View/save PDF version of this document - La Strada International

52 Travaux préparatoires: United Nations Convention against Transnational Organized Crime“(a) The conversion or transfer of property, knowing that such property is theproceeds of crime, 12 for the purpose of concealing or disguising [or preventing thediscovery of] 13 the illicit origin of the property or of helping any person who isinvolved in the commission of the predicate offence 14 to evade the legal consequencesof his or her action;“(b) The concealment or disguise [or prevention of the discovery] 15 of the truenature, source, location, disposition, movement or ownership of or rights with respectto property, knowing that such property is the proceeds of crime;“(c) The acquisition, possession or use [disposal, administration, safe keeping,exchange, guaranteeing, investment, transfer or transport] 16 of property, knowing, atthe time of receipt [or subsequently], 17 that such property is the proceeds of crime;“(d) Participation in, association with or conspiracy to commit, attempts to commitand aiding, abetting, facilitating and counselling the commission of any of theoffences established in accordance with this article;“[(e) Engaging in conduct that would constitute an offence under subparagraph1 (a), (b), (c) or (d) of this article, had the property been derived from [insert adescription of the type of predicate offences governed by this article], where a lawenforcement official or a person acting at his or her direction represented the propertyto be so derived.] 18“[1 bis. Notwithstanding paragraph[s] 1 [and 2 (a)] of this article, where a StateParty considers the laundering of the proceeds of a type of offence generally not toarise from or be associated with the activities of organized criminal groups, the StateParty shall not be required to establish the laundering of the proceeds of such offenceas a criminal offence under its domestic law. The State Party shall periodically reviewits domestic law with a view to expanding the applicability of laws against moneylaunderingto the extent required to combat organized criminal groups effectively.] 19“2. For the purposes of implementing or applying paragraph 1 of this article:“(a) It shall not matter whether the predicate offence was subject to the criminaljurisdiction of the State Party; 2012Some delegations suggested that the concept of “proceeds of crime” should be clarified in this connection. Thereshould also be clarification in respect of the extent of the knowledge of the offender required under this subparagraph, thatis, whether it would require that the offender knew only that the proceeds were the result of a certain activity or that theoffender also knew that the activity was a crime. The issue of dual criminality would also arise in that connection.13Addition proposed by India at the third session of the Ad Hoc Committee.14Some delegations emphasized that the scope of predicate offences required consideration. Other delegations notedthat the definition of “predicate offence” provided in subparagraph (i) of article 2 bis and the definition of “proceeds ofcrime” provided in subparagraph (f) of article 2 bis might require clarification in this respect.15Addition proposed by India at the third session of the Ad Hoc Committee.16Ibid.17The words “or subsequently” raise the issue of the right of persons who acquired such property in good faith and theprovision should be revised to protect the legitimate rights of such bona fide persons. One delegation proposed that these wordsshould be amended to read “or subsequently, after it has been established whether or not such persons acted bona fide”.18Addition proposed by the United States (see A/AC.254/L.24). Several delegations noted that both subparagraph (e)of paragraph 1 and paragraph 1 bis required further study. Some delegations suggested that subparagraph (e) could be transferredto article 15 (Special investigative techniques). Some delegations expressed reservations about whether the presentwording could be interpreted to provide excessive discretion to law enforcement authorities.19Addition proposed by the United States (see A/AC.254/L.24).20Some delegations noted that, in connection with this subparagraph, the question of dual criminality should beaddressed, as should the scope of application.