(ETS no. 198)
Warsaw, 16.V.2005
Preamble
The member States of the Council of Europe and the other Signatories hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity between its
members;
Convinced of the need to pursue a common criminal policy aimed at the protection of
society;
Considering that the fight against serious crime, which has become an increasingly
international problem, calls for the use of modern and effective methods on an
international scale;
Believing that one of these methods consists in depriving criminals of the proceeds from
crime and instrumentalities;
Considering that for the attainment of this aim a well‑functioning system of international
co-operation also must be established;
Bearing in mind the Council of Europe Convention on Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime (ETS No. 141 ? hereinafter referred to
as "the 1990 Convention");
Recalling also Resolution 1373(2001) on threats to international peace and security
caused by terrorist acts adopted by the Security Council of the United Nations
on 28 September 2001, and particularly its paragraph 3.d;
Recalling the International Convention for the Suppression of the Financing of Terrorism,
adopted by the General Assembly of the United Nations on 9 December 1999 and
particularly its Articles 2 and 4, which oblige States Parties to establish the
financing of terrorism as a criminal offence;
Convinced of the necessity to take immediate steps to ratify and to implement fully the International
Convention for the Suppression of the Financing of Terrorism, cited above,
Have agreed as follows:
Chapter I – Use of terms
Article 1 – Use of terms
For the purposes of this Convention:
a "proceeds" means any economic advantage, derived from or obtained, directly or indirectly,
from criminal offences. It may consist of any property as defined in sub‑paragraph b
of this article;
b "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;
c "instrumentalities" means any property used or intended to be used, in any manner, wholly or in
part, to commit a criminal offence or criminal offences;
d "confiscation" means a penalty or a measure, ordered by a court following proceedings in
relation to a criminal offence or criminal offences resulting in the final
deprivation of property;
e "predicate offence" means any criminal offence as a result of which proceeds were
generated that may become the subject of an offence as defined in
Article 9 of this Convention.
f "financial intelligence unit" (hereinafter referred to as "FIU") means a central, national
agency responsible for receiving (and, as permitted, requesting), analysing and
disseminating to the competent authorities, disclosures of financial
information
i concerning suspected proceeds and potential financing of terrorism, or
ii required by national legislation or regulation,
in order to combat money laundering and financing of terrorism;
g "freezing" or "seizure" means temporarily
prohibiting the transfer, destruction, conversion, disposition or movement of
property or temporarily assuming custody or control of property on the basis of
an order issued by a court or other competent authority;
h "financing of terrorism" means the acts set out in Article 2 of the International
Convention for the Suppression of the Financing of Terrorism, cited above.
Chapter II – Financing of terrorism
Article 2 – Application of the Convention to the financing of terrorism
1 Each Party shall adopt such legislative
and other measures as may be necessary to enable it to apply the provisions
contained in Chapters III, IV and V of this Convention to the financing of
terrorism.
2 In particular, each Party shall ensure
that it is able to search, trace, identify, freeze, seize and confiscate
property, of a licit or illicit origin, used or allocated to be used by any
means, in whole or in part, for the financing of terrorism, or the proceeds of
this offence, and to provide co-operation to this end to the widest possible
extent.
Chapter III – Measures to be taken at national level
Section 1 – General provisions
Article 3 – Confiscation measures
1 Each Party shall adopt such legislative
and other measures as may be necessary to enable it to confiscate
instrumentalities and proceeds or property the value of which corresponds to
such proceeds and laundered property.
2 Provided that paragraph 1 of this article applies to
money laundering and to the categories of offences in the appendix to the
Convention, each Party 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 the Council of Europe,
declare that paragraph 1 of this article applies
a only in so far as the offence is
punishable by deprivation of liberty or a detention order for a maximum of more
than one year. 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
b only to a list of specified offences.
3 Parties 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.
4 Each 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.
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:
a the property into which the proceeds have
been transformed or converted;
b property 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;
c income 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 manner 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
1 Each 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.
2 Without prejudice to paragraph 1, each Party shall adopt such legislative and other
measures as may be necessary to enable it to:
a determine 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;
b obtain 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;
c monitor, during a specified period, the
banking operations that are being carried out through one or more identified
accounts; and,
d ensure 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.
3 Each 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
1 Each Party shall adopt such legislative
and other measures as may be necessary to establish as offences under its
domestic law, when committed intentionally:
a the 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;
b the 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;
c the acquisition, possession or use of
property, knowing, at the time of receipt, that such property was proceeds;
d participation 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.
2 For 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;
b it may be provided that the offences set
forth in that paragraph do not apply to the persons who committed the predicate
offence;
c knowledge, intent or purpose required as
an element of an offence set forth in that paragraph may be inferred from
objective, factual circumstances.
3 Each 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.
4 Provided that paragraph 1 of this article
applies to the categories of predicate offences in the appendix to the
Convention, each State or the European 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 the Council
of Europe, declare that paragraph 1 of this article applies:
a only in so far as the predicate offence
is punishable by deprivation of liberty 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 liberty or a detention order for a minimum of more than six
months; and/or
b only to a list of specified predicate offences; and/or
c to a category of serious offences in the national law of the Party.
5 Each Party shall ensure that a prior or simultaneous
conviction for the predicate offence is not a prerequisite for a conviction for
money laundering.
6 Each 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.
7 Each 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.
Article 10 – Corporate liability
1 Each 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.
2 Apart 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.
3 Liability 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.
4 Each 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)
1 Each Party shall adopt such legislative and other measures as may be necessary to establish an
FIU as defined in this Convention.
2 Each 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
1 Each 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).
2 In 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:
i identify and verify the identity of
their customers 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;
ii report suspicions on money laundering
subject to safeguard;
iii take supporting measures, such as record
keeping on customer identification and transactions, training of personnel and
the establishment of internal policies and procedures, and if appropriate,
adapted to their size and nature of business;
b prohibit, 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;
c ensure 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.
3 In 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.
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 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
1 Each 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.
2 The obligation set out in this article shall apply only to the extent that the
information is in the possession of the bank keeping the account.
3 In 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.
4 The 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.
5 Each State or the European 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 the Council of Europe,
declare that this article applies only to the categories of offences specified
in the list contained in the appendix to this Convention.
6 Parties 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
1 On 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.
2 The 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.
3 In 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.
4 The 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.
5 Parties 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
1 Each 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.
2 In 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.
3 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.
4 The practical details regarding the monitoring shall be agreed between the
competent authorities of the requesting and requested Parties.
5 Parties 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.
Section 3 – Provisional measures
Article 21 – Obligation to take provisional measures
1 At 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.
2 A 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
1 After 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.
2 Before 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
1 A 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.
2 For 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.
3 The 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.
4 If 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.
5,The 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
1 The procedures for obtaining and
enforcing the confiscation under Article 23 shall be governed by the law
of the requested Party.
2 The 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.
3 Each State or the European 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 the Council of Europe, declare that paragraph 2 of this article
applies only subject to its constitutional principles and the basic concepts of
its legal system.
4 If 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.
5 In 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
1 Property 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.
2 When 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.
3 When 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 – Right of enforcement and maximum amount of confiscation
1 A request for confiscation made under
Articles 23 and 24 does not affect the right of the requesting Party to
enforce itself the confiscation order.
2 Nothing 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 liberty 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
1 Co-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
g the 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.
2 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 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.
3 Where 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.
4 Co-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
b without 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:
i an economic advantage that might be
qualified as its proceeds; or
ii property that might be qualified as its
instrumentalities; or
c under the law of the requested Party
confiscation may no longer be imposed or enforced because of the lapse of time;
or
d without 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
e confiscation is either not enforceable in
the requesting Party, or it is still subject to ordinary means of appeal; or
f the 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.
5 For 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 justice 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 offences.
8 Without 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 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;
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.
Section 6 – Notification and protection of third parties' rights
Article 31 – Notification of documents
1 The 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.
2 Nothing in this article is intended to
interfere with:
a the possibility of sending judicial
documents, by postal channels, directly to persons abroad;
b the 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 the Council of Europe at the time of signature or when depositing
its instrument of ratification, acceptance, approval or accession.
3 When 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
1 When 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.
2 Recognition may be refused if:
a third parties did not have adequate
opportunity to assert their rights; or
b the decision is incompatible with a
decision already taken in the requested Party on the same matter; or
c it is incompatible with the ordre public
of the requested Party; or
d the 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
1 The 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.
2 Each 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 Council of
Europe the names and addresses of the authorities designated in pursuance of
paragraph 1 of this article.
Article 34 – Direct communication
1 The central authorities shall communicate
directly with one another.
2 In 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.
3 Any request or communication under
paragraphs 1 and 2 of this article may be made through the
International Criminal Police Organisation (Interpol).
4 Where 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.
5 Requests 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.
6 Draft 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
1 All 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 the Council of Europe,
indicate the conditions in which it is ready to accept and execute requests
received electronically or by any other means of communication.
2 Subject to the provisions of
paragraph 3 of this article, translations of the requests or supporting documents
shall not be required.
3 At the time of signature or when
depositing its instrument of ratification, acceptance, approval or accession,
any State or the European Community may communicate to the Secretary General of
the Council of Europe 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 the
Council of Europe 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.
Article 36 – Legalisation
Documents transmitted in application of this chapter shall be exempt from all
legalisation formalities.
Article 37 – Content of request
1 Any 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;
c the 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;
d insofar as the co-operation involves coercive action:
i the text of the statutory provisions or,
where this is not possible, a statement of the relevant law applicable; and
ii an 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;
e where necessary and in so far as possible:
i details 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
ii the 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
f any particular procedure the requesting Party wishes to be followed.
2 A 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.
3 In 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:
i a 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;
ii an attestation by the competent authority of the requesting Party that the confiscation order is enforceable and not
subject to ordinary means of appeal;
iii information as to the extent to which the enforcement of the order is requested; and
iv information as to the necessity of taking any provisional measures;
b in 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;
c when third parties have had the opportunity to claim rights, documents demonstrating that this has been the
case.
Article 38 – Defective requests
1 If 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.
2 The requested Party may set a time‑limit
for the receipt of such amendments or information.
3 Pending 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
1 Where 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.
2 In 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.
Article 41 – Information
1 The requested Party shall promptly inform
the requesting Party of:
a the action initiated on a request under this chapter;
b the final result of the action carried out on the basis of the request;
c a decision to refuse, postpone or make
conditional, in whole or in part, any co‑operation under this chapter;
d any circumstances which render impossible
the carrying out of the action sought or are likely to delay it significantly;
and
e in 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.
2 The 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 wholly or partially
enforceable; and
b any development, factual or legal, by
reason of which any action under this chapter is no longer justified.
3 Where 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
1 The 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.
2 Each State or the European 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 the Council of Europe, 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
1 The 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.
2 The 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.
3 Subject 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
1 When 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.
2 A 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
1 Parties 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 national
powers.
2 For 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.
3 Each Party shall ensure that the performance of the functions of the FIUs under this
article shall not be affected by their internal status, regardless of whether
they are administrative, law enforcement or judicial authorities.
4 Each request made under this article shall be accompanied by a brief statement of
the relevant facts known to the requesting FIU. The FIU shall specify in the
request how the information sought will be used.
5 When a request is made in accordance with this article, the requested FIU shall
provide all relevant information, including accessible financial information
and requested law enforcement data, sought in the request, without the need for
a formal letter of request under applicable conventions or agreements between
the Parties.
6 An FIU may refuse to divulge information which could lead to impairment of a
criminal investigation being conducted in the requested Party or, in
exceptional circumstances, where divulging the information would be clearly
disproportionate to the legitimate interests of a natural or legal person or
the Party concerned or would otherwise not be in accordance with fundamental
principles of national law of the requested Party. Any such refusal shall be
appropriately explained to the FIU requesting the information.
7 Information or documents obtained under this article shall only be used for the purposes
laid down in paragraph 1. Information supplied by a counterpart FIU shall not
be disseminated to a third party, nor be used by the receiving FIU for purposes
other than analysis, without prior consent of the supplying FIU.
8 When transmitting information or documents pursuant to this article, the
transmitting FIU may impose restrictions and conditions on the use of
information for purposes other than those stipulated in paragraph 7. The
receiving FIU shall comply with any such restrictions and conditions.
9 Where a Party wishes to use transmitted information or documents for criminal investigations
or prosecutions for the purposes laid down in paragraph 7, the transmitting FIU
may not refuse its consent to such use unless it does so on the basis of
restrictions under its national law or conditions referred to in paragraph 6.
Any refusal to grant consent shall be appropriately explained.
10 FIUs shall undertake all necessary measures, including security measures, to ensure
that information submitted under this article is not accessible by any other
authorities, agencies or departments.
11 The information submitted shall be protected, in conformity with the Council of
Europe Convention of 28 January 1981 for the Protection of Individuals
with regard to Automatic Processing of Personal Data (ETS No. 108)
and taking account of Recommendation No R(87)15 of 15 September 1987 of the
Committee of Ministers of the Council of Europe Regulating the Use of Personal
Data in the Police Sector, by at least the same rules of confidentiality and
protection of personal data as those that apply under the national legislation
applicable to the requesting FIU.
12 The transmitting FIU may make reasonable
enquiries as to the use made of information provided and the receiving FIU
shall, whenever practicable, provide such feedback.
13 Parties shall indicate the unit which is an
FIU within the meaning of this article.
Article 47 – International co-operation for postponement of suspicious transactions
1 Each Party shall adopt such legislative or other measures as may be necessary to
permit urgent action to be initiated by a FIU, at the request of a foreign FIU,
to suspend or withhold consent to a transaction going ahead for such periods
and depending on the same conditions as apply in its domestic law in respect of
the postponement of transactions.
2 The action referred to in paragraph 1 shall be taken where the requested FIU is
satisfied, upon justification by the requesting FIU, that:
a the transaction is related to money
laundering; and
b the transaction would have been
suspended, or consent to the transaction going ahead would have been withheld,
if the transaction had been the subject of a domestic suspicious transaction
report.
Chapter VI – Monitoring mechanism and settlement of disputes
Article 48 – Monitoring mechanism and settlement of disputes
1 The Conference of the Parties (COP) shall
be responsible for following the implementation of the Convention. The COP:
a shall monitor the proper implementation of the Convention by the Parties;
b shall, at the request of a Party, express
an opinion on any question concerning the interpretation and application of the
Convention.
The COP shall carry out the functions
under paragraph 1.a above by using any available Select Committee of
Experts on the Evaluation of Anti-Money Laundering Measures (Moneyval) public summaries
(for Moneyval countries) and any available FATF public summaries (for FATF countries), supplemented by periodic self assessment
questionnaires, as appropriate. The monitoring procedure will deal with areas
covered by this Convention only in respect of those areas which are not covered
by other relevant international standards on which mutual evaluations are
carried out by the FATF and Moneyval.
3 If the COP concludes that it requires further information in the discharge of its
functions, it shall liaise with the Party concerned, taking advantage, if so
required by the COP, of the procedure and mechanism of Moneyval. The Party
concerned shall then report back to the COP. The COP shall on this basis decide
whether or not to carry out a more in-depth assessment of the position of the
Party concerned. This may, but need not necessarily, involve, a country visit
by an evaluation team.
4 In case of a dispute between Parties as
to the interpretation or application of the Convention, they shall seek a
settlement of the dispute through negotiation or any other peaceful means of
their choice, including submission of the dispute to the COP, to an arbitral
tribunal whose decisions shall be binding upon the Parties, or to the
International Court of Justice, as agreed upon by the Parties concerned.
5 The COP shall adopt its own rules of
procedure.
6 The Secretary General of the Council of Europe shall convene the COP not later than
one year following the entry into force of this Convention. Thereafter, regular
meetings of the COP shall be held in accordance with the rules of procedure
adopted by the COP.
Chapter VII – Final Provisions
Article 49 – Signature and entry into force
1 The Convention shall be open for
signature by the member States of the Council of Europe, the European Community
and non‑member States which have participated in its elaboration. Such States
or the European Community may express their consent to be bound by:
a signature without reservation as to ratification, acceptance or approval; or
b signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.
2 Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of
Europe.
3 This Convention shall enter into force on
the first day of the month following the expiration of a period of three months
after the date on which 6 signatories, of which at least four are member States
of the Council of Europe, have expressed their consent to be bound by the
Convention in accordance with the provisions of paragraph 1.
4 In respect of any Signatory which
subsequently expresses its consent to be bound by it, the Convention shall
enter into force on the first day of the month following the expiration of a
period of three months after the date of the expression of its consent to be
bound by the Convention in accordance with the provisions of paragraph 1.
5 No Party to the 1990 Convention may ratify, accept or approve this Convention without considering
itself bound by at least the provisions corresponding to the provisions of the 1990 Convention
to which it is bound.
6 As from its entry into force, Parties to this Convention, which are at the same
time Parties to the 1990 Convention:
a shall apply the provisions of this Convention in their mutual relationships;
b shall continue to apply the provisions of
the 1990 Convention in their relations with other Parties to the said
Convention, but not to the present Convention.
Article 50 – Accession to the Convention
1 After the entry into force of this
Convention, the Committee of Ministers of the Council of Europe, after
consulting the Parties to the Convention, may invite any State not a member of
the Council and not having participated in its elaboration to accede to this
Convention, by a decision taken by the majority provided for in
Article 20.d. of the Statute of the Council of Europe and by the unanimous
vote of the representatives of the Parties entitled to sit on the Committee.
2 In respect of any acceding State, the
Convention shall enter into force on the first day of the month following the
expiration of a period of three months after the date of deposit of the instrument
of accession with the Secretary General of the Council of Europe.
Article 51 – Territorial application
1 Any State or the European Community may,
at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, specify the territory or territories to
which the Convention shall apply.
2 Any Party may, at any later date, by a
declaration addressed to the Secretary General of the Council of Europe, extend
the application of the Convention to any other territory specified in the
declaration. In respect of such territory the Convention shall enter into force
on the first day of the month following the expiration of a period of three
months after the date of receipt of such declaration by the Secretary General.
3 Any declaration made under the two
preceding paragraphs may, in respect of any territory specified in such
declaration, be withdrawn by a notification addressed to the Secretary General.
The withdrawal shall become effective on the first day of the month following
the expiration of a period of three months after the date of receipt of such
notification by the Secretary General.
Article 52 – Relationship to other conventions and agreements
1 This Convention does not affect the
rights and undertakings of Parties derived from international multilateral
instruments concerning special matters.
2 The Parties to this Convention may
conclude bilateral or multilateral agreements with one another on the matters
dealt with in this Convention, for the purposes of supplementing or
strengthening its provisions or facilitating the application of the principles
embodied in it.
3 If two or more Parties have already
concluded an agreement or treaty in respect of a subject which is dealt with in
this Convention or otherwise have established their relations in respect of
that subject, they shall be entitled to apply that agreement or treaty or to
regulate these relations accordingly, in lieu of the Convention, if it
facilitates international co-operation.
4 Parties which are members of the European Union shall, in their mutual relations, apply
Community and European Union rules in so far as there are Community or European
Union rules governing the particular subject concerned and applicable to the
specific case, without prejudice to the object and purpose of the present
Convention and without prejudice to its full application with other Parties. (1)
Article 53 – Declarations and reservations
1 Any State or the European Community may,
at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, make one or more of the declaration provided
for in Article 3, paragraph 2, Article 9, paragraph 4,
Article 17, paragraph 5, Article 24, paragraph 3, Article 31,
paragraph 2, Article 35, paragraphs 1 and 3 and Article 42,
paragraph 2.
2 Any State or the European Community may
also, at the time of signature or when depositing its instrument of
ratification, acceptance, approval or accession, by a declaration addressed to
the Secretary General, reserve its right not to apply, in part or in whole, the
provisions of Article 7, paragraph 2, sub-paragraph c; Article 9, paragraph 6;
Article 46, paragraph 5; and Article 47.
3 Any State or the European Community may, at the time of signature or when depositing its
instrument of ratification, acceptance, approval or accession, declare the
manner in which it intends to apply Articles 17 and 19 of this Convention,
particularly taking into account applicable international agreements in the
field of international co-operation in criminal matters. It shall notify any
changes in this information to the Secretary General of the Council of Europe.
4 Any State or the European Community may,
at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, declare:
a that it will not apply Article 3, paragraph 4 of this Convention; or
b that it will apply Article 3, paragraph 4 of this Convention only partly; or
c the manner in which it intends to apply Article 3, paragraph 4 of this Convention.
It shall notify any changes in this information to the Secretary General of the
Council of Europe.
5 No other reservation may be made.
6 Any Party which has made a reservation
under this article may wholly or partly withdraw it by means of a notification
addressed to the Secretary General of the Council of Europe. The withdrawal
shall take effect on the date of receipt of such notification by the Secretary
General.
7 A Party which has made a reservation in
respect of a provision of the Convention may not claim the application of that
provision by any other Party; it may, however, if its reservation is partial or
conditional, claim the application of that provision in so far as it has itself
accepted it.
Article 54 – Amendments
1 Amendments to the Convention may be
proposed by any Party, and shall be communicated by the Secretary General of
the Council of Europe to the member States of the Council of Europe, to the European
Community and to every non‑member State which has acceded to or has been
invited to accede to this Convention in accordance with the provisions of
Article 50.
2 Any amendment proposed by a Party shall
be communicated to the European Committee on Crime Problems (CDPC) which shall
submit to the Committee of Ministers its opinion on that proposed amendment.
3 The Committee of Ministers shall consider
the proposed amendment and the opinion submitted by the CDPC and may adopt the
amendment by the majority provided for in Article 20.d
of the Statute of the Council of Europe.
4 The text of any amendment adopted by the
Committee of Ministers in accordance with paragraph 3 of this article
shall be forwarded to the Parties for acceptance.
5 Any amendment adopted in accordance with
paragraph 3 of this article shall come into force on the thirtieth day
after all Parties have informed the Secretary General of their acceptance
thereof.
6 In order to update the categories of offences contained in the appendix, as well
as amend Article 13, amendments may be proposed by any Party or by the
Committee of Ministers. They shall be communicated by the Secretary General of
the Council of Europe to the Parties.
7 After having consulted the Parties which are not members of the Council of Europe
and, if necessary the CDPC, the Committee of Ministers may adopt an amendment
proposed in accordance with paragraph 6 by the majority provided for in Article
20.d of the Statute of the Council of Europe. The amendment shall enter into
force following the expiry of a period of one year after the date on which it
has been forwarded to the Parties. During this period, any Party may notify the
Secretary General of any objection to the entry into force of the amendment in
its respect.
8 If one-third of the Parties notifies the Secretary General of an objection to the
entry into force of the amendment, the amendment shall not enter into force.
9 If less than one-third of the Parties notifies an objection, the amendment shall
enter into force for those Parties which have not notified an objection.
10 Once an amendment has entered into force in accordance with paragraphs 6 to 9 of
this article and a Party has notified an objection to it, this amendment shall
come into force in respect of the Party concerned on the first day of the month
following the date on which it has notified the Secretary General of the
Council of Europe of its acceptance. A Party which has made an objection may
withdraw it at any time by notifying it to the Secretary General of the Council
of Europe.
11 If an amendment has been adopted by the Committee of Ministers, a State or the
European Community may not express their consent to be bound by the Convention,
without accepting at the same time the amendment.
Article 55 – Denunciation
1 Any Party may, at any time, denounce the
Convention by means of a notification addressed to the Secretary General of the
Council of Europe.
2 Such denunciation shall become effective
on the first day of the month following the expiration of a period of three
months after the date of receipt of the notification by the Secretary General.
3 The present Convention shall, however,
continue to apply to the enforcement under Article 23 of confiscation for
which a request has been made in conformity with the provisions of the
Convention before the date on which such a denunciation takes effect.
Article 56 – Notifications
The Secretary General of the Council of Europe shall notify the member States of
the Council of Europe, the European Community, the non‑member States which have
participated in the elaboration of the Convention, any State invited to accede
to it and any other Party to the Convention of:
a any signature;
b the deposit of any instrument of ratification,
acceptance, approval or accession;
c any date of entry into force of the
Convention in accordance with Articles 49 and 50;
d any declaration or reservation made under
Article 53;
e any other act, notification or
communication relating to the Convention.
In witness whereof the undersigned, being duly authorised thereto, have signed
this Convention.
Done at Warsaw, this 16th day of May 2005, in English and in
French, both texts being equally authentic, in a single copy which shall be
deposited in the archives of the Council of Europe. The Secretary General of
the Council of Europe shall transmit certified copies to each member State of
the Council of Europe, to the European Community, to the non‑member States
which have participated in the elaboration of the Convention and to any State
invited to accede to it.
APPENDIX
a participation in an organised criminal group and racketeering;
b terrorism, including financing of terrorism;
c trafficking in human beings and migrant smuggling;
d sexual exploitation, including sexual exploitation of children;
e illicit trafficking in narcotic drugs and psychotropic substances;
f illicit arms trafficking;
g illicit trafficking in stolen and other goods;
h corruption and bribery;
i fraud;
j counterfeiting currency;
k counterfeiting and piracy of products;
l environmental crime;
m murder, grievous bodily injury;
n kidnapping, illegal restraint and hostage-taking;
o robbery or theft;
p smuggling;
q extortion;
r forgery;
s piracy; and
t insider trading and market manipulation.
Совет Европы. Бюро договоров на
(1) Note by the Secretariat: See the Declaration formulated by the European Community and the Member States
of the European Union upon the adoption of the Convention by the Committee of Ministers of the Council of Europe, on 3 May 2005:
"The European Community/European Union and its Member States reaffirm that their objective in
requesting the inclusion of a "disconnection clause" is to take account of the
institutional structure of the Union when acceding to international
conventions, in particular in case of transfer of sovereign powers from the
Member States to the Community.
This clause is not aimed at reducing the rights or
increasing the obligations of a non-European Union Party vis-a-vis the European
Community/European Union and its Member States, inasmuch as the latter are also
parties to this Convention.
The disconnection clause is necessary for those parts of the Convention which fall
within the competence of the Community/Union, in order to indicate that European
Union Member States cannot invoke and apply the rights and obligations deriving
from the Convention directly among themselves (or between themselves and the
European Community/Union). This does not detract from the fact that the
Convention applies fully between the European Community/European Union and its
Member States on the one hand, and the other Parties to the Convention, on the
other; the Community and the European Union Members States will be bound by the
Convention and will apply it like any Party to the Convention, if necessary,
through Community/Union legislation. They will thus guarantee the full respect
of the Convention"s provisions vis-a-vis non-European Union Parties."
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