Download - Transcrime - Università degli Studi di Trento
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6. The United Nations Convention against transnational organised crime and the Protocols against trafficking in personsand against the smuggling of migrantsplaces during the journey, but also the criminal group that organised it.International cooperation is essential if this type of investigation is to be successful.The United Nations Convention sets out a number of procedures that can beactivated by the investigating authority and the ju<strong>di</strong>ciary also in cases of persontrafficking and migrant smuggling (see infra § 6.3).Particularly significant are the provisions of article 16-18 regulating the extra<strong>di</strong>tionprocedures and mutual legal assistance among State Parties. In both cases theprovisions are so detailed and comprehensive that they have been referred to as“mini-treaties” on extra<strong>di</strong>tion and ju<strong>di</strong>cial cooperation within the framework of aConvention. 28The legal assistance may be requested when a State Party “has reasonable groundsto suspect that the offence […] is transnational in nature […] and that the offenceinvolves an organised criminal group”. By this is meant that the procedures forcooperation may be activated from the very beginning of the investigation, whenthe existence of the organised crime, as defined by the Convention, has not yetbeen demonstrated but there is nevertheless reason to suspect criminal activity.This approach derives from the conviction that person trafficking and migrantsmuggling are crimes that <strong>di</strong>vide into various phases and therefore requireinvestigation that proceeds backwards, so to speak.The forms of legal assistance envisaged by the Convention are listed in a longseries of provisions, many of them patterned on those contained in other legalinstruments drafted by the European Council and the European Union. Relevantexamples of these types of “importation” are: the creation of a central authorityresponsible for ensuring speedy response to requests for legal assistance, <strong>di</strong>rectlytransmitting them to the competent authority; the principle of the locus delicti regitactum; the possible use of videoconferences for witnesses located in <strong>di</strong>fferentcountries.As regards extra<strong>di</strong>tion procedures, which are notoriously long-drawn-out, theConvention encourages the State Parties to simplify the legal requirements forextra<strong>di</strong>tion and, if a specific treaty is not in force, to recognise the Convention asthe legal basis for extra<strong>di</strong>tion of a person under investigation in relation to theoffences referred thereto (article 16).Besides the provisions on extra<strong>di</strong>tion and mutual legal assistance, the Conventionregulates almost all other forms of international ju<strong>di</strong>cial, police and technicalcooperation against transnational organised crime:- international cooperation for purposes of confiscation (article 13);- transfer of sentenced persons so that foreign criminal sentences may beimplemented (article 17);- joint investigations (article 19);- transfer of criminal procee<strong>di</strong>ngs (article 21);28 M. Plachta, “International Cooperation in the draft United Nations Convention against TransnationalCrime”, in Resource Material Series, no. 57, paper presented to the 114 th International Training Course onInternational Cooperation to Combat Transnational Organised Crime, United Nations Asia and Far EastInstitute, February 17th-18 th , 2000.41