TutorIgnacio U. González Vega

Red Europea de Formación Judicial (REFJ)European Judicial Training Network (EJTN)

Réseau Européen de Formation Judiciaire (REFJ)

Module VBilateral and multilateral instruments of judicial cooperation in criminal matters

International criminal jurisdiction

Criminal Justice 2008With financial support from Criminal Justice Programme

European Commission – Directorate-General Justice, Freedom and Security

CONVENTIONS, RESOLUTIONS AND OTHER UNITED NATIONS INSTRUMENTS

Charter of the United Nations and Statute of the International Court of JusticePacific Settlement of International DisputesHuman RightsMinorsDiscriminationBioethicsRefugees and stateless personsNarcotic Drugs and Psychotropic SubstancesTrafficking in personsDiverse criminal mattersCorruption and organised crimeTerrorismCriminal justiceAir and maritime safetyInternational Criminal Courts

AD HOC INTERNATIONAL CRIMINAL COURTS

BACKGROUND: THE NÜREMBERG AND TOKYO COURTS

THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA

Created for specific situations and on a temporary basis by resolutions of the UN Security Council. Competent to try serious violations of International Humanitarian Law committed in the respective

territories. Jurisdiction only over physical persons and not organisations, political parties or other legal entities. The general regime of jurisdiction immunity for criminal matters acknowledged to senior representatives

of states (heads of state or government) is not applicable. With preferential jurisdiction over national courts in the event both have concurrent jurisdiction. Obligation for State Parties to cooperate.

THE INTERNATIONAL CRIMINAL COURT

•Independent judicial body, of a permanent nature and with a potentially universal scope.•Judicial institution with the power to investigate and try physical persons accused of the most serious crimes: genocide, crimes against humanity and war crimes. These crimes are not time-barred.•It is not competent to prosecute states or legal persons or to prosecute isolated events.•The general regime of jurisdiction immunity for certain state representatives does not apply.•Its jurisdiction is limited exclusively to the states parties. Unless the situation has been sent to the office of the Prosecutor of the ICC by the UN Security Council or when the state accepts its jurisdiction even though it is not a party to the Rome Statute.•Its jurisdiction is complementary to that of national jurisdictions.•The position of victims of crimes represents a new development as they are entitled to participate in the trials.

INTERNATIONALISED COURTSHybrid nature and different types:Courts set up for mass crimes (Sierra Leone, Cambodia, East Timor, Kosovo, Iraq and Bosnia-Herzegovina) or for specific offences (the Lebanon).Autonomous special courts (Sierra Leone and the Lebanon) coexist with special or mixed courts that form part of the internal legal systems and that apply both domestic law criminal rules and international law (Cambodia and East Timor).

THE UNIVERSAL CRIMINAL JURISDICTION OF STATESThe basis for the same is the decentralised defence of the interests and values of the International Community as a whole and not purely those of states or individuals.Universal justice complements, as well as excepting, the principle of territoriality, declaring the competence of the criminal jurisdiction of a state for prosecuting crimes committed outside its territory, regardless of the nationality or residence of the perpetrator, the victim and the state in which the crime was committed.

TRANSITIONAL JUSTICEJudicial and other strategies adopted in states where there have been serious human rights’ violations. The purpose of the same is to achieve reconciliation and justice among the opposing parties and guarantee the development of a lasting peace and a democratic society.

ORGANISED CRIMEUN Convention against transnational organized crime, approved in New York on 15 November 2000 and signed in Palermo on 13 December 2000.

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children , supplementing the United Nations Convention against Transnational Organized Crime. New York ,15 November 2000 Additional Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime. New York, 15 November 2000 Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition, which supplements the United Nations Convention against Transnational Organized Crime. New York, 31 May 2001.

Mapa de actuación de los grupos criminales atendiendo a su nacionalidad

ORGANISED CRIMEThe Convention applies to serious offences of a transnational nature that involve an organized criminal group, reflected in conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty, as well as laundering the proceeds of crime, corruption and obstruction of justice.

The Convention urges states to establish the criminal liability of legal persons that participate in serious crimes or that are involved in an organised criminal group and commit the crimes envisaged in the Convention.

Special investigation techniques: controlled deliveries, covert operations, electronic surveillance, witness protection.

Convention Adoption Entry into force Open to

Inter-American Convention

Against Corruption29/3/1996 6/3/1997

Member States of the Organisation of American

States (34 states, with the exception of Cuba, which

is a member of the OAS but whose participation has

been vetoed since 1962), and any other state may

become a party.

OECD Convention on the fight

against the corruption of public

officials in international

commercial transactions

17/12/1997 15/2/1999

The 30 OECD countries and 6 non-members

(Argentina, Brazil, Bulgaria, Chile, Slovenia and

Estonia). Other applications to become parties are

being studied.

Criminal Convention on

corruption of the Council of

Europe

4/11/1998 1/7/2002

All Council of Europe Member States and 6 non-

member countries (Belarus, Canada, USA, Japan,

Mexico and the Holy See).

UN Convention against

transnational organized crime15/11/2000 29/9/2003 All countries and regional economic organisations

Civil Convention on corruption of

the Council of Europe4/11/1999 1/11/2003

Council of Europe Member States; non-members who

participated in the drafting of the draft convention;

other non-members upon invitation.

UN Convention against

Corruption31/10/2003 14/12/2005 All countries and regional economic organisations

Convention of the African Union

for preventing and combating

corruption

11/6/2003 4/8/2006 Member States of the African Union

PREVENTION

Non-governmental organisations: Transparency International.

Council of Europe: Group of States against Corruption (GRECO). Permanent control mechanism for the twenty guiding principles and the two conventions of the Council of Europe on Corruption.

The Organisation for Economic Co-operation and Development (OECD) performs periodic cycles of evaluation of member states in order to monitor the adaptation of the internal mechanisms of countries to the legal instruments established by the Convention.

European Union: Communication of 26 August 2003, “On a Comprehensive EU Policy Against Corruption” and the Stockholm Programme, approved on 2 December 2009, make the fight against corruption a priority. Among the different measures proposed, it is intended to improve judicial persecution of tax evasion and corruption in the private sector as well as increasing the transparency of legal persons.

DRUGSUN Conventions on drugs:

oSingle Convention on Narcotic Drugs. New York, 30 March1961. It intended, by means of a single document, to reduce the number of international bodies existing and ensure global control of the raw materials used for narcotics, establishing what products and substances needed to be controlled worldwide.

oConvention on Psychotropic Substances. Vienna, 21 February 1971. It completed the scope of application of the 1961Convention, albeit not without differentiating between legal and illegal psychotropic substances and the conditioning factors.

oConvention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Vienna, 20 December1988. It represents a powerful international instrument linked to the mechanisms to be adopted by the states, so that the serious consequences of drug trafficking and, above all, international trafficking, could be combated.

There is as yet insufficient international consensus to establish a universal definition of terrorism or a single global and universal convention on terrorism.The universal system of cooperation in the fight against terrorism consists of :

Sector-specific UN conventions [16 (13+3) instruments: conventions, protocols and additional amendments].

General obligations established in these treaties: To incorporate the crimes defined in the different treaties into national criminal systems. To establish a kind of “universal jurisdiction" over these offences. Obligation to extradite or prosecute. Non-consideration of these offences as political crimes. Establishing forms of international cooperation: to prevent and prosecute offences. Establishing clauses on the protection of and respect for human rights.

Other UN instruments: Resolutions of the General Assembly and the Security Council. Sector-specific conventions on a regional level: special reference to Europe.

The actions and legal framework on terrorism in the EU and the Council of Europe are complementary to those of the UN.

EU: Council Common position 2001/931/ CFSP, dated 27 December 2001, on the application of specific measures to combat terrorism; Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism; and Council Framework Decision 2008/919/JHA of 28 November 2008, amending the former.

Council of Europe: European Convention for the suppression of terrorism and its Protocol; Convention on the Prevention of Terrorism; and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism.

UN Convention on the Illicit Trafficking of Narcotic Drugs and Psychotropic Substances, Vienna, 20 December 1988.

Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Strasbourg, 8 November 1990.

UN Convention against Transnational Organized Crime.

The Financial Action Task Force on Money Laundering (FATF), whose purpose is to ensure the harmonious development of national legislations in the fight against money laundering.

From a formal point of view, the 40 Recommendations of the FATF are little more than mere advice from a task force of experts, but in practice they have great authority and prestige. These Recommendations have considerable political influence among states, above all if one takes into account that the countries that fail to comply with them are classed as non-cooperative in the fight against money laundering.

Community Directives:FIRST DIRECTIVE. Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering The influence of the system of FATF Recommendations is considerable. It has become the most effective instrument in preventing money laundering in the financial system, starting with the basic principle that the financial institution must know the client, it being necessary to fully identify clients and determine the origin of the client’s securities or capital.SECOND DIRECTIVE. Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering. It amends the earlier Directive in relation, mainly, to the extension of the catalogue of institutions or persons obliged by the Directive, the extension of the offence preceding the money laundering and banking secrecy.THIRD DIRECTIVE. Directive 2005/60/EC of the European Parliament and the Council of 26 October 2005, on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. It includes terrorist financing, introduces the concept of beneficial owner as “the natural person(s) who ultimately owns or controls the customer and/or the natural person on whose behalf a transaction or activity is being conducted”, as well as the concept of “politically exposed persons”, meaning natural persons with certain personal, professional or economic circumstances who must be subject to more or less strict surveillance and control by credit institutions, financial institutions or obliged persons under the money laundering prevention system. It also establishes that all Member States must create a Financial Intelligence Unit (FIU) that must receive, analyse and communicate to the competent authorities the financial information they hold in relation to potential money laundering, potential terrorist financing or as required by legal or regulatory provisions. Directive 2008/20/EC of the European Parliament and of the Council of 11 March 2008 amending Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, as regards the implementing powers conferred on the Commission.

BILATERAL AND EUROPEAN UNION CONVENTIONS WITH THIRD COUNTRIES AND INTERNATIONAL ORGANISATIONS

AGREEMENTS BETWEEN THE EU AND THIRD COUNTRIES AND INTERNATIONAL ORGANISATIONS

Conventions between the Member States of the European Union may be established for adoption by them in matters concerning Police and Judicial Cooperation in Criminal Matters (Article 34 of the EU Treaty).

The EU can also enter into agreements with third countries and organisations, pursuant to the provisions of Articles 24 and 38 of the EU Treaty, on matters relating to the Common Foreign and Security Policy (CFSP) and police and judicial cooperation in criminal matters.

The Agreement between the International Criminal Court (ICC) and the European Union on cooperation and assistance signed on 10 April 2006.

Agreements between the EU and the USA, on Extradition and Mutual Legal Assistance in criminal matters, signed in June 2003 in Washington.

The Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the Convention of 29 May 2000 on mutual assistance in criminal matters between the Member States of the European Union and the 2001 protocol, of 19 December 2003.

Agreement between the EU and Japan on cooperation in criminal matters, of 3 November 2009.

SPECIAL REFERENCE TO THE EU-USA CONVENTION

These agreements supplement the bilateral agreements between the USA and the EU Member States.

AGREEMENT ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE EU AND THE USA Identification of bank information will not be refused on grounds of banking secrecy. Joint investigation teams operating in the respective territories of each Member State and the USA. The Parties undertake to adopt the measures necessary to allow the use of videoconferencing technology

between each Member State and the USA in proceedings where it is possible to provide legal assistance for taking statements of witnesses or experts (not for the accused) located in a requested State.

It includes a rule on legal assistance for administrative authorities investigating conduct for the purposes of the criminal prosecution of the same or for sending the results of said investigation to the Public Prosecutor’s office or the criminal investigation authorities.

It establishes practical limits designed to protect personal data.

AGREEMENT ON EXTRADITION BETWEEN THE EU AND THE USA It contains provisions on the acts that give rise to extradition, the transmission and authentication of

documents, capital punishment, extradition applications submitted by several states and the sensitive information contained in an application.

It contains the classical principles of dual criminality and a minimum sentence (deprivation of liberty with a maximum limit of one year’s imprisonment).

Requests for extradition and legal assistance are to be transmitted via diplomatic channels.

AGREEMENT BETWEEN THE EU AND JAPAN ON COOPERATION IN CRIMINAL MATTERS• Agreement signed in Brussels on 30 November 2009 and in Tokyo on 15 December 2009.• Its object is to provide judicial assistance in investigations, trials and other procedures,

including legal proceedings, in criminal matters.• Extradition, transfer of proceedings in criminal matters and enforcement of sentences

other than confiscation envisaged in Article 25 of said Agreement are excluded.• The scope of assistance will cover:•taking testimony or statements;•enabling the hearing by videoconference;•obtaining items, including through the execution of search and seizure;•obtaining records, documents or reports of bank accounts;•examining persons, items or places;•locating or identifying persons, items or places;•providing items in the possession of the legislative, administrative or judicial authorities of the requested State as well as the local authorities thereof;•serving documents and informing a person of an invitation to appear in the requesting State;•temporary transfer of a person in custody for testimony or other evidentiary purposes;•assisting in proceedings related to freezing or seizure and confiscation of proceeds or instrumentalities;•any other assistance permitted under the laws of the requested State and agreed upon between a Member State and Japan.• Requests should always be executed pursuant to the legislation of the requested State.