Red Europea de Formación Judicial (REFJ)
European Judicial Training Network (EJTN)
Réseau Européen de Formation Judiciaire (REFJ)
Module V
Bilateral and multilateral instruments of judicial
cooperation in criminal matters
International criminal jurisdiction
Tutor
Ignacio U. González Vega
Criminal Justice 2008
With financial support from Criminal Justice Programme
European Commission – Directorate-General Justice, Freedom and Security
Unit14
MULTILATERAL INSTRUMENTS IN THE
SPHERE OF THE UNITED NATIONS
Unit 14
CONVENTIONS, RESOLUTIONS AND OTHER UNITED NATIONS INSTRUMENTS
Charter
of the United Nations and Statute of the International Court of Justice
Pacific Settlement of International Disputes
Human Rights
Minors
Discrimination
Bioethics
Refugees and stateless persons
Narcotic Drugs and Psychotropic Substances
Trafficking in persons
Diverse criminal matters
Corruption and organised crime
Terrorism
Criminal justice
Air and maritime safety
International Criminal Courts
Unit 14
International criminal jurisdiction
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.
Unit 14
International Criminal Jurisdiction
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.
Unit 14
International criminal jurisdiction
INTERNATIONALISED COURTS
Hybrid 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 STATES
The
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 JUSTICE
Judicial 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.
Unit 15
ORGANISED CRIME
UN 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
Unit 15
ORGANISED CRIME
The
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.
Unit 15
Convention
CORRUPTION
Adoption
Entry into force
Open to
Member States of the Organisation of American
Inter-American Convention
Against Corruption
States (34 states, with the exception of Cuba, which
29/3/1996
6/3/1997
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
The
17/12/1997
15/2/1999
commercial transactions
transnational organized crime
Civil Convention on corruption of
the Council of Europe
UN Convention against
Corruption
countries
and
corruption
non-members
(Argentina, Brazil, Bulgaria, Chile, Slovenia and
Estonia). Other applications to become parties are
1/7/2002
member countries (Belarus, Canada, USA, Japan,
Mexico and the Holy See).
15/11/2000
29/9/2003
4/11/1999
1/11/2003
All countries and regional economic organisations
Council of Europe Member States; non-members
who
participated
in
the
drafting
of
the
draft
convention; other non-members upon invitation.
31/10/2003
14/12/2005
11/6/2003
4/8/2006
All countries and regional economic organisations
Convention of the African Union
for preventing and combating
6
All Council of Europe Member States and 6 non-
4/11/1998
Europe
UN Convention against
OECD
being studied.
Criminal Convention on
corruption of the Council of
30
Member States of the African Union
Unit 15
CORRUPTION
PREVENTION



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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.
Unit 15
DRUGS
UN 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.
Unit 16
TERRORISM
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.
Unit 16
MONEY LAUNDERING AND TERRORIST FINANCING
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.
Unit 16
MONEY LAUNDERING AND TERRORIST FINANCING
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.
Unit 17

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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.
Unit 17
SPECIAL REFERENCE TO THE EU-USA CONVENTION
These agreements supplement the bilateral agreements between the USA and the EU Member States.
AGREEMENT





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 MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE EU AND THE USA
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.
Unit 17
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.
•