2Content Introduction: Europol Criminal Assets Bureau Asset Recovery OfficesOriginPurposeLegal BasisFunctionsQuestions and Answers
3EUROPOLTHE OBJECTIVE OF EUROPOL – “to support and strengthen action by the competent authorities of the Member States and their mutual cooperation in preventing and combating organised crime, terrorism and other forms of serious crime affecting two or more Member States” (Art.3 ECD)Corresponding Judicial Agency is EUROJUST33
5Introduction 70 % of all crimes are committed for financial gain At present only a small amount of crime proceeds are seized and confiscatedMax Plak Institute 70 % of all crimes are committed for financial gain - Confiscation attacks this core motive and prevents that criminal wealth be used for other crimesIt allows to target the decision-makers within criminal organisationsIt may have a deterrent effect (“crime does not pay”) and help removing negative role modelsCriminals and their illegal profits move almost effortlessly across the bordersRelatively limited number of confiscation cases in the EU and modest amounts recovered if compared to estimated revenues of organised crime groupsApprox 70 % of all crimes committed have a common motivation – financial gain (German Max Planck Institute)Criminals are increasingly mobile and often invest their profits outside the country where they are committing their crimesAsset tracing and confiscation, at international level, currently only recovers a small proportion of criminal proceedsOrganised Crime has to be deprived of its illegal financial resources if we want to fight it effectively
6Asset tracing/confiscation Regarded as efficient law enforcement tool, especially to tackle organised crime by◊ locating the proceeds from crime (LE authorities)◊ freezing the proceeds from crime (judicial authorities, MLA)◊ and finally confiscating the proceeds from crime by Court (criminal or civil)in order to disrupt the financial basis of the criminalorganisation (prevention) and to dismantle its internalstructure
7Legal BackgroundCouncil of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime – 19902000 UN Convention against Transnational Organised Crime2005 Warsaw Conventionand within the EU…1997 EU Action Plan to combat organised crime1999 Tampere European CouncilThe concept of Asset tracing and confiscation receives a growing attention within law enforcement since the 1980s leading to the 1990 Strasbourg Convention, Turkey? Outlined the Political basis which produced the platform for drafting EU legislation on asset tracing, freezing and confiscation. Throughout EU instruments were written on the issue. If you are interested in these I have them with me, most relevant is the EU Council Decision which launched the need for AROs in Europe.CAB – History, outline case GuerinEU – Action Plan / Experts Report on Anti ML measures applied by MS – recommendation to setup central Asset Recover UnitsTampere European Council – stated that money laundering is at the very heart of organised crime, and should be rooted out wherever it occurs and that the European Council is determined to ensure that concrete steps are taken to trace, freeze, seize and confiscate the proceeds from crime.UN Convention on transnational OC – examination should be made of the possible need to introduce the mitigation of the onus of proof, Article 12 – State Parties may consider the possibility of requring that an offender demonstrate the lawful origin of alleged proceeds of crime……..
8EU AROs Operational background Establishment of specialised offices in some EU Member States, e.g. BOOM in the Netherlands (1992), COSC in Belgium (1994) and the CAB in Ireland (1996)Europol Established it‘s Criminal Asset Bureau in 2004Establishment of Asset Recovery Offices in all EU Member States according to the EU Council Decision 2008
9Europol Criminal Assets Bureau ECAB Operationalsupports MS investigators in the asset identification phase of any criminal investigationassists to identify what information/intelligence is available and through which official channel investigators need to go through to get that informationhelps Member States to build capacities and to improve cooperation to recover crime proceeds worldwideSome words on what Europol does in this process….Within the financial investigation process of asset tracing, freezing, seizing and confiscation, Europol plays a role in assisting with the first stage, the tracing and identification stage. by assisting to localise assets outside of the national bounderiesThe Financial Crime Unit Asset Tracing Team assist financial investigators to trace assets located outside of their own jurisdiction by assisting to identify…What information is actually available in each EU MS……and more importantly2. Through which official channel to go through to get that information.The objective is not to by-pass any official channels necessary to lay the evidence before the court but to identify, using the intelligence gathering process via the Europol channels what information is available first and whether an official request is actually necessary to obtain the information from another MS. This can save valuable time during an investigation and in fact prevent the loss of assets by identifying them at an earlier stage.
10Europol Criminal Assets Bureau – responsibilities StrategicTo hold the permanent Secretariat of the ‘The Camden Asset Recovery Inter-Agency Network – CARIN ‘To manage The Europol Financial Crime Information Centre Web Site – FCICTo support Member States in the establishment of Asset Recovery Offices in line with European Law (Council Decision 2007/845/JHA)
11EU Council Decision on Asset Recovery Office(s) BackgroundCARIN NetworkAustrian Presidency initiaitive, supported by Belgium and FinlandOne of the key objectives for the CARIN network, since it’s inception in 2004, has been to encourage the establishment of National Asset Recovery Offices, as it was and still is clear from those jurisdictions that have them, co-operation works more effectively when there is a central offices in existence. At the annual CARIN meeting in 2005, the Austrain CARIN SG member made a proposal to the CARIN network that there could be a Council Decision regarding this and that Austria would start this initiative during its presidency in During the Summer of 2005, the CARIN SG spent 2 days in Jersey reviewing an initial draft of the Council Decision, and eventually agreed on it’s contents. Austria were keen to get the support of the practitioners with this Decision from the beginning as it felt that the instrument would only be effective if it complemented the existing network which had been established in CARIN. Further to this, CARIN had always based its success on its informal structure and the SG did not want this to be compromised too much also, by too many rules about how it must operate. From August 2005, the Decision was eventually adopted on 6 December 2007.
12EU Council Decision on Asset Recovery Offices Added value:Creates legal EU framework for existing, informal networkObliges every Member State to set up AROEstablishes legal obligation for co-operation between AROs of different legal nature (Article 2(2))Although the title of this Council Decision infers that it is about the cooperation between the offices, the main issue that it addresses is the fact the MS must establish or designate a National Office. It does in fact oblige MS to set up an ARO which where ever possible, should be where the existing CARIN contacts are. The CARIN members were very keen, for obvious reasons, that this Decision did not create a parallel network to the one which already exists. A great deal of time has been invested by CARIN to establish the correct contacts in each State, and although this is still arguably not perfect, as it is v. difficult in many jurisdictions to identify 2 contacts, it is a start. CARIN hopes that this decision will improve the central contact by making states focus on the most appropriate organisation to place it.No legal framework for CARIN – indicates in article 3/1 that co-operation should be under the Framework Decision of the Swedish initiative 2006 on simplifying the exchange of information and intelligence.Article 2/1 states that cooperation will not be hampered by the status of the ARO – administrative / LE / judicialArticle 2(2) Member States shall ensure that this cooperation is not hampered by the status of the Asset Recovery Offices under national law, regardless of whether they form part of an administrative, law enforcement or a judicial authority.
13EU Council Decision on Asset Recovery Office(s) ARO = Office charged withthe facilitation of the tracing and identification of proceeds of crime and other crime related propertywhich may become the object of an order made by a competent judicial authority for freezing or seizure or for confiscation in the course of criminal or, as far as possible under the national law of the Member State concerned, civil proceedingsEach MS shall set up or designate ARO charged with facilitating asset tracing (not necessarily at that office, but of course preferably for time reasons)
14EU Council Decision on Asset Recovery Office(s) ►Principal obligation to set up/ designate 1 (or 2) AROs per Member StateLegal/constitutional set-up of every MSAcknowledgment of role of other units charged with the faciltation of tracing and identification of assetsIdeally, 1 office is preferable. One of barriers to cooperation in this, and I suppose many areas of international cooperation was that investigators did not know which agency to contact. This is why CARIN supports the concept of 1 contact from LE and 1 from Judicial authorities, even though this is difficult to achieve in states like Italy, France and the UK.- so as not to preclude co-operation from other units within a state (other than the ARO) cooperating with an ARO from another state.
15EU Council Decision on Asset Recovery Office(s) ► Obligation to exchange infomation and best practicesRegardless of legal nature of ARO► Reference to existing/future regimes of law enforcement co-operationCo-operation is aimed at exchanging information on location and identification of seizable property = police co-operationAs well as the obligation to exchange information, the Decision lays down an obligation to exchange best practice, again this is aimed at improving methods at both a national and international level to trace assets.The Decision was adopted with the Swedish initiative in mind, however, as it had not been adopted by then (and maybe still not) references to that FD should be replaced with references to other applicable instruments in existence on police cooperation between MS, e.g. Europol Convention.
16EU Council Decision on Asset Recovery Office(s) ►Reference to the Framework Decision on simplifying the exchange of information between the law enforcement authorties of the MS of the EUProceduresChannelData protection regimeTime limitsWith reference to the Swedish initiative, if a case is urgent and the data base is within the ARO – 8 hours response, if not urgent and the database is within the ARO, 1 week, Non urgent, 14 days.
17ARO Matrix COUNTRY Police Judiciary Multi- disciplinary Austria P AustriaPBelgiumJBulgariaMCyprusCzech RepublicDenmarkEstoniaFinlandGermany (2)HungaryIrelandLatviaLuxembourgNetherlandsPolandRomaniaCountries20Slovak RepublicARO's24Spain (2)Countries with 2 ARO's4Sweden (2)13UK-England, Wales & NI6UK-ScotlandMultisiciplinary7
18Conclusion EU Council Decision on AROs Important ‘instutional brick’ in the EU framework for confiscation of criminal proceedsMutual recognition of freezing orders/confiscation orders is contingent upon the swift exchange of information between AROs
19High Level Conference on Establishing National Asset Recovery Offices Brussels 6 & 7 March 2008 Joint project of the Austrian Bundeskriminalamt, the Belgian Federal Police, the Belgian Central Office for Seizure and Confiscation and Europol supported by the European Commission and the ISEC Funding ProgramTo discuss the best ways to establish national AROs – common understanding on their roles and to provide for an efficient exchange of operational information following the EU Council Decision of 6 December 2007 concerning cooperation between the Asset Recovery Offices of the Member States130 key decision makers and experts in tracing and confiscation from 40 countries attendedInternational organisations – UNODC, Interpol, Eurojust, EU Commission, Council of the EU
20Ideal Structure of an ARO Have a multidisciplinary structure comprising expertise from:◊ law enforcement;◊ judicial authorities;◊ tax authorities;◊ social welfare;◊ customs;and any other relevant services.These agencies should be able to exercise their usual powers and have access to all relevant databases in order to identify and trace assets.Have access to a central bank account register at national levelBe adequately resourcedAROs ideally should
21Ideal Structure of an ARO Provide a central point for all incoming requests relating to asset tracingCollect all relevant statistics on freezing and confiscationAnd where AROs do not directly manage seized assets, they at least should collect information from competent authorities on seized assets.
22New EU legal frameworkUnder a Commission strategic initiative to protect the EU economy against criminal infiltration, proposals are being prepared to amend the legal framework:Two separate proposals (one on substantive legislation and one on mutual recognition)Timetable: end 2011Importance of respecting fundamental rights (effective legal remedies)3rd party and extended confiscation for substantive for substantive and recognition of civil orders for mutual recognition