Key Benefits:
The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc., sanction with force of Law:
ARTICLE 1 Approve the International Convention against Transnational Organized Crime, which consists of forty-one (41) articles, and its supplementary protocols A to prevent, suppress and punish trafficking in persons, especially women and children, which consists of twenty (20) articles, and B against the smuggling of migrants by land, sea and air, which consists of twenty-five (25) articles and whose authenticated photocopies are part of this law. ARTICLE 2 Contact the Executive.IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, TO A DAY OF THE MONTH OF AUGUST OF THE YEAR DOS MIL DOS.
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EDUARDO OR CAMAÑO. . JUAN C. MAQUEDA. . Juan Estrada. . Juan C. Oyarzún.
United Nations Convention against Transnational Organized Crime
Article 1
Finality
The purpose of this Convention is to promote cooperation in preventing and combating transnational organized crime more effectively.
Article 2
Definitions
For the purposes of this Convention:
(a) "Organized criminal group" means a structured group of three or more persons who exist for some time and who act in concert for the purpose of committing one or more serious crimes or offences established under this Convention with a view to obtaining, directly or indirectly, an economic benefit or other material benefit;
(b) "serious offence" means conduct that constitutes a punishable offence with a maximum deprivation of liberty of at least four years or with a more serious penalty;
(c) The "structured group" means a group that is not necessarily formed for the immediate commission of a crime and in which its members are not necessarily assigned formally defined functions or continuity in membership or a developed structure;
(d) "goods" means assets of any kind, body or incorporate, furniture or immovable, tangible or intangible, and documents or legal instruments that credit the property or other rights to such assets;
(e) The "product of the offence" means any property derived or obtained directly or indirectly from the commission of an offence;
(f) "Preventive landing" or "incaution" means a temporary ban on the transfer, conversion, disposal or movement of property, or temporary custody or control of property by order issued by a court or other competent authority.
(g) " Forfeiture " means the definitive deprivation of property by decision of a court or other competent authority;
(h) " Determining offence " means any offence from which a proceed is derived that may become a matter of an offence defined in article 6 of this Convention;
(i) "supervised delivery" means the technique of allowing illicit or suspicious remittances to leave the territory of one or more States, to go through or enter it, with the knowledge and under the supervision of its competent authorities, in order to investigate crimes and identify the persons involved in the commission of them;
(j) The "regional economic integration organization" shall mean an organization constituted by sovereign States of a particular region, to which their member States have transferred competence in matters governed by this Convention and which has been duly empowered, in accordance with their internal procedures, to sign, ratify, accept or approve or accede to the Convention; references to the "States Parties" under this Convention shall apply to such organizations within their competence.
Article 3
Scope of application
1. Unless it contains a provision to the contrary, this Convention shall apply to the prevention, investigation and prosecution of:
(a) Offences established under articles 5, 6, 8 and 23 of this Convention; and
(b) Serious offences defined in article 2 of this Convention; when such offences are transnational in nature and involve the participation of an organized criminal group
2. For the purposes of paragraph 1 of this article, the offence shall be transnational if:
(a) It is committed in more than one State;
(b) It is committed within a single State but a substantial part of its preparation, planning, direction or control is carried out in another State;
(c) It is committed within a single State but involves the participation of an organized criminal group carrying out 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 fulfil their obligations under this Convention in accordance with the principles of sovereign equality and territorial integrity of States, as well as non-intervention in the internal affairs of other States.
2. Nothing in this Convention shall empower a State party to exercise jurisdiction or functions in the territory of another State that the domestic law of that State reserves exclusively to its authorities.
Article 5
Criminalization of participation in a group
organized crime
1. Each State Party shall take such legislative and other measures as may be necessary to criminalize, when intentionally committed:
(a) One of the following acts, or both, as offences other than those involving the attempt or consummation of criminal activity:
(i) The agreement with one or more persons to commit a serious offence for a purpose that relates directly or indirectly to obtaining an economic or other benefit of material order and, when prescribed by domestic law, to involve an act committed by one of the participants in carrying out such an agreement or involving an organized criminal group;
(ii) The conduct of any person who, knowing the general purpose and criminal activity of an organized criminal group or its intention to commit the crimes in question, is actively involved in:
a. Illicit activities of the organized criminal group;
b. Other activities of the organized criminal group, knowing that their participation will contribute to the achievement of the criminal purpose described above;
(b) Organization, direction, aid, incitement, facilitation or advice for the purpose of committing a serious crime involving the participation of an organized criminal group
2. The knowledge, intent, purpose, 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 the participation of an organized criminal group for the criminalization of offences under paragraph 1 (a) (i) of this article shall ensure that their domestic law comprises all serious crimes involving organized criminal groups. Such States Parties, as well as States parties whose domestic law requires an act which is intended to carry out the agreement concluded for the purpose of committing the offences established under paragraph 1 (a) (i) of this article, shall notify the Secretary-General of the United Nations at the time of signature or deposit of his instrument of ratification, acceptance or approval of or accession to this Convention.
Article 6
Criminalization of the laundering of proceeds
offence
1. Each State Party shall, in accordance with the fundamental principles of its domestic law, adopt such legislative and other measures as may be necessary to criminalize, when intentionally committed:
(a) (i) Conversion or transfer of property, knowing that such property is the proceeds of crime, with the purpose of concealing or concealing the illicit origin of the property or assisting any person involved in the commission of the predicate offence to circumvent the legal consequences of its acts;
(ii) The concealment or concealment of the true nature, origin, location, disposition, movement or ownership of or the legitimate right 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 goods, knowingly, at the time of receipt, that they are proceeds of crime;
(ii) Participation in the commission of any of the offences established under this article, as well as the association and confabulation to commit them, the attempt to commit them, and assistance, incitement, facilitation and advice for the purposes of their commission.
2. For the purposes of the application or implementation of paragraph 1 of this article:
(a) Each State Party shall ensure that paragraph 1 of this article is applied to the widest possible range of predicate offences;
(b) Each State Party shall include as predicate offences all serious crimes defined in article 2 of this Convention and offences established under articles 5, 8 and 23 of this Convention. States Parties whose legislation establishes a list of determining offences shall include at least a wide range of offences related to organized criminal groups;
(c) For the purposes of subparagraph (b), determining offences shall include offences committed both within and outside the jurisdiction of the State party concerned. However, offences committed outside the jurisdiction of a State Party shall constitute a determining offence provided that the act concerned is an offence under the domestic law of the State in which it has been committed and also constitutes an offence under the domestic law of the State party which applies or implements this article if the offence was committed there;
(d) Each State Party shall provide to the Secretary-General of the United Nations a copy of its laws to give effect to this article and any subsequent amendments to such laws or a description thereof;
(e) If so required by the fundamental principles of a State party ' s domestic law, it may be provided that the offences set forth in paragraph 1 of this article shall not apply to persons who have committed the predicate offence;
(f) The knowledge, intent or purpose required as an element of an offence under paragraph 1 of this article may be inferred from objective factual circumstances.
Article 7
Measures to combat money-laundering
1. Each State Party:
(a) Establish a comprehensive internal regulatory and oversight regime for banks and non-bank financial institutions and, where appropriate, other bodies within their jurisdiction that are particularly susceptible to money-laundering in order to prevent and detect all forms of money-laundering, and emphasize the requirements for customer identification, registration and reporting suspicious transactions;
(b) It shall ensure, without prejudice to the implementation of articles 18 and 27 of the present Convention, that the authorities of administration, regulation and enforcement of the law and other authorities responsible for combating money-laundering (including, where relevant under domestic law, the judicial authorities) are able to cooperate and exchange information at the national and international levels in accordance with the conditions prescribed in domestic law and, to that end, consider establishing a national intelligence unit to provide a financial intelligence unit.
2. States Parties shall consider implementing feasible measures to detect and monitor the transboundary movement of cash and relevant negotiable instruments, subject to safeguards guaranteeing the proper use of information and without restricting in any way the circulation of licit capitals. Such measures may include the requirement that individuals and business entities notify cross-border transfers of high amounts of cash and relevant negotiable instruments.
3. In establishing an internal regulatory and monitoring regime under this article and without prejudice to the provisions of any other article of this Convention, States parties are urged to use as a guide the relevant initiatives of regional, interregional and multilateral organizations to combat money-laundering.
4. States Parties shall endeavour to establish and promote cooperation at the global, regional, subregional and bilateral levels among the judicial authorities, law enforcement and financial regulation to combat money-laundering.
Article 8
Criminalization of corruption
1. Each State Party shall take such legislative and other measures as may be necessary to criminalize, when intentionally committed:
(a) The promise, offer or concession to a public official, directly or indirectly, of an undue benefit that may result in his or her own benefit or in that of another person or entity, in order to act or refrain from acting in the performance of his or her official functions;
(b) The request or acceptance by a public official, directly or indirectly, of an undue benefit which may result in his or her own benefit or in that of another person or entity, in order to ensure that the official acts or refrains from acting in the performance of his or her official functions.
2. Each State Party shall consider adopting such legislative and other measures as may be necessary to criminalize the acts referred to in paragraph 1 of this article where a foreign public official or an international official is involved. Similarly, each State Party shall consider criminalizing other forms of corruption.
3. Each State Party shall also take such measures as may be necessary to criminalize participation as an accomplice in an offence under this article.
4. For the purposes of paragraph 1 of this article and article 9 of this Convention, "public officials" shall mean any public official or person who provides a public service in accordance with the definition provided for in domestic law and its application in accordance with the criminal law of the State party in which the person performs that function.
Article 9
Measures against corruption
1. In addition to the measures provided for in article 8 of this Convention, each State Party shall, as appropriate and consistent with its legal system, take effective legislative, administrative or other measures to promote integrity and to prevent, detect and punish corruption of public officials.
2. Each State Party shall take measures to ensure the effective intervention of its authorities with a view to preventing, detecting and punishing the corruption of public officials, including by providing such authorities with sufficient independence to deter the exercise of any undue influence in their performance.
Article 10
Liability of legal persons
1. Each State Party shall take such measures as may be necessary, in accordance with its legal principles, to establish the responsibility of legal persons for participation in serious crimes involving an organized criminal group, as well as for offences established under 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 of a criminal, civil or administrative nature.
3. Such liability shall be without prejudice to the criminal liability of natural persons who have committed the offences.
4. Each State Party shall in particular ensure that effective, proportionate and deterrent criminal or non-criminal sanctions, including monetary sanctions, are imposed on legal persons deemed responsible under this article.
Article 11
Process, judgement and sanctions
1. Each State Party shall criminalize the commission of the offences established under articles 5, 6, 8 and 23 of this Convention with sanctions that take into account the seriousness of such offences.
2. Each State Party shall ensure that any discretionary legal powers under its domestic law are exercised in relation to the prosecution of persons for the offences covered by this Convention in order to maximize the effectiveness of the measures taken to enforce the law in respect of such crimes, with due regard to the need to prevent its commission.
3. In the case of offences established under 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 for the rights of the defence, with a view to ensuring that the imposition of conditions in relation to the decision to grant the liberty pending trial or appeal takes into account the need to ensure the appearance of the accused in any subsequent criminal proceedings.
4. Each State Party shall ensure that its courts or other competent authorities bear in mind the serious nature of the offences covered by this Convention in considering the eventuality of granting early release or probation to persons convicted of such offences.
5. Each State Party shall establish, where appropriate, in accordance with its domestic law, a prolonged period of limitation within which the proceedings may be initiated for any of the offences covered by this Convention and a longer period of time when the alleged offender has eluded the administration of justice.
6. Nothing in this Convention shall affect the principle that the description of the offences established under it and of the applicable legal means of defence or other legal principles that inform the legality of conduct is reserved for the domestic law of the States parties and that such offences shall be prosecuted and punished in accordance with that right.
Article 12
Seizure and seizure
1. States Parties shall, to the extent permitted by their domestic legal system, take such measures as may be necessary to authorize confiscation:
(a) Proceedings of offences covered by this Convention or of assets of which the value of such proceeds is appropriate;
(b) Of the assets, equipment or other instruments used or intended for use in the commission of the offences covered by this Convention.
2. States Parties shall take such measures as may be necessary to permit the identification, location, freezing or seizure of any property referred to in paragraph 1 of this article with a view to its eventual forfeiture.
3. Where the proceeds of the offence have been converted or converted partially or fully into other property, such property may be subject to the measures applicable to the proceeds under this article.
4. Where the proceeds of crime have been mixed with assets acquired from licit sources, such assets may, without prejudice to any other preventive or seizure authority, be confiscated until the estimated value of the product mixed.
5. Income or other benefits derived from proceeds of crime, property in which the proceeds of crime or proceeds of proceeds of crime have been transformed or converted, may also be subject to the measures provided for 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 the submission or seizure of bank, financial or commercial documents. States Parties may not refuse to apply the provisions of this paragraph by relying on bank secrecy.
7. States Parties may consider requiring a criminal to demonstrate the lawful origin of the alleged proceeds of crime or other property subject to confiscation, to the extent that this is consistent with the principles of their domestic law and the nature of the judicial process or other related proceedings.
8. The provisions of this article shall not be construed to prejudice the rights of third parties in good faith.
9. Nothing in this article shall affect the principle that the measures envisaged therein shall be defined and applied in accordance with and subject to the domestic law of the States Parties.
Article 13
International cooperation for the purpose of
forfeiture
1. States Parties that receive a request from another State Party that has jurisdiction to know of an offence covered by this Convention for the confiscation of proceeds of crime, property, equipment or other instruments referred to in article 12, paragraph 1, of this Convention within their territory shall, to the greatest extent permitted by their domestic legal order:
(a) Refer the request to its competent authorities to obtain a confiscation order to which, if granted, they shall comply; or
(b) To submit to its competent authorities, in order for it to be complied with to the extent requested, the confiscation order issued by a court in the territory of the requesting State Party in accordance with article 12, paragraph 1, of this Convention to the extent that it relates to the proceeds of the offence, the property, equipment or other instruments referred to in article 12, paragraph 1, of the territory of the requested State Party.
2. Following a request by another State Party that has jurisdiction to deal with an offence covered by this Convention, the requested State Party shall take measures aimed at identifying, tracing and freezing or seizing the proceeds of the offence, the property, equipment or other instruments referred to in article 12, paragraph 1, of this Convention with a view to its eventual confiscation, to be ordered by the requesting State Party or, in the event that I have a request for the submission of paragraph 1 of the requested State Party.
3. The provisions of article 18 of this Convention shall apply mutatis mutandis to this article. In addition to the information provided in article 18, paragraph 15, the applications submitted under this article shall contain the following:
(a) In the case of a request relating to paragraph 1 (a) of this article, a description of the property subject to confiscation and a statement of the facts on which the request of the requesting State Party is based to be sufficiently explicit so that the requested State Party may process the order under its domestic law;
(b) In the case of an application relating to paragraph 1 (b) of this article, an admissible copy in law of the order of confiscation issued by the requesting State Party on which the request is based, a statement of the facts and information as appropriate on the degree of enforcement requested to give the order;
(c) In the case of a request concerning paragraph 2 of this article, a statement of the facts on which the requesting State Party is based and a description of the measures requested.
4. The requested State Party shall take the decisions or measures provided for in paragraphs 1 and 2 of this article in accordance with and subject to the provisions of its domestic law and its rules of procedure or bilateral or multilateral treaties, agreements or arrangements which may be linked to the requesting State Party.
5. Each State Party shall provide the Secretary-General of the United Nations with a copy of its laws and regulations designed to give effect to this article and any subsequent amendments to such laws and regulations or a description thereof.
6. If a State party chooses to condition the adoption of the measures referred to in paragraphs 1 and 2 of this article on the existence of a relevant treaty, that State party shall consider this Convention as the necessary and sufficient basis of law to comply with that requirement.
7. States Parties may refuse the cooperation requested under this article if the offence referred to in the request is not an offence covered by this Convention.
8. The provisions of this article shall not be construed to prejudice the rights of third parties in good faith.
9. States Parties shall consider concluding bilateral or multilateral treaties, agreements or arrangements with a view to enhancing the effectiveness of international cooperation under this article.
Article 14
Provision of proceeds of crime or
confiscated assets
1. States Parties shall dispose of proceeds of crime or property confiscated under article 12 or article 13, paragraph 1, of this Convention in accordance with their domestic law and administrative procedures.
2. In enforcing a request submitted by another State Party under article 13 of the present Convention, the States Parties shall, to the extent permitted by their domestic law and to be required to do so, give priority consideration to the return of proceeds of crime or confiscated property to the requesting State Party so that it may compensate the victims of the offence or return such proceeds to their legitimate owners.
3. In enforcing a request submitted by another State Party under articles 12 and 13 of this Convention, States Parties may, in particular, consider concluding agreements or arrangements to:
(a) To provide the value of such proceeds of crime or such property, or funds derived from the sale of such proceeds or from such property or part of such funds, to the account designated in accordance with article 30, paragraph 2 (c), of this Convention and to inter-governmental specialized agencies in combating organized crime;
(b) To deal with other States Parties, on the basis of a general or case-by-case basis, such proceeds of crime or property, or funds derived from the sale of such proceeds or of such property, in accordance with their domestic law or administrative procedures.
Article 15
Jurisdiction
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences established under articles 5, 6, 8 and 23 of this Convention when:
(a) The offence is committed in its territory; or
(b) The offence is committed on board a ship flying its flag or an aircraft registered under its laws at the time of the commission of the offence.
2. Subject to article 4 of this Convention, a State Party may also establish its jurisdiction to deal with such offences when:
(a) The offence is committed against one of its nationals;
(b) The offence is committed by one of its nationals or by a stateless person who has habitual residence in its territory; or
(c) The offence:
(i) Be one of the offences established under article 5, paragraph 1, of this Convention and committed outside its territory with a view to committing a serious offence within its territory;
(ii) Be one of the offences established under article 6, paragraph 1 (b) (ii), of this Convention and are committed outside its territory with a view to the commission within its territory of an offence established under subparagraphs (a) (i) or (ii) or (b) (i) of article 6 (1) (b) of this Convention.
3. For the purposes of article 16, paragraph 10, of this Convention, each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences covered by this Convention when the alleged offender is in its territory and the State party does not extradite him for the sole fact that he is one of its nationals.
4. Each State Party may also take such measures as may be necessary to establish its jurisdiction over the offences covered by this Convention when the alleged offender is in its territory and the State party does not extradite him.
5. If a State Party exercising its jurisdiction in accordance with paragraphs 1 or 2 of this article has received notification, or is otherwise informed, that another or other State Party is conducting an investigation, process or judicial action in respect of the same facts, the competent authorities of those States Parties shall consult, as appropriate, in order to coordinate their actions.
6. Without prejudice to the rules of general international law, this Convention shall not exclude the exercise of the criminal jurisdictions established by States parties in accordance with their domestic law.
Article 16
Extradition
1. This article shall apply to offences covered by this Convention or to cases in which an offence referred to in article 3, paragraph 1 (a) or (b), involves the participation of an organized criminal group and the person who is the subject of the extradition request is in the territory of the requested State Party, provided that the offence for which extradition is requested is punishable under the domestic law of the requested State Party and where the offence for which extradition is sought is punishable.
2. Where the extradition request is based on several separate serious offences, some of which are not within the scope of this article, the requested State Party may apply the present article also with respect to the latter offences.
3. Each of the offences to which this article applies shall be deemed to be included as extraditable offences in any extradition treaty in force between States Parties. States Parties undertake to include such offences as extradition cases in any extradition treaty that they conclude with each other.
4. If a State Party which makes extradition conditional on the existence of a treaty receives an extradition request from another State Party with which it does not link any extradition treaty, it may consider this Convention as the legal basis for extradition in respect of the offences to which this article applies.
5. States Parties that make extradition conditional on the existence of a treaty shall:
(a) At the time of depositing its instrument of ratification, acceptance or approval of or accession to this Convention, report to the Secretary-General of the United Nations whether or not to consider this Convention as the legal basis for cooperation in extradition in its relations with other States parties to this Convention; and
(b) If they do not consider this Convention as the legal basis for cooperation in extradition, endeavour, where appropriate, to conclude extradition treaties 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 recognize the offences to which this article applies as cases of extradition between them.
7. Extradition shall be subject to the conditions provided for in the domestic law of the requested State Party or the applicable extradition treaties, including, inter alia, those relating to the requirement of a minimum penalty for extradition and the grounds on which the requested State Party may refuse extradition.
8. States Parties shall, in accordance with their domestic law, endeavour to expedite extradition procedures and simplify the evidentiary requirements for any of the offences to which this article applies.
9. Subject to the provisions of its domestic law and its extradition treaties, the requested State Party may, having ascertained that the circumstances justify and are of an urgent nature, and at the request of the requesting State Party, proceed to the detention of the person present in its territory whose extradition is requested or take other appropriate measures to ensure that the person is brought before extradition proceedings.
10. The State party in whose territory an alleged offender is present, if not extradited in respect of an offence to which the present article applies for the sole act of being one of its nationals, shall, upon the request of the State party requesting extradition, subject the case without undue delay to its competent authorities for the purpose of prosecution. Such authorities shall take their decision and conduct their judicial proceedings in the same manner as they would in respect of any other serious offence under the domestic law of that State party. The States Parties concerned shall cooperate with each other, in particular with regard to procedural and evidentiary aspects, with a view to ensuring the efficiency of such proceedings.
11. Where a State party ' s domestic law allows it to extradite or, in any other way, to surrender one of its nationals only on the condition that the person is returned to that State party to serve the sentence imposed on him as a result of the trial or process in which extradition or surrender has been requested, and where that State Party and the State Party requesting extradition accept that option, as well as other conditions deemed appropriate, that such extradition or extradition be submitted in a conditional provision.
12. If the extradition requested for the purpose of serving a sentence is denied by the fact that the person sought is a national of the requested State Party, the requested State Party, if its domestic law permits it and in accordance with the requirements of that right, shall, upon the request of the requesting State Party, consider enforcing the sentence imposed or the remainder pending in that sentence under the domestic law of the requesting State Party.
13. All stages of the proceedings shall ensure fair treatment of any person against whom an instruction has been initiated in connection with any of the offences to which the present article applies, including the enjoyment of all the rights and guarantees provided for in the domestic law of the State party in whose territory that person is present.
14. Nothing in this Convention may be construed as imposing an obligation to extradite if the requested State Party has justifiable grounds to assume that the request has been submitted for the purpose of prosecuting or punishing a person on the basis of his or her sex, race, religion, nationality, ethnic origin or political views or that his or her performance would prejudice the position of that person for any of these reasons.
15. States Parties may not refuse an extradition request only because it is considered that the offence also involves tax matters.
16. Before extradition is refused, the requested State Party, where appropriate, shall consult the requesting State Party to give it ample opportunity to present its views and to provide relevant information to its claim.
17. States Parties shall endeavour to conclude bilateral and multilateral agreements or arrangements for extradition or to enhance its effectiveness.
Article 17
Transfer of sentenced persons
a pity
States Parties may consider concluding bilateral or multilateral agreements or arrangements on the transfer to their territory of any person who has been sentenced to imprisonment or to another penalty of deprivation of liberty for any offence covered by this Convention in order to complete their sentence there.
Article 18
Mutual legal assistance
1. States Parties shall afford the widest mutual legal assistance in respect of investigations, prosecutions and judicial proceedings relating to the offences covered by this Convention in accordance with article 3, and such assistance shall also be provided where the requesting State Party has reasonable grounds to suspect that the offence referred to in article 3, paragraph 1 (a) or (b), is of a transnational nature and that the victims, witnesses, the proceeds, the organized crime,
2. Mutual legal assistance shall be provided to the maximum extent possible, in accordance with the relevant laws, treaties, agreements and arrangements of the requested State Party with respect to investigations, prosecutions and judicial proceedings relating to the offences to 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 under this article may be requested for any of the following purposes:
(a) Receiving testimonies or taking statements to persons;
(b) Submission of judicial documents;
(c) Conduct inspections and seizures and preventive embargoes;
(d) Examine objects and places;
(e) Providing information, evidence and expert assessments;
(f) Deliver certified originals or copies of relevant documents and records, including public, banking and financial documentation, as well as social or commercial documentation of commercial companies;
(g) Identify or locate proceeds of crime, property, instruments or other evidence;
(h) To facilitate the voluntary appearance of persons in the requesting State Party;
(i) Any other assistance authorized by the domestic law of the requested State Party.
4. Without prejudice to domestic law, the competent authorities of a State Party may, without being previously requested, transmit information relating to criminal matters to one, the competent authority of another State Party if they believe that such information could assist the authority to undertake or successfully conclude criminal investigations and prosecutions or could lead to a request made by the latter State party under the present Convention.
5. The transmission of information pursuant to paragraph 4 of this article shall be without prejudice to any criminal investigations and prosecutions taking place in the State of the competent authorities providing the information. The competent authorities receiving the information shall have access to any request to respect their confidentiality, including temporarily, or to impose restrictions on their use. However, this will not preclude the receiving State Party in its proceedings from providing information that is exculpatory to an accused person. In such a case, the receiving State Party shall notify the transmitting State Party of disclosure of such information and, if requested, shall consult the transmitting State Party. If, in an exceptional case, it is not possible to notify in advance, the receiving State Party shall promptly inform the transmitting State party of such disclosure.
6. The provisions of this article shall not affect obligations arising from other existing or future bilateral or multilateral treaties governing, 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 provided that a treaty of mutual legal assistance is not between the States parties concerned. Where such States Parties are bound by such a treaty, the relevant provisions of that treaty shall apply, unless the States Parties agree to apply, instead, paragraphs 9 to 29 of this article. States parties are strongly urged to implement these paragraphs if they facilitate cooperation.
8. States Parties shall not invoke bank secrecy to refuse mutual legal assistance under this article.
9. States Parties may refuse to provide mutual legal assistance under this article by invoking the absence of dual criminality. However, if deemed necessary, the requested State Party may provide assistance, to the extent that it decides to do so at its own discretion, irrespective of whether or not the conduct is criminalized in the domestic law of the requested State Party.
10. A person who is detained or serving a sentence in the territory of a State Party and whose presence is requested in another State Party for identification purposes, to testify or to assist in any other way in obtaining evidence necessary for investigations, prosecutions or judicial proceedings in respect of offences covered by this Convention may be transferred if the following conditions are met:
(a) The person, duly informed, gives his or her free consent;
(b) The competent authorities of both States parties agree, subject to the conditions they 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 competence and obligation to keep the person in custody, unless the State Party to which the person has been transferred requests or authorizes otherwise;
(b) The State Party to which the person is transferred shall promptly fulfil its obligation to return the person to the custody of the State Party to which he has been transferred, as appropriate in advance or otherwise by the competent authorities of both States Parties;
(c) The State Party to which the person is transferred may not require the State Party from which the person has been transferred to initiate extradition proceedings for his or her return;
(d) The time the person has been detained in the State party to which he has been transferred shall be computed as part of the sentence to be carried out in the State of which he has been transferred.
12. Unless the State Party from which a person is to be transferred in accordance with paragraphs 10 and 11 of this article agrees, the person, irrespective of his or her nationality, shall not be prosecuted, detained, sentenced or subjected to any other restriction of his or her personal liberty in the territory of the State to which he or she is transferred in connection with acts, omissions or convictions prior to his or her departure from the territory of the State from which he or her has been transferred.
13. Each State Party shall designate a central authority responsible for receiving requests for mutual legal assistance and empowering them to comply with or transmit them to the competent authorities for their implementation. Where a particular region or territory of a State Party has a regime other than mutual legal assistance, the State party may designate another central authority which shall play the same role for that region or that territory. The central authorities shall ensure the prompt and adequate implementation or transmission of requests received. When the central authority transmits the request to a competent authority for its implementation, it shall encourage the prompt and proper implementation of the request by the central authority. Each State Party shall notify the Secretary-General of the United Nations, at the time of depositing its instrument of ratification, acceptance or approval of or accession to this Convention, of the name of the central authority designated for that purpose.
Requests for mutual legal assistance and any other relevant communication shall be transmitted to the central authorities designated by the States Parties. This provision shall not affect the right of any State Party to require such requests and communications to be sent to it by diplomatic means and, in urgent circumstances, where States Parties agree, through the International Criminal Police Organization, if possible.
14. Applications shall be submitted in writing or, where possible, by any means capable of registering a written text, in a language acceptable to the requested State Party, in conditions that allow that State party to determine authenticity. Each State Party shall notify the Secretary-General of the United Nations at the time of depositing its instrument of ratification, acceptance or approval of or accession to this Convention, the language or languages acceptable to each State Party. In emergency situations, and where States parties agree to do so, requests may be made orally, and must be confirmed without delay in writing.
15. Any request for mutual legal assistance shall contain the following:
(a) The identity of the authority that makes the request;
(b) The object and nature of the investigations, prosecutions or judicial proceedings referred to in the application and the name and functions of the authority responsible for conducting such investigations, proceedings or proceedings;
(c) A summary of the relevant facts, except for requests for submission of judicial documents;
(d) A description of the assistance requested and details of any procedure, including that the requesting State Party may wish to apply;
(e) If possible, the identity, location and nationality of any interested person; and
(f) The purpose for which the test, information or performance is supported.
16. The requested State Party may request additional information where necessary to comply with the request in accordance with its domestic law or to facilitate such compliance.
17. Any application shall be complied with under the domestic law of the requested State Party and to the extent that it does not contravene it and is feasible in accordance with the procedures specified in the request.
18. Where possible and consistent with the fundamental principles of domestic law, when a person is in the territory of a State Party and has to testify as a witness or expert before the judicial authorities of another State Party, the first State Party, at the request of the other State Party, may permit the hearing to be held by videoconference if it is not possible or appropriate for the person concerned to appear personally in the territory of the requesting State Party. States Parties may agree that the hearing is in charge of a judicial authority of the requesting State Party and that it is attended by a judicial authority of the requested State Party.
19. The requesting State Party shall not transmit or use, without prior consent of the requested State Party, the information or evidence provided by the requested State Party for investigations, proceedings or judicial proceedings other than those indicated in the request. Nothing in this paragraph shall prevent the requesting State Party from revealing, 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 disclosure of the information or evidence and, if requested, shall consult the requested State Party. If, in an exceptional case, it is not possible to notify in advance, the requesting State Party shall promptly inform the requested State Party of such disclosure.
20. The requesting State Party may require that the requested State Party maintain a reservation on the existence and content of the request, except to the extent necessary to comply with it. If the requested State Party cannot maintain that reservation, it shall inform the requesting State Party immediately.
21. Mutual legal assistance may be denied:
(a) Where the request is not made in accordance with the provisions of this article;
(b) Where the requested State Party considers that compliance with the request may impair its sovereignty, security, public order or other fundamental interests;
(c) Where the domestic law of the requested State Party prohibits its authorities from acting in the manner requested in respect of a similar offence, if it has been the subject of investigations, prosecutions or judicial proceedings in the exercise of its own competence;
(d) When accessing the request is contrary to the legal order of the requested State Party in respect of mutual legal assistance.
22. States Parties may not refuse a request for mutual legal assistance only because it is considered that the offence also involves fiscal matters.
23. Any denial of mutual legal assistance should be duly substantiated.
24. The requested State Party shall comply with the request for mutual legal assistance as soon as possible and shall take fully into account, to the extent of its possibilities, the deadlines suggested by the requesting State Party and which are duly substantiated, preferably in the request. The requested State Party shall respond to the reasonable requests made by the requesting State Party regarding the evolution of the application process. The requesting State Party shall promptly report when the requested assistance is no longer required.
25. Mutual legal assistance may be deferred by the requested State Party if ongoing investigations, proceedings or judicial proceedings are disrupted.
26. Before denying a request under paragraph 21 of this article or deferring its compliance under paragraph 25 of this article, the requested State Party shall consult the requesting State Party to consider whether it is possible to provide the requested assistance by subjecting it to the conditions it deems necessary. If the requesting State Party accepts assistance under these conditions, that State Party shall observe the conditions imposed.
27. Without prejudice to the application of paragraph 12 of this article, the witness, expert or other person who, at the request of the requesting State Party, consents to testify in a trial or to collaborate in an investigation, process or judicial action in the territory of the requesting State Party may not be prosecuted, detained, sentenced or subjected to any other restriction of his personal liberty in that territory for acts, omissions or statements of guilt prior to the date on which he left the territory. Such a safe conduct shall cease when the witness, expert or other person has had, for fifteen consecutive days or during the period agreed upon by the States Parties after the date on which he has been formally informed that the judicial authorities no longer required his presence, the opportunity to leave the country and nevertheless remain voluntarily in that territory or return freely to it after having abandoned him.
28. Regular costs incurred in the implementation of a request shall be borne by the requested State Party, unless otherwise agreed by the States Parties concerned. Where quantitative or extraordinary costs are required for this purpose, States Parties shall consult to determine the conditions under which the request will be met, as well as the manner in which the costs will be met.
29. The requested State Party:
(a) It shall provide the requesting State Party with a copy of the official documents and other documents or data that are in its possession and to which the general public has access under its domestic law;
(b) It may, at its discretion and subject to appropriate conditions, provide the requesting State Party with a full or partial copy of official documents or other documents or data that are in its possession and which, under its domestic law, are not within the reach of the general public.
30. Where necessary, States Parties shall consider concluding bilateral or multilateral agreements or arrangements that serve the purposes of this article and which, in practice, give effect to or reinforce its provisions.
Article 19
Joint investigations
States Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in connection with matters that are subject to investigations, prosecutions or proceedings in one or more States, the competent authorities may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be carried out through agreements concluded on a case-by-case basis. The participating States Parties shall ensure that the sovereignty of the State party in whose territory the investigation is to be conducted is fully respected.
Article 20
Special investigative techniques
1. Where the fundamental principles of its domestic legal system permit, each State Party shall, within its capabilities and under the conditions prescribed by its domestic law, take such measures as may be necessary to enable the appropriate use of controlled delivery and, where it deems appropriate, the use of other special investigative techniques, such as electronic or other surveillance and covert operations, by its competent authorities in its territory to effectively combat organized crime.
2. In order to investigate the offences covered by this Convention, States parties are encouraged, where appropriate, to conclude appropriate bilateral or multilateral agreements or arrangements to use such special investigative techniques in the context of international cooperation. Such agreements or arrangements shall be concluded and implemented in full respect of the principle of the sovereign equality of States and in implementing them the conditions contained therein shall be strictly enforced.
3. If the agreements or arrangements referred to in paragraph 2 of this article do not exist, any decision to resort to such special investigative techniques at the international level shall be taken on the basis of each particular case and may, where necessary, take into account financial arrangements and understandings relating to the exercise of jurisdiction by the States parties concerned.
4. Any decision to resort to controlled delivery at the international level may, with the consent of the States Parties concerned, include the application of methods such as interception of assets, authorizing them to continue intact or withdrawing or replacing them in whole or in part.
Article 21
Remission of criminal proceedings
States Parties shall consider referring criminal proceedings for the prosecution of an offence covered by this Convention when it is deemed that such referral shall be for the benefit of the proper administration of justice, in particular in cases involving several jurisdictions, with a view to concentrating the proceedings of the proceedings.
Article 22
Establishment of criminal record
Each State Party may take such legislative or other measures as may be necessary to take into account, in the conditions and for the purposes it deems appropriate, any prior statement of guilt in another State of an alleged offender in order to use such information in criminal proceedings relating to an offence covered by this Convention.
Rule 23
Criminalization of obstruction of justice
Each State Party shall take such legislative and other measures as may be necessary to criminalize, when intentionally committed:
(a) The use of physical force, threats or intimidation, or the promise, offering or granting of undue benefit to induce false testimony or hinder the provision of testimony or evidence in a process in connection with the commission of one of the offences covered by this Convention;
(b) The use of physical force, threats or intimidation to impede the performance of the official functions of a justice officer or law enforcement services in connection with the commission of the offences covered by this Convention. Nothing provided for in this paragraph shall impair the right of States parties to have legislation protecting other categories of public officials.
Article 24
Protection of witnesses
1. Each State Party shall take appropriate measures within its ability to effectively protect against any acts of reprisal or intimidation of witnesses participating in criminal proceedings and testifying to crimes covered by this Convention, as well as, where appropriate, their families and other persons close to them.
2. The measures provided for in paragraph 1 of this article may include, inter alia, without prejudice to the rights of the accused, including the right to due process, in:
(a) Establish procedures for the physical protection of such persons, including, to the extent necessary and as far as possible, their relocation, and allow, where appropriate, the total or partial prohibition of disclosure of information concerning their identity and whereabouts;
(b) Establish evidentiary rules that allow witness testimony to be provided so that their safety is not jeopardized, for example by accepting testimony through communication technologies such as videoconferencing or other appropriate means.
3. States Parties shall consider 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 the event that they act as witnesses.
Article 25
Victim assistance and protection
1. Each State Party shall take appropriate measures within its capacity to provide assistance and protection to victims of the offences covered by this Convention, in particular in cases of threat of reprisal or intimidation.
2. Each State Party shall establish appropriate procedures to enable victims of the offences covered by this Convention to obtain compensation and restitution.
3. Each State Party shall, subject to its domestic law, allow the views and concerns of victims to be presented and examined at the appropriate stages of criminal proceedings against offenders without prejudice to the rights of the defence.
Article 26
Measures to enhance cooperation with
authorities responsible
law enforcement
1. Each State Party shall take appropriate measures to encourage persons participating or participating in organized criminal groups to:
(a) Provide useful information to competent authorities for investigative and evidentiary purposes on such issues as:
(i) The identity, nature, composition, structure, location or activities of organized criminal groups;
(ii) Links, including international links, with other organized criminal groups;
(iii) Offences committed or committed by organized criminal groups;
(b) To provide effective and concrete assistance to the competent authorities that can help deprive organized criminal groups of their resources or proceeds of crime.
2. Each State Party shall consider providing, in appropriate cases, for the mitigation of the punishment of accused persons who provide substantial cooperation in the investigation or prosecution of the offences covered by this Convention.
3. Each State Party shall consider providing, in accordance with the fundamental principles of its domestic law, the granting of judicial immunity to persons providing substantial cooperation in the investigation or prosecution of offences covered by this Convention.
4. The protection of such persons shall be provided for in article 24 of this Convention.
5. Where one of the persons referred to in paragraph 1 of this article in a State Party may provide substantial cooperation to the competent authorities of another State Party, the States Parties concerned may consider concluding agreements or arrangements, in accordance with their domestic law, with respect to the eventual granting by the other State party of the treatment set out in paragraphs 2 and 3 of this article.
Article 27
Compliance cooperation
the law
1. States Parties shall work closely, in line with their respective legal and administrative systems, with a view to enhancing the effectiveness of law enforcement measures aimed at combating the crimes covered by this Convention. In particular, each State Party shall take effective measures to:
(a) Improve channels of communication between their competent authorities, agencies and services and, if necessary, establish them in order to facilitate the safe and expeditious exchange of information on all aspects of the offences covered by this Convention, as well as, if the States parties concerned deem it appropriate, on their links with other criminal activities;
(b) Cooperate with other States parties in the conduct of investigations into offences covered by this Convention concerning:
(i) The identity, whereabouts and activities of persons allegedly involved in such crimes 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 goods, equipment or other instruments used or intended for use in the commission of such offences;
(c) Provide, where appropriate, elements or quantities of substances required for purposes of analysis or investigation;
(d) Facilitate effective coordination among its relevant agencies, authorities and services and promote the exchange of staff and other experts, including the appointment of liaison officers, subject to bilateral agreements or arrangements among the States parties concerned;
(e) Exchange information with other States parties on the specific means and methods used by organized criminal groups, as well as, where appropriate, on routes and means of transport and the use of false identities, altered or forged documents or other means of covering up their activities;
(f) Exchange information and coordinate administrative and other measures taken with a view to the early detection of offences covered by this Convention.
2. States Parties, with a view to giving effect to this Convention, shall consider concluding bilateral or multilateral agreements or arrangements on direct cooperation between their respective 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 law enforcement cooperation in respect of the offences covered by this Convention. Where appropriate, States Parties shall make full use of agreements and arrangements, including with international or regional organizations, with a view to enhancing cooperation among their respective law enforcement agencies.
3. States Parties shall endeavour to cooperate to the extent of their possibilities to address transnational organized crime committed through the use of modern technology.
Rule 28
Compilation, exchange and analysis
information about nature
of organized crime
1. States Parties shall consider analysing, in consultation with scientific and academic circles, the trends of organized crime in their territory, the circumstances in which organized crime operates, as well as the professional groups and the technologies involved.
2. States Parties shall consider developing and sharing analytical experience on organized crime activities, both bilaterally and through international and regional organizations. To this end, common definitions, standards and methodologies shall be established and applied, as appropriate.
3. States Parties shall consider monitoring their existing policies and measures to combat organized crime and assess their effectiveness and efficiency.
Rule 29
Training and technical assistance
1. Each State Party shall, to the extent necessary, formulate, develop or refine training programmes specifically designed for personnel of its law enforcement services, including prosecutors, investigating judges and customs personnel, as well as for other personnel responsible for the prevention, detection and control of the offences covered by this Convention. Such programmes may include secondments and staff exchanges. In particular and to the extent permitted by domestic law, they shall relate to:
(a) The methods used in the prevention, detection and control of the offences covered by this Convention;
(b) The routes and techniques used by persons allegedly involved in crimes covered by this Convention, including in transit States, and relevant fighting measures;
(c) Monitoring the movement of smuggling goods;
(d) The detection and monitoring of the movements of proceeds of crime or property, equipment or other instruments used to commit such crimes and the methods used for the transfer, concealment or dissimulation of such proceeds, property, equipment or other instruments, as well as the methods used to combat money-laundering and other financial crimes;
(e) The collection of evidence;
(f) Control techniques in frank areas and ports;
(g) Modern equipment and techniques used to enforce the law, including electronic surveillance, controlled delivery and covert operations;
(h) The methods used to combat transnational organized crime through computers, telecommunications networks or other forms of modern technology; and
(i) The methods used to protect victims and witnesses.
2. States Parties shall assist in the planning and implementation of research and training programmes aimed at exchanging expertise in the areas referred to in paragraph 1 of this article and, to that end, shall also use, where appropriate, regional and international conferences and seminars to promote cooperation and to encourage consideration of problems of common concern, including the special problems and needs of transit States.
3. States Parties shall promote training and technical assistance to facilitate extradition and mutual legal assistance. Such training and technical assistance may include the teaching of languages, subscriptions and exchanges of personnel between central authorities or agencies with relevant responsibilities.
4. Where existing bilateral and multilateral agreements or arrangements exist, States Parties shall, to the extent necessary, intensify their efforts to optimize operational and training activities in international and regional organizations, as well as in other relevant bilateral and multilateral agreements or arrangements.
Article 30
Other measures: implementation of the Convention
through development
and technical assistance
1. States Parties shall adopt provisions conducive to the optimal implementation of this Convention to the extent possible, through international cooperation, taking into account the adverse effects of organized crime on society at large and on sustainable development in particular.
2. The States Parties shall make concrete efforts, to the extent possible and in a coordinated manner, as well as with international and regional organizations, to:
(a) To strengthen their cooperation at various levels with developing countries with a view to strengthening their capacities to prevent and combat transnational organized crime;
(b) Increase financial and material assistance to support the efforts of developing countries to effectively combat transnational organized crime and assist them in the successful implementation of this Convention;
(c) Provide technical assistance to developing countries and countries with economies in transition to help them meet their needs related to the implementation of this Convention. To that end, States Parties shall endeavour to make appropriate and regular voluntary contributions to a specific account designated for that purpose in a United Nations funding mechanism. States Parties may also consider, in particular, the possibility, in accordance with their domestic law and the provisions of this Convention, of providing to the aforementioned account a percentage of the money or the corresponding value of proceeds of crime or of illicit property confiscated under the provisions of this Convention;
(d) Encourage and persuade other States and financial institutions, as appropriate, to join efforts under this article, in particular by providing more training programmes and modern equipment to developing countries to help them achieve the objectives of this Convention.
3. As far as possible, these measures will not undermine existing commitments on external assistance or other financial cooperation arrangements at the bilateral, regional or international levels.
4. States Parties may conclude bilateral or multilateral agreements or arrangements on material and logistical assistance, taking into account the financial arrangements necessary to give effect to international cooperation provided for in this Convention and to prevent, detect and combat transnational organized crime.
Rule 31
Prevention
1. States Parties shall endeavour to formulate and evaluate national projects and establish and promote best practices and policies for the prevention of transnational organized crime.
2. States Parties shall endeavour, in accordance with the fundamental principles of their domestic law, to reduce existing or future opportunities available to organized criminal groups to participate in licit markets with proceeds of crime by taking appropriate legislative, administrative or other measures. These measures should focus on:
(a) Strengthening cooperation between law enforcement agencies or the Public Prosecutor ' s Office and relevant private entities, including industry;
(b) Promoting the development of rules and procedures designed to safeguard the integrity of public entities and private entities concerned, as well as codes of conduct for relevant professions, in particular for lawyers, public notaries, tax advisers and accountants;
(c) Preventing the misuse by organized criminal groups of public tenders and subsidies and licences granted by public authorities for commercial activities;
(d) Preventing the misuse of legal persons by organized criminal groups; in this regard, such measures could include the following:
(i) The establishment of public registers of legal and natural persons involved in the constitution, management and financing of legal persons;
(ii) The possibility of disqualifying persons convicted of offences under this Convention by a judicial mandate or any appropriate means for a reasonable period of time to act as directors of legal persons established in their respective jurisdictions;
(iii) Establishment of national registers of disabled persons to act as directors of legal persons; and
(iv) The exchange of information contained in the records referred to in subparagraphs (i) and (iii) of this paragraph with the competent authorities of other States Parties.
3. States Parties shall endeavour to promote the social reintegration of persons convicted of offences under this Convention.
4. States Parties shall endeavour to regularly evaluate existing legal instruments and relevant administrative practices in order to identify whether there is a danger that they will be misused by organized criminal groups.
5. States Parties shall seek to raise public awareness of the existence, causes and seriousness of transnational organized crime and the threat it poses. Where appropriate, information may be disseminated through the media and measures will be taken to promote public participation in efforts to prevent and combat such crime.
6. Each State Party shall notify the Secretary-General of the United Nations of the name and direction of the authority or authorities that may assist other States Parties in formulating measures to prevent transnational organized crime.
7. States Parties shall cooperate with each other and with relevant international and regional organizations, as appropriate, with a view to promoting and formulating the measures referred to in this article. This includes participation in international projects for the prevention of transnational organized crime, for example by mitigating circumstances that make socially marginalized groups vulnerable to transnational organized crime activities.
Rule 32
Conference of the Parties to the Convention
1. A Conference of the Parties to the Convention will be established to enhance the capacity of States parties to combat transnational organized 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 no later than one year after the entry into force of this Convention. The Conference of the Parties shall adopt rules of procedure and rules governing the activities set out in paragraphs 3 and 4 of this article (including rules relating to the payment of expenses arising from the implementation of such activities).
3. The Conference of the Parties shall conclude mechanisms with a view to achieving the objectives referred to in paragraph 1 of this article, in particular:
(a) Facilitate the activities of States parties under articles 29, 30 and 31 of this Convention, including by encouraging the mobilization of voluntary contributions;
(b) Facilitate the exchange of information among States parties on the modalities and trends of transnational organized crime and on effective practices to combat it;
(c) Cooperate with relevant international and regional organizations and non-governmental organizations;
(d) Review periodically the implementation of this Convention;
(e) Make recommendations for improving the present Convention and its implementation.
4. For the purposes of paragraph 3 (d) and (e) of this article, the Conference of the Parties shall obtain the necessary knowledge of the measures taken and the difficulties encountered by the States Parties in implementing this Convention through the information provided to it and through the other review mechanisms 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 on legislative and administrative measures taken to implement this Convention, as required by the Conference of the Parties.
Rule 33
Secretariat
1. The Secretary-General of the United Nations will provide the necessary secretariat services to the Conference of the Parties to the Convention.
2. The secretariat:
(a) Assist the Conference of the Parties in carrying out the activities set out in article 32 of this Convention and organize sessions of the Conference of the Parties and provide them with the necessary services;
(b) Assist States Parties to request it in providing information to the Conference of the Parties as provided for in article 32, paragraph 5, of this Convention; and
(c) It will ensure the necessary coordination with the secretariat of other relevant international and regional organizations.
Rule 34
Implementation of the Convention
1. Each State Party shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary, including legislative and administrative measures, to ensure compliance with its obligations under this Convention.
2. States Parties shall establish in their domestic law the offences established under articles 5, 6, 8 and 23 of this Convention irrespective of the transnational nature or the participation of an organized criminal group as defined in article 3, paragraph 1, of this Convention, except to the extent that article 5 of this Convention requires the participation of an organized criminal group.
3. Each State Party may take stricter or more severe measures than those provided for in this Convention to prevent and combat transnational organized crime.
Rule 35
Dispute settlement
1. States Parties shall seek to resolve any dispute relating to 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 resolved through negotiation within a reasonable time shall, at the request of one of those States Parties, be subject to arbitration. If, six months after the date of the request for arbitration, such States parties have been unable to agree on the organization of arbitration, any of those States Parties may refer the dispute to the International Court of Justice by request under 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 is not considered 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. A State Party which has made a reservation in accordance with paragraph 3 of this article may at any time withdraw that reservation by notifying the Secretary-General of the United Nations.
Article 36
Signature, ratification, acceptance, approval and
accession
1. This Convention will be open for signature by all States 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 will also be open for signature by regional economic integration organizations provided that at least one of the member States of such organizations has signed this Convention in accordance with paragraph 1 of this article.
3. This Convention shall be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. Regional economic integration organizations may deposit their instrument of ratification, acceptance or approval if at least one of their member States has proceeded equally. In that instrument of ratification, acceptance or approval, such organizations shall declare the scope of their competence with respect to the issues covered by this Convention. Such organizations shall also notify the depositary of any relevant modification of the scope of their competence.
4. This Convention shall be open to the accession of all States or regional economic integration organizations that have at least one member State Party to this Convention. The instruments of accession shall be deposited with the Secretary-General of the United Nations. At the time of their accession, regional economic integration organizations shall declare the scope of their competence with respect to the issues covered by this Convention. Such organizations shall also notify the depositary of any relevant modification of the scope of their competence.
Rule 37
Relationship with protocols
1. This Convention may be supplemented by one or more protocols.
2. To become a party to a protocol, States or regional economic integration organizations should also be a party to this Convention.
3. States Parties to this Convention shall not be bound by a protocol unless they become a party to the protocol in accordance with their provisions.
4. The protocols to this Convention shall be construed together with this Convention, taking into account the purpose of such protocols.
Rule 38
Entry into force
1. This Convention shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument of ratification, acceptance, approval or accession. For the purposes of this paragraph, the instruments deposited by a regional economic integration organization shall not be considered additional to those deposited by the member States of that organization.
2. For each State or regional economic integration organization ratifying, accepting or approving this Convention or acceding to it after the deposit of the fortieth instrument of ratification, acceptance, approval or accession, this Convention shall enter into force on the thirtieth day after the date on which the relevant instrument has been deposited by that State or organization.
Rule 39
Amendment
1. When five years have elapsed since the entry into force of this Convention, the States Parties may propose written amendments to the Secretary-General of the United Nations, who shall then communicate any proposed amendments to the States Parties and to the Conference of the Parties to the Convention for consideration and decision. The Conference of the Parties shall make every effort to achieve consensus on each amendment. If all possibilities for consensus have been exhausted and no agreement has been reached, the adoption of the amendment will ultimately require a two-thirds majority of the States Parties present and voting at the meeting of the Conference of the Parties.
2. Regional economic integration organizations, 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 organizations shall not exercise their right to vote if their member States exercise their right, and vice versa.
3. Any amendment adopted in accordance with paragraph 1 of this article shall be subject to ratification, acceptance or approval by States Parties.
4. Any amendment in accordance with paragraph 1 of this article shall enter into force in respect of a State Party ninety days after the date on which it deposits with the Secretary-General of the United Nations an instrument of ratification, acceptance or approval of that amendment.
5. When an amendment enters into force, it shall be binding on States Parties that have expressed their consent in this regard. The other States Parties shall be subject to the provisions of this Convention, as well as to any previous amendments which they have ratified, accepted or approved.
Article 40
Complaint
1. States Parties may denounce this Convention by written notification to the Secretary-General of the United Nations. The complaint shall take effect one year after the date on which the Secretary-General has received the notification.
2. Regional economic integration organizations shall cease to be Parties to this Convention when all their member States have denounced it.
3. The denunciation of this Convention under paragraph 1 of this article shall entail the denunciation of its protocols.
Rule 41
Depositary and languages
1. The Secretary-General of the United Nations shall be the depositary of this Convention.
2. The original of this Convention, the Arabic, Chinese, English, French, Russian and Spanish texts of which are equally authentic, shall be deposited with the Secretary-General of the United Nations.
IN WITNESS WHY, the undersigned plenipotentiaries, duly authorized by their respective Governments, have signed this Convention.
PROTOCOL TO PREVENY, REPRIMY AND SANCTION THE WORK OF SPECIAL PERSONS AND CHILDREN, COMPLEMENTING THE UNITED NATIONS CONVENTION AGAINST THE INTERNATIONAL
Preamble
The States Parties to this Protocol,
Declaring that to effectively prevent and combat trafficking in persons, especially women and children, a comprehensive and international approach is required in countries of origin, transit and destination that includes measures to prevent trafficking, punish traffickers and protect victims of trafficking, including by protecting their internationally recognized human rights,
Bearing in mind that while there is a wide range of international legal instruments that contain rules and practical measures to combat the exploitation of persons, especially women and children, there is no universal instrument to address all aspects of trafficking in persons,
Concerned that there is no such instrument that persons vulnerable to trafficking will not be sufficiently protected,
Recalling General Assembly resolution 53/111 of 9 December 1998, in which the Assembly decided to establish an open-ended ad hoc intergovernmental committee to develop a comprehensive international convention against transnational organized crime and to consider the elaboration, inter alia, of an international instrument on trafficking in women and children,
Convinced that in order to prevent and combat this crime, it will be useful to complement the United Nations Convention against Transnational Organized Crime with an international instrument to prevent, suppress and punish trafficking in persons, especially women and children,
Agree to the following:
I. General provisions
Article 1
Relationship with the United Nations Convention
against the United Nations
Transnational Organized Crime
1. This Protocol complements the United Nations Convention against Transnational Organized Crime and will be construed in conjunction with the Convention.
2. The provisions of the Convention shall apply mutatis mutandis to this Protocol unless otherwise provided.
3. Offences under Article 5 of this Protocol shall be considered as offences under the Convention.
Article 2
Finality
The purposes of this Protocol are:
(a) Preventing and combating trafficking in persons, with special attention to women and children;
(b) Protect and assist victims of such trafficking, with full respect for their human rights; and
(c) To promote cooperation among States parties in achieving those ends.
Article 3
Definitions
For the purposes of this Protocol:
(a) "Trafficking in persons" means the recruitment, transport, transfer, reception or reception of persons, using the threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a situation of vulnerability or the granting or receiving of payments or benefits to obtain the consent of a person with authority over another, for the purpose of exploitation. Such exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of the victim of trafficking in persons to any form of exploitation which is intended to take place described in subparagraph (a) of this article shall not be taken into account when any of the means set out in that paragraph have been resorted to;
(c) Recruitment, transportation, transfer, reception or reception of a child for exploitation shall be deemed to be "treaty of persons" even when none of the means set out in subparagraph (a) of this article are used;
(d) Every person under the age of 18 will be understood by "child".
Article 4
Scope of application
Unless it contains a provision to the contrary, this Protocol shall apply to the prevention, investigation and criminalization of offences under article 5 of this Protocol, where such offences are transnational in nature and involve an organized criminal group, as well as the protection of victims of such crimes.
Article 5
Criminalization
1. Each State Party shall take such legislative and other measures as may be necessary to criminalize in its domestic law the conduct set forth in article 3 of this Protocol when committed intentionally.
2. Each State Party shall also take such legislative and other measures as may be necessary to criminalize:
(a) Subject to the basic concepts of its legal system, the attempt to commit an offence under paragraph 1 of this article;
(b) Participation as an accomplice in the commission of an offence under paragraph 1 of this article; and
(c) The organization or direction of other persons for the commission of an offence under paragraph 1 of this article.
II. Protection of victims of human trafficking
Article 6
Assistance and protection for victims of
trafficking in persons
1. Where appropriate and to the extent permitted by their domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by providing for the confidentiality of judicial proceedings relating to such trafficking.
2. Each State Party shall ensure that its domestic legal or administrative system provides for measures to provide victims of trafficking in persons, where appropriate:
(a) Information on relevant judicial and administrative procedures;
(b) Assistance to enable their views and concerns to be presented and discussed at appropriate stages of criminal proceedings against offenders without prejudice to the rights of the defence.
3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, where appropriate, in cooperation with non-governmental organizations, other relevant organizations and other sectors of civil society, including by providing:
(a) Appropriate accommodation;
(b) Advice and information, in particular with regard to their legal rights, in a language that victims of trafficking may understand;
(c) Medical, psychological and material assistance; and
(d) Employment, education and training opportunities.
4. Each State Party shall take into account, in implementing the provisions of this article, the age, sex and special needs of victims of trafficking in persons, in particular the special needs of children, including adequate accommodation, education and care.
5. Each State Party shall endeavour to provide for the physical security of victims of trafficking in persons while in its territory.
6. Each State Party shall ensure that its domestic legal system provides for measures that provide victims of trafficking in persons with the possibility of obtaining compensation for the damage suffered.
Article 7
Regime applicable to victims of trafficking
of persons in the receiving State
1. In addition to taking the measures provided for in Article 6 of this Protocol, each State Party shall consider adopting legislative or other appropriate measures to enable victims of trafficking to remain in its territory, temporarily or permanently, where appropriate.
2. In applying the provision contained in paragraph 1 of this article, each State Party shall give due consideration to humanitarian and personal factors.
Article 8
Repatriation of victims of trafficking
persons
1. A State Party of which a victim of trafficking in persons is a national or where the person is entitled to permanent residence at the time of entry into the territory of the receiving State Party shall facilitate and accept, without undue or unreasonable delay, the repatriation of such person with due regard to his or her security.
2. Where a State Party provides for the repatriation of a victim of trafficking in persons to a State Party of which the person is a national or who has the right to permanent residence at the time of entry into the territory of the receiving State Party, it shall ensure that such repatriation is carried out with due regard to the security of that person, as well as the status of any legal procedure related to the fact that the person is a victim of trafficking, and preferably on a voluntary basis.
3. When requested by a receiving State Party, a requested State Party shall, without undue or unjustified delay, verify whether the victim of trafficking in persons is one of its nationals or has the right to permanent residence in its territory at the time of entry of the territory of the receiving State Party.
4. In order to facilitate the repatriation of all victims of trafficking in persons who lack adequate documentation, the State Party of which such person is a national or who has the right to permanent residence at the time of entry into the territory of the receiving State Party shall agree to issue, upon the request of the receiving State Party, travel or authorization documents of any other kind necessary for the person to travel to and return to his territory.
5. This article shall not affect the rights recognized to victims of trafficking in persons under the domestic law of the receiving State Party.
6. This article shall without prejudice to any applicable bilateral or multilateral agreement or arrangement governing, in whole or in part, the repatriation of victims of trafficking in persons.
III. Prevention, cooperation and other measures
Article 9
Prevention of trafficking in persons
1. States Parties shall establish policies, programmes and other comprehensive measures with a view to:
(a) Preventing and combating trafficking in persons; and
(b) Protect victims of human trafficking, especially women and children, against a new risk of victimization.
2. States Parties shall endeavour to implement measures such as research and information and dissemination campaigns, as well as social and economic initiatives, with a view to preventing and combating trafficking in persons.
3. The policies, programmes and other measures taken in accordance with this article shall include, where appropriate, cooperation with non-governmental organizations, other relevant organizations and other sectors of civil society.
4. States Parties shall take measures, or strengthen existing measures, in particular through bilateral or multilateral cooperation, in order to mitigate such factors as poverty, underdevelopment and the lack of equitable opportunities for individuals, especially women and children, vulnerable to trafficking.
5. States Parties shall take legislative or other measures, such as educational, social and cultural measures, or strengthen existing measures, in particular through bilateral and multilateral cooperation, in order to discourage the demand for any form of exploitation leading to trafficking in persons, especially women and children.
Article 10
Exchange of information and training
1. The law enforcement authorities of the States Parties, as well as the immigration authorities or other competent authorities, shall cooperate with each other, as appropriate, by exchanging information, in accordance with their domestic law, in order to determine:
(a) If certain persons crossing or attempting to cross an international border with travel documents belonging to third parties or without travel documents are perpetrators or victims of trafficking in persons;
(b) The types of travel document that certain persons have used or attempted to use to cross an international border for the purpose of trafficking in persons; and
(c) The means and methods used by organized criminal groups for the purposes of trafficking in persons, including recruitment and transportation, routes and links between persons and groups involved in trafficking, as well as possible measures to detect them.
2. States Parties shall provide law enforcement officials, immigration and other relevant officials, training in the prevention of trafficking in persons or strengthen such training, as appropriate. It should focus on methods used to prevent such trafficking, prosecute traffickers and protect the rights of victims, including the protection of victims from traffickers. Training should also take into account the need to consider human rights and issues relating to children and women, as well as to promote cooperation with non-governmental organizations, other relevant organizations and other sectors of civil society.
3. The State Party receiving such information shall comply with any request of the State party that has provided it to impose restrictions on its use.
Article 11
Border measures
1. Without prejudice to international commitments relating to the free movement of persons, States Parties shall, as far as possible, strengthen border controls that are necessary to prevent and detect trafficking in persons.
2. Each State Party shall take legislative or other appropriate measures to prevent, to the extent possible, the use of means of transport exploited by commercial carriers for the commission of offences under article 5 of this Protocol.
3. Where appropriate and without prejudice to the applicable international conventions, the obligation of commercial carriers, including transport companies, as well as the owners or operators of any means of transport shall be provided to ensure that all passengers have in their possession the required travel documents to enter the receiving State.
4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions in the event of a breach of the obligation set out in paragraph 3 of this article.
5. Each State Party shall consider taking measures that permit in accordance with its domestic law to refuse entry or revoke visas to persons involved in the commission of offences established under this Protocol.
6. Without prejudice to article 27 of the Convention, States Parties shall consider strengthening cooperation among border control agencies, including, inter alia, establishing and maintaining direct channels of communication.
Article 12
Security and control of documents
Each State Party shall, with the means available, take such measures as may be required to:
(a) Ensure the necessary quality of travel or identity documents issued so that they cannot easily be misused or falsified or altered, reproduced or otherwise issued unlawfully and
(b) Ensure the integrity and security of travel or identity documents issued or issued on their behalf and prevent the illicit creation, issuance and use of such documents.
Article 13
Legitimity and validity of documents
When requested by another State Party, each State Party shall verify, in accordance with its domestic law and within a reasonable time, the legitimacy and validity of travel or identity documents issued or allegedly issued on its behalf and suspected of being used for trafficking in persons.
IV. Final provisions
Article 14
Safeguard clause
1. Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and persons under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, as well as the principle of non-refoulement enshrined in those instruments.
2. The measures provided for in this Protocol shall be interpreted and applied in a manner that is not discriminatory to persons for the fact that they are victims of human trafficking. The interpretation and application of such measures shall be consistent with internationally recognized principles of non-discrimination.
Article 15
Dispute settlement
1. States Parties shall seek to resolve any dispute relating to the interpretation or application of this Protocol through negotiation.
2. Any dispute between two or more States Parties concerning the interpretation or application of this Protocol that cannot be resolved through negotiation within a reasonable time shall, at the request of one of those States Parties, be subject to arbitration. If, six months after the date of the request for arbitration, such States parties have been unable to agree on the organization of arbitration, any of those States Parties may refer the dispute to the International Court of Justice by request under the Statute of the Court.
3. Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Protocol, declare that it is not considered 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. A State Party which has made a reservation in accordance with paragraph 3 of this article may at any time withdraw that reservation by notifying the Secretary-General of the United Nations.
Article 16
Signature, ratification, acceptance, approval and
accession
1. The present Protocol shall be open for signature by all States from 12 to 15 December 2000 in Palermo, Italy, and thereafter at United Nations Headquarters in New York until 12 December 2002.
2. This Protocol shall also be open for signature by regional economic integration organizations, provided that at least one member State of such organizations has signed this Protocol in accordance with paragraph 1 of this Article.
3. This Protocol shall be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. Regional economic integration organizations may deposit their instrument of ratification, acceptance or approval if at least one of their member States has proceeded equally. In that instrument of ratification, acceptance or approval, such organizations shall declare the scope of their competence with respect to the issues covered by this Protocol. Such organizations shall also notify the depositary of any relevant modification of the scope of their competence.
4. This Protocol shall be open to the accession of all States or regional economic integration organizations that have at least one member State Party to this Protocol. The instruments of accession shall be deposited with the Secretary-General of the United Nations. At the time of accession, regional economic integration organizations shall declare the scope of their competence with respect to the issues covered by this Protocol. Such organizations shall also notify the depositary of any relevant modification of the scope of their competence.
Article 17
Entry into force
1. This Protocol shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument of ratification, acceptance, approval or accession, provided that it does not enter into force before the entry into force of the Convention. For the purposes of this paragraph, the instruments deposited by an organization, regional economic integration, shall not be considered additional to those deposited by the member States of that organization.
2. For each State or regional economic integration organization ratifying, accepting or approving this Protocol or acceding to it after the deposit of the fortieth instrument of ratification, acceptance, approval or accession, this Protocol shall enter into force on the thirtieth day after the date on which that State or organization deposited the relevant instrument or at the date of its entry into force pursuant to paragraph 1 of this Article, irrespective of the last date.
Article 18
Amendment
1. When five years have elapsed since the entry into force of this Protocol, the States Parties to the Protocol may propose written amendments to the Secretary-General of the United Nations, who shall then communicate any proposed amendments to the States Parties and to the Conference of the Parties to the Convention for consideration and decision. The States Parties to this Protocol at the Conference of the Parties shall make every effort to achieve consensus on each amendment. If all possibilities for consensus have been exhausted and no agreement has been reached, the adoption of the amendment will ultimately require a two-thirds majority of the States parties to this Protocol present and voting at the meeting of the Conference of the Parties.
2. Regional economic integration organizations, 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 Protocol. Such organizations shall not exercise their right to vote if their member States exercise their right, and vice versa.
3. Any amendment adopted in accordance with paragraph 1 of this article shall be subject to ratification, acceptance or approval by States Parties.
4. Any amendment in accordance with paragraph 1 of this article shall enter into force in respect of a State Party ninety days after the date on which it deposits with the Secretary-General of the United Nations an instrument of ratification, acceptance or approval of that amendment.
5. When an amendment enters into force, it shall be binding on States Parties that have expressed their consent in this regard. The other States Parties shall be subject to the provisions of this Protocol, as well as to any previous amendments which they have ratified, accepted or approved.
Article 19
Complaint
1. The States Parties may denounce this Protocol by written notification to the Secretary-General of the United Nations. The complaint shall take effect one year after the date on which the Secretary-General has received the notification.
2. Regional economic integration organizations shall cease to be Parties to this Protocol when all their member States have denounced it.
Article 20
Depositary and languages
1. The Secretary-General of the United Nations shall be the depositary of this Protocol.
2. The original of this Protocol, 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 WHY, the undersigned plenipotentiaries, duly authorized by their respective Governments, have signed this Protocol.
PROTOCOL AGAINST THE ILICITY TRAFFIC OF MIGRANTS BY EARTH, MAR AND AIRE, COMPLEMENTING THE UNITED NATIONS CONVENTION AGAINST THE INTERNATIONAL
Preamble
The States Parties to this Protocol,
Declaring that a comprehensive and international approach to the effective prevention and control of the smuggling of migrants by land, sea and air requires cooperation, exchange of information and other appropriate measures, including those of a socio-economic nature, at the national, regional and international levels,
Recalling General Assembly resolution 54/212 of 22 December 1999, in which the Assembly urged Member States and the United Nations system to strengthen international cooperation in the field of international migration and development to address the root causes of migration, especially those related to poverty, and to maximize the benefits of international migration to stakeholders, and encouraged interregional, regional and subregional mechanisms,
Convinced of the need to treat migrants and fully protect their human rights,
Since, despite the work undertaken in other international forums, there is no universal instrument that addresses all aspects of the smuggling of migrants and other related issues,
Concerned about the significant increase in the activities of organized criminal groups in relation to the smuggling of migrants and other related criminal activities under this Protocol, which cause serious harm to affected States,
Concerned also that the smuggling of migrants may endanger the lives or security of the migrants involved,
Recalling General Assembly resolution 53/111 of 9 December 1998, in which the Assembly decided to establish an open-ended ad hoc intergovernmental committee for the purpose of elaborating a comprehensive international convention against organized transnational crime and to consider the elaboration, inter alia, of an international instrument to address the illicit trafficking and transport of migrants, particularly by sea,
Convinced that complementing the text of the United Nations Convention against Transnational Organized Crime with an international instrument against the smuggling of migrants by land, sea and air will provide a useful means for preventing and combating this form of crime,
They have agreed as follows:
I. General provisions
Article 1
Relationship with the United Nations Convention
against Organized Crime
Transnational
1. This Protocol complements the United Nations Convention against Transnational Organized Crime and will be construed in conjunction with the Convention.
2. The provisions of the Convention shall apply mutatis mutandis to this Protocol unless otherwise provided.
3. Offences under Article 6 of this Protocol shall be considered as offences under the Convention.
Article 2
Finality
The purpose of this Protocol is to prevent and combat the smuggling of migrants, as well as to promote cooperation among States parties to that end, while protecting the rights of migrants subject to such trafficking.
Article 3
Definitions
For the purposes of this Protocol:
(a) " Smuggling of migrants " means facilitating the illegal entry of a person in a State Party of which the person is not a national or permanent resident in order to obtain, directly or indirectly, a financial benefit or other material benefit;
(b) "illegal entry" means the crossing of borders without having met the necessary requirements for legally entering the receiving State;
(c) "Identity or false travel document" means any travel or identity document:
(i) Elaborated or issued in a spurious or materially altered manner by anyone other than the person or entity legally authorized to produce or issue the travel or identity document on behalf of a State; or
(ii) Sent or obtained unduly by false declaration, corruption or coercion or by any other unlawful form; or
(iii) Used by a person other than its legitimate holder;
(d) The "good" means any type of vessel, including undisplaced vessels and hydroplanes, which is used or can be used as a means of transport on water, excluding war vessels, armed auxiliary vessels, or other vessels that are owned or operated by a State and that are used only in non-commercial official services at that time.
Article 4
Scope of application
Unless it contains a provision to the contrary, this Protocol shall apply to the prevention, investigation and criminalization of offences under article 6 of this Protocol, where such offences are transnational in nature and involve an organized criminal group, as well as the protection of the rights of persons who have been subjected to such crimes.
Article 5
Criminal accountability of migrants
Migrants shall not be subject to criminal prosecution under this Protocol for having been subject to any of the conduct set out in article 6 of this Protocol.
Article 6
Criminalization
1. Each State Party shall take such legislative and other measures as may be necessary to criminalize, when committed intentionally and in order to obtain, directly or indirectly, an economic benefit or other material benefit:
(a) Smuggling of migrants;
(b) When committed in order to enable the smuggling of migrants:
(i) The creation of a false travel or identity document;
(ii) Facilitation, provision or possession of such a document.
(c) Entitlement of a person who is not a national or a permanent resident to remain in the State concerned, without having fulfilled the requirements to remain legally in that State, using the means referred to in subparagraph (b) of this paragraph or any other illegal means.
2. Each Porte State shall also take such legislative and other measures as may be necessary to criminalize:
(a) Subject to the basic concepts of its legal system, the attempt to commit an offence under paragraph 1 of this article;
(b) Participation as an accomplice in the commission of an offence under subparagraph (a), (b) (i) or paragraph 1 (c) of this article and, subject to the basic concepts of its legal system, participation as an accomplice in the commission of an offence under paragraph 1 (b) (ii) of this article; and
(c) The organization or direction of other persons for the commission of an offence under paragraph 1 of this article.
3. Each State Party shall take such legislative and other measures as may be necessary to consider as an aggravating circumstance the offences established pursuant to subparagraph (a), (b) (i) and paragraph 1 (c) of this article and subject to the basic concepts of its legal system, the offences established under paragraph 2 (b) and (c) of this article any circumstances that:
(a) endanger or endanger the lives or security of affected migrants; or
(b) It leads to inhuman or degrading treatment of such migrants, in particular for the purpose of exploitation.
4. Nothing in this Protocol shall prevent a State party from taking action against any person whose conduct constitutes an offence under its domestic law.
II. Smuggling of migrants by sea
Article 7
Cooperation
States Parties shall cooperate to the greatest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with international law of the sea.
Article 8
Measures against the smuggling of migrants
by sea
1. Any State Party which has reasonable grounds to suspect that a ship flying its flag or intends to be registered, without nationality or that, even if it binds a foreign flag or refuses to izar its flag, has in fact the nationality of the State party concerned, is involved in the smuggling of migrants by sea, may request assistance from other States Parties in order to terminate the use of the ship for that purpose. The States Parties to which such assistance is requested shall, to the extent possible, provide it with the means at their disposal.
2. Any State Party which has reasonable grounds to suspect that a ship that is using the freedom of navigation under international law and that it binds the flag or carries registration of another State Party is involved in the smuggling of migrants by sea may notify the flag State, request that it confirm the registration and, if confirmed, request authorization to take appropriate measures with respect to that ship. The flag State may authorize the requesting State, inter alia, to:
(a) Visit the ship;
(b) Register the vessel; and
(c) If there is evidence that the ship is involved in the smuggling of migrants by sea, take appropriate measures with respect to the ship, as well as the persons and cargo on board, as authorized by the flag State.
3. Any State Party which has taken any of the measures provided for in paragraph 2 of this article shall promptly inform the relevant flag State of the results of such measures.
4. States Parties shall promptly respond to any request by another State Party with a view to determining whether a vessel that is registered in its registry or registers its flag is authorized to do so, as well as to any request for authorization submitted pursuant to paragraph 2 of this article.
5. The flag State may, in accordance with Article 7 of this Protocol, submit its authorization to the conditions in which the requesting State, including those relating to liability and to the extent of the effective measures taken. States Parties shall not take other measures without the express authorization of the flag State, except as necessary to eliminate an imminent danger to the lives of persons or those arising from relevant bilateral or multilateral agreements.
6. Each State Party shall designate one or, if necessary, a number of authorities to receive and respond to requests for assistance, confirmation of the registration or right of a ship to fly its flag and authorization to take appropriate measures. This designation shall be made known, through the Secretary-General, to all other States parties within the month following the appointment.
7. Any State Party which has reasonable grounds to suspect that a ship is involved in the smuggling of migrants by sea and does not possess nationality or is passing through a ship without nationality may visit and register the vessel. If evidence confirms the suspicion, the State party shall take appropriate measures in accordance with domestic and international law, as appropriate.
Article 9
Protection clauses
1. Where a State Party takes action against a ship under article 8 of this Protocol:
(a) Ensure the safety and human treatment of persons on board;
(b) It shall give due consideration to the need not to endanger the safety of the ship or its cargo;
(c) It shall give due consideration to the need not to prejudice the commercial or legal interests of the flag State or any other State concerned;
(d) Ensure, within available means, that the measures taken with respect to the ship are environmentally reasonable.
2. Where the reasons for the measures taken under article 8 of this Protocol are not substantiated and provided that the ship has not committed any act justifying them, the ship shall be compensated for any damage or damage suffered.
3. Any action taken, adopted or applied in accordance with the provisions of this chapter shall take due account of the need not to interfere or cause impairment in:
(a) The rights and obligations of coastal States in the exercise of their jurisdiction in accordance with international law of the sea; and
(b) The competence of the flag State to exercise jurisdiction and control in administrative, technical and social matters related to the ship.
4. Any action taken at sea pursuant to the provisions of this chapter shall be carried out only by warships or military aircraft, or by other vessels or aircraft that bear clear signs and are identifiable as vessels or aircraft serving a government and authorized to that end.
III. Prevention, cooperation and other measures
Article 10
Information
1. Without prejudice to the provisions of articles 27 and 28 of the Convention and with a view to achieving the objectives of this Protocol, States Parties, in particular those with common borders or are located on migrant smuggling routes, shall exchange, in accordance with their respective domestic legal and administrative systems, relevant information on matters such as:
(a) Places of shipment and destination, as well as routes, transporters and means of transport to which, as known or suspected, the organized criminal groups involved in the conduct set forth in Article 6 of this Protocol are used;
(b) The identity and methods of organized criminal organizations or groups involved or suspected of being involved in the conduct set forth in Article 6 of this Protocol;
(c) The authenticity and proper form of travel documents issued by States parties, as well as any illegitimate use of travel or blank identity documents;
(d) The means and methods used, for the concealment and transport of persons, the unlawful alteration, reproduction or acquisition or any other misuse of travel or identity documents used in the conduct set forth in Article 6 of this Protocol, as well as the ways of detecting them;
(e) Experiences of a legislative nature, as well as related practices and measures, to prevent and combat the conduct set forth in Article 6 of this Protocol; and
(f) Scientific and technological issues of relevance to law enforcement, in order to strengthen the respective capacity to prevent, detect and investigate the conduct set out in article 6 of this Protocol and to prosecute the persons involved therein.
2. The State Party receiving such information shall comply with any request of the State party that has provided it to impose restrictions on its use.
Article 11
Border measures
1. Without prejudice to international commitments regarding the free movement of persons, States Parties shall, to the extent possible, strengthen border controls that are necessary to prevent and detect the smuggling of migrants.
2. Each State Party shall take legislative or other appropriate measures to prevent, to the extent possible, the use of means of transport exploited by commercial carriers for the commission of the offence under article 6, paragraph 1 (a), of this Protocol.
3. Where appropriate without prejudice to the applicable international conventions, the obligation of commercial carriers, including transport companies, as well as the owners or operators of any means of transport, to ensure that all passengers have in their possession the required travel documents to enter the receiving State.
4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions in the event of a breach of the obligation set out in paragraph 3 of this article.
5. Each State Party shall consider taking measures to deny entry or revocation of visas to persons involved in the commission of offences under this Protocol in accordance with its domestic law.
6. Without prejudice to article 27 of the Convention, States Parties shall consider strengthening cooperation among border control agencies, including, inter alia, establishing and maintaining direct channels of communication.
Article 12
Security and control of documents
Each State Party shall, with the means available, take such measures as may be required to:
(a) Ensure the necessary quality of travel or identity documents issued so that they cannot easily be used unduly or forged or altered, reproduced or otherwise issued unlawfully; and
(b) Ensure the integrity and security of travel or identity documents issued or issued on their behalf and prevent the illicit creation, issuance and use of such documents.
Article 13
Legitimity and validity of documents
When requested by another State Party, each State Party shall verify, in accordance with its domestic law and within a reasonable time, the legitimacy and validity of travel or identity documents issued or allegedly issued on its behalf and suspected of being used for the purposes of conduct set forth in article 6 of this Protocol.
Article 14
Training and technical cooperation
1. States Parties shall provide immigration officials and other relevant officials with specialized training in the prevention of conduct set forth in Article 6 of this Protocol and in the humane treatment of migrants subject to such conduct, while respecting their rights recognized under this Protocol or strengthening such training, as appropriate.
2. States Parties shall cooperate with each other and with relevant international organizations, non-governmental organizations, other relevant organizations and other sectors of civil society, as appropriate, in order to ensure that appropriate personnel are trained in their respective territories to prevent, combat and eradicate the conduct set out in article 6 of the present Protocol and to protect the rights of migrants who have been subjected to such conduct.
Such training will include, inter alia:
(a) Improving the safety and quality of travel documents;
(b) Recognition and detection of forged travel or identity documents;
(c) The compilation of criminal intelligence information, in particular with regard to the identification of organized criminal groups involved or suspected of being involved in conduct, as set out in article 6 of this Protocol, the methods used to transport migrants subject to such trafficking, the misuse of travel or identity documents for the purposes of the conduct set forth in article 6 and the means of concealment used in the smuggling of migrants;
(d) Improved procedures for detecting persons trafficked at conventional and non-conventional entry and exit points; and
(e) The humane treatment of affected migrants and the protection of their rights recognized under this Protocol.
3. States Parties with relevant expertise shall consider providing technical assistance to States that are frequently countries of origin or transit of persons who have been subject to the conduct set forth in article 6 of this Protocol. States Parties shall make every effort to provide the necessary resources, such as vehicles, computer systems and document readers, to combat the conduct set out in article 6.
Article 15
Other preventive measures
1. Each State Party shall take measures to ensure that information programmes are in place or that existing ones are strengthened so that public opinion is more aware that the conduct set out in Article 6 of this Protocol is a criminal activity that is frequently carried out by organized criminal groups for profit and which poses serious risks to affected migrants
2. In accordance with article 31 of the Convention, States Parties shall cooperate in the field of public information in order to prevent potential migrants from becoming victims of organized criminal groups.
3. Each State Party shall promote or strengthen, as appropriate, programmes and development cooperation at the national, regional and international levels, taking into account the socio-economic realities of migration and paying particular attention to the economically and socially depressed areas, in order to combat the root socio-economic causes of the smuggling of migrants, such as poverty and underdevelopment.
Article 16
Protection and assistance measures
1. In implementing this Protocol, each State Party shall, in accordance with its obligations under international law, take all appropriate measures, including the necessary legislation, in order to preserve and protect the rights of persons who have been subjected to the conduct set forth in article 6 of this Protocol, in accordance with applicable international law, in particular the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
2. Each State Party shall take appropriate measures to provide migrants with adequate protection against any violence that may inflict on them by persons or groups because they have been subject to the conduct set forth in article 6 of this Protocol.
3. Each State Party shall provide appropriate assistance to migrants whose life or security has been endangered as a result of being subjected to the conduct set out in article 6 of this Protocol.
4. In implementing the provisions of this article, States Parties shall take into account the special needs of women and children.
5. In the event of the detention of persons who have been subjected to the conduct set forth in article 6 of this Protocol, each State Party shall fulfil its obligations under the Vienna Convention on Consular Relations, where appropriate, including to promptly inform the person concerned of the provisions relating to notification of consular personnel and communication with such personnel.
Article 17
Agreements and arrangements
States Parties shall consider concluding bilateral or regional agreements or operational arrangements with a view to:
(a) Take the most appropriate and effective measures to prevent and combat the conduct set forth in Article 6 of this Protocol; or
(b) To contribute jointly to strengthening the provisions of this Protocol.
Article 18
Repatriation of trafficked migrants
illicit
1. Each State Party agrees to facilitate and accept, without unjustified undue delay, the repatriation of any person who has been subjected to the conduct set forth in article 6 of this Protocol and who is a national of that State Party or has the right to permanent residence in its territory at the time of repatriation.
2. Each State Party shall consider facilitating and accepting the repatriation of a person who has been subjected to the conduct set forth in article 6 of this Protocol and who, in accordance with domestic law, has the right to permanent residence in the territory of that State Party at the time of its entry into the receiving State.
3. At the request of the receiving State Party, any requested State Party shall, without undue or unreasonable delay, verify whether a person who has been subjected to the conduct set forth in article 6 of this Protocol is a national of that State Party or has the right to reside permanently in its territory.
4. In order to facilitate the repatriation of any person who has been the subject of the conduct set forth in article 6 of this Protocol and who has no proper documentation, the State Party to which such person is a national or on whose territory he or she has the right of permanent residence shall agree to issue, upon the request of the receiving State Party, the travel or authorization documents of any other kind necessary for the person to travel to and return to his or her territory.
5. Each State Party which intervenes in the repatriation of a person who has been subjected to the conduct set forth in article 6 of this Protocol shall take all appropriate measures to carry out the repatriation in an orderly manner and with due regard to the security and dignity of the person.
6. States Parties may cooperate with appropriate international organizations to implement this article.
7. The provisions of this article shall not affect any of the rights recognized to persons who have been subject to the conduct set forth in article 6 of this Protocol by the domestic law of the receiving State Party.
8. Nothing in this article shall affect obligations under any other applicable bilateral or multilateral treaty or any other operating agreement or arrangement governing, in part or in full, the repatriation of persons who have been subject to the conduct set forth in article 6 of this Protocol.
IV. Final provisions
Article 19
Safeguard clause
1. Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and persons under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, as well as the principle of non-refoulement enshrined in those instruments.
2. The measures provided for in this Protocol shall be interpreted and applied in a manner that is not discriminatory to persons by the fact that they are subject to the conduct set forth in article 6 of this Protocol. The interpretation and application of such measures shall be consistent with internationally recognized principles of non-discrimination.
Article 20
Dispute settlement
1. States Parties shall seek to resolve any dispute relating to the interpretation or application of this Protocol through negotiation.
2. Any dispute between two or more States Parties concerning the interpretation or application of this Protocol which cannot be resolved through negotiation within a reasonable time shall, at the request of one of those States Parties, be subject to arbitration. If, six months after the date of the request for arbitration, such States parties have not been able to agree on the organization of arbitration, any of these Parties may refer the dispute to the International Court of Justice by request under the State of the Court.
3. Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Protocol, declare that it is not considered 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. A State Party which has made a reservation in accordance with paragraph 3 of this article may at any time withdraw that reservation by notifying the Secretary-General of the United Nations.
Article 21
Signature, ratification, acceptance, approval and
accession
1. The present Protocol shall be open for signature by all States from 12 to 15 December 2000 in Palermo, Italy, and thereafter at United Nations Headquarters in New York until 12 December 2002.
2. This Protocol shall also be open for signature by regional economic integration organizations, provided that at least one member State of such organizations has signed this Protocol in accordance with paragraph 1 of this Article.
3. This Protocol shall be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. Regional economic integration organizations may deposit their instrument of ratification, acceptance or approval if at least one of their member States has proceeded equally. In that instrument of ratification, acceptance or approval, such organizations shall declare the scope of their competence with respect to the issues covered by this Protocol. Such organizations shall also notify the depositary of any relevant modification of the scope of their competence.
4. This Protocol shall be open to the accession of all States or regional economic integration organizations that have at least one member State Party to this Protocol. The instruments of accession shall be deposited with the Secretary-General of the United Nations. At the time of accession, regional economic integration organizations shall declare the scope of their competence with respect to the issues covered by this Protocol. Such organizations shall also notify the depositary of any relevant modification of the scope of their competence.
Article 22
Entry into force
1. This Protocol shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument of ratification, acceptance, approval or accession, provided that it does not enter into force before the entry into force of the Convention. For the purposes of this paragraph, the instruments deposited by a regional economic integration organization shall not be considered additional to those deposited by the member States of that organization.
2. For each State or regional economic integration organization ratifying, accepting or approving this Protocol or acceding to it after the deposit of the fortieth instrument of ratification, acceptance, approval or accession, this Protocol shall enter into force on the thirtieth day after the date on which that State or organization deposited the relevant instrument or at the date of its entry into force pursuant to paragraph 1 of this Article, irrespective of the last date.
Rule 23
Amendment
1. When five years have elapsed since the entry into force of this Protocol, the States Parties may propose written amendments to the Secretary-General of the United Nations, who shall then communicate any proposed amendments to the States Parties and to the Conference of the Parties to the Convention for consideration and decision. The States Parties to this Protocol at the Conference of the Parties shall make every effort to achieve consensus on each amendment. If all possibilities for consensus have been exhausted and no agreement has been reached, the adoption of the amendment will ultimately require a two-thirds majority of the States parties to this Protocol present and voting at the meeting of the Conference of the Parties.
2. Regional economic integration organizations, in matters falling 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 which are Parties to this Protocol. Such organizations shall not exercise their right to vote if their member States exercise, their own, and vice versa.
3. Any amendment adopted in accordance with paragraph 1 of this article shall be subject to ratification, acceptance or approval by States Parties.
4. Any amendment in accordance with paragraph 1 of this article shall enter into force in respect of a State Party ninety days after the date on which it deposits with the Secretary-General of the United Nations an instrument of ratification, acceptance or approval of that amendment.
5. When an amendment enters into force, it shall be binding on States Parties that have expressed their consent in this regard. The other States Parties shall be subject to the provisions of this Protocol, as well as to any previous amendments which they have ratified, accepted or approved.
Article 24
Complaint
1. The States Parties may denounce this Protocol by written notification to the Secretary-General of the United Nations. The complaint shall take effect one year after the date on which the Secretary-General has received the notification.
2. Regional economic integration organizations shall cease to be Parties to this Protocol when all their member States have denounced it.
Article 25
Depositary and languages
1 The Secretary-General of the United Nations shall be the depositary of this Protocol.
2. The original of this Protocol, 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 WHY, the undersigned plenipotentiaries, duly authorized by their respective Governments, have signed this Protocol.
