sou · H0B312 · 2012-05-30 00:00:00 — However, each Party may make a declaration on this provision in respect of the confiscation of the proceeds from tax offences for the sole purpose of being able to confiscate such proceeds, both nationally and through international cooperation, under national and international tax-debt recovery legislation; and/or bonly to a list of specified offences. 3Parties may provide for mandatory confiscation in respect of offences which are subject to the confiscation regime. Parties may in particular include in this provision the offences of money laundering, drug trafficking, trafficking in human beings and any other serious offence. 4Each Party shall adopt such legislative or other measures as may be necessary to require that, in respect of a serious offence or offences as defined by national law, an offender demonstrates the origin of alleged proceeds or other property liable to confiscation to the extent that such a requirement is consistent with the principles of its domestic law. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Article 4 – Investigative and provisional measures Each Party shall adopt such legislative and other measures as may be necessary to enable it to identify, trace, freeze or seize rapidly property which is liable to confiscation pursuant to Article 3, in order in particular to facilitate the enforcement of a later confiscation. Article 5 – Freezing, seizure and confiscation Each Party shall adopt such legislative and other measures as may be necessary to ensure that the measures to freeze, seize and confiscate also encompass: athe property into which the proceeds have been transformed or converted; bproperty acquired from legitimate sources, if proceeds have been intermingled, in whole or in part, with such property, up to the assessed value of the intermingled proceeds; cincome or other benefits derived from proceeds, from property into which proceeds of crime have been transformed or converted or from property with which proceeds of crime have been intermingled, up to the assessed value of the intermingled proceeds, in the same and to the same extent as proceeds. Article 6 – Management of frozen or seized property Each Party shall adopt such legislative or other measures as may be necessary to ensure proper management of frozen or seized property in accordance with Articles 4 and 5 of this Convention. Article 7 – Investigative powers and techniques 1Each Party shall adopt such legislative and other measures as may be necessary to empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized in order to carry out the actions referred to in Articles 3, 4 and 5. A Party shall not decline to act under the provisions of this article on grounds of bank secrecy. 2Without prejudice to paragraph 1, each Party shall adopt such legislative and other measures as may be necessary to enable it to: adetermine whether a natural or legal person is a holder or beneficial owner of one or more accounts, of whatever nature, in any bank located in its territory and, if so obtain all of the details of the identified accounts; bobtain the particulars of specified bank accounts and of banking operations which have been carried out during a specified period through one or more specified accounts, including the particulars of any sending or recipient account; CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 cmonitor, during a specified period, the banking operations that are being carried out through one or more identified accounts; and, densure that banks do not disclose to the bank customer concerned or to other third persons that information has been sought or obtained in accordance with sub-paragraphs a, b, or c, or that an investigation is being carried out. Parties shall consider extending this provision to accounts held in non-bank financial institutions. 3Each Party shall consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto, such as observation, interception of telecommunications, access to computer systems and order to produce specific documents. Article 8 – Legal remedies Each Party shall adopt such legislative and other measures as may be necessary to ensure that interested parties affected by measures under Articles 3, 4 and 5 and such other provisions in this Section as are relevant, shall have effective legal remedies in order to preserve their rights. Article 9 – Laundering offences 1Each Party shall adopt such legislative and other measures as may be necessary to establish as offences under its domestic law, when committed intentionally: athe conversion or transfer of property, knowing that such property is proceeds, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of the predicate offence to evade the legal consequences of his actions; bthe concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property, knowing that such property is proceeds; and, subject to its constitutional principles and the basic concepts of its legal system; cthe acquisition, possession or use of property, knowing, at the time of receipt, that such property was proceeds; dparticipation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 2For the purposes of implementing or applying paragraph 1 of this article: a it shall not matter whether the predicate offence was subject to the criminal jurisdiction of the Party; bit may be provided that the offences set forth in that paragraph do not apply to the persons who committed the predicate offence; cknowledge, intent or purpose required as an element of an offence set forth in that paragraph may be inferred from objective, factual circumstances. 3Each Party may adopt such legislative and other measures as may be necessary to establish as an offence under its domestic law all or some of the acts referred to in paragraph 1 of this Article, in either or both of the following cases where the offender a suspected that the property was proceeds, b ought to have assumed that the property was proceeds. 4Provided that paragraph 1 of this article applies to the categories of predicate offences in the appendix to the Convention, each State or Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of , declare that paragraph 1 of this article applies: aonly in so far as the predicate offence is punishable by deprivation of or a detention order for a maximum of more than one year, or for those Parties that have a minimum threshold for offences in their legal system, in so far as the offence is punishable by deprivation of or a detention order for a minimum of more than six months; and/or bonly to a list of specified predicate offences; and/or cto a category of serious offences in the national law of the Party. 5Each Party shall ensure that a prior or simultaneous conviction for the predicate offence is not a prerequisite for a conviction for money laundering. 6Each Party shall ensure that a conviction for money laundering under this Article is possible where it is proved that the property, the object of paragraph 1.a or b of this article, originated from a predicate offence, without it being necessary to establish precisely which offence. 7Each Party shall ensure that predicate offences for money laundering extend to conduct that occurred in another State, which constitutes an offence in that State, and which would have constituted a predicate offence had it occurred domestically. Each Party may provide that the only prerequisite is that the conduct would have constituted a predicate offence had it occurred domestically. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Article 10 – Corporate liability 1Each Party shall adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the criminal offences of money laundering established in accordance with this Convention, committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on: a a power of representation of the legal person; or b an authority to take decisions on behalf of the legal person; or c an authority to exercise control within the legal person, as well as for involvement of such a natural person as accessory or instigator in the above- mentioned offences. 2Apart from the cases already provided for in paragraph 1, each Party shall take the necessary measures to ensure that a legal person can be held liable where the lack of supervision or control by a natural person referred to in paragraph 1 has made possible the commission of the criminal offences mentioned in paragraph 1 for the benefit of that legal person by a natural person under its authority. 3Liability of a legal person under this Article shall not exclude criminal proceedings against natural persons who are perpetrators, instigators of, or accessories to, the criminal offences mentioned in paragraph 1. 4Each Party shall ensure that legal persons held liable in accordance with this Article, shall be subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions. Article 11 – Previous decisions Each Party shall adopt such legislative and other measures as may be necessary to provide for the possibility of taking into account, when determining the penalty, final decisions against a natural or legal person taken in another Party in relation to offences established in accordance with this Convention. Section 2 - Financial intelligence unit (FIU) and prevention Article 12 – Financial intelligence unit (FIU) 1Each Party shall adopt such legislative and other measures as may be necessary to establish an FIU as defined in this Convention. 2Each Party shall adopt such legislative and other measures as may be necessary to ensure that its FIU has access, directly or indirectly, on a timely basis to the financial, administrative and law enforcement information that it requires to properly undertake its functions, including the analysis of suspicious transaction reports. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Article 13 – Measures to prevent money laundering 1Each Party shall adopt such legislative and other measures as may be necessary to institute a comprehensive domestic regulatory and supervisory or monitoring regime to prevent money laundering and shall take due account of applicable international standards, including in particular the recommendations adopted by the Financial Action Task Force on Money Laundering (FATF). 2In that respect, each Party shall adopt, in particular, such legislative and other measures as may be necessary to: arequire legal and natural persons which engage in activities which are particularly likely to be used for money laundering purposes, and as far as these activities are concerned, to: iidentify and verify the identity of their and, where applicable, their ultimate beneficial owners, and to conduct ongoing due diligence on the business relationship, while taking into account a risk based approach; iireport suspicions on money laundering subject to safeguard; iiitake supporting measures, such as record on customer identification and transactions, training of personnel and the of internal policies and procedures, and if appropriate, adapted to their size and nature of business; bprohibit, as appropriate, the persons referred to in sub-paragraph a from disclosing the fact that a suspicious transaction report or related information has been transmitted or that a money laundering investigation is being or may be carried out; censure that the persons referred to in sub-paragraph a are subject to effective systems for monitoring, and where applicable supervision, with a view to ensure their compliance with the requirements to combat money laundering, where appropriate on a risk sensitive basis. 3In that respect, each Party shall adopt such legislative or other measures as may be necessary to detect the significant physical cross border transportation of cash and appropriate bearer negotiable instruments. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Article 14 – Postponement of domestic suspicious transactions Each Party shall adopt such legislative and other measures as may be necessary to permit urgent action to be taken by the FIU or, as appropriate, by any other competent authorities or body, when there is a suspicion that a transaction is related to money laundering, to suspend or withhold consent to a transaction going ahead in order to analyse the transaction and confirm the suspicion. Each party may restrict such a measure to cases where a suspicious transaction report has been submitted. The maximum duration of any suspension or withholding of consent to a transaction shall be subject to any relevant provisions in national law. Chapter IV – International co-operation Section 1 – Principles of international co-operation Article 15 – General principles and measures for international co-operation 1The Parties shall mutually co-operate with each other to the widest extent possible for the purposes of investigations and proceedings aiming at the confiscation of instrumentalities and proceeds. 2Each Party shall adopt such legislative or other measures as may be necessary to enable it to comply, under the conditions provided for in this chapter, with requests: afor confiscation of specific items of property representing proceeds or instrumentalities, as well as for confiscation of proceeds consisting in a requirement to pay a sum of money corresponding to the value of proceeds; bfor investigative assistance and provisional measures with a view to either form of confiscation referred to under a above. 3Investigative assistance and provisional measures sought in paragraph 2.b shall be carried out as permitted by and in accordance with the internal law of the requested Party. Where the request concerning one of these measures specifies formalities or procedures which are necessary under the law of the requesting Party, even if unfamiliar to the requested Party, the latter shall comply with such requests to the extent that the action sought is not contrary to the fundamental principles of its law. 4Each Party shall adopt such legislative or other measures as may be necessary to ensure that the requests coming from other Parties in order to identify, trace, freeze or seize the proceeds and instrumentalities, receive the same priority as those made in the framework of internal procedures. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Section 2 – Investigative assistance Article 16 – Obligation to assist The Parties shall afford each other, upon request, the widest possible measure of assistance in the identification and tracing of instrumentalities, proceeds and other property liable to confiscation. Such assistance shall include any measure providing and securing evidence as to the existence, location or movement, nature, legal status or value of the aforementioned property. Article 17 – Requests for information on bank accounts 1Each Party shall, under the conditions set out in this article, take the measures necessary to determine, in answer to a request sent by another Party, whether a natural or legal person that is the subject of a criminal investigation holds or controls one or more accounts, of whatever nature, in any bank located in its territory and, if so, provide the particulars of the identified accounts. 2The obligation set out in this article shall apply only to the extent that the information is in the possession of the bank the account. 3In addition to the requirements of Article 37, the requesting party shall, in the request: a state why it considers that the requested information is likely to be of substantial value for the purpose of the criminal investigation into the offence; bstate on what grounds it presumes that banks in the requested Party hold the account and specify, to the widest extent possible, which banks and/or accounts may be involved; and cinclude any additional information available which may facilitate the execution of the request. 4The requested Party may make the execution of such a request dependant on the same conditions as it applies in respect of requests for search and seizure. 5Each State or Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of , declare that this article applies only to the categories of offences specified in the list contained in the appendix to this Convention. 6Parties may extend this provision to accounts held in non-bank financial institutions. Such extension may be made subject to the principle of reciprocity. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Article 18 – Requests for information on banking transactions 1On request by another Party, the requested Party shall provide the particulars of specified bank accounts and of banking operations which have been carried out during a specified period through one or more accounts specified in the request, including the particulars of any sending or recipient account. 2The obligation set out in this Article shall apply only to the extent that the information is in the possession of the bank holding the account. 3In addition to the requirements of Article 37, the requesting Party shall in its request indicate why it considers the requested information relevant for the purpose of the criminal investigation into the offence. 4The requested Party may make the execution of such a request dependant on the same conditions as it applies in respect of requests for search and seizure. 5Parties may extend this provision to accounts held in non-bank financial institutions. Such extension may be made subject to the principle of reciprocity. Article 19 – Requests for the monitoring of banking transactions 1Each Party shall ensure that, at the request of another Party, it is able to monitor, during a specified period, the banking operations that are being carried out through one or more accounts specified in the request and communicate the results thereof to the requesting Party. 2In addition to the requirements of Article 37, the requesting Party shall in its request indicate why it considers the requested information relevant for the purpose of the criminal investigation into the offence. 3The decision to monitor shall be taken in each individual case by the competent authorities of the requested Party, with due regard for the national law of that Party. 4The practical details regarding the monitoring shall be agreed between the competent authorities of the requesting and requested Parties. 5Parties may extend this provision to accounts held in non-bank financial institutions. Article 20 – Spontaneous information Without prejudice to its own investigations or proceedings, a Party may without prior request forward to another Party information on instrumentalities and proceeds, when it considers that the disclosure of such information might assist the receiving Party in initiating or carrying out investigations or proceedings or might lead to a request by that Party under this chapter. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Section 3 – Provisional measures Article 21 – Obligation to take provisional measures 1At the request of another Party which has instituted criminal proceedings or proceedings for the purpose of confiscation, a Party shall take the necessary provisional measures, such as freezing or seizing, to prevent any dealing in, transfer or disposal of property which, at a later stage, may be the subject of a request for confiscation or which might be such as to satisfy the request. 2A Party which has received a request for confiscation pursuant to Article 23 shall, if so requested, take the measures mentioned in paragraph 1 of this article in respect of any property which is the subject of the request or which might be such as to satisfy the request. Article 22 – Execution of provisional measures 1After the execution of the provisional measures requested in conformity with paragraph 1 of Article 21, the requesting Party shall provide spontaneously and as soon as possible to the requested Party all information which may question or modify the extent of these measures. The requesting Party shall also provide without delays all complementary information requested by the requested Party and which is necessary for the implementation of and the follow up to the provisional measures. 2Before lifting any provisional measure taken pursuant to this article, the requested Party shall, wherever possible, give the requesting Party an opportunity to present its reasons in favour of continuing the measure. Section 4 – Confiscation Article 23 – Obligation to confiscate 1A Party, which has received a request made by another Party for confiscation concerning instrumentalities or proceeds, situated in its territory, shall: aenforce a confiscation order made by a court of a requesting Party in relation to such instrumentalities or proceeds; or bsubmit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, enforce it. 2For the purposes of applying paragraph 1.b of this article, any Party shall whenever necessary have competence to institute confiscation proceedings under its own law. 3The provisions of paragraph 1 of this article shall also apply to confiscation consisting in a requirement to pay a sum of money corresponding to the value of proceeds, if property on which the confiscation can be enforced is located in the requested Party. In such cases, when enforcing confiscation pursuant to paragraph 1, the requested Party shall, if payment is not obtained, realise the claim on any property available for that purpose. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 4If a request for confiscation concerns a specific item of property, the Parties may agree that the requested Party may enforce the confiscation in the form of a requirement to pay a sum of money corresponding to the value of the property. 5The Parties shall co-operate to the widest extent possible under their domestic law with those Parties which request the execution of measures equivalent to confiscation leading to the deprivation of property, which are not criminal sanctions, in so far as such measures are ordered by a judicial authority of the requesting Party in relation to a criminal offence, provided that it has been established that the property constitutes proceeds or other property in the meaning of Article 5 of this Convention. Article 24 – Execution of confiscation 1The procedures for obtaining and enforcing the confiscation under Article 23 shall be governed by the law of the requested Party.