sou · H0B312 · 2012-05-30 00:00:00 — 2The requested Party shall be bound by the findings as to the facts in so far as they are stated in a conviction or judicial decision of the requesting Party or in so far as such conviction or judicial decision is implicitly based on them. 3Each 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 2 of this article applies only subject to its constitutional principles and the basic concepts of its legal system. 4If the confiscation consists in the requirement to pay a sum of money, the competent authority of the requested Party shall convert the amount thereof into the currency of that Party at the rate of exchange ruling at the time when the decision to enforce the confiscation is taken. 5In the case of Article 23, paragraph 1.a, the requesting Party alone shall have the right to decide on any application for review of the confiscation order. Article 25 – Confiscated property 1Property confiscated by a Party pursuant to Articles 23 and 24 of this Convention, shall be disposed of by that Party in accordance with its domestic law and administrative procedures. 2When acting on the request made by another Party in accordance with Articles 23 and 24 of this Convention, Parties shall, to the extent permitted by domestic law and if so requested, give priority consideration to returning the confiscated property to the requesting Party so that it can give compensation to the victims of the crime or return such property to their legitimate owners. 3When acting on the request made by another Party in accordance with Articles 23 and 24 of this Convention, a Party may give special consideration to concluding agreements or arrangements on sharing with other Parties, on a regular or case-by-case basis, such property, in accordance with its domestic law or administrative procedures. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Article 26 – of enforcement and maximum amount of confiscation 1A request for confiscation made under Articles 23 and 24 does not affect the right of the requesting Party to enforce itself the confiscation order. 2Nothing in this Convention shall be so interpreted as to permit the total value of the confiscation to exceed the amount of the sum of money specified in the confiscation order. If a Party finds that this might occur, the Parties concerned shall enter into consultations to avoid such an effect. Article 27 – Imprisonment in default The requested Party shall not impose imprisonment in default or any other measure restricting the of a person as a result of a request under Article 23, if the requesting Party has so specified in the request. Section 5 – Refusal and postponement of co-operation Article 28 – Grounds for refusal 1Co-operation under this chapter may be refused if: a the action sought would be contrary to the fundamental principles of the legal system of the requested Party; or bthe execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of the requested Party; or cin the opinion of the requested Party, the importance of the case to which the request relates does not justify the taking of the action sought; or dthe offence to which the request relates is a fiscal offence, with the exception of the financing of terrorism; ethe offence to which the request relates is a political offence, with the exception of the financing of terrorism; or fthe requested Party considers that compliance with the action sought would be contrary to the principle of ne bis in idem; or gthe offence to which the request relates would not be an offence under the law of the requested Party if committed within its jurisdiction. However, this ground for refusal applies to co-operation under Section 2 only in so far as the assistance sought involves coercive action. Where dual criminality is required for co-operation under this chapter, that requirement shall be deemed to be satisfied regardless of whether both Parties place the offence within the same category of offences or denominate the offence by the same terminology, provided that both Parties criminalise the conduct underlying the offence. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 2Co-operation under Section 2, in so far as the assistance sought involves coercive action, and under Section 3 of this chapter, may also be refused if the measures sought could not be taken under the domestic law of the requested Party for the purposes of investigations or proceedings, had it been a similar domestic case. 3Where the law of the requested Party so requires, co-operation under Section 2, in so far as the assistance sought involves coercive action, and under Section 3 of this chapter may also be refused if the measures sought or any other measures having similar effects would not be permitted under the law of the requesting Party, or, as regards the competent authorities of the requesting Party, if the request is not authorised by either a judge or another judicial authority, including public prosecutors, any of these authorities acting in relation to criminal offences. 4Co-operation under Section 4 of this chapter may also be refused if: a under the law of the requested Party confiscation is not provided for in respect of the type of offence to which the request relates; or bwithout prejudice to the obligation pursuant to Article 23, paragraph 3, it would be contrary to the principles of the domestic law of the requested Party concerning the limits of confiscation in respect of the relationship between an offence and: ian economic advantage that might be qualified as its proceeds; or iiproperty that might be qualified as its instrumentalities; or cunder the law of the requested Party confiscation may no longer be imposed or enforced because of the lapse of time; or dwithout prejudice to Article 23, paragraph 5, the request does not relate to a previous conviction, or a decision of a judicial nature or a statement in such a decision that an offence or several offences have been committed, on the basis of which the confiscation has been ordered or is sought; or econfiscation is either not enforceable in the requesting Party, or it is still subject to ordinary means of appeal; or fthe request relates to a confiscation order resulting from a decision rendered in absentia of the person against whom the order was issued and, in the opinion of the requested Party, the proceedings conducted by the requesting Party leading to such decision did not satisfy the minimum rights of defence recognised as due to everyone against whom a criminal charge is made. 5For the purpose of paragraph 4.f of this article a decision is not considered to have been rendered in absentia if: a it has been confirmed or pronounced after opposition by the person concerned; or bit has been rendered on appeal, provided that the appeal was lodged by the person concerned. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 6When considering, for the purposes of paragraph 4.f of this article if the minimum rights of defence have been satisfied, the requested Party shall take into account the fact that the person concerned has deliberately sought to evade or the fact that that person, having had the possibility of lodging a legal remedy against the decision made in absentia, elected not to do so. The same will apply when the person concerned, having been duly served with the summons to appear, elected not to do so nor to ask for adjournment. 7A Party shall not invoke bank secrecy as a ground to refuse any co-operation under this chapter. Where its domestic law so requires, a Party may require that a request for co-operation which would involve the lifting of bank secrecy be authorised by either a judge or another judicial authority, including public prosecutors, any of these authorities acting in relation to criminal offences. 8Without prejudice to the ground for refusal provided for in paragraph 1.a of this article: a the fact that the person under investigation or subjected to a confiscation order by the authorities of the requesting Party is a legal person shall not be invoked by the requested Party as an obstacle to affording any co-operation under this chapter; bthe fact that the natural person against whom an order of confiscation of proceeds has been issued has died or the fact that a legal person against whom an order of confiscation of proceeds has been issued has subsequently been dissolved shall not be invoked as an obstacle to render assistance in accordance with Article 23, paragraph 1.a. cthe fact that the person under investigation or subjected to a confiscation order by the authorities of the requesting Party is mentioned in the request both as the author of the underlying criminal offence and of the offence of money laundering, in accordance with Article 9.2.b of this Convention, shall not be invoked by the requested Party as an obstacle to affording any co-operation under this chapter. Article 29 – Postponement The requested Party may postpone action on a request if such action would prejudice investigations or proceedings by its authorities. Article 30 – Partial or conditional granting of a request Before refusing or postponing co-operation under this chapter, the requested Party shall, where appropriate after having consulted the requesting Party, consider whether the request may be granted partially or subject to such conditions as it deems necessary. Section 6 – Notification and protection of third parties' rights Article 31 – Notification of documents 1The Parties shall afford each other the widest measure of mutual assistance in the serving of judicial documents to persons affected by provisional measures and confiscation. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 2Nothing in this article is intended to interfere with: a the possibility of sending judicial documents, by postal channels, directly to persons abroad; bthe possibility for judicial officers, officials or other competent authorities of the Party of origin to effect service of judicial documents directly through the consular authorities of that Party or through judicial officers, officials or other competent authorities of the Party of destination, unless the Party of destination makes a declaration to the contrary to the Secretary General of at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession. 3When serving judicial documents to persons abroad affected by provisional measures or confiscation orders issued in the sending Party, this Party shall indicate what legal remedies are available under its law to such persons. Article 32 – Recognition of foreign decisions 1When dealing with a request for co-operation under Sections 3 and 4, the requested Party shall recognise any judicial decision taken in the requesting Party regarding rights claimed by third parties. 2Recognition may be refused if: a third parties did not have adequate opportunity to assert their rights; or bthe decision is incompatible with a decision already taken in the requested Party on the same matter; or cit is incompatible with the ordre public of the requested Party; or dthe decision was taken contrary to provisions on exclusive jurisdiction provided for by the law of the requested Party. Section 7 – Procedural and other general rules Article 33 – Central authority 1The Parties shall designate a central authority or, if necessary, authorities, which shall be responsible for sending and answering requests made under this chapter, the execution of such requests or the transmission of them to the authorities competent for their execution. 2Each Party shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, communicate to the Secretary General of the names and addresses of the authorities designated in pursuance of paragraph 1 of this article. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Article 34 – Direct communication 1The central authorities shall communicate directly with one another. 2In the event of urgency, requests or communications under this chapter may be sent directly by the judicial authorities, including public prosecutors, of the requesting Party to such authorities of the requested Party. In such cases a copy shall be sent at the same time to the central authority of the requested Party through the central authority of the requesting Party. 3Any request or communication under paragraphs 1 and 2 of this article may be made through the (). 4Where a request is made pursuant to paragraph 2 of this article and the authority is not competent to deal with the request, it shall refer the request to the competent national authority and inform directly the requesting Party that it has done so. 5Requests or communications under Section 2 of this chapter, which do not involve coercive action, may be directly transmitted by the competent authorities of the requesting Party to the competent authorities of the requested Party. 6Draft requests or communications under this chapter may be sent directly by the judicial authorities of the requesting Party to such authorities of the requested Party prior to a formal request to ensure that it can be dealt with efficiently upon receipt and contains sufficient information and supporting documentation for it to meet the requirements of the legislation of the requested Party. Article 35 – Form of request and languages 1All requests under this chapter shall be made in writing. They may be transmitted electronically, or by any other means of telecommunication, provided that the requesting Party is prepared, upon request, to produce at any time a written record of such communication and the original. However each Party may, at any time, by a declaration addressed to the Secretary General of , indicate the conditions in which it is ready to accept and execute requests received electronically or by any other means of communication. 2Subject to the provisions of paragraph 3 of this article, translations of the requests or supporting documents shall not be required. 3At the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, any State or Community may communicate to the Secretary General of a declaration that it reserves the right to require that requests made to it and documents supporting such requests be accompanied by a translation into its own language or into one of the official languages of or into such one of these languages as it shall indicate. It may on that occasion declare its readiness to accept translations in any other language as it may specify. The other Parties may apply the reciprocity rule. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Article 36 – Legalisation Documents transmitted in application of this chapter shall be exempt from all legalisation formalities. Article 37 – Content of request 1Any request for co-operation under this chapter shall specify: a the authority making the request and the authority carrying out the investigations or proceedings; b the object of and the reason for the request; cthe matters, including the relevant facts (such as date, place and circumstances of the offence) to which the investigations or proceedings relate, except in the case of a request for notification; din so far as the co-operation involves coercive action: ithe text of the statutory provisions or, where this is not possible, a statement of the relevant law applicable; and iian indication that the measure sought or any other measures having similar effects could be taken in the territory of the requesting Party under its own law; ewhere necessary and in so far as possible: idetails of the person or persons concerned, including name, date and place of birth, nationality and location, and, in the case of a legal person, its seat; and iithe property in relation to which co-operation is sought, its location, its connection with the person or persons concerned, any connection with the offence, as well as any available information about other persons, interests in the property; and fany particular procedure the requesting Party wishes to be followed. 2A request for provisional measures under Section 3 in relation to seizure of property on which a confiscation order consisting in the requirement to pay a sum of money may be realised shall also indicate a maximum amount for which recovery is sought in that property. 3In addition to the indications mentioned in paragraph 1, any request under Section 4 shall contain: a in the case of Article 23, paragraph 1.a: CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 ia certified true copy of the confiscation order made by the court in the requesting Party and a statement of the grounds on the basis of which the order was made, if they are not indicated in the order itself; iian attestation by the competent authority of the requesting Party that the confiscation order is enforceable and not subject to ordinary means of appeal; iiiinformation as to the extent to which the enforcement of the order is requested; and ivinformation as to the necessity of taking any provisional measures; bin the case of Article 23, paragraph 1.b, a statement of the facts relied upon by the requesting Party sufficient to enable the requested Party to seek the order under its domestic law; cwhen third parties have had the opportunity to claim rights, documents demonstrating that this has been the case. Article 38 – Defective requests 1If a request does not comply with the provisions of this chapter or the information supplied is not sufficient to enable the requested Party to deal with the request, that Party may ask the requesting Party to amend the request or to complete it with additional information. 2The requested Party may set a time-limit for the receipt of such amendments or information. 3Pending receipt of the requested amendments or information in relation to a request under Section 4 of this chapter, the requested Party may take any of the measures referred to in Sections 2 or 3 of this chapter. Article 39 – Plurality of requests 1Where the requested Party receives more than one request under Sections 3 or 4 of this chapter in respect of the same person or property, the plurality of requests shall not prevent that Party from dealing with the requests involving the taking of provisional measures. 2In the case of plurality of requests under Section 4 of this chapter, the requested Party shall consider consulting the requesting Parties. Article 40 – Obligation to give reasons The requested Party shall give reasons for any decision to refuse, postpone or make conditional any co-operation under this chapter. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 Article 41 – Information 1 The requested Party shall promptly inform the requesting Party of: athe action initiated on a request under this chapter; bthe final result of the action carried out on the basis of the request; ca decision to refuse, postpone or make conditional, in whole or in part, any co-operation under this chapter; dany circumstances which render impossible the carrying out of the action sought or are likely to delay it significantly; and ein the event of provisional measures taken pursuant to a request under Sections 2 or 3 of this chapter, such provisions of its domestic law as would automatically lead to the lifting of the provisional measure. 2The requesting Party shall promptly inform the requested Party of: a any review, decision or any other fact by reason of which the confiscation order ceases to be or partially enforceable; and bany development, factual or legal, by reason of which any action under this chapter is no longer justified. 3Where a Party, on the basis of the same confiscation order, requests confiscation in more than one Party, it shall inform all Parties which are affected by an enforcement of the order about the request. Article 42 – Restriction of use 1The requested Party may make the execution of a request dependent on the condition that the information or evidence obtained will not, without its prior consent, be used or transmitted by the authorities of the requesting Party for investigations or proceedings other than those specified in the request. 2Each State or Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by declaration addressed to the Secretary General of , declare that, without its prior consent, information or evidence provided by it under this chapter may not be used or transmitted by the authorities of the requesting Party in investigations or proceedings other than those specified in the request. Article 43 – Confidentiality 1The requesting Party may require that the requested Party keep confidential the facts and substance of the request, except to the extent necessary to execute the request. If the requested Party cannot comply with the requirement of confidentiality, it shall promptly inform the requesting Party. CETS 198 – Laundering of the Proceeds from Crime and Financing of Terrorism, 16.V.2005 2The requesting Party shall, if not contrary to basic principles of its national law and if so requested, keep confidential any evidence and information provided by the requested Party, except to the extent that its disclosure is necessary for the investigations or proceedings described in the request. 3Subject to the provisions of its domestic law, a Party which has received spontaneous information under Article 20 shall comply with any requirement of confidentiality as required by the Party which supplies the information. If the other Party cannot comply with such requirement, it shall promptly inform the transmitting Party. Article 44 – Costs The ordinary costs of complying with a request shall be borne by the requested Party. Where costs of a substantial or extraordinary nature are necessary to comply with a request, the Parties shall consult in order to agree the conditions on which the request is to be executed and how the costs shall be borne. Article 45 – Damages 1When legal action on liability for damages resulting from an act or omission in relation to co-operation under this chapter has been initiated by a person, the Parties concerned shall consider consulting each other, where appropriate, to determine how to apportion any sum of damages due. 2A Party which has become subject of a litigation for damages shall endeavour to inform the other Party of such litigation if that Party might have an interest in the case. Chapter V – Co-operation between FIUs Article 46 – Co-operation between FIUs 1Parties shall ensure that FIUs, as defined in this Convention, shall cooperate for the purpose of combating money laundering, to assemble and analyse, or, if appropriate, investigate within the FIU relevant information on any fact which might be an indication of money laundering in accordance with their . 2For the purposes of paragraph 1, each Party shall ensure that FIUs exchange, spontaneously or on request and either in accordance with this Convention or in accordance with existing or future memoranda of understanding compatible with this Convention, any accessible information that may be relevant to the processing or analysis of information or, if appropriate, to investigation by the FIU regarding financial transactions related to money laundering and the natural or legal persons involved.