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United Nations: General Assembly Resolutions adopting Rules, Basic Principles, Guidelines and Model Treaties relating to the Prevention of Crime and the Treatment of Offenders

  • Paul C. Szasz

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* [The Introductory Note was prepared for International Legal Materials by Paul C. Szasz, legal consultant to the U.N., formerly Director of the General Legal Division and Deputy to the Legal Counsel, United Nations. The texts of the Resolutions, with I.L.M. Content Summaries, begin at 30 I.L.M. 1361 (1991).]

* [The U.N. General Assembly adopted Resolution 45/110 on December 14, 1990, without a vote. The Introductory Note to this Resolution appears at 30 I.L.M. 1357 (1991).]

1/ Resolution 217 A (III).

2/ See resolution 2200 A (XXI), annex.

3/ See Human Rights: A Compilation of International Instruments (United Nations publication, Sales No. E.88.XIV.1), sect. G.

4/ See Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Caracas, 25 Auoust5 September 1980: report prepared by the Secretariat (United Nations publication. Sales No. E.81.IV.4), chap. I, sect. B.

5/ See Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August6 September 1985:report prepared by the Secretariat (United Nations publication. Sales No. E.86.IV.1), chap. I, sect. E.

6/ E/CN.5/536, annex IV.

7/ Resolution 40/33, annex.

8/ Resolution 43/173, annex.

9/ See resolution45/119.[30 I.L.M.1442 (1991)]

* [The U.N. General Assembly adopted Resolution 45/111 on December 14, 1990, without a vote. The Introductory Note to this Resolution appears at 30 I.L.M. 1357 (1991).]

1/ See Human Rights; A Compilation of International Instruments (United Nations publication. Sales No. E.88.XIV.1), sect. G.

2/ See Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August6 September 1985; report prepared by the Secretariat (United Nations publication. Sales No. E.86.IV.1), chap.I, sect. E.

3/ See E/AC.57/1988/NGO/3.

4/ A/CONF.144/IPM.4

5/ Resolution 217 A (III).

6/ See resolution 2200 A (XXI), annex.

* [The U.N. General Assembly adopted Resolution 4b/112on December 14, 1990, without a vote. The Introductory Note to this Resolution appears at 30 I.L.M. 1357 (1991).]

1/ Resolution 217 A (III).

2/ See resolution 2200 A (XXI), annex. [6 I.L.M. 368 (1967)]

3/ Resolution 1386 (XIV).

4/ Resolution 44/25, annex. [28 I.L.M. 1448 (1989)]

5/ Resolution 40/33, annex

6/ See resolution 45/113, annex. [30 I.L.M. 1390 (1991)]

* [The U.N. General Assembly adopted Resolution 45/113 on December 14, 1990, without a vote. The Introductory Note to this Resolution appears at 30 I.L.M. 1357 (1991).]

1/ Resolution 217 A (III).

2/ Resolution 2200 A (XXI), annex. [6 I.L.M. 368 (1967)]

3/ Resolution 39/46, annex. [23 I.L.M. 1027 (1984); 24 I.L.M. 535 (1)

4/ Resolution 44/25, annex. [28 I.L.M. 1448 (1989)]

5/ See Human Rights; A Compilation of International Instruments (United Nations publication. Sales No. E.88.XIV.1), sect. G.

6/ Resolution 40/33, annex.

7/ See Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August6 September 1985: report prepared by the Secretariat (United Nations publication, Sales No. E.86.IV.1), chap. I, sect. E.

* [The U.N. General Assembly adopted Resolution 45/116 on December 14, 1990, without a vote. The Introductory Note to this Resolution appears at 30 I.L.M. 1357 (1991).]

1/ Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Milan, 26 August6 September 1985; report prepared by the Secretariat (United Nations publication. Sales No. E.86.IV.1), chap. I, sect. A.

2/ Ibid., sect. B.

3/ Ibid., sect. E

4/ E/CONF.82/15 and Corr.2. [28 I.L.M. 493 (1989)]

5/ Resolution 217 A (III).

6/ See resolution 2200 A (XXI), annex. [6 I.L.M. 368 (1967)]

7/ Reference to the imposition of a sentence may not be necessary for all countries.

8/ Some countries may wish to omit this paragraph or provide an optional ground for refusal under article 4.

9/ Some countries may wish to add the following text: “Reference to an offence of a political nature shall not include any offence in respect of which the Parties have assumed an obligation, pursuant to any multilateral convention, to take prosecutorial action where they do not extradite, or any other offence that the Parties have agreed is not an offence of a political character for the purposes of extradition.“

10/ Some countries may wish to make this an optional ground for refusal under article 4.

11/ Some countries may wish to add to article 3 the following ground for refusal: “If there is insufficient proof, according to the evidentiary standards of the requested State, that the person whose extradition is requested is a party to the offence”. (See also footnote 14.)

12/ Some countries may wish to apply the same restriction to the imposition of a life, or indeterminate, sentence.

13/ Some countries may wish to make specific reference to a vessel under its flag or an aircraft registered under its laws at the time of the commission of the offence.

14/ Countries that require a judicial assessment of the sufficiency of evidence may wish to add the following clause: “and sufficient proof in a form acceptable under the law of the requested State, establishing, according to the evidentiary standards of that State, that the person is a party to the offence”. (See also footnote 11.)

15/ The laws of some countries require authentication before documents transmitted from other countries can be admitted in their courts and, therefore, would require a clause setting out the authentication required.

16/ Some countries may wish to add, as a third case, explicit consent of the person.

17/ Some countries may not wish to assume that obligation and may wish to include other grounds in determining whether or not to grant consent.

18/ Some countries may wish to agree on other grounds for refusal, which may also warrant refusal for extradition, such as those related to the nature of the offence (e.g. political, fiscal, military) or to the status of the person (e.g.their own nationals)

19/ Some countries may wish to consider reimbursement of costs incurred as a result of withdrawal of a request for extradition or provisional arrest.

* [The U.N. General Assembly adopted Resolution 45/117 on December 14, 1990, without a vote. The Introductory Note to this Resolution appears at 30 I.L.M. 1357 (1991).]

1/ Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Milan. 26 August6 September 1985; report prepared by the Secretariat (United Nations publication. Sales No. E.86.IV.1), chap. I, sect. A.

2/ Ibid., sect. B.

3/ Ibid., sect. E.

4/ E/CONF.82/15 and Corr.2.

5/ Resolution 217 A (III).

6/ See resolution 2200 A (XXI), annex.[6 I.L.M. 368 (1967)]

7/ Additions to the scope of assistance to be provided, such as provisions covering information on sentences passed on nationals of the Parties, can be considered bilaterally. Obviously, such assistance must be compatible with the law of the requested State.

8/ Article 2 recognizes the continuing role of informal assistance between law enforcement agencies and associated agencies in different countries.

9/ Article 4 provides an illustrative list of the grounds for refusal.

10/ Some countries may wish to delete or modify some of the provisions or include other grounds for refusal, such as those related to the nature of the offence (e.g. fiscal), the nature of the applicable penalty (e.g. capital punishment), requirements of shared concepts (e.g. double jurisdiction, no lapse of time) or specific kinds of assistance (e.g. interception of telecommunications, performing deoxyribonucleicacid (DNA) tests). In particular, some countries may wish to include as grounds for refusal the fact that the act on which the request is based would not be an offence if committed in the territory of the requested State (dual criminality).

11/ This list can be reduced or expanded in bilateral negotiations,

12/ More detailed provisions may be included concerning the provision of information on the time and place of execution of the request and requiring the requested State to inform promptly the requesting State in cases where significant delay is likely to occur or where a decision is made not to comply with the request and the reasons for refusal.

13/ Some countries may wish to omit article 8 or modify it, e.g. restrict it to fiscal offences.

14/ Provisions relating to confidentiality will be important for many countries but may present problems to others. The nature of the provisions in individual treaties can be determined in bilateral negotiations.

15/ More detailed provisions relating to the service of documents, such as writs and judicial verdicts, can be determined bilaterally. Provisions may be desired for the service of documents by mail or other manner and for the forwarding of proof of service of the documents. For example, proof of service could be given by means of a receipt dated and signed by the person served or by means of a declaration made by the requested State that service has been effected, with an indication of the form and date of such service. One or other of these documents could be sent promptly to the requesting State. The requested State could, if the requesting State so requests, state whether service has been effected in accordance with the law of the requested State. If service could not be effected, the reasons could be communicated promptly by the requested State to the requesting State.

16/ Depending on travel distance and related arrangements.

17/ Article 11 is concerned with the obtaining of evidence in judicial proceedings, the taking of a person's statement by a less formal process and the production of items of evidence.

18/ In bilateral negotiations, provisions may also be introduced to deal with such matters as the modalities and time of restitution of evidence and the setting of a timelimit for the presence of the person in custody in the requesting State.

19/ Provisions relating to the payment of the expenses of the person providing assistance are contained in paragraph 3 of article 14. Additional details, such as provision for the payment of costs in advance, can be the subject of bilateral negotiations.

20/ The provisions in article 15 may be required as the only way of securing important evidence in proceedings involving serious national and transnational crime. However, as they may raise difficulties for some countries, the precise content of the article, including any additions or modifications, can be determined in bilateral negotiations.

21/ The question may arise as to whether this should be discretionary. This provision can be the subject of bilateral negotiations.

22/ Bilateral arrangements may cover the provision of information on the results of search and seizure and the observance of conditions imposed in relation to the delivery of seized property.

23/ The laws of some countries require authentication before documents transmitted from other countries can be admitted in their courts, and, therefore, would require a clause setting out the authentication required.

24/ More detailed provisions may be included, for example, the requested State would meet the ordinary cost of fulfilling the request for assistance except that the requesting State would bear (a) the exceptional or extraordinary expenses required to fulfil the request, where required by the requested State and subject to previous consultations; (b) the expenses associated with conveying any person to or from the territory of the requested State, and any fees, allowances or expenses payable to that person while in the requesting State pursuant to a request under article 11, 13 or 14; (c) the expenses associated with conveying custodial or escorting officers; and (d) the expenses involved in obtaining reports of experts.

25/ The present Optional Protocol is included on the ground that questions of forfeiture are conceptually different from, although closely related to, matters generally accepted as falling within the description of mutual assistance. However, States may wish to include these provisions in the text because of their importance in dealing with organized crime. Moreover, assistance in forfeiting the proceeds of crime has now emerged as a new instrument in international cooperation. Provisions similar to those outlined in the present Protocol appear in many bilateral assistance treaties. Further details can be provided in bilateral arrangements. One matter that could be considered is the need for other provisions dealing with issues related to bank secrecy. An addition could, for example, be made to paragraph 4 of the present Protocol providing that the requested State shall, upon request, take such measures as are permitted by its law to require compliance with monitoring orders by financial institutions. Provision could be made for the sharing of the proceeds of crime between the Contracting States or for consideration of the disposal of the proceeds on a casebycase basis

26/ The Parties might consider widening the scope of the present Protocol by the inclusion of references to victims' restitution and the recovery of fines imposed as a sentence in a criminal prosecution.

* [The U.N. General Assembly adopted Resolution 14, 1990, without a vote. The Introductory Note appears at 30 I.L.M. 1357 (1991).] 45/118 on December to this Resolution

1/ Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Milan. 26 August6 September 1985: report prepared by the Secretariat (United Nations publication, Sales No. E.86.IV.1), chap. I, sect. A.

2/ Ibid.. sect. B.

3/ Ibid., sect. E.

4/ See A/C0NF.144/IPM.5 and Corr.1.

5/ Resolution 217 A (III).

6/ See resolution 2200 A (XXI), annex. [6 I.L.M. 368 (1991)]

7/ The laws of some countries require authentication before documents transmitted from other countries can be admitted in their courts and, therefore, would require a clause setting out the authentication required.

8/ When negotiating on the basis of the present Model Treaty, States may wish to add other grounds for refusal or conditions to this list, relating, for example, to the nature or-gravity of the offence, to the protection of fundamental human rights, or to considerations of public order.

* [The U.N. General Assembly adopted Resolution 45/119 on December 14, 1990, without a vote. The Introductory Note to this Resolution appears at 30 I.L.M. 1357 (1991).]

1/ Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 Auqust6 September 1985: report prepared by the Secretariat (United Nations publication. Sales No. E.86.IV.1), chap. I, sect. A.

2/ Ibid., sect. B.

3/ Ibid., sect. E.

4/ A/C0NF.144/IPM.5 and Corr.l.

5/ Resolution 217 A (III).

6/ See resolution 2200 A (XXI), annex. [6 I.L.M. 368 (1967)

7/ The laws of some countries require authentication before documents transmitted from other countries can be admitted in their courts and, therefore, would require a clause setting out the authentication required.

8/ When negotiating on the basis of the present Model Treaty, States may wish to waive the requirement of dual criminality.

9/ When negotiating on the basis of the present Model Treaty, States may wish to add other grounds for refusal or conditions to this list, relating, for example, to the nature or gravity of the offence, to the protection of fundamental human rights, or to considerations of public order.

United Nations: General Assembly Resolutions adopting Rules, Basic Principles, Guidelines and Model Treaties relating to the Prevention of Crime and the Treatment of Offenders

  • Paul C. Szasz

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