Key Benefits:
DECREE NO 5,016, DE March 12, 2004.
Promulga Additional Protocol to the United Nations Convention against Transnational Organized Crime, concerning the Combat to Trafficking of Migrants by Via Inland, Maritime and Air.
THE PRESIDENT OF THE REPUBLIC, in the use of the attribution that confers you the art. 84, inciso IV, of the Constitution, and
Considering that the National Congress has approved, by means of Legislative Decree No. 231 of May 29, 2003, the text of the Additional Protocol to the United Nations Convention Against Transnational Organized Crime, concerning the Combat to Trafficking of Migrants by Via Inland, Maritime and Air, adopted in New York on November 15, 2000 ;
Considering that the Brazilian Government has deposited the instrument of ratification with the UN General Secretariat in January 29, 2004 ;
Considering that the Protocol entered into international vigor on September 29, 2003, and entered into force for the Brazil on February 28, 2004 ;
DECRETA:
Art. 1º The Additional Protocol to the United Nations Convention against Transnational Organized Crime, concerning the Combating Trafficking of Migrants by Via Inland, Maritime and Air, adopted in New York on November 15, 2000, apensed by copy to the present Decree, will be executed and fulfilled as entirely as it contains.
Art. 2 ° shall be subject to the approval of the National Congress any acts that may result in revision of the said Protocol or entailing charges or written commitments to the national heritage, in accordance with the art. 49, inciso I, of the Constitution.
Art. 3 ° This Decree goes into effect on the date of its publication.
Brasilia, March 12, 2004 ; 183º of Independence and 116º of Republic
LUIZ INACIO LULA DA SILVA
Samuel Pinheiro Guimarães Neto
PREÂMBCHAPTER
The States Parties to this Protocol,
Declaring that effective action to prevent and combat the illegal trafficking of migrants by land, maritime and air requires a comprehensive international approach, including cooperation, exchange of information and other appropriate measures, especially socio-economic measures of national, regional and international reach,
Recalling the General Assembly's Resolution 54/212 of December 22, 1999, in which the Assembly called on the Member States and United Nations bodies to strengthen international cooperation in the field of international migrations and development, so as to combat the root causes of migrations, especially those linked to poverty, and the to optimize the benefits that international migrations provide to those concerned and to encourage, where relevant, the interregional, regional and sub-regional mechanisms to continue to address the issue of migration and development,
Convinced of the need to treat migrants with humanity and to fully protect their rights,
Given that, despite the work being done in other international instances, there is no instrument universal that deals with all aspects of the illicit trafficking of migrants and other related issues,
Concerned with the significant increase in the activities of organized criminal groups related to trafficking illicit of migrants and other related criminal activities, set out in this Protocol, which cause major damage to affected states,
Concerned also with the fact that the illicit trafficking of migrants could endanger the lives or safety of the migrants involved,
Recording Resolution 53/111 of the General Assembly of December 9, 1998, in which the Assembly decided to create a special intergovernmental committee, of open composition, charged with drawing up a global international convention against transnational organized crime and examining the possibility of elaborating, among others (or inter alia), an instrument international fight against trafficking and the illicit transportation of migrants, including by sea,
Convinced that the supplementation of the United Nations Convention Against Transnational Organized Crime with a international instrument for combating the illicit trafficking of migrants by land, air and sea will help to prevent and combat this type of crime,
Woke the following:
I General provisions
Article 1
Relationship with the United Nations Convention
against Transnational Organized Crime
1. This Protocol supplements 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. The infractions established in accordance with Article 6 of this Protocol shall be deemed to be infractions established in accordance with the Convention.
Article 2
Objective
The goal of this Protocol is to prevent and combat migrant trafficking, as well as to promote cooperation between the States Parties to this end, while protecting the rights of the subject migrants from that trafficking.
Article 3
Definitions
For the purposes of this Protocol:
a) The expression "trafficking of migrants" means promotion, with the aim of obtaining, directly or indirectly, a financial benefit or other material benefit, from the illegal entry of a person in a State Party from which that person is not a national or permanent resident ;
b) The expression "illegal entry" means the crossing of borders without filling the necessary requirements for the legal entry in the host State.
c) The expression "travel document or fraudulent identity" means any travel document or of tag:
(i) That has been falsified or altered substantially by a person or an entity that is not legally authorised to make or issue travel or identity documents in the name of a State ; or
(ii) That has been issued or obtained irregularly, through false statements, corruption or coation or any other illegal means ; or
(iii) that it is used by a person other than its legitimate holder ;
d) The term "ship" means all type of vessel, including seedless vessels and hydroplanes, used or which can be used as a means of transport over water, with the exception of war vessels, auxiliary vessels of the armada or other vessels belonging to a Government or by it, provided that they are used exclusively for a non-commercial public service.
Article 4
Scope of application
This Protocol shall apply, unless otherwise provided, to the prevention, investigation and repression of the infractions established in accordance with Article 6 of this Protocol, when such infractions are transnational in nature and involve an organized criminal group, as well as the protection of the rights of persons who were the subject of such infractions infractions.
Article 5
Criminal responsibility of migrants
migrants will not be subject to criminal proceedings under this Protocol, for the fact that they have been object of the acts stated in its Article 6.
Article 6
Criminalization
1. Each State Party shall adopt the legislative and other measures it deems necessary to characterize as criminal infraction, when practically practiced and in such a way as to obtain, directly or indirectly, a financial benefit or other benefit material:
a) The trafficking of migrants ;
b) The following acts when practiced with the aim of enabling the illicit trafficking of migrants:
(i) Elaboration of travel document or fraudulent identity ;
(ii) Obtaining, supply or possession such document ;
c) Viabilizing the permanence, in the State concerned, of a person other than a national or permanent resident, without fulfill the conditions necessary to remain legally in the State by resorting to the means referred to in point (b) of this paragraph or any other illegal means.
2. Each State Party will also adopt legislative measures and others it deems necessary to characterize as criminal infringement:
a) Without prejudice to the fundamental concepts of its legal system, the attempt to practice established infraction in accordance with paragraph 1 of this Article ;
b) Participation as an accomplice in an infringement established in accordance with points (a), (b) (i) or (c) of the paragraph 1 of this Article and, without prejudice to the fundamental concepts of its legal system, participation as an accomplice in an infraction established in accordance with paragraph 1 (b) (ii) of this Article ;
c) Organize the practice of an infringement established in accordance with paragraph 1 of this Article or give instructions to other people to practise it.
3. Each State Party shall adopt the legislative and other measures it understands necessary, to consider as aggravating the infractions established in accordance with subparagraphs (a), (b) (i) and (c) of paragraph 1 of this Article and, without prejudice to the fundamental concepts of its legal system, of the infractions established in accordance with paragraph 2 (b) and (c) of this Article, the circumstances:
a) Who endanger or threaten to endanger the lives and safety of the migrants concerned ; or
b) That carries the inhuman or degrading treatment of these migrants, including their exploitation.
4. Nothing in this Protocol shall prevent a State Party from taking action against a person whose conduct constitutes an infringement in accordance with its domestic law.
II Trafficking of migrants by sea
Article 7
Co-op
States Parties shall cooperate, as far as possible, to prevent and suppress trafficking in migrants by way of maritime, in accordance with the international law of the sea.
Article 8
Measures against trafficking in migrants by sea
1. A State Party that has reasonable grounds for suspecting that a vessel that, without nationality, harbors its flag or invokes registration in this State or which, despite flying a foreign pavilion or refuses to show its pavilion, has in fact the nationality of the State Party in question, if it is involved in the illicit trafficking of migrants by sea, it may request the aid of other States Parties to terminate the use of the said vessel for that purpose. The States Parties to which the aid has been requested shall, as far as possible, take into account the means available.
2. A State Party that has reasonable grounds for suspecting that a vessel exercising freedom of navigation in accordance with international law and harbours the pavilion or exhibits signs of registration from another State Party finds itself involved in the illicit trafficking of migrants by sea may notify the State of the pavilion, request confirmation of registration registration and, if this is confirmed, apply for authorization from that State to take appropriate action on the vessel. The State of the Pavilion may, among other measures, authorize the requesting State to:
a) Abordship the ship ;
b) Revisiting the ship ; and
c) If evidence is found that the vessel is involved in the trafficking of migrants by sea, take the measures it deems appropriate regarding the ship, persons and cargo that are on board, under the terms in which it was authorized by the flag State.
3. A State Party which has taken any measure in accordance with paragraph 2 of this Article shall immediately inform the State of the pavilion concerned on the results of the said measures.
4. A State Party shall immediately respond to any request from another State Party with a view to determining whether a vessel which invokes registration registration in this State or harbors its pavilion is authorized to do so, as well as an application for authorization effected in accordance with paragraph 2 of this Article.
5. The State of the Pavilion may, in accordance with Article 7 of this Protocol, condition its authorization to be agreed between it and the requesting State, including conditions relating to the liability and scope of the measures effective to take. A State Party shall not take additional measures without the express authorization of the flag State, except those deemed necessary to ward off an imminent danger to the lives of persons or those resulting from bilateral agreements or relevant multilateral.
6. Each State Party shall designate one or more authorities, if necessary, to receive and respond to applications for confirmation of registration registration or the right of a vessel to fly its flag and to applications for authorization to take the appropriate measures. Such designation shall be notified by the Secretary-General to all other States Parties within one month after the designation.
7. A State Party that has reasonable grounds for suspecting that a vessel is engaged in the trafficking of migrants by sea and has no nationality or is equated with a vessel without nationality can address it and search it. If evidence is found to confirm the suspicion, that State Party shall take appropriate action in accordance with the applicable domestic and international law.
Article 9
Protection Clauses
1. When a State Party takes action against a vessel in accordance with Article 8 of this Protocol:
a) Velshall for the safety and human treatment of persons on board ;
(b) shall duly take into account the need not to endanger the safety of the vessel or its cargo ;
c) shall duly take into account the need not to impair the commercial interests or the rights of the State of the pavilion or any other interested State ;
d) Velshall so that, as far as possible, any measures taken in relation to the vessel are ecologically reasonable.
2. If the reasons for the measures taken in accordance with Article 8 of this Protocol are unfounded, the vessel shall be indemnified for any possible injury or damage, provided that the vessel has not practiced any act which it has justified to measure taken.
3. Any measure taken, adopted or applied in accordance with this Chapter, shall duly take into account the need not to impair or affect:
a) The rights and obligations of coastal States and the exercise of their jurisdiction in accordance with the law international of the sea ; or
b) The power of the flag State to exercise jurisdiction and control in respect of administrative matters, technical and social related to the ship.
4. Any measure taken at sea, in accordance with the provisions of this Chapter, shall be carried out only by warships or military aircraft, or by other vessels or aircraft duly authorized for that purpose, which bear signs clear and identifiable that they are at the service of the State.
III prevention, cooperation and other
Article 10
Information
1. Without prejudice to the provisions of Articles 27 and 28 of the Convention, States Parties, in particular those with common borders or situated on itineraries used for the trafficking of migrants, will exchange each other, to loosen the objectives of the present Protocol, and in accordance with the respective internal legal and administrative systems, relevant information, such as:
a) The embarkation and destination points, as well as the itineraries, conveyors and means of transport, of the which you are aware of or suspected of being used by an organized criminal group that practices acts set out in Article 6 of this Protocol ;
b) The identity and methods of organized criminal organizations or groups of which you are aware or suspicion of involvement in the practice of acts set out in Article 6 of this Protocol ;
c) The authenticity and characteristics of the travel documents issued by a State Party and the theft or the undue use of travel documents or blank identity ;
d) The means and methods of dissimulation and transport of persons, the modification, reproduction or acquisition unlawful or other misuse of travel or identity documents used in the acts set out in Article 6 of this Protocol and ways of detecting them ;
e) Elements of legislative experience, as well as practices and measures to prevent and combat the acts stated in Article 6 of this Protocol ; and
f) Scientific and technological issues useful for research and repression, in order to strengthen each other ability to prevent and detect the acts set out in Article 6 of this Protocol, conduct investigations into these acts and prosecute their authors.
2. A State Party which has received information shall comply with any request from the State Party which conveyed that information, in the sense of restricting its use.
Article 11
Measures at the borders
1. Without prejudice to international commitments on the free movement of persons, States Parties shall strengthen, as far as possible, border controls they deem necessary to prevent and detect the illicit trafficking of migrants.
2. Each State Party shall adopt the appropriate legislative measures or other measures to prevent, as far as possible, the use of means of transport operated by commercial carriers for the practice of the infringement established in accordance with with point (a) of paragraph 1 of Article 6 of this Protocol.
3. Where it is deemed appropriate, and without prejudice to the applicable international conventions, such measures shall consist, among others, on the obligation of commercial carriers, including transport undertakings, owners or operators of any means of transport, check that all passengers are carriers of the travel documents required for entry into the host State.
4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions in cases of breach of the obligation contained in paragraph 3 of this Article.
5. Each State Party shall consider the possibility of taking action allowing, in accordance with its domestic law, to refuse entry or to cancel visas of persons involved in the practice of infractions established in accordance with the present Protocol.
6. Without prejudice to the provisions of Article 27 of the Convention, the States Parties shall consider the possibility of strengthening cooperation between border control services, including by creating and maintaining direct communication channels.
Article 12
Security and document control
Each State Party shall take the necessary measures, in accordance with the means available to:
a) Ensuring the quality of travel or identity documents that you issue, in such a way that they are not unduly used or easily falsified or modified, reproduced or emitted in an unlawful manner ; and
b) Ensuring the integrity and security of travel documents or identity documents issued by the State Party or on your behalf and prevent your creation, emission and illicit use.
Article 13
Legitimacy and validity of documents
At the request of another State Party, a State Party shall verify, in accordance with its internal law and within a reasonable period of time, the legitimacy and validity of travel or identity documents issued or presumed to be issued on their behalf and that they suspect have been used for the practice of the acts set out in Article 6 of this Protocol.
Article 14
Training and technical co-operati
1. The States Parties shall ensure or strengthen the specialized training of the agents of immigration services and other competent agents for the prevention of acts set out in Article 6 of this Protocol and the human treatment of migrants who were the subject of such acts, respecting the rights accorded to them in this Protocol.
2. The States Parties shall cooperate with each other and with international organizations, non-governmental organizations, other competent organizations and other elements of civil society, as far as possible, to ensure appropriate training of the staff in the respective territories with a view to preventing, combating and eradicating the acts set out in Article 6 of this Protocol and protecting the rights of migrants who have been the subject of these acts. This training will include:
a) The improvement of the safety and quality of travel documents ;
b) The recognition and detection of travel documents and fraudulent identity ;
c) The collection of information of criminal character, especially related to the identification of groups organized criminals of which you are aware of or suspected of involvement in the practice of the acts set out in Article 6 of this Protocol, the methods used in the transportation of trafficking object, the misuse of travel documents or identity documents for the practice of the acts set out in Article 6 and the means of dissimulation used in the trafficking of migrants ;
d) The improvement of procedures for the detection of people victims of trafficking in entry and exit points traditional and non-traditional ;
e) The human treatment of migrants and the protection of the rights that are recognized to them in the present Protocol.
3. States Parties that have relevant expertise will consider providing technical assistance to states that are often countries of origin or transit of persons who have been the subject of the acts set out in the Article 6 of this Protocol. The States Parties shall make efforts to provide the necessary resources, such as vehicles, computer systems and document readers, to counter the acts set out in Article 6.
Article 15
Other prevention measures
1. Each State Party shall take measures to institute or strengthen information programmes to sensitise the public to the fact that the acts set out in Article 6 of this Protocol constitute a frequently perpetrated criminal activity. by criminal groups organized for profit and which present great risk for the migrants in question.
2. In accordance with the provisions of Article 31 of the Convention, States Parties shall cooperate in the field of information in order to prevent potential migrants from becoming victims of organized criminal groups.
3. Each State Party will promote or strengthen, appropriately, development and cooperation programmes within national, regional and international fields, taking into account the socio-economic realities of migrations and paying particular attention to areas economically and socially disadvantaged, in order to combat the root causes of migrant trafficking, such as poverty and underdevelopment.
Article 16
Protection and assistance measures
1. When applying this Protocol, each State Party shall adopt, in accordance with its obligations under international law, all appropriate measures, including the legislative measures it deems necessary in order to to preserve and protect the rights of persons who have been the subject of the acts set out in Article 6 of this Protocol, which are recognized to them by applicable international law, especially the right to life and the right not to be submitted to torture or other feathers or cruel, inhuman or degrading treatment.
2. Each State Party shall take appropriate measures to grant migrants adequate protection against violence that may be inflicted on them by both persons and groups, by the fact that they have been the subject of the acts set out in Article 6 of the present Protocol.
3. Each State Party shall grant appropriate assistance to migrants, whose life or safety has been endangered by the fact that they have been the subject of the acts set out in Article 6 of this Protocol.
4. In enforcing the provisions of this Article, States Parties shall take into account the specific needs of women and children.
5. In the case of detention of a person who has been the subject of the acts set out in Article 6 of this Protocol, each State Party shall give compliance with the obligations under it under the Vienna Convention on Consular Relations, when applicable, including the obligation to inform the person concerned without delay of the provisions relating to notification and communication to consular officials.
Article 17
Arrangements and adjustments
States Parties shall consider whether to enter into bilateral or regional agreements, operational adjustments or understandings with the goal of:
a) Establish the most appropriate and effective measures to prevent and combat the acts set out in Article 6 of the present Protocol ; or
b) Develop with each other the provisions set out in this Protocol.
Article 18
Return of migrants object to trafficking
1. Each State Party agrees to facilitate and accept, without undue delay or unwarranted, the return of a person who has been the subject of the acts set out in Article 6 of this Protocol and that it is his or her national or who has the right of residence permanent on its territory at the time of return.
2. Each State Party shall consider the possibility of facilitating and accepting, in accordance with its domestic law, the return of a person who has been the subject of an act established under Article 6 of this Protocol and who had the right of residence permanent in the territory of the State Party at the time of its entry into the host State.
3. At the request of the State Party of reception, a State Party required shall verify, without undue delay or unjustified, whether a person who has been the subject of the acts set out in Article 6 of this Protocol is national of that State Party or if it has the right to permanent residence on your territory.
4. In order to facilitate the return of a person who has been the subject of the acts set out in Article 6 of this Protocol and does not possess the due documents, the State Party of which that person is a national or in which he / she has a right of permanent residence will accept to issue, at the request of the State Party host, the travel documents or any other authorization it deems necessary to enable the person to travel and be readmitted into their territory.
5. Each State Party involved in the return of a person who has been the subject of the acts set out in Article 6 of this Protocol shall adopt all appropriate measures to arrange such return in an orderly manner and duly taking into account the security and the dignity of the person.
6. The States Parties may cooperate with competent international organizations in the implementation of this Article.
7. The provisions of this Article shall be without prejudice to any right recognized to persons under the legislation of the State Party, which have been the subject of the acts set out in Article 6 of this Protocol.
8. This Article shall be without prejudice to obligations arising from any other bilateral or multilateral treaty applicable or any other operational agreement regulating, in whole or in part, the return of the persons who have been the subject of the acts established in Article 6 of this Protocol.
Final provisions
Article 19
Save Clause
1. No provision of this Protocol shall impair other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international law relating to to human rights and, in particular, when applicable, the 1951 Convention and the 1967 Protocol on the Status of Refugee and to the principle of non-refoulement in them enunciated.
2. The measures contained in this Protocol shall be interpreted and applied in such a manner that persons who have been the subject of the acts set out in Article 6 of this Protocol shall not be discriminated against. The interpretation and application of such measures shall be effected in accordance with the principles of internationally recognized non-discrimination.
Article 20
Resolution of controversies
1. The States Parties shall make efforts to resolve the controversies concerning the interpretation and implementation of this Protocol by way of negotiation.
2. Any controversy between two or more States Parties concerning the application or interpretation of this Protocol which cannot be resolved by the negotiation route within a reasonable period of time shall be submitted, at the request of one of these States Parties, to arbitrage. If, within six months after the date of the request for arbitration, such States Parties fail to reach agreement on the organization of arbitration, either of these States Parties may submit the dispute to the International Court of Justice, upon application in accordance with the Statute of the Tribunal.
3. Each State Party may, at the time of signature, ratification, acceptance or approval of this Protocol or accede to it, declare that it does not consider itself bound to paragraph 2 of this Article. The other States Parties shall not be bound by paragraph 2 of this Article in relation to any other State Party which has formulated such reservation.
4. Any State Party which has formulated a reservation under paragraph 3 of this Article may, at any time, withdraw such reservation by notification to the Secretary-General of the United Nations.
Article 21
Signature, ratification, acceptance, approval and membership
1. This Protocol shall be open to the signature of all States from 12 a to December 15, 2000 in Palermo, Italy, and thereafter at the United Nations headquarters in New York until December 12, 2002.
2. This Protocol shall also be open to the signature of regional economic integration organizations, provided that at least one Member State of that organization has signed this Protocol in accordance with paragraph 1 of the present 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. A regional economic integration organization may deposit its instrument of ratification, acceptance or approval if at least one of its member states has done so. In that instrument of ratification, acceptance or approval such organization shall declare the scope of its competence with respect to matters governed by this Protocol. It shall also inform the depositary of any relevant modification within its jurisdiction.
4. This Protocol shall be open to the accession of any State or of any regional economic integration organization from which at least one Member State is a Party to this Protocol. The instruments of accession shall be deposited with the Secretary-General of the United Nations. At the time of its accession a regional economic integration organization shall declare the scope of its jurisdiction with respect to matters governed by this Protocol. It shall also inform the depositary of any relevant modification of the scope of its competence.
Article 22
Entry into vigor
1. This Protocol shall enter into force on the ninetieth day following the date of the deposit of the square instrument of ratification, acceptance, approval or accession, but shall not enter into force before the entry into force of the Convention. For the purposes of this paragraph, no instrument deposited by a regional economic integration organization shall be summed up to those deposited by the member states of that organization.
2. In relation to each State or regional economic integration organization that ratifies, accepts, approves or accede to this Protocol after the deposit of the quadroth relevant instrument, this Protocol shall enter into force on the thirtieth day following the deposit of that instrument by the said State or organization or on the date of entry into force of this Protocol, in accordance with paragraph 1 of this Article, if this is later.
Article 23
Amendments
1. Five years after the entry into force of this Protocol, a State Party may propose an amendment and deposit the text with the Secretary-General of the United Nations which shall then communicate the proposed amendment to the States Parties and to the Conference of the Parties in the Convention, to look at the proposal and make a decision. The States Parties to this Protocol, meeting in Conference of the Parties, shall make every effort to reach a consensus on any amendment. If all efforts are exhausted without an agreement being reached, it will be necessary, in the latter case, for the amendment to be adopted, a two-thirds majority of the votes cast by the States Parties to this Protocol present in the Conference of the Parties.
2. Regional economic integration organizations, in matters of their competence, shall exercise their right to vote pursuant to this Article with a number of votes equal to the number of their member States which are Parties to this Protocol. Such organisations shall not exercise their right to vote if their member states exercise their own and vice versa.
3. An amendment adopted in accordance with paragraph 1 of this Article shall be subject to ratification, acceptance or approval of States Parties.
4. An amendment adopted in accordance with paragraph 1 of this Protocol shall enter into force in respect of a State Party ninety days after the date of the deposit of the instrument of ratification, acceptance or approval of the said amendment to the Secretary-General of the United Nations.
5. The entry into force of an amendment shall bind all States Parties which have expressed their consent to binding upon this amendment. The other States Parties shall remain bound by the provisions of this Protocol as well as by any previous amendment which they have ratified, accepted or approved.
Article 24
Complaint
1. A State Party may denounce this Protocol upon written notification addressed to the Secretary-General of the United Nations. The denunciation shall become effective one year after the date of receipt of the notification by the Secretary-General.
2. A regional economic integration organization will cease to be a Party to this Protocol when all its 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, whose texts in Arabic, Chinese, Spanish, French, English and Russian are equally authentic, shall be deposited with the Secretary-General of the United Nations.
IN DO WHAT, the undersigned plenipotentiaries, duly authorized by their respective governments, have signed this Protocol.
