prop · H103121 · 2014-02-25 00:00:00 — aa power of representation of the legal person; or ban authority to take decisions on behalf of the legal person; or can 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. 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: a require 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 subparagraph 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. 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. 2013/14:121 Chapter IV – International co-operation Section 1 – Principles of international co-operation Article 15 – General principles and measures for international co-operation 1 The 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. 2 Each 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: a for 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; b for investigative assistance and provisional measures with a view to either form of confiscation referred to under a above. 3 Investigative 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. 4 Each 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. 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 confisca- 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; b state 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 c include 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. 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. The 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. The practical details regarding the monitoring shall be agreed between the competent authorities of the requesting and re- Parties may extend this provision to accounts held in non-bank 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. 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: a enforce a confiscation order made by a court of a requesting Party in relation to such instrumentalities or proceeds; or b submit 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. 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. 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. 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 b the execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of the requested Party; or c in 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 d the offence to which the request relates is a fiscal offence, with the exception of the financing of terrorism; e the offence to which the request relates is a political offence, with the exception of the financing of terrorism; or f the 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. 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 b it has been rendered on appeal, provided that the appeal was lodged by the person concerned. 6 When 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. 7 A 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 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; b the 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 confiscaltion 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. c the 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.