bilateral or multilateral treaty, agreement or arrangement to which it may be bound in relation to the requesting State Party.

(5) Each State Party shall furnish copies of its laws and regulations that give effect to this Article and of any subsequent changes to such laws and regulations or a description thereof to the Secretary-General of the United Nations.

(6) If a State Party elects to make the taking of the measures referred to in paragraphs 1 and 2 of this Article conditional on the existence of a relevant treaty, that State Party shall consider this Convention the necessary and sufficient treaty basis.

(7) Cooperation under this Article may be refused by a State Party if the offence to which the request relates is not an offence covered by this Convention.

(8) The provisions of this Article shall not be construed to prejudice the rights of bona fide third parties.

(9) States Parties shall consider concluding bilateral or multilateral treaties, agreements or arrangements to enhance the effectiveness of international cooperation undertaken pursuant to this Article.

Article 14

Disposal of confiscated proceeds of crime or property

(1) Proceeds of crime or property confiscated by a State Party pursuant to Articles 12 or 13(1), of this Convention shall be disposed of by that State Party in accordance with its domestic law and administrative procedures.

(2) When acting on the request made by another State Party in accordance with Article 13 of this Convention, States Parties shall, to the extent permitted by domestic law and if so requested, give priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party so that it can give compensation to the victims of the crime or return such proceeds of crime or property to their legitimate owners.

(3) When acting on the request made by another State Party in accordance with Articles 12 and 13 of this Convention, a State Party may give special consideration to concluding agreements or arrangements on:

(a) contributing the value of such proceeds of crime or property or funds derived from the sale of such proceeds of crime or property or a part thereof to the account designated in accordance with Article 30(2)(c), of this Convention and to intergovernmental bodies specialising in the fight against organised crime;

(b) sharing with other States Parties, on a regular or case-by-case basis, such proceeds of crime or property, or funds derived from the sale of such proceeds of crime or property, in accordance with its domestic law or administrative procedures.

Article 15

Jurisdiction

(1) Each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offences established in accordance with Articles 5, 6, 8 and 23 of this Convention when:

(a) The offence is committed in the territory of that State Party; or

(b) The offence is committed on board a vessel that is flying the flag of that State Party or an aircraft that is registered under the laws of that State Party at the time that the offence is committed.

(2) Subject to Article 4 of this Convention, a State Party may also establish its jurisdiction over any such offence when:

(a) the offence is committed against a national of that State Party;

(b) the offence is committed by a national of that State Party or a stateless person who has his or her habitual residence in its territory; or

(c) the offence is:

(i) one of those established in accordance with Article 5(1), of this Convention and is committed outside its territory with a view to the commission of a serious crime within its territory;

(ii) one of those established in accordance with Article 6(1)(b)(ii), of this Convention and is committed outside its territory with a view to the commission of an offence established in accordance with Article 6(1)(a)(i) or (ii) or (b) (i), of this Convention within its territory.

(3) For the purposes of Article 16(10), of this Convention, each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offences covered by this Convention when the alleged offender is present in its territory and it does not extradite such person solely on the ground that he or she is one of its nationals.

(4) Each State Party may also adopt such measures as may be necessary to establish its jurisdiction over the offences covered by this Convention when the alleged offender is present in its territory and it does not extradite him or her.

(5) If a State Party exercising its jurisdiction under paragraph 1 or 2 of this Article has been notified, or has otherwise learned, that one or more other States Parties are conducting an investigation, prosecution or judicial proceeding in respect of the same conduct, the competent authorities of those States Parties shall, as appropriate, consult one another with a view to coordinating their actions.

(6) Without prejudice to norms of general international law, this Convention does not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law.

Article 16

Extradition

(1) This Article shall apply to the offences covered by this Convention or in cases where an offence referred to in Article 3(1)(a) or (b), involves an organised criminal group and the person who is the subject of the request for extradition is located in the territory of the requested State Party, provided that the offence for which extradition is sought is punishable under the domestic law of both the requesting State Party and the requested State Party.

(2) If the request for extradition includes several separate serious crimes, some of which are not covered by this Article, the requested State Party may apply this Article also in respect of the latter offences.

(3) Each of the offences to which this Article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

(4) If a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention the legal basis for extradition in respect of any offence to which this Article applies.

(5) States Parties that make extradition conditional on the existence of a treaty shall:

(a) at the time of deposit of their instrument of ratification, acceptance, approval of or accession to this Convention, inform the Secretary-General of the United Nations whether they will take this Convention as the legal basis for cooperation on extradition with other States Parties to this Convention; and

(b) if they do not take this Convention as the legal basis for cooperation on extradition, seek, where appropriate, to conclude treaties on extradition with other States Parties to this Convention in order to implement this Article.

(6) States Parties that do not make extradition conditional on the existence of a treaty shall recognise offences to which this Article applies as extraditable offences between themselves.

(7) Extradition shall be subject to the conditions provided for by the domestic law of the requested State Party or by applicable extradition treaties, including, inter alia, conditions in relation to the minimum penalty requirement for extradition and the grounds upon which the requested State Party may refuse extradition.

(8) States Parties shall, subject to their domestic law, endeavour to expedite extradition procedures and to simplify evidentiary requirements relating thereto in respect of any offence to which this Article applies.

(9) Subject to the provisions of its domestic law and its extradition treaties, the requested State Party may, upon being satisfied that the circumstances so warrant and are urgent and at the request of the requesting State Party, take a person whose extradition is sought and who is present in its territory into custody or take other appropriate measures to ensure his or her presence at extradition proceedings.

(10) A State Party in whose territory an alleged offender is found, if it does not extradite such person in respect of an offence to which this Article applies solely on the ground that he or she is one of its nationals, shall, at the request of the State Party seeking extradition, be obliged to submit the case without undue delay to its competent authorities for the purpose of prosecution. Those authorities shall take their decision and conduct their proceedings in the same manner as in the case of any other offence of a grave nature under the domestic law of that State Party. The States Parties concerned shall cooperate with each other, in particular on procedural and evidentiary aspects, to ensure the efficiency of such prosecution.

(11) Whenever a State Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that State Party to serve the sentence imposed as a result of the trial or proceedings for which the extradition or surrender of the person was sought and that State Party and the State Party seeking the extradition of the person agree with this option and other terms that they may deem appropriate, such conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 10 of this Article.

(12) If extradition, sought for purposes of enforcing a sentence, is refused because the person sought is a national of the requested State Party, the requested Party shall, if its domestic law so permits and in conformity with the requirements of such law, upon application of the requesting Party, consider the enforcement of the sentence that has been imposed under the domestic law of the requesting Party or the remainder thereof.

(13) Any person regarding whom proceedings are being carried out in connection with any of the offences to which this Article applies shall be guaranteed fair treatment at all stages of the proceedings, including enjoyment of all the rights and guarantees provided by the domestic law of the State Party in the territory of which that person is present.

(14) Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person's sex, race, religion, nationality, ethnic origin or political opinions or that compliance with the request would cause prejudice to that person's position for any one of these reasons.

(15) States Parties may not refuse a request for extradition on the sole ground that the offence is also considered to involve fiscal matters.

(16) Before refusing extradition, the requested State Party shall, where appropriate, consult with the requesting State Party to provide it with ample opportunity to present its opinions and to provide information relevant to its allegation.

(17) States Parties shall seek to conclude bilateral and multilateral agreements or arrangements to carry out or to enhance the effectiveness of extradition.

Article 17

Transfer of sentenced persons

States Parties may consider entering into bilateral or multilateral agreements or arrangements on the transfer to their territory of persons sentenced to imprisonment or other forms of deprivation of liberty for offences covered by this Convention, in order that they may complete their sentences there.

Article 18

Mutual legal assistance

(1) States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention as provided for in Article 3 and shall reciprocally extend to one another similar assistance where the requesting State Party has reasonable grounds to suspect that the offence referred to in Article 3(1)(a) or (b), is transnational in nature, including that victims, witnesses, proceeds, instrumentalities or evidence of such offences are located in the requested State Party and that the offence involves an organised criminal group.

(2) Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws, treaties, agreements and arrangements of the requested State Party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with Article 10 of this Convention in the requesting State Party.

(3) Mutual legal assistance to be afforded in accordance with this Article may be requested for any of the following purposes:

(a) taking evidence or statements from persons;

(b) effecting service of judicial documents;

(c) executing searches and seizures, and freezing;

(d) examining objects and sites;

(e) providing information, evidentiary items and expert evaluations;

(f) providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records;

(g) identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes;

(h) facilitating the voluntary appearance of persons in the requesting State Party;

(i) any other type of assistance that is not contrary to the domestic law of the requested State Party.

(4) Without prejudice to domestic law, the competent authorities of a State Party may, without prior request, transmit information relating to criminal matters to a competent authority in another State Party where they believe that such information could assist the authority in undertaking or successfully concluding inquiries and criminal proceedings or could result in a request formulated by the latter State Party pursuant to this Convention.

(5) The transmission of information pursuant to paragraph 4 of this Article shall be without prejudice to inquiries and criminal proceedings in the State of the competent authorities providing the information. The competent authorities receiving the information shall comply with a request that said information remain confidential, even temporarily, or with restrictions on its use. However, this shall not prevent the receiving State Party from disclosing in its proceedings information that is exculpatory to an accused person. In such a case, the receiving State Party shall notify the transmitting State Party prior to the disclosure and, if so requested, consult with the transmitting State Party. If, in an exceptional case, advance notice is not possible, the receiving State Party shall inform the transmitting State Party of the disclosure without delay.

(6) The provisions of this Article shall not affect the obligations under any other treaty, bilateral or multilateral, that governs or will govern, in whole or in part, mutual legal assistance.

(7) Paragraphs 9 to 29 of this Article shall apply to requests made pursuant to this Article if the States Parties in question are not bound by a treaty of mutual legal assistance. If those States Parties are bound by such a treaty, the corresponding provisions of that treaty shall apply unless the States Parties agree to apply paragraphs 9 to 29 of this Article in lieu thereof. States Parties are strongly encouraged to apply these paragraphs if they facilitate cooperation.

(8) States Parties shall not decline to render mutual legal assistance pursuant to this Article on the ground of bank secrecy.

(9) States Parties may decline to render mutual legal assistance pursuant to this Article on the ground of absence of dual criminality. However, the requested State Party may, when it deems appropriate, provide assistance, to the extent it decides at its discretion, irrespective of whether the conduct would constitute an offence under the domestic law of the requested State Party.

(10) A person who is being detained or is serving a sentence in the territory of one State Party whose presence in another State Party is requested for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for investigations, prosecutions or judicial proceedings in relation to offences covered by this Convention may be transferred if the following conditions are met:

(a) the person freely gives his or her informed consent;

(b) the competent authorities of both States Parties agree, subject to such conditions as those States Parties may deem appropriate.

(11) For the purposes of paragraph 10 of this Article:

(a) the State Party to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorised by the State Party from which the person was transferred;

(b) the State Party to which the person is transferred shall without delay implement its obligation to return the person to the custody of the State Party from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both States Parties;

(c) the State Party to which the person is transferred shall not require the State Party from which the person was transferred to initiate extradition proceedings for the return of the person;

(d) the person transferred shall receive credit for service of the sentence being served in the State from which he or she was transferred for time spent in the custody of the State Party to which he or she was transferred.

(12) Unless the State Party from which a person is to be transferred in accordance with paragraphs 10 and 11 of this Article so agrees, that person, whatever his or her nationality, shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in the territory of the State to which that person is transferred in respect of acts, omissions or convictions prior to his or her departure from the territory of the State from which he or she was transferred.

(13) Each State Party shall designate a central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either to execute them or to transmit them to the competent authorities for execution. Where a State Party has a special region or territory with a separate system of mutual legal assistance, it may designate a distinct central authority that shall have the same function for that region or territory. Central authorities shall ensure the speedy and proper execution or transmission of the requests received. Where the central authority transmits the request to a competent authority for execution, it shall encourage the speedy and proper execution of the request by the competent authority. The Secretary-General of the United Nations shall be notified of the central authority designated for this purpose at the time each State Party deposits its instrument of ratification, acceptance or approval of or accession to this Convention. Requests for mutual legal assistance and any communication related thereto shall be transmitted to the central authorities designated by the States Parties. This requirement shall be without prejudice to the right of a State Party to require that such requests and communications be addressed to it through diplomatic channels and, in urgent circumstances, where the States Parties agree, through the International Criminal Police Organisation, if possible.

(14) Requests shall be made in writing or, where possible, by any means capable of producing a written record, in a language acceptable to the requested State Party, under conditions allowing that State Party to establish authenticity. The Secretary-General of the United Nations shall be notified of the language or languages acceptable to each State Party at the time it deposits its instrument of ratification, acceptance or approval of or accession to this Convention. In urgent circumstances and where agreed by the States Parties, requests may be made orally, but shall be confirmed in writing forthwith.

(15) A request for mutual legal assistance shall contain:

(a) the identity of the authority making the request;

(b) the subject matter and nature of the investigation, prosecution or judicial proceeding to which the request relates and the name and functions of the authority conducting the investigation, prosecution or judicial proceeding;

(c) a summary of the relevant facts, except in relation to requests for the purpose of service of judicial documents;

(d) a description of the assistance sought and details of any particular procedure that the requesting State Party wishes to be followed;

(e) where possible, the identity, location and nationality of any person concerned; and

(f) the purpose for which the evidence, information or action is sought.

(16) The requested State Party may request additional information when it appears necessary for the execution of the request in accordance with its domestic law or when it can facilitate such execution.

(17) A request shall be executed in accordance with the domestic law of the requested State Party and, to the extent not contrary to the domestic law of the requested State Party and where possible, in accordance with the procedures specified in the request.

(18) Wherever possible and consistent with fundamental principles of domestic law, when an individual is in the territory of a State Party and has to be heard as a witness or expert by the judicial authorities of another State Party, the first State Party may, at the request of the other, permit the hearing to take place by video conference if it is not possible or desirable for the individual in question to appear in person in the territory of the requesting State Party. States Parties may agree that the hearing shall be conducted by a judicial authority of the requesting State Party and attended by a judicial authority of the requested State Party.

(19) The requesting State Party shall not transmit or use information or evidence furnished by the requested State Party for investigations, prosecutions or judicial proceedings other than those stated in the request without the prior consent of the requested State Party. Nothing in this paragraph shall prevent the requesting State Party from disclosing in its proceedings information or evidence that is exculpatory to an accused person. In the latter case, the requesting State Party shall notify the requested State Party prior to the disclosure and, if so requested, consult with the requested State Party. If, in an exceptional case, advance notice is not possible, the requesting State Party shall inform the requested State Party of the disclosure without delay.

(20) The requesting State Party may require that the requested State Party keep confidential the fact and substance of the request, except to the extent necessary to execute the request. If the requested State Party cannot comply with the requirement of confidentiality, it shall promptly inform the requesting State Party.

(21) Mutual legal assistance may be refused:

(a) if the request is not made in conformity with the provisions of this Article;

(b) if the requested State Party considers that execution of the request is likely to prejudice its sovereignty, security, public order or other essential interests;

(c) if the authorities of the requested State Party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction;

(d) if it would be contrary to the legal system of the requested State Party relating to mutual legal assistance for the request to be granted.

(22) States Parties may not refuse a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters.

(23) Reasons shall be given for any refusal of mutual legal assistance.

(24) The requested State Party shall execute the request for mutual legal assistance as soon as possible and shall take as full account as possible of any deadlines suggested by the requesting State Party and for which reasons are given, preferably in the request. The requested State Party shall respond to reasonable requests by the requesting State Party on progress of its handling of the request. The requesting State Party shall promptly inform the requested State Party when the assistance sought is no longer required.

(25) Mutual legal assistance may be postponed by the requested State Party on the ground that it interferes with an ongoing investigation, prosecution or judicial proceeding.

(26) Before refusing a request pursuant to paragraph 21 of this Article or postponing its execution pursuant to paragraph 25 of this Article, the requested State Party shall consult with the requesting State Party to consider whether assistance may be granted subject to such terms and conditions as it deems necessary. If the requesting State Party accepts assistance subject to those conditions, it shall comply with the conditions.

(27) Without prejudice to the application of paragraph 12 of this Article, a witness, expert or other person who, at the request of the requesting State Party, consents to give evidence in a proceeding or to assist in an investigation, prosecution or judicial proceeding in the territory of the requesting State Party shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in that territory in respect of acts, omissions or convictions prior to his or her departure from the territory of the requested State Party. Such safe conduct shall cease when the witness, expert or other person having had, for a period of 15 consecutive days or for any period agreed upon by the States Parties from the date on which he or she has been officially informed that his or her presence is no longer required by the judicial authorities, an opportunity of leaving, has nevertheless remained voluntarily in the territory of the requesting State Party or, having left it, has returned of his or her own free will.

(28) The ordinary costs of executing a request shall be borne by the requested State Party, unless otherwise agreed by the States Parties concerned. If expenses of a substantial or extraordinary nature are or will be required to fulfil the request, the States Parties shall consult to determine the terms and conditions under which the request will be executed, as well as the manner in which the costs shall be borne.

(29) The requested State Party:

(a) shall provide to the requesting State Party copies of government records, documents or information in its possession that under its domestic law are available to the general public;

(b) may, at its discretion, provide to the requesting State Party in whole, in part or subject to such conditions as it deems appropriate, copies of any government records, documents or information in its possession that under its domestic law are not available to the general public.

(30) States Parties shall consider, as may be necessary, the possibility of concluding bilateral or multilateral agreements or arrangements that would serve the purposes of, give practical effect to or enhance the provisions of this Article.

Article 19

Joint investigations

States Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States, the competent authorities concerned may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis. The States Parties involved shall ensure that the sovereignty of the State Party in whose territory such investigation is to take place is fully respected.

Article 20

Special investigative techniques

(1) If permitted by the basic principles of its domestic legal system, each State Party shall, within its possibilities and under the conditions prescribed by its domestic law, take the necessary measures to allow for the appropriate use of controlled delivery and, where it deems appropriate, for the use of other special investigative techniques, such as electronic or other forms of surveillance and undercover operations, by its competent authorities in its territory for the purpose of effectively combating organised crime.

(2) For the purpose of investigating the offences covered by this Convention, States Parties are encouraged to conclude, when necessary, appropriate bilateral or multilateral agreements or arrangements for using such special investigative techniques in the context of cooperation at the international level. Such agreements or arrangements shall be concluded and implemented in full compliance with the principle of sovereign equality of States and shall be carried out strictly in accordance with the terms of those agreements or arrangements.

(3) In the absence of an agreement or arrangement as set forth in paragraph 2 of this Article, decisions to use such special investigative techniques at the international level shall be made on a case-by-case basis and may, when necessary, take into consideration financial arrangements and understandings with respect to the exercise of jurisdiction by the States Parties concerned.

(4) Decisions to use controlled delivery at the international level may, with the consent of the States Parties concerned, include methods such as intercepting and allowing the goods to continue intact or be removed or replaced in whole or in part.

Article 21

Transfer of criminal proceedings

States Parties shall consider the possibility of transferring to one another proceedings for the prosecution of an offence covered by this Convention in cases where such transfer is considered to be in the interests of the proper administration of justice, in particular in cases where several jurisdictions are involved, with a view to concentrating the prosecution.

Article 22

Establishment of criminal record

Each State Party may adopt such legislative or other measures as may be necessary to take into consideration, under such terms as and for the purpose that it deems appropriate, any previous conviction in another State of an alleged offender for the purpose of using such information in criminal proceedings relating to an offence covered by this Convention.

Article 23

Criminalisation of obstruction of justice

Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) the use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in relation to the commission of offences covered by this Convention;

(b) the use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official in relation to the commission of offences covered by this Convention. Nothing in this subparagraph shall prejudice the right of States Parties to have legislation that protects other categories of public officials.

Article 24

Protection of witnesses

(1) Each State Party shall take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by this Convention and, as appropriate, for their relatives and other persons close to them.

(2) The measures envisaged in paragraph 1 of this Article may include, inter alia, without prejudice to the rights of the defendant, including the right to due process:

(a) establishing procedures for the physical protection of such persons, such as, to the extent necessary and feasible, relocating them and permitting, where appropriate, non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons;

(b) providing evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness, such as permitting testimony to be given through the use of communications technology such as video links or other adequate means.

(3) States Parties shall consider entering into agreements or arrangements with other States for the relocation of persons referred to in paragraph 1 of this Article.

(4) The provisions of this Article shall also apply to victims in so far as they are witnesses.

Article 25

Assistance to and protection of victims

(1) Each State Party shall take appropriate measures within its means to provide assistance and protection to victims of offences covered by this Convention, in particular in cases of threat of retaliation or intimidation.

(2) Each State Party shall establish appropriate procedures to provide access to compensation and restitution for victims of offences covered by this Convention.

(3) Each State Party shall, subject to its domestic law, enable views and concerns of victims to be presented and considered at appropriate stages of criminal proceedings against offenders in a manner not prejudicial to the rights of the defence.

Article 26

Measures to enhance cooperation with law enforcement authorities

(1) Each State Party shall take appropriate measures to encourage persons who participate or who have participated in organised criminal groups:

(a) to supply information useful to competent authorities for investigative and evidentiary purposes on such matters as:

(i) the identity, nature, composition, structure, location or activities of organised criminal groups;

(ii) links, including international links, with other organised criminal groups;

(iii) offences that organised criminal groups have committed or may commit;

(b) to provide factual, concrete help to competent authorities that may contribute to depriving organised criminal groups of their resources or of the proceeds of crime.

(2) Each State Party shall consider providing for the possibility, in appropriate cases, of mitigating punishment of an accused person who provides substantial cooperation in the investigation or prosecution of an offence covered by this Convention.

(3) Each State Party shall consider providing for the possibility, in accordance with fundamental principles of its domestic law, of granting immunity from prosecution to a person who provides substantial cooperation in the investigation or prosecution of an offence covered by this Convention.

(4) Protection of such persons shall be as provided for in Article 24 of this Convention.

(5) Where a person referred to in paragraph 1 of this Article located in one State Party can provide substantial cooperation to the competent authorities of another State Party, the States Parties concerned may consider entering into agreements or arrangements, in accordance with their domestic law, concerning the potential provision by the other State Party of the treatment set forth in paragraphs 2 and 3 of this Article.

Article 27

Law enforcement cooperation

(1) States Parties shall cooperate closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offences covered by this Convention. Each State Party shall, in particular, adopt effective measures:

(a) to enhance and, where necessary, to establish channels of communication between their competent authorities, agencies and services in order to facilitate the secure and rapid exchange of information concerning all aspects of the offences covered by this Convention, including, if the States Parties concerned deem it appropriate, links with other criminal activities;

(b) to cooperate with other States Parties in conducting inquiries with respect to offences covered by this Convention concerning:

(i) the identity, whereabouts and activities of persons suspected of involvement in such offences or the location of other persons concerned;

(ii) the movement of proceeds of crime or property derived from the commission of such offences;

(iii) the movement of property, equipment or other instrumentalities used or intended for use in the commission of such offences;

(c) to provide, when appropriate, necessary items or quantities of substances for analytical or investigative purposes;

(d) to facilitate effective coordination between their competent authorities, agencies and services and to promote the exchange of personnel and other experts, including, subject to bilateral agreements or arrangements between the States Parties concerned, the posting of liaison officers;

(e) to exchange information with other States Parties on specific means and methods used by organised criminal groups, including, where applicable, routes and conveyances and the use of false identities, altered or false documents or other means of concealing their activities;

(f) to exchange information and coordinate administrative and other measures taken as appropriate for the purpose of early identification of the offences covered by this Convention.

(2) With a view to giving effect to this Convention, States Parties shall consider entering into bilateral or multilateral agreements or arrangements on direct cooperation between their law enforcement agencies and, where such agreements or arrangements already exist, amending them. In the absence of such agreements or arrangements between the States Parties concerned, the Parties may consider this Convention as the basis for mutual law enforcement cooperation in respect of the offences covered by this Convention. Whenever appropriate, States Parties shall make full use of agreements or arrangements, including international or regional organisations, to enhance the cooperation between their law enforcement agencies.

(3) States Parties shall endeavour to cooperate within their means to respond to transnational organised crime committed through the use of modern technology.

Article 28

Collection, exchange and analysis of information on the nature of organised crime

(1) Each State Party shall consider analysing, in consultation with the scientific and academic communities, trends in organised crime in its territory, the circumstances in which organised crime operates, as well as the professional groups and technologies involved.

(2) States Parties shall consider developing and sharing analytical expertise concerning organised criminal activities with each other and through international and regional organisations. For that purpose, common definitions, standards and methodologies should be developed and applied as appropriate.

(3) Each State Party shall consider monitoring its policies and actual measures to combat organised crime and making assessments of their effectiveness and efficiency.

Article 29

Training and technical assistance

(1) Each State Party shall, to the extent necessary, initiate, develop or improve specific training programmes for its law enforcement personnel, including prosecutors, investigating magistrates and customs personnel, and other personnel charged with the prevention, detection and control of the offences covered by this Convention. Such programmes may include secondments and exchanges of staff. Such programmes shall deal, in particular and to the extent permitted by domestic law, with the following:

(a) methods used in the prevention, detection and control of the offences covered by this Convention;

(b) routes and techniques used by persons suspected of involvement in offences covered by this Convention, including in transit States, and appropriate countermeasures;

(c) monitoring of the movement of contraband;

(d) detection and monitoring of the movements of proceeds of crime, property, equipment or other instrumentalities and methods used for the transfer, concealment or disguise of such proceeds, property, equipment or other instrumentalities, as well as methods used in combating money-laundering and other financial crimes;

(e) collection of evidence;

(f) control techniques in free trade zones and free ports;

(g) modern law enforcement equipment and techniques, including electronic surveillance, controlled deliveries and undercover operations;

(h) methods used in combating transnational organised crime committed through the use of computers, telecommunications networks or other forms of modern technology; and

(i) methods used in the protection of victims and witnesses.

(2) States Parties shall assist one another in planning and implementing research and training programmes designed to share expertise in the areas referred to in paragraph 1 of this Article and to that end shall also, when appropriate, use regional and international conferences and seminars to promote cooperation and to stimulate discussion on problems of mutual concern, including the special problems and needs of transit States.

(3) States Parties shall promote training and technical assistance that will facilitate extradition and mutual legal assistance. Such training and technical assistance may include language training, secondments and exchanges between personnel in central authorities or agencies with relevant responsibilities.

(4) In the case of existing bilateral and multilateral agreements or arrangements, States Parties shall strengthen, to the extent necessary, efforts to maximise operational and training activities within international and regional organisations and within other relevant bilateral and multilateral agreements or arrangements.

Article 30

Other measures: implementation of the Convention through economic development and technical assistance

(1) States Parties shall take measures conducive to the optimal implementation of this Convention to the extent possible, through international cooperation, taking into account the negative effects of organised crime on society in general, in particular on sustainable development.

(2) States Parties shall make concrete efforts to the extent possible and in coordination with each other, as well as with international and regional organisations:

(a) to enhance their cooperation at various levels with developing countries, with a view to strengthening the capacity of the latter to prevent and combat transnational organised crime;

(b) to enhance financial and material assistance to support the efforts of developing countries to fight transnational organised crime effectively and to help them implement this Convention successfully;

(c) to provide technical assistance to developing countries and countries with economies in transition to assist them in meeting their needs for the implementation of this Convention. To that end, States Parties shall endeavour to make adequate and regular voluntary contributions to an account specifically designated for that purpose in a United Nations funding mechanism. States Parties may also give special consideration, in accordance with their domestic law and the provisions of this Convention, to contributing to the aforementioned account a percentage of the money or of the corresponding value of proceeds of crime or property confiscated in accordance with the provisions of this Convention;

(d) to encourage and persuade other States and financial institutions as appropriate to join them in efforts in accordance with this Article, in particular by providing more training programmes and modern equipment to developing countries in order to assist them in achieving the objectives of this Convention.

(3) To the extent possible, these measures shall be without prejudice to existing foreign assistance commitments or to other financial cooperation arrangements at the bilateral, regional or international level.

(4) States Parties may conclude bilateral or multilateral agreements or arrangements on material and logistical assistance, taking into consideration the financial arrangements necessary for the means of international cooperation provided for by this Convention to be effective and for the prevention, detection and control of transnational organised crime.

Article 31

Prevention

(1) States Parties shall endeavour to develop and evaluate national projects and to establish and promote best practices and policies aimed at the prevention of transnational organised crime.

(2) States Parties shall endeavour, in accordance with fundamental principles of their domestic law, to reduce existing or future opportunities for organised criminal groups to participate in lawful markets with proceeds of crime, through appropriate legislative, administrative or other measures. These measures should focus on:

(a) the strengthening of cooperation between law enforcement agencies or prosecutors and relevant private entities, including industry;

(b) the promotion of the development of standards and procedures designed to safeguard the integrity of public and relevant private entities, as well as codes of conduct for relevant professions, in particular lawyers, notaries public, tax consultants and accountants;

(c) the prevention of the misuse by organised criminal groups of tender procedures conducted by public authorities and of subsidies and licences granted by public authorities for commercial activity;

(d) the prevention of the misuse of legal persons by organised criminal groups; such measures could include:

(i) the establishment of public records on legal and natural persons involved in the establishment, management and funding of legal persons;

(ii) the introduction of the possibility of disqualifying by court order or any appropriate means for a reasonable period of time persons convicted of offences covered by this Convention from acting as directors of legal persons incorporated within their jurisdiction;

(iii) the establishment of national records of persons disqualified from acting as directors of legal persons; and

(iv) the exchange of information contained in the records referred to in subparagraphs (d)(i) and (iii) of this paragraph with the competent authorities of other States Parties.

(3) States Parties shall endeavour to promote the reintegration into society of persons convicted of offences covered by this Convention.

(4) States Parties shall endeavour to evaluate periodically existing relevant legal instruments and administrative practices with a view to detecting their vulnerability to misuse by organised criminal groups.

(5) States Parties shall endeavour to promote public awareness regarding the existence, causes and gravity of and the threat posed by transnational organised crime. Information may be disseminated where appropriate through the mass media and shall include measures to promote public participation in preventing and combating such crime.

(6) Each State Party shall inform the Secretary-General of the United Nations of the name and address of the authority or authorities that can assist other States Parties in developing measures to prevent transnational organised crime.

(7) States Parties shall, as appropriate, collaborate with each other and relevant international and regional organisations in promoting and developing the measures referred to in this Article. This includes participation in international projects aimed at the prevention of transnational organised crime, for example by alleviating the circumstances that render socially marginalised groups vulnerable to the action of transnational organised crime.

Article 32

Conference of the Parties to the Convention

(1) A Conference of the Parties to the Convention is hereby established to improve the capacity of States Parties to combat transnational organised crime and to promote and review the implementation of this Convention.

(2) The Secretary-General of the United Nations shall convene the Conference of the Parties not later than one year following the entry into force of this Convention. The Conference of the Parties shall adopt rules of procedure and rules governing the activities set forth in paragraphs 3 and 4 of this Article (including rules concerning payment of expenses incurred in carrying out those activities).

(3) The Conference of the Parties shall agree upon mechanisms for achieving the objectives mentioned in paragraph 1 of this Article, including:

(a) facilitating activities by States Parties under Articles 29, 30 and 31 of this Convention, including by encouraging the mobilisation of voluntary contributions;

(b) facilitating the exchange of information among States Parties on patterns and trends in transnational organised crime and on successful practices for combating it;

(c) cooperating with relevant international and regional organisations and non-governmental organisations;

(d) reviewing periodically the implementation of this Convention;

(e) making recommendations to improve this Convention and its implementation.

(4) For the purpose of paragraphs 3 (d) and (e) of this Article, the Conference of the Parties shall acquire the necessary knowledge of the measures taken by States Parties in implementing this Convention and the difficulties encountered by them in doing so through information provided by them and through such supplemental review mechanisms as may be established by the Conference of the Parties.

(5) Each State Party shall provide the Conference of the Parties with information on its programmes, plans and practices, as well as legislative and administrative measures to implement this Convention, as required by the Conference of the Parties.

Article 33

Secretariat

(1) The Secretary-General of the United Nations shall provide the necessary secretariat services to the Conference of the Parties to the Convention.

(2) The secretariat shall:

(a) assist the Conference of the Parties in carrying out the activities set forth in Article 32 of this Convention and make arrangements and provide the necessary services for the sessions of the Conference of the Parties;

(b) upon request, assist States Parties in providing information to the Conference of the Parties as envisaged in Article 32(5), of this Convention; and

(c) ensure the necessary coordination with the secretariats of relevant international and regional organisations.

Article 34

Implementation of the Convention

(1) Each State Party shall take the necessary measures, including legislative and administrative measures, in accordance with fundamental principles of its domestic law, to ensure the implementation of its obligations under this Convention.

(2) The offences established in accordance with Articles 5, 6, 8 and 23 of this Convention shall be established in the domestic law of each State Party independently of the transnational nature or the involvement of an organised criminal group as described in Article 3(1), of this Convention, except to the extent that Article 5 of this Convention would require the involvement of an organised criminal group.

(3) Each State Party may adopt more strict or severe measures than those provided for by this Convention for preventing and combating transnational organised crime.

Article 35

Settlement of disputes

(1) States Parties shall endeavour to settle disputes concerning the interpretation or application of this Convention through negotiation.

(2) Any dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organisation of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court.

(3) Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Convention, declare that it does not consider itself bound by paragraph 2 of this Article. The other States Parties shall not be bound by paragraph 2 of this Article with respect to any State Party that has made such a reservation.

(4) Any State Party that has made a reservation in accordance with paragraph 3 of this Article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.

Article 36

Signature, ratification, acceptance, approval and accession

(1) This Convention shall be open to all States for signature from 12 to 15 December 2000 in Palermo, Italy, and thereafter at United Nations Headquarters in New York until 12 December 2002.

(2) This Convention shall also be open for signature by regional economic integration organisations provided that at least one Member State of such organisation has signed this Convention in accordance with paragraph 1 of this Article.

(3) This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. A regional economic integration organisation may deposit its instrument of ratification, acceptance or approval if at least one of its Member States has done likewise. In that instrument of ratification, acceptance or approval, such organisation shall declare the extent of its competence with respect to the matters governed by this Convention. Such organisation shall also inform the depositary of any relevant modification in the extent of its competence.

(4) This Convention is open for accession by any State or any regional economic integration organisation of which at least one Member State is a Party to this Convention. Instruments of accession shall be deposited with the Secretary-General of the United Nations. At the time of its accession, a regional economic integration organisation shall declare the extent of its competence with respect to matters governed by this Convention. Such organisation shall also inform the depositary of any relevant modification in the extent of its competence.

Article 37

Relation with protocols

(1) This Convention may be supplemented by one or more protocols.

(2) In order to become a Party to a protocol, a State or a regional economic integration organisation must also be a Party to this Convention.

(3) A State Party to this Convention is not bound by a protocol unless it becomes a Party to the protocol in accordance with the provisions thereof.

(4) Any protocol to this Convention shall be interpreted together with this Convention, taking into account the purpose of that protocol.

Article 38

Entry into force

(1) This Convention shall enter into force on the 19th day after the date of deposit of the 40th instrument of ratification, acceptance, approval or accession. For the purpose of this paragraph, any instrument deposited by a regional economic integration organisation shall not be counted as additional to those deposited by Member States of such organisation.

(2) For each State or regional economic integration organisation ratifying, accepting, approving or acceding to this Convention after the deposit of the 40th instrument of such action, this Convention shall enter into force on the 30th day after the date of deposit by such State or organisation of the relevant instrument.

Article 39

Amendment

(1) After the expiry of five years from the entry into force of this Convention, a State Party may propose an amendment and file it with the Secretary-General of the United Nations, who shall thereupon communicate the proposed amendment to the States Parties and to the Conference of the Parties to the Convention for the purpose of considering and deciding on the proposal. The Conference of the Parties shall make every effort to achieve consensus on each amendment. If all efforts at consensus have been exhausted and no agreement has been reached, the amendment shall, as a last resort, require for its adoption a two-thirds majority vote of the States Parties present and voting at the meeting of the Conference of the Parties.

(2) Regional economic integration organisations, in matters within their competence, shall exercise their right to vote under this Article with a number of votes equal to the number of their Member States that are Parties to this Convention. Such organisations shall not exercise their right to vote if their Member States exercise theirs and vice versa.

(3) An amendment adopted in accordance with paragraph 1 of this Article is subject to ratification, acceptance or approval by States Parties.

(4) An amendment adopted in accordance with paragraph 1 of this Article shall enter into force in respect of a State Party 90 days after the date of the deposit with the Secretary-General of the United Nations of an instrument of ratification, acceptance or approval of such amendment.

(5) When an amendment enters into force, it shall be binding on those States Parties which have expressed their consent to be bound by it. Other States Parties shall still be bound by the provisions of this Convention and any earlier amendments that they have ratified, accepted or approved.

Article 40

Denunciation

(1) A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Such denunciation shall become effective one year after the date of receipt of the notification by the Secretary-General.

(2) A regional economic integration organisation shall cease to be a Party to this Convention when all of its Member States have denounced it.

(3) Denunciation of this Convention in accordance with paragraph 1 of this Article shall entail the denunciation of any protocols thereto.

Article 41

Depositary and languages

(1) The Secretary-General of the United Nations is designated depositary of this Convention.

(2) The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

IN WITNESS WHEREOF, the undersigned plenipotentiaries, being duly authorised thereto by their respective Governments, have signed this Convention.

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20040429

Convention des Nations Unies contre la Criminalité Transnationale Organisée

Article premier

Objet

L'objet de la présente convention est de promouvoir la coopération afin de prévenir et de combattre plus efficacement la criminalité transnationale organisée.

Article 2

Terminologie

Aux fins de la présente convention:

a) l'expression "groupe criminel organisé" désigne un groupe structuré de trois personnes ou plus existant depuis un certain temps et agissant de concert dans le but de commettre une ou plusieurs infractions graves ou infractions établies conformément à la présente convention, pour en tirer, directement ou indirectement, un avantage financier ou un autre avantage matériel;

b) l'expression "infraction grave" désigne un acte constituant une infraction passible d'une peine privative de liberté dont le maximum ne doit pas être inférieur à quatre ans ou d'une peine plus lourde;

c) l'expression "groupe structuré" désigne un groupe qui ne s'est pas constitué au hasard pour commettre immédiatement une infraction et qui n'a pas nécessairement de rôles formellement définis pour ses membres, de continuité dans sa composition ou de structure élaborée;

d) le terme "biens" désigne tous les types d'avoirs, corporels ou incorporels, meubles ou immeubles, tangibles ou intangibles, ainsi que les actes juridiques ou documents attestant la propriété de ces avoirs ou les droits y relatifs;

e) l'expression "produit du crime" désigne tout bien provenant directement ou indirectement de la commission d'une infraction ou obtenu directement ou indirectement en la commettant;

f) les termes "gel" ou "saisie" désignent l'interdiction temporaire du transfert, de la conversion, de la disposition ou du mouvement de biens, ou le fait d'assumer temporairement la garde ou le contrôle de biens sur décision d'un tribunal ou d'une autre autorité compétente;

g) le terme "confiscation" désigne la dépossession permanente de biens sur décision d'un tribunal ou d'une autre autorité compétente;

h) l'expression "infraction principale" désigne toute infraction à la suite de laquelle un produit est généré, qui est susceptible de devenir l'objet d'une infraction définie à l'article 6 de la présente convention;

i) l'expression "livraison surveillée" désigne la méthode consistant à permettre le passage par le territoire d'un ou de plusieurs États d'expéditions illicites ou suspectées de l'être, au su et sous le contrôle des autorités compétentes de ces États, en vue d'enquêter sur une infraction et d'identifier les personnes impliquées dans sa commission;

j) l'expression "organisation régionale d'intégration économique" désigne toute organisation constituée par des États souverains d'une région donnée, à laquelle ses États membres ont transféré des compétences en ce qui concerne les questions régies par la présente convention et qui a été dûment mandatée, conformément à ses procédures internes, pour signer, ratifier, accepter, approuver ladite convention ou y adhérer; les références dans la présente convention aux "États parties" sont applicables à ces organisations dans la limite de leur compétence.

Article 3

Champ d'application

(1) La présente convention s'applique, sauf disposition contraire, à la prévention, aux enquêtes et aux poursuites concernant:

a) les infractions établies conformément aux articles 5, 6, 8 et 23 de la présente convention, et

b) les infractions graves telles que définies à l'article 2 de la présente convention;

lorsque ces infractions sont de nature transnationale et qu'un groupe criminel organisé y est impliqué.

(2) Aux fins du paragraphe 1, une infraction est de nature transnationale si:

a) elle est commise dans plus d'un État;

b) elle est commise dans un État mais qu'une partie substantielle de sa préparation, de sa planification, de sa conduite ou de son contrôle a lieu dans un autre État;

c) elle est commise dans un État mais implique un groupe criminel organisé qui se livre à des activités criminelles dans plus d'un État, ou

d) elle est commise dans un État mais a des effets substantiels dans un autre État.

Article 4

Protection de la souveraineté

(1) Les États parties exécutent leurs obligations au titre de la présente convention d'une manière compatible avec les principes de l'égalité souveraine et de l'intégrité territoriale des États et avec celui de la non-intervention dans les affaires intérieures d'autres États.

(2) Aucune disposition de la présente convention n'habilite un État partie à exercer sur le territoire d'un autre État une compétence et des fonctions qui sont exclusivement réservées aux autorités de cet autre État par son droit interne.

Article 5

Incrimination de la participation à un groupe criminel organisé

(1) Chaque État partie adopte les mesures législatives et autres nécessaires pour conférer le caractère d'infraction pénale, lorsque commis intentionnellement:

a) à l'un ou l'autre des actes suivants, ou aux deux, en tant qu'infractions pénales distinctes de celles impliquant une tentative d'activité criminelle ou sa consommation:

i) au fait de s'entendre avec une ou plusieurs personnes en vue de commettre une infraction grave à une fin liée directement ou indirectement à l'obtention d'un avantage financier ou autre avantage matériel et, lorsque le droit interne l'exige, impliquant un acte commis par un des participants en vertu de cette entente ou impliquant un groupe criminel organisé;

ii) à la participation active d'une personne ayant connaissance, soit du but et de l'activité criminelle générale d'un groupe criminel organisé, soit de son intention de commettre les infractions en question:

a. aux activités criminelles du groupe criminel organisé;

b. à d'autres activités du groupe criminel organisé lorsque cette personne sait que sa participation contribuera à la réalisation du but criminel susmentionné;

b) au fait d'organiser, de diriger, de faciliter, d'encourager ou de favoriser au moyen d'une aide ou de conseils la commission d'une infraction grave impliquant un groupe criminel organisé.

(2) La connaissance, l'intention, le but, la motivation ou l'entente visés au paragraphe 1 peuvent être déduits de circonstances factuelles objectives.

(3) Les États parties dont le droit interne subordonne l'établissement des infractions visées au paragraphe 1, point a) i), à l'implication d'un groupe criminel organisé veillent à ce que leur droit interne couvre toutes les infractions graves impliquant des groupes criminels organisés. Ces États parties, de même que les États parties dont le droit interne subordonne l'établissement des infractions visées au paragraphe 1, point a) i), à la commission d'un acte en vertu de l'entente, portent cette information à la connaissance du secrétaire général de l'Organisation des Nations unies au moment où ils signent la présente convention ou déposent leurs instruments de ratification, d'acceptation ou d'approbation ou d'adhésion.

Article 6

Incrimination du blanchiment du produit du crime

(1) Chaque État partie adopte, conformément aux principes fondamentaux de son droit interne, les mesures législatives et autres nécessaires pour conférer le caractère d'infraction pénale, lorsque l'acte a été commis intentionnellement:

a) i) à la conversion ou au transfert de biens dont celui qui s'y livre sait qu'ils sont le produit du crime, dans le but de dissimuler ou de déguiser l'origine illicite desdits biens ou d'aider toute personne qui est impliquée dans la commission de l'infraction principale à échapper aux conséquences juridiques de ses actes;

ii) à la dissimulation ou au déguisement de la nature véritable, de l'origine, de l'emplacement, de la disposition, du mouvement ou de la propriété de biens ou de droits y relatifs dont l'auteur sait qu'ils sont le produit du crime;

b) et, sous réserve des concepts fondamentaux de son système juridique:

i) à l'acquisition, à la détention ou à l'utilisation de biens dont celui qui les acquiert, les détient ou les utilise sait, au moment où il les reçoit, qu'ils sont le produit du crime;

ii) à la participation à l'une des infractions établies conformément au présent article ou à toute autre association, entente, tentative ou complicité par fourniture d'une assistance, d'une aide ou de conseils en vue de sa commission.

(2) Aux fins de l'application du paragraphe 1:

a) chaque État partie s'efforce d'appliquer le paragraphe 1 à l'éventail le plus large d'infractions principales;

b) chaque État partie inclut dans les infractions principales toutes les infractions graves telles que définies à l'article 2 de la présente convention et les infractions établies conformément à ses articles 5, 8 et 23. S'agissant des États parties dont la législation contient une liste d'infractions principales spécifiques, ceux-ci incluent dans cette liste, au minimum, un éventail complet d'infractions liées à des groupes criminels organisés;

c) aux fins du point b), les infractions principales incluent les infractions commises à l'intérieur et à l'extérieur du territoire relevant de la compétence de l'État partie en question. Toutefois, une infraction commise à l'extérieur du territoire relevant de la compétence d'un État partie ne constitue une infraction principale que lorsque l'acte correspondant est une infraction pénale en vertu du droit interne de l'État où il a été commis et constituerait une infraction pénale en vertu du droit interne de l'État partie appliquant le présent article s'il avait été commis sur son territoire;

d) chaque État partie remet au secrétaire général de l'Organisation des Nations unies une copie de ses lois qui donnent effet au présent article, ainsi qu'une copie de toute modification ultérieurement apportée à ces lois ou une description de ces lois et modifications ultérieures;

e) lorsque les principes fondamentaux du droit interne d'un État partie l'exigent, il peut être disposé que les infractions énoncées au paragraphe 1 ne s'appliquent pas aux personnes qui ont commis l'infraction principale;

f) la connaissance, l'intention ou la motivation, en tant qu'éléments constitutifs d'une infraction énoncée au paragraphe 1, peuvent être déduites de circonstances factuelles objectives.

Article 7

Mesures de lutte contre le blanchiment d'argent

(1) Chaque État partie:

a) institue un régime interne complet de réglementation et de contrôle des banques et institutions financières non bancaires, ainsi que, le cas échéant, des autres entités particulièrement exposées au blanchiment d'argent, dans les limites de sa compétence, afin de prévenir et de détecter toutes formes de blanchiment d'argent, lequel régime met l'accent sur les exigences en matière d'identification des clients, d'enregistrement des opérations et de déclaration des opérations suspectes;

b) s'assure, sans préjudice des articles 18 et 27 de la présente convention, que les autorités administratives, de réglementation, de détection et de répression et autres, chargées de la lutte contre le blanchiment d'argent (y compris, quand son droit interne le prévoit, les autorités judiciaires) sont en mesure de coopérer et d'échanger des informations aux niveaux national et international, dans les conditions définies par son droit interne et, à cette fin, envisage la création d'un service de renseignement financier qui fera office de centre national de collecte, d'analyse et de diffusion d'informations concernant d'éventuelles opérations de blanchiment d'argent.

(2) Les États parties envisagent de mettre en œuvre des mesures réalisables de détection et de surveillance du mouvement transfrontière d'espèces et de titres négociables appropriés, sous réserve de garanties permettant d'assurer une utilisation correcte des informations et sans entraver d'aucune façon la circulation des capitaux licites. Il peut être notamment fait obligation aux particuliers et aux entreprises de signaler les transferts transfrontières de quantités importantes d'espèces et de titres négociables appropriés.

(3) Lorsqu'ils instituent un régime interne de réglementation et de contrôle aux termes du présent article, et sans préjudice de tout autre article de la présente convention, les États parties sont invités à prendre pour lignes directrices les initiatives pertinentes prises par les organisations régionales, interrégionales et multilatérales pour lutter contre le blanchiment d'argent.

(4) Les États parties s'efforcent de développer et de promouvoir la coopération mondiale, régionale, sous-régionale et bilatérale entre les autorités judiciaires, les services de détection et de répression et les autorités de réglementation financière en vue de lutter contre le blanchiment d'argent.

Article 8

Incrimination de la corruption

(1) Chaque État partie adopte les mesures législatives et autres nécessaires pour conférer le caractère d'infraction pénale, lorsque les actes ont été commis intentionnellement:

a) au fait de promettre, d'offrir ou d'accorder à un agent public, directement ou indirectement, un avantage indu, pour lui-même ou pour une autre personne ou entité, afin qu'il accomplisse ou s'abstienne d'accomplir un acte dans l'exercice de ses fonctions officielles;

b) au fait pour un agent public de solliciter ou d'accepter, directement ou indirectement, un avantage indu pour lui-même ou pour une autre personne ou entité, afin d'accomplir ou de s'abstenir d'accomplir un acte dans l'exercice de ses fonctions officielles.

(2) Chaque État partie envisage d'adopter les mesures législatives et autres nécessaires pour conférer le caractère d'infraction pénale aux actes visés au paragraphe 1, impliquant un agent public étranger ou un fonctionnaire international. De même, chaque État partie envisage de conférer le caractère d'infraction pénale à d'autres formes de corruption.

(3) Chaque État partie adopte également les mesures nécessaires pour conférer le caractère d'infraction pénale au fait de se rendre complice d'une infraction établie conformément au présent article.

(4) Aux fins du paragraphe 1 et de l'article 9 de la présente convention, le terme "agent public" désigne un agent public ou une personne assurant un service public, tel que ce terme est défini dans le droit interne et appliqué dans le droit pénal de l'État partie où la personne en question exerce cette fonction.

Article 9

Mesures contre la corruption

(1) Outre les mesures énoncées à l'article 8 de la présente convention, chaque État partie, selon qu'il convient et conformément à son système juridique, adopte des mesures efficaces d'ordre législatif, administratif ou autre pour promouvoir l'intégrité et prévenir, détecter et punir la corruption des agents publics.

(2) Chaque État partie prend des mesures pour s'assurer que ses autorités agissent efficacement en matière de prévention, de détection et de répression de la corruption des agents publics, y compris en leur donnant une indépendance suffisante pour empêcher toute influence inappropriée sur leurs actions.

Article 10

Responsabilité des personnes morales

(1) Chaque État partie adopte les mesures nécessaires, conformément à ses principes juridiques, pour établir la responsabilité des personnes morales qui participent à des infractions graves impliquant un groupe criminel organisé et qui commettent les infractions établies conformément aux articles 5, 6, 8 et 23 de la présente convention.

(2) Sous réserve des principes juridiques de l'État partie, la responsabilité des personnes morales peut être pénale, civile ou administrative.

(3) Cette responsabilité est sans préjudice de la responsabilité pénale des personnes physiques qui ont commis les infractions.

(4) Chaque État partie veille, en particulier, à ce que les personnes morales tenues responsables conformément au présent article fassent l'objet de sanctions efficaces, proportionnées et dissuasives de nature pénale ou non pénale, y compris de sanctions pécuniaires.

Article 11

Poursuites judiciaires, jugement et sanctions

(1) Chaque État partie rend la commission d'une infraction établie conformément aux articles 5, 6, 8 et 23 de la présente convention passible de sanctions qui tiennent compte de la gravité de cette infraction.

(2) Chaque État partie s'efforce de faire en sorte que tout pouvoir judiciaire discrétionnaire conféré par son droit interne et afférent aux poursuites judiciaires engagées contre des individus pour des infractions visées par la présente convention soit exercé de façon à optimiser l'efficacité des mesures de détection et de répression de ces infractions, compte dûment tenu de la nécessité d'exercer un effet dissuasif en ce qui concerne leur commission.

(3) S'agissant d'infractions établies conformément aux