The United Nations Convention Against Transnational Organized Crime (UNTOC), adopted by the UN General Assembly in 2004, and ratified by most countries in the world, is designed to deny safe haven to persons engaged in organized crime by prosecuting offenders by creating international law to combat money laundering, corruption, terrorist financing and transnational organized crime.
The UNTOC captures “organized crime” which is defined to mean 3 or more people who act in concert to commit one of more serious crimes to obtain a financial or material benefit and targets “proceeds of crime” which is defined as any asset, real or personal property, securities, money, and legal documents or instruments evidencing title to property, derived from the commission of an offence.
The UNTOC requires countries to adopt legislation to make it a criminal offence to: convert or transfer property knowing that it is proceeds of crime; to conceal or disguise the origin of the property, or to conceal or disguise the ownership, movement or disposition, location of proceeds of crime; to possess or acquire proceeds of crime knowing it is proceeds of crime; and participate in, associate with or commit to aiding, abetting, facilitating an counseling the commons of any offence under the UNTOC.
Article 8 requires States Parties to establish three types of offence relating to corruption.23 The first one covers “active” corruption, meaning the promise, offering or giving to a public official of an undue advantage, in order to act or refrain from acting in matters relevant to official duties. Undue advantage can include something tangible or intangible and does not have to be immediate or directly given to the public official. The mental element requirement is that the conduct must be intentional. The State must show the link between the offer or advantage and inducing the official to act or refrain from acting in the course of his or her officials duties. The second offence is “passive” corruption, the solicitation or acceptance by a public official of an undue advantage, in order to act or refrain from acting in matters relevant to official duties. The mental element is that of intending to solicit or accept the undue advantage for the purpose of altering one’s conduct in the course of official duties. The third offence is the participation in corruption, such as an accomplice in either active or passive corruption.
In addition to the three mandatory offences, the Convention also requires States “to consider” establishing additional offences which would deal with foreign officials or officials of international organizations as well as other forms of corruption. The definition of “public official” is left to the State Party. The Convention only deals with mandatory offences relating to corruption by domestic officials. It does not cover issues relating to private-sector corruption.
Article 9 contains general measures regarding anti-corruption policies. This provision was drafted with the knowledge that a more comprehensive United Nations Convention Against Corruption was being negotiated.24 These measures are to promote integrity and to prevent, detect and punish corruption of public officials, to the extent consistent with its legal system. One way to ensure effective action by officials is to provide anti-corruption authorities with sufficient independence to deter undue influence.
Article 23 requires State Parties to establish two criminal offences.25 First is the use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to either induce false testimony or to interfere in the giving of testimony or the production of evidence in proceedings, in relation to offences covered by the Convention. Both negative (intimidation) and positive (corruption) inducements are covered by this offence. The term “proceeding” should be interpreted broadly to include the use of force, threats or inducement before the commencement of the trial. The mental element is that of intentionality.
The second offence is the use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official to interfere with the exercise of official duties by a justice or law enforcement official in relation to offences covered by this
Convention. In this offence the corruption element is not included here as it is covered by the offences of corruption as defined in article 8.
Under the UNTOC, countries are required to punish a range of offences which constitute organized crime. These include serious crimes with a minimum prison sentence of four years which have been committed by structured groups, as well as specific individual crimes, for, inter alia, money-laundering and corruption linked to offences constituting organised crime and the obstruction of justice.
Property used in offences or proceeds of crime must be confiscated, even transnationally in the framework of international cooperation.
The other key points of the UNTOC include comprehensive regulations covering mutual extradition of suspects as well as international legal assistance in the prosecution of criminals.
Further regulations cover such matters as victim and witness protection, police collaboration (exchange of information, training, technical assistance) as well as prevention measures.