Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property
Date: 2005-02-24
Institutions: Council of the European Union
Subjects: approximation of laws, confiscation of property, fight against crime, organised crime

15.3.2005

EN

Official Journal of the European Union

L 68/49

COUNCIL FRAMEWORK DECISION 2005/212/JHA

of 24 February 2005

on Confiscation of Crime-Related Proceeds, Instrumentalities and Property

THE COUNCIL OF THE EUROPEAN UNION,

(5)

Having regard to the Treaty on European Union, and in
particular Articles 29, 31(1)(c) and 34(2)(b) thereof,

Having regard to the initiative of the Kingdom of Denmark (1),

Having regard to the opinion of the European Parliament,

Whereas:

(1)

(2)

(3)

(4)

The main motive for cross-border organised crime is
financial gain.
In order to be effective, therefore, any
attempt to prevent and combat such crime must focus
on tracing,
the
seizing
proceeds from crime. However, this is made difficult,
inter alia, as a result of differences between Member
States’ legislation in this area.

and confiscating

freezing,

In the conclusions of the Vienna European Council of
the European Council called for a
December 1998,
strengthening of EU efforts
international
to combat
organised crime in accordance with an action plan on
how best to implement the provisions of the Treaty of
Amsterdam in an area of freedom, security and justice (2).

Pursuant to paragraph 50(b) of the Vienna Action Plan,
within five years of the entry into force of the Treaty of
Amsterdam, national provisions governing seizures and
from crime must be
confiscation of
the proceeds
improved and approximated where necessary,
taking
account of the rights of third parties in bona fide.

the

conclusions of

Paragraph 51 of
the Tampere
European Council of 15 and 16 October 1999 stresses
that money laundering is at the very heart of organised
crime, and should be rooted out wherever it occurs and
that the European Council is determined to ensure that
concrete steps are taken to trace,
freeze, seize and
from crime. The European
confiscate the proceeds
for the approxi-
in paragraph 55,
Council also calls,
mation of criminal law and procedures on money laun-
dering (e.g. tracing, freezing and confiscating funds).

(6)

(7)

(8)

(9)

Pursuant
to Recommendation 19 in the 2000 action
plan entitled ‘The prevention and control of organised
crime: a European Union strategy for the beginning of
the new millennium’, which was approved by the
Council on 27 March 2000 (3), an examination should
be made of the possible need for an instrument which,
taking into account best practice in the Member States
and with due respect for fundamental
legal principles,
introduces the possibility of mitigating, under criminal,
civil or fiscal
the onus of proof
regarding the
assets held by a person
convicted of an offence related to organised crime.

law, as appropriate,
source of

Pursuant to Article 12, on confiscation and seizure, of
the UN Convention of 12 December 2000 against Trans-
national Organised Crime, States Parties may consider the
possibility of requiring that an offender demonstrate the
lawful origin of alleged proceeds of crime or other
property liable to confiscation, to the extent that such
a requirement is consistent with the principles of their
domestic law and with the nature of judicial proceedings.

All Member States have ratified the Council of Europe
Convention of 8 November 1990 on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime.
Some Member States have submitted declarations with
regard to Article 2 of the Convention concerning confis-
cation so as to be obliged to confiscate proceeds only
from a number of specified offences.

and the proceeds

The Council Framework Decision 2001/500/JHA (4) lays
down provisions on money laundering, the identification,
tracing, freezing, seizing and confiscation of instrumen-
that
talities
Framework Decision, Member States are also obliged
not to make or uphold reservations in respect of the
the Council of Europe Convention
provisions of
is
as
concerning confiscation,
punishable by deprivation of
liberty or a detention
order for a maximum of more than one year.

from crime. Under

the offence

insofar

in this area have not

The existing instruments
to
a sufficient extent achieved effective cross-border co-
operation with regard to confiscation as there are still a
number of Member States which are unable to confiscate
the proceeds from all offences punishable by deprivation
of liberty for more than one year.

(1) OJ C 184, 2.8.2002, p. 3.
(2) OJ C 19, 23.1.1999, p. 1.

(3) OJ C 124, 3.5.2000, p. 1.
(4) OJ L 182, 5.7.2001, p. 1.

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Official Journal of the European Union

15.3.2005

(10)

(11)

The aim of this Framework Decision is to ensure that all
Member States have effective rules governing the confis-
inter alia, in relation to
cation of proceeds from crime,
the onus of proof regarding the source of assets held by
a person convicted of an offence related to organised
crime. This Decision is
linked to a Danish draft
Framework Decision on the mutual recognition within
the European Union of decisions concerning the confis-
cation of proceeds from crime and asset-sharing, which is
being submitted at the same time.

This Framework Decision does not prevent a Member
State from applying its fundamental principles relating
the presumption of
to due process,
innocence, property rights,
association,
freedom of
the press and freedom of expression in
other media,

in particular

freedom of

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

For the purposes of this Framework Decision:

— ‘proceeds’ means any economic advantage from criminal
It may consist of any form of property as

offences.
defined in the following indent,

— ‘property’

includes property of any description, whether
corporeal or incorporeal, movable or immovable, and legal
documents or instruments evidencing title to or interest in
such property,

— ‘instrumentalities’ means any property used or intended to
in any manner, wholly or in part, to commit a

be used,
criminal offence or criminal offences,

— ‘confiscation’ means a penalty or measure, ordered by a
in relation to a criminal
court
offence or criminal offences, resulting in the final depri-
vation of property,

following proceedings

Article 2

Confiscation

1.
Each Member State shall take the necessary measures to
enable it to confiscate, either wholly or in part, instrumentalities
and proceeds from criminal offences punishable by deprivation
of liberty for more than one year, or property the value of
which corresponds to such proceeds.

2.
In relation to tax offences, Member States may use
procedures other than criminal procedures to deprive the perpe-
trator of the proceeds of the offence.

Article 3

Extended powers of confiscation

the
Each Member State shall as a minimum adopt
1.
necessary measures
the circumstances
to enable it, under
referred to in paragraph 2, to confiscate, either wholly or in
part, property belonging to a person convicted of an offence

(a) committed within the framework of a criminal organisation
as defined in Joint Action 98/733/JHA of 21 December
1998 on making it a criminal offence to participate in a
criminal organisation in the Member States of the European
Union (1), when the offence is covered by:

— Council Framework Decision 2000/383/JHA of 29 May
2000 on increasing protection by criminal penalties and
other sanctions against counterfeiting in connection
with the introduction of the euro (2),

— Council Framework Decision 2001/500/JHA of 26 June
2001 on money laundering, the identification, tracing,
instrumentalities
freezing, seizing and confiscation of
and the proceeds of crime (3),

— Council Framework Decision 2002/629/JHA of 19 July
2002 on combating trafficking in human beings (4),

— Council Framework Decision 2002/946/JHA of 28
the penal
November 2002 on the strengthening of
framework to prevent the facilitation of unauthorised
entry, transit and residence (5),

— Council

Framework Decision 2004/68/JHA of 22
December 2003 on combating the sexual exploitation
of children and child pornography (6),

— ‘legal person’ means any entity having such status under the
applicable national
law, except for States or other public
bodies in the exercise of State authority and for public
international organisations.

(1) OJ L 351, 29.12.1998, p. 1.
(2) OJ L 140, 14.6.2000, p. 1.
(3) OJ L 182, 5.7.2001, p. 1.
(4) OJ L 203, 1.8.2002, p. 1.
(5) OJ L 328, 5.12.2002, p. 1.
(6) OJ L 13, 20.1.2004, p. 44.

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L 68/51

— Council Framework Decision 2004/757/JHA of 25
October 2004 laying down minimum provisions on
the constituent elements of criminal acts and penalties
in the field of illicit drug trafficking (1),

either alone or in conjunction with his closest relations — has a
controlling influence. The same shall apply if
the person
the legal person’s
concerned receives a significant part of
income.

(b) which is covered by the Council Framework Decision
2002/475/JHA of 13 June 2002 on combating terrorism (2),

4. Member States may use procedures other than criminal
procedures
the property in
question.

to deprive the perpetrator of

provided that
Decisions referred to above

the offence according to the Framework

— regarding offences other than money laundering are
punishable with criminal penalties of a maximum of
at least between 5 and 10 years of imprisonment,

Article 4

Legal remedies

Each Member State shall take the necessary measures to ensure
that interested parties affected by measures under Articles 2 and
3 have effective legal remedies in order to preserve their rights.

Article 5

Safeguards

This Framework Decision shall not have the effect of altering
the obligation to respect fundamental rights and fundamental
principles, including in particular the presumption of innocence,
as enshrined in Article 6 of the Treaty on European Union.

Article 6

Implementation

1. Member States shall adopt
comply with this Framework Decision by 15 March 2007.

the necessary measures to

2. Member States shall transmit to the General Secretariat of
the Council and to the Commission, by 15 March 2007, the
text of the provisions transposing into their national
law the
obligations imposed on them under this Framework Decision.
In accordance with a report established on the basis of this
information and a written report from the Commission, the
Council shall assess, by 15 June 2007, the extent to which
Member States have taken the necessary measures in order to
comply with this Framework Decision.

Article 7

Entry into force

This Framework Decision shall enter into force on the day of its
publication in the Official Journal of the European Union.

Done at Brussels, 24 February 2005.

For the Council
The President

N. SCHMIT

— regarding money

are punishable with
criminal penalties of a maximum of at least 4 years of
imprisonment,

laundering,

and the offence is of such a nature that it can generate
financial gain.

Each Member State shall take the necessary measures to

2.
enable confiscation under this Article at least:

(a) where a national court based on specific facts is fully
convinced that the property in question has been derived
from criminal activities of the convicted person during a
period prior to conviction for the offence referred to in
paragraph 1 which is deemed reasonable by the court in
the circumstances of the particular case, or, alternatively,

(b) where a national court based on specific facts is fully
convinced that the property in question has been derived
the convicted person
from similar criminal activities of
during a period prior
the offence
referred to in paragraph 1 which is deemed reasonable by
the court in the circumstances of the particular case, or,
alternatively,

to conviction for

(c) where it is established that the value of the property is
disproportionate to the lawful
the convicted
person and a national court based on specific facts is fully
convinced that the property in question has been derived
from the criminal activity of that convicted person.

income of

Each Member State may also consider adopting the
3.
in accordance
necessary measures to enable it to confiscate,
with the conditions set out
in paragraphs 1 and 2, either
wholly or in part, property acquired by the closest relations
of the person concerned and property transferred to a legal
person in respect of which the person concerned — acting

(1) OJ L 335, 11.11.2004, p. 8.
(2) OJ L 164, 22.6.2002, p. 3.