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  This module is a resource for lecturers  

 

Jurisdictions

 

Offenders frequently commit crimes in territories of more than one State and try to evade law enforcement by moving between States. Therefore, particularly when dealing with transnational organized crime, a major concern is that serious crimes do not go unpunished, even if offences are committed in different jurisdictions. In order to reach this goal, it is necessary to reduce or eliminate jurisdictional gaps that enable fugitives to find safe havens. Jurisdiction describes a defined legal authority to administer justice over a certain geographical area, certain individuals or certain function / subject matter.

The Organized Crime Convention addresses the issue of jurisdiction. In cases where an organized criminal group is active in several States that may have jurisdiction over the conduct of the group, the international community seeks to ensure that there is a mechanism available for those States to coordinate their efforts. The jurisdiction to prosecute and punish such crimes is addressed in article 15 of the Convention.

The Organized Crime Convention requires States parties to assert jurisdiction over the offences established in accordance with the Convention when they are committed:

  • In their territory ("territoriality principle")
  • On board of a ship flying their flag ("flag principle")
  • On board of an aircraft registered under their laws ("flag principle")

Article 15 (2) also contains a number of optional provisions whereby countries may wish to consider establishing jurisdiction when:

  • The offence is committed against one of their nationals or against a habitual or permanent stateless person resident in their territory. This may also extend to offences against nationals committed abroad. This is called the "passive personality principle".
  • The offence is committed by one of their nationals or by a habitual resident in their territory. This is called the "active personality principle".
  • The offence of participation in an organized criminal group is committed outside their territory with a view to the commission of a serious crime inside their territory. This is called the "protection principle".
  • The offence consists of involvement in money-laundering outside their territory aimed at the laundering of criminal proceeds in their territory.
  • The alleged offender is present in its territory and the State party does not extradite him or her. This is called "aut dedere aut judicare", or "extradite or prosecute principle".

The Organized Crime Convention also requires States parties to consult with other States parties which are investigating or prosecuting the same offence in order to coordinate action. In some cases, the coordination will result in one country deferring to the investigation or prosecution of another. In others, countries may each agree to pursue certain suspects or offences, leaving other suspects or related conduct to the other jurisdiction. Such multinational coordination has resulted in extradition, mutual legal assistance, and other international cooperation agreements (as discussed in Module 11).

Jurisdiction at Sea

In practice, the establishment of jurisdiction for a law enforcement action can be difficult. When talking about transnational organized crime, investigative issues can arise on, e.g., whether jurisdiction can be exercised on high seas or whether the territorial jurisdiction of the State include territorial waters. In a time when sea piracy and smuggling is a transnational concern, the way in which countries deal with maritime crimes is not uniform or well established. For example, some countries do not make arrests at sea, but they detain at sea. In other jurisdictions, detentions at sea are governed by the laws of arrest, which require a court appearance within a short period of time.

There is also a lack of legal clarity on whether a State that boards a vessel can assert its own jurisdiction over an unflagged vessel. Many countries do not have domestic authority to exercise that jurisdiction. The actions that can be taken against a stateless vessel are thus often surrounded by legal uncertainty. A vital component of combatting transnational organized crime committed at sea is therefore getting jurisdiction right. (UN Commission on Crime Prevention and Criminal Justice, 2016)

 

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