Communication from the Ministry of Foreign Affairs No 33 / 1997 Coll.
Communication from the Ministry of Foreign Affairs on the negotiation of the Convention on Laundering, Search, Detention and Confiscation of Crime Proceeds
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International Treaty
Effective from 01.03.1997
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06.03.1997
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33
COMMUNICATION
Ministry of Foreign Affairs
The Ministry of Foreign Affairs states that on 8 November 1990 the Convention on Laundering, Search, Detention and Confiscation of Crime Proceeds was adopted in Strasbourg.
On behalf of the Czech Republic, the Convention was signed in Strasbourg on 18 December 1995.
The Parliament of the Czech Republic has given its assent to the Convention and has ratified it. The instruments of ratification of the Czech Republic were deposited with the Secretary-General of the Council of Europe, the depositary of the Convention, on 19 November 1996.
The following declaration was made when the Convention was ratified:
"The central authorities within the meaning of Article 23 (1) of the Convention shall be:
- in the case of criminal proceedings, the Supreme Prosecutor of the Czech Republic in the proceedings before the prosecution and the Ministry of Justice of the Czech Republic in the proceedings after the prosecution,
- in other cases, the Ministry of Finance of the Czech Republic. "
The Convention entered into force on 1 September 1993 pursuant to Article 36 (3) thereof. It entered into force on 1 March 1997 for the Czech Republic pursuant to paragraph 4 of that Article.
The Czech translation of the Convention is being announced simultaneously.
CONVENTION
on laundering, searching, detaining and confiscating proceeds from crime
Preamble
The Member States of the Council of Europe and the other signatories to this Convention, as the objective of the Council of Europe is to implement closer unity between its members,
convinced of the need to pursue a common criminal policy aimed at protecting society,
Whereas the fight against serious crime, which is an increasingly international problem, requires the use of modern and effective methods at international level,
Believing that one of these methods is that the offender is deprived of the proceeds of crimes,
Whereas, in order to achieve this objective, a satisfactory system of international cooperation must also be established,
agree on the following:
CHAPTER I
TERMINOLOGY
Terminology
For the purposes of this Convention:
a. The term "yield" refers to all economic benefits derived from criminal offences. This advantage may consist of all assets as defined in point b. of this Article,
a.
b.
d. The term "confiscation" refers to a sentence or measure ordered by a court following proceedings involving one or more offences and leading to the permanent withdrawal of property;
e. The term "criminal offence in question" refers to any offence resulting in the proceeds which could be the subject of criminal activity pursuant to Article 6 of this Convention.
CHAPTER II
MEASURES TO BE TAKEN AT NATIONAL LEVEL
Confiscation measures
1. Each Party shall take the legislative and other measures necessary to allow the confiscation of funds and income or property the value of which corresponds to those revenues.
2. Each Party may declare, upon signature or deposit of its instrument of ratification, acceptance, approval or accession by a declaration addressed to the Secretary-General of the Council of Europe, that paragraph 1 of this Article applies only to the offences or categories of offences specified in the declaration.
Investigation and interim measures
Each Party shall take legislative and other measures that prove necessary to enable it to identify and seek property subject to confiscation pursuant to Article 2 (1) and to prevent any trade in, transfer or use of such property.
Special investigative powers and techniques
1. Each Party shall take the legislative and other measures necessary to authorise courts or other competent authorities to order the disclosure or seizure of bank, financial or commercial records in order to implement the measures referred to in Articles 2 and 3. The Party shall not be able to rely on banking secrecy in order to refuse to implement the provisions of this Article.
2. Each Party shall consider the adoption of legislative and other measures which will be necessary to enable it to use special investigative techniques to facilitate the identification and search for revenue and to collect evidence related thereto. Such techniques may include orders for the supervision of bank accounts, observations, the capture of telecommunications communications, access to computer systems and orders for the submission of certain documents.
Legal remedies
Each Party shall take the legislative and other measures necessary to give interested parties subject to the measures referred to in Articles 2 and 3 effective legal remedies to protect their rights.
Offences of laundering the proceeds of crime
1. Each Party shall take the legislative and other measures necessary to designate the conduct as a criminal offence in accordance with its national law, where the act has been committed intentionally, in the following cases:
a. Transformation or transfer of property known to the perpetrator to constitute a return in order to conceal or conceal the illegal origin of the property or to assist any person involved in the commission of the offence in question in order to escape the legal consequences of his actions;
a.
and subject to the constitutional principles and fundamental concepts of the Party's legal system:
c. Acquisition, possession or use of assets of which the transferee knows, holds or uses it, at the time he receives it, that he generates revenue;
d. participation in any of the offences identified in accordance with this Article, as well as associations, associations, attempts, instructions, facilitation and advice in relation to such offences.
2. For the purpose of applying or applying paragraph 1 of this Article:
a. It does not matter whether or not the offence in question is the criminal jurisdiction of the Party;
b. Provision may be made that the offences referred to in this paragraph do not apply to the perpetrator of the crime in question;
b.
3. Each Party may take measures which, under its national law, it considers necessary for the identification of a criminal character also of all or some of the acts referred to in paragraph 1 in any or all of the following cases where the offender:
a. Supposed to assume that the property forms a yield;
b. acted to achieve profit;
c. acted to assist in the continuation of further criminal activity.
4. Each Party may declare, upon signature or deposit of its instrument of ratification, acceptance, approval or accession by a declaration addressed to the Secretary-General of the Council of Europe, that paragraph 1 of this Article applies only to the offences concerned or to the category of offences specified therein.
CHAPTER III
INTERNATIONAL COOPERATION
Principles of international cooperation
General principles and measures for international cooperation
1. The Parties shall cooperate as widely as possible with a view to investigations and proceedings aimed at confiscating funds and revenues.
2. Each Party shall take the legislative and other measures necessary to enable it to comply with requests under the conditions set out in this Chapter:
a. the confiscation of certain items of property consisting of income and funds, as well as the confiscation of proceeds consisting of the requirement to pay a monetary amount equivalent to the value of the proceeds;
a.
Mutual assistance for investigation
Obligation to assist
The Parties shall, upon request, provide each other with the widest possible mutual assistance to identify and trace funds, revenues and other property subject to confiscation. Such mutual assistance shall consist in particular of all measures relating to the acquisition and protection of evidence relating to the existence, location or movement of the abovementioned property, nature, legal status or value.
Implementation of mutual assistance
The mutual assistance referred to in Article 8 shall be carried out in accordance with and according to the national law of the requested Party; in accordance with the procedure specified in the application, only to the extent compatible with this national law.
Direct transmission of information
Without prejudice to its own investigations or proceedings, one Party may, without prior request, forward to another Party information on funds and revenues if it considers that communication of such information could help the receiving Party to initiate or successfully conduct investigations or proceedings or could lead to a request from that Party under this Chapter.
Provisional measures
Obligation to adopt provisional measures
1. One Party shall, at the request of another Party which has initiated criminal proceedings or confiscation proceedings, take the provisional measures necessary, such as detention or confiscation, to prevent all transactions involving property which could subsequently be the subject of an application for confiscation or which would allow such an application to be granted.
2. A Party which has received an application for confiscation in accordance with Article 13 and has been requested to do so shall take the measures referred to in paragraph 1 of this Article in respect of any property which is the subject of an application or which would allow such an application to be granted.
Implementation of provisional measures
1. Provisional measures referred to in Article 11 shall be implemented in accordance with the national law of the requested Party, in accordance with the procedures specified in the request, in so far as they comply with that national law.
2. Prior to the withdrawal of any provisional measure taken in accordance with this Article, the requested Party shall allow the requesting Party to state its reasons for continuing the measure.
Confiscation
Obligation to confiscate
1. A Party which has received from another Party an application for confiscation concerning funds or proceeds situated within its territory:
a. Executes a confiscation decision issued by the court of the requesting Party in respect of such funds or revenues; or
a.
2. In order to apply paragraph 1 (b) of this Article, each Party shall have the power, where necessary, to initiate confiscation proceedings under its national law.
3. The provisions of paragraph 1 of this Article shall also apply to confiscation involving the payment of a monetary amount corresponding to the value of the proceeds where the property which may be subject to confiscation is situated in the territory of the requested Party. In such a case, the requested Party, when, as a result of the non-payment, it accedes to confiscation pursuant to paragraph 1, shall recover to that end its claim on any property available.
4. If the request for confiscation concerns a particular part of the property, the parties may agree that the requested party may proceed to confiscation by means of a request for payment of the amount of money corresponding to the value of the property.
Execution of confiscation
1. The procedures allowing for a confiscation decision and its implementation pursuant to Article 13 shall be governed by the law of the requested Party.
2. The requested Party shall be bound by factual findings to the extent that they are expressed in, or based on, the conviction or judicial decision of the requesting Party.
3. Each Party, when signing or depositing its instruments of ratification, acceptance, approval or accession, may declare by a declaration addressed to the Secretary-General of the Council of Europe that paragraph 2 of this Article shall be implemented only in accordance with its constitutional principles and the fundamental concepts of its legal system.
4. If the confiscation consists in the obligation to pay the amount of money, the competent authority of the requested party shall transfer its amount to the currency of its country at the rate applicable at the time when the decision to make the confiscation is taken.
5. In the case referred to in Article 13 (1), only the requesting party shall have the right to decide on any request for review of the confiscation decision.
Confiscated assets
The requested Party shall dispose of all assets it has confiscated under its national law, unless otherwise agreed by the parties concerned.
Right of enforcement and maximum confiscation
1. The request for confiscation made in accordance with Article 13 shall be without prejudice to the right of the requesting party to implement the decision itself.
2. No provision in this Convention may be interpreted in such a way as to allow the total value of the confiscated property to be greater than the amount fixed by the confiscation decision. If one party finds that this could happen, the parties concerned shall proceed to consultations in order to avoid similar consequences.
Imprisonment for non-compliance
The requested Party may not imprison a person for non-compliance or impose any other measure restricting freedom on the basis of a request submitted in accordance with Article 13 if the requesting Party so indicated in the request.
Refusal and postponement of cooperation
Reasons for refusal
1. Cooperation under this Chapter may be refused where:
a. The requested procedure would be contrary to the fundamental principles of the law of the requested Party; or
b. The execution of an application could jeopardise the sovereignty, security, public policy or other essential interests of the requested Party; or
c. The requested Party considers that the seriousness of the case covered by the request does not justify the execution of the requested procedure; or
d. the offence to which the application relates is a political or fiscal offence; or
e. the requested Party considers that the requested procedure would be against the principle of no bis in idem; or
f. the offence covered by the request would not be a criminal offence under the law of the requested Party if it were committed in the territory within its jurisdiction. However, that ground of refusal shall apply to the cooperation referred to in Part 2 only to the extent that the mutual assistance requested includes enforcement measures.
2. Cooperation under Part 2, where it involves enforcement measures as requested, as well as cooperation under Part 3 of this Chapter, may also be refused where the requested measures could not be taken under the national law of the requested Party for the purposes of investigations or proceedings in the event of a similar national case.
3. Where the legal order of the requested Party so requires, the cooperation referred to in Part 2 to the extent that the requested assistance involves enforcement measures, as well as cooperation under Part 3 of this Chapter may also be refused where the measures under consideration or any other measures having analogous effects are not authorised by the law of the requesting Party, or where the request is not verified by a judge or other judicial authority, including a public action authority in criminal proceedings.
4. Cooperation referred to in Part 4 of this Chapter may also be refused if:
a. The law of the requested Party does not include the possibility of confiscation for the type of offence to which the request relates; or
b. Without prejudice to the obligations arising from Article 13 (3), cooperation would be against the principles of the requested Party's national law as regards restrictions on confiscation in relation to links between criminal offences and:
i. an economic advantage that could be considered as a return; or
i. property that could be considered as its means; or
c. Confiscation may no longer be imposed or carried out under the law of the requested Party on grounds of limitation; or
d. the application does not relate to a prior conviction or to a decision of a judicial nature, or to a declaration contained in a decision under which one or more offences have been committed and on the basis of which they have been ordered, or confiscation is required; or
e. either confiscation is not enforceable in the requesting party or proper remedies may still be applied; or
f. the application shall cover confiscation based on a decision given in the absence of the person against whom the decision has been given and where, in the view of the requested party, the requesting party which led to the decision did not comply with the minimum rights of defence conferred on each person against whom the prosecution is brought.
5. For the purposes of paragraph 4 of this Article, a decision shall not be deemed to have been issued in the absence of:
a. If confirmed or declared after the opposition has been lodged, or
b. Issued on the basis of an appeal, provided that the appeal was lodged by the person concerned.
6. The requested Party shall, for the purposes of paragraph 4 of this Article, consider whether the minimum rights of defence have been respected, whether the person concerned intentionally sought to evade justice or whether, after having been able to appeal against a decision given in his absence, the person concerned has chosen not to bring it.
7. A Party may not rely on banking secrecy to justify a refusal of cooperation under this Chapter. A Party may require that a request for cooperation involving the withdrawal of banking secrets be verified either by a judge or by another judicial authority, including a public action authority, in criminal proceedings where its legal order so requires.
8. Without prejudice to the grounds for refusal referred to in paragraph 1 a. of this Article:
a. The requested Party may not invoke as an obstacle to the provision of assistance under this Chapter the fact that the person subject to an investigation or a confiscation decision is a legal person,
a.
Delay
The requested Party may postpone the implementation of the measures referred to in the request if such measures could be detrimental to the proceedings carried out by its authorities.
Partial or conditional compliance
The requested Party shall examine, if appropriate after consultation with the requesting Party, whether it can comply with the request in part or under the conditions it deems necessary, before refusing or suspending cooperation in accordance with this Chapter.
Notification and protection of third-party rights
Notification of the content of documents
1. The Parties shall provide each other with the widest possible mutual assistance as regards the service of judicial documents to persons subject to provisional and confiscation measures.
2. Nothing in this Article shall prevent:
a. the possibility of sending judicial documents directly to persons abroad;
b. Possibility given to judicial officials, civil servants or other competent authorities of the Party of origin to carry out the service or notification of judicial documents directly through the consular authorities of that Party or through judicial officials, civil servants or other competent authorities of the Party of destination;
unless the Party of destination makes a contrary declaration to the Secretary-General of the Council of Europe when signing or depositing its instrument of ratification, acceptance, approval or accession.
3. Upon delivery of judicial documents abroad to persons subject to interim measures or confiscation decisions ordered in the Party of departure, that Party shall inform the persons concerned of the remedies which exist under its law.
Recognition of foreign decisions
1. Upon receipt of a request for cooperation in accordance with the provisions of Parts 3 and 4, the requested Party shall recognise any judicial decision taken in the requesting Party as regards the rights invoked by third parties.
2. Recognition may be refused:
a. If third parties did not have sufficient opportunity to exercise their rights, or
a.
c. If not compatible with public policy in the requested Party; or
d. where the decision has been given in contravention of the exclusive jurisdiction laid down in the law of the requested Party.
Procedures and other general rules
Central authority
1. The Parties shall provide for the central authority or, where necessary, several authorities responsible for sending, answering, handling or transmitting requests submitted in accordance with this Chapter to the authorities competent to deal with them.
2. Each Party shall communicate to the Secretary-General of the Council of Europe, when signing or storing its instrument of ratification, acceptance, approval or accession, the name and address of the designated authorities in accordance with paragraph 1 of this Article.
Direct contact
1. The central authorities meet each other directly.
2. In urgent cases, requests and communications provided for in this Chapter may be sent directly by the judicial authorities, including the public action authorities of the requesting Party to the competent authorities of the requested Party. In that case, at the same time, one copy shall be sent to the central authority of the requested Party via the central authority of the requesting Party.
3. Any request or communication formulated pursuant to paragraphs 1 and 2 of this Article may be submitted through the International Criminal Police Organisation (Interpol).
4. Where a request pursuant to paragraph 2 of this Article is submitted and if the authority which received it is not competent to execute it, it shall forward it to the competent authority of its country and shall directly inform the requesting party thereof.
5. Requests or communications submitted under Part 2 of this Chapter which do not include enforcement measures may be transmitted directly by the competent authority of the requesting Party to the competent authority of the requested Party.
Form of applications and languages
1. All applications under this Chapter shall be made in writing. It is permitted to use modern telecommunication devices such as telefax.
2. Subject to paragraph 3 of this Article, no translation of applications or Annexes shall be required.
3. Each Party may, upon signature or deposit of its instrument of ratification, acceptance, approval or accession by a declaration addressed to the Secretary-General of the Council of Europe, reserve the right to require that applications and annexes be accompanied by a translation into its language or one of the official languages of the Council of Europe or a language to be designated by it. Other parties may apply the principle of reciprocity.
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Regulation Information
| Citation | Communication from the Ministry of Foreign Affairs No. 33 / 1997 Coll., on the negotiation of the Convention on Laundering, Search, Detention and Confiscation of Crime Proceeds |
|---|---|
| Regulation Type | International Treaty |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.03.1997 |
|---|---|
| Effective from | 01.03.1997 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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