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Legislative Guide for the Implementation of the United Nations Convention Against Transnational Organized Crime

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Legislative Guide for the Implementation of the United Nations Convention Against Transnational Organized Crime LEGISLATIVE GUIDE FOR THE IMPLEMENTATION OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME [this page is left blank intentionally] iii Table of contents TABLE OF CONTENTS Abbreviations and Acronyms ...................................................................................... x I. INTRODUCTION .................................................................................................. 1 A. STRUCTURE OF THIS LEGISLATIVE GUIDE ........................................................................... 2 B. STRUCTURE OF THE ORGANIZED CRIME CONVENTION ........................................................ 3 II. PROVISIONS AND OBLIGATIONS APPLICABLE THROUGHOUT THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME ...................... 6 A. IMPLEMENTATION OF THE CONVENTION .......................................................................... 7 B. USE OF TERMS ............................................................................................................. 9 (a) Organized criminal group ........................................................................................................ 10 (b) Structured group ..................................................................................................................... 10 (c) Serious crime ........................................................................................................................... 11 C. SCOPE OF APPLICATION ............................................................................................... 13 D. PROTECTION OF SOVEREIGNTY ..................................................................................... 16 E. RELATIONSHIP BETWEEN THE CONVENTION AND THE PROTOCOLS ...................................... 18 1. Application of the Convention to the Protocol (article 37 of the Convention and article 1 of each Protocol) ......................................................................................... 18 2. Interpretation of the Convention and the Protocols (article 37 of the Convention and article 1 of each Protocol) ............................................................... 20 RELATED INTERNATIONAL INSTRUMENTS ................................................................................ 21 III. SUBSTANTIVE CRIMINAL LAW ....................................................................... 22 A. GENERAL REQUIREMENTS ............................................................................................ 23 1. Minimum standards of implementation ........................................................... 23 2. Scope of application .......................................................................................... 24 3. Sanctions ........................................................................................................... 24 B. CRIMINALIZATION OF PARTICIPATION IN AN ORGANIZED CRIMINAL GROUP ........................... 26 1. Introduction ....................................................................................................... 26 2. Summary of main requirements ........................................................................ 27 3. Mandatory requirements .................................................................................. 28 (a) Primary criminalization requirements (article 5(1)(a)) ............................................................ 28 (b) Secondary liability (article 5(1)(b)) ........................................................................................... 31 (c) Inference of mental elements (article 5(2)) ............................................................................. 31 (d) General requirements.............................................................................................................. 31 4. Optional measures, including optional issues ................................................... 33 iv C. CRIMINALIZATION OF THE LAUNDERING OF PROCEEDS OF CRIME ........................................ 36 1. Introduction ....................................................................................................... 37 (a) The problem of money-laundering .......................................................................................... 37 (b) The rationale for articles 6 and 7 ............................................................................................. 38 2. Summary of the main requirements ................................................................. 40 (a) Criminalization (article 6) ......................................................................................................... 40 (b) Measures to combat money-laundering (article 7) ................................................................. 41 3. Mandatory requirements .................................................................................. 41 (a) Definitions and terminology .................................................................................................... 41 (b) Criminalization (article 6) ......................................................................................................... 41 (c) Measures to combat money-laundering (article 7) ................................................................. 46 4. Optional measures, including optional issues ................................................... 52 (a) Monitoring cross-border transactions ..................................................................................... 52 (b) Financial intelligence units....................................................................................................... 52 (c) Miscellaneous .......................................................................................................................... 53 D. CRIMINALIZATION OF AND MEASURES AGAINST CORRUPTION ............................................ 56 1. Introduction ....................................................................................................... 56 2. Summary of the main requirements ................................................................. 58 (a) Criminalization of corruption (article 8)................................................................................... 58 (b) Measures against corruption (article 9) ................................................................................... 58 3. Mandatory requirements .................................................................................. 59 (a) Definitions and terminology .................................................................................................... 59 (b) Criminalization of active and passive bribery and participation (article 8) .............................. 60 (c) Other general requirements .................................................................................................... 62 (d) Other mandatory measures against corruption (article 9) ...................................................... 63 4. Optional measures, including optional issues ................................................... 63 E. CRIMINALIZATION OF OBSTRUCTION OF JUSTICE .............................................................. 66 1. Introduction ....................................................................................................... 66 2. Summary of the main requirements ................................................................. 67 3. Mandatory requirements .................................................................................. 67 (a) Influencing or interfering with testimony (article 23 (a)) ........................................................ 67 (b) Interfering with official duties (article 23(b)) ........................................................................... 68 (c) Other general requirements .................................................................................................... 69 4. Other measures, including optional issues ........................................................ 71 RELATED INTERNATIONAL INSTRUMENTS ................................................................................ 73 IV. PROCEDURAL LAW TO ENSURE EFFECTIVE CRIMINALIZATION ........................ 74 A. JURISDICTION OVER OFFENCES ..................................................................................... 75 1. Introduction ....................................................................................................... 75 2. Summary of the main requirements ................................................................. 76 v 3. Mandatory requirements .................................................................................. 77 (a) Territoriality principle (article 15(1)) ....................................................................................... 77 (b) Extended jurisdiction under article 15(3) ................................................................................ 78 (c) Coordination between States (article 15(5)) ........................................................................... 78 4. Optional measures, including optional issues ................................................... 79 B. LIABILITY OF LEGAL PERSONS ........................................................................................ 82 1. Introduction ....................................................................................................... 82 2. Summary of the main requirements ................................................................. 83 3. Mandatory
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