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Definition in the Organized Crime Convention

 

The realization that not a single country, no matter how powerful, can fight organized crime across borders in isolation, led to the passage of the United Nations Convention against Transnational Organized Crime, which came into force in 2003. The negotiations leading up to this Convention caused Member States to consider the definition of organized crime in setting the stage for international action.

The Convention does not contain a definition of transnational organized crime or organized crime. There are many elements of organized crime, which might not occur in every case, and might also change over time, making a specific consensus definition difficult. Instead, the Convention defines "an organized criminal group." A precise definition is required because the Convention aims at directing policy, law, and practice in preventing and combating organized crime.

Under the Convention (article 2a), an "organized criminal group" is defined using four criteria:

  1. A structured group of three or more persons;
  2. The group exists for a period of time;
  3. It acts in concert with the aim of committing at least one serious crime;
  4. To obtain, directly or indirectly, a financial or other material benefit.

Structured group is defined in the negative: as one that does not need a formal hierarchy or continuity of its membership. This makes the definition broad, including loosely affiliated groups without any formally defined roles for its members or a developed structure.

For purposes of the Convention, serious crime means an offence punishable by a maximum penalty of incarceration of at least four years (article 2b). Four years was selected by international consensus at the time of negotiation as a reflection of offence seriousness while it recognizes that criminal codes vary widely around the world in prescribing incarceration for various offences. There is no requirement for countries to introduce a definition of serious crime or to follow the definition of the Convention. The definition of serious crime is included to define the scope of application of the Convention and to invoke the international cooperation provisions of the Convention.

The purpose of organized criminal groups

The interpretative notes to the Convention state that the words "in order to obtain, directly or indirectly, a financial or other material benefit" should be understood broadly. It includes, for example, crimes in which the predominant motivation may be sexual gratification, such as the receipt or trade of materials by members of child pornography rings, the trading of children by members of paedophile rings or cost sharing among ring members.

Source:  Travaux Préparatoires of the negotiations for the elaboration of the United Nations Convention against Organized Crime and the Protocols thereto.

The Convention has near universal adherence, representing the overwhelming majority of the world's nations. For an updated list of countries that have ratified the Convention, please visit the Strategies and Treaties section of UNODC Portal on Sharing Electronic Resources and Laws on Crime (SHERLOC). The portal contains legislation, case law and other relevant information regarding the implementation of the United Nations Convention against Transnational Organized Crime.

The definitions make clear that the size of an organized criminal group can be quite small (although some organized criminal groups can be large), and it does not have to exist for a long period of time (although some do). Significantly, the seriousness of the crimes committed by these groups, and their profit-driven nature, are defining elements.

The Convention covers only transnational crimes, which are planned, executed, or have effects across national borders. This broad definition of transnationality acknowledges the complexity of the issue and sets the stage for broad international cooperation.

The element of transnationality

The offence is transnational if:

  1. It is committed in more than one State;
  2. It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;
  3. It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or
  4. It is committed in one State but has substantial effects in another State.
Source:  United Nations Convention against Transnational Organized Crime, article 3.2.

It is important to note that, while the Convention covers only transnational crimes, in article 34(2), it also specifies that the transnational element and the involvement of an organized criminal group are not to be considered elements of those offences in domestic legislation for criminalization purposes. This provision is to avoid loopholes in domestic legislation. The Convention requires the criminalization of four specific offences: many organized criminal groups utilize money laundering, corruption and obstruction of justice to protect their operations from law enforcement. Therefore, that modus operandi has to be criminalized in all jurisdictions. The Convention also requires the criminalization of participation in an organized criminal group, which is discussed in Module 2.

Three protocols to the Convention relate to specific types of transnational crime: trafficking in persons, smuggling of migrants and trafficking in firearms. These will be discussed in other Guides as examples of transnational organized crime that often involve multiple countries of origin, transit and destination, and strongly require concerted actions of these countries to respond or prevent these crimes effectively.

 

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