Conclusion of the United Nations Convention against organised crime
This convention is the first global legal instrument for combating transnational organised crime, a problem that demands concerted action at world level. The main objective is to promote cooperation and, in the European context, to strengthen the European law enforcement area in order to fight organised crime more effectively. The convention is also the first legally binding UN instrument in this area.
Council Decision 2004/579/EC of 29 April 2004 on the conclusion, on behalf of the European Community, of the United Nations Convention against transnational organised crime [Official Journal L 261, 6.8.2004].
The Decision is intended solely to enable the European Union to accede to the UN Convention against transnational organised crime and the Protocols supplementing it, which deal specifically with trafficking in persons, especially women and children, criminal organisations involved in illegal immigration and illegal employment, and trafficking in firearms.
The scale of organised crime as a proportion of the world economy is substantial. Its turnover is estimated at around a million million dollars a year. In response to this worrying transnational problem, legislation has been drafted by regional organisations such as the European Community and by international bodies such as the UN.
The main aims of the Convention are as follows.
- It will harmonise certain criminal offences. This will bring the laws of different countries more closely into line, which will help to make the law clearer. An act which is an offence in one state party to the Convention will then be recognised as an offence in another such state. The Convention lays down a number of universal definitions of concepts in criminal law relating to organised crime, such as participation in an organised criminal group, money laundering, and corruption.
- It will facilitate cooperation between states in law enforcement matters by establishing procedures for mutual assistance and extradition in a worldwide framework, and for joint investigative bodies.
The Convention pursues an overall objective of combating organised crime, which is an aim supported by the EU. The Hague Programme includes organised crime among cross-border questions to be dealt with as a matter of priority. The Commission has also drawn up a " strategic concept " setting out EU priorities and objectives for tackling organised crime.
The content of the Convention has been the subject of much negotiation and a number of decisions on the part of the Member States. The Member States adopted a Joint Position at the end of 2000.
The main difficulty was the division of powers between the EU as such and its Member States. This is an essential question which the Council and the Commission discussed at length before concluding the Convention on behalf of the European Community.
For example, the initial text of the Convention would have recognised that the Community had general competence in matters of money laundering. Following negotiation in the Council this competence was ultimately restricted to the subject matter of the directives on money laundering and public contracts. Measures relating to police and law enforcement cooperation are part of the "third pillar", and are not ordinarily within the scope of the Community's powers.
The Member States did agree, however, that the Convention should include provisions on the following points.
- The Convention requires the states party to it to criminalise certain conduct, in line with the Joint Action on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union. Under the Convention, each State Party is to adopt such legislative and other measures as may be necessary to establish as criminal offences certain acts of participation or complicity directly or indirectly linked to the activities of an organised criminal group. Thus reference is now made to the concept of organised crime to impose heavier penalties for conduct the definition of which has now been harmonised at European level. The Convention brings the penalties for any conduct associated with organised crime more closely into line.
- The Convention permits the prevention, investigation and prosecution of crime involving participation in an organised criminal group, laundering of the proceeds of crime, corruption, and obstruction of justice.
- It increases the number of offences relating to money laundering. It calls for a comprehensive domestic regulatory and supervisory regime for banks and non-bank financial institutions and, where appropriate, other bodies particularly susceptible to money laundering. Despite the greater number of offences considered to be associated with money laundering, the fight against money laundering is not within the scope of the ordinary powers of the European Community, and Member States are asked to be guided in this area by the measures set out in the Convention and elsewhere.
- It provides a number of guarantees for the protection of human rights.
The objectives set by the Council when preparations were being made for the adoption of the Convention have accordingly been complied with, and the Convention can be approved on behalf of the European Community.