1. B. Verhelst Moneyval LE expert
Conference of the Parties to CETS 198 Training for Rapporteurs International Cooperation
B. Verhelst
Moneyval LE expert

2. Section2: Investigative Assistance
Art. 16: Obligation to assist
Art. 17: Requests for information on bank accounts
Art. 18: Requests for information on banking transactions
Art. 19: Requests for the monitoring of banking transactions
Art. 20: Spontaneous information

3. Article 17 – Information on bank accounts
17.1 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.
17.2 Mandatory only for banks keeping the account
17.3 Content & justification of request  grounds for refusal (fishing expeditions…)?
See Art. 7.2a (domestic requirement)
Criminal investigation context (FIU: artt. 13 & 46)
CDD obligations  holder + beneficial owner
Central bank account register?
Added value – not contained in previous COE international cooperation instruments
Mandatory and discretionary provisions
What is the point of this article? Having the ability to be able to identify accounts of natural or legal persons who under investigation – which would seem obvious in the anti-money laundering arena
As this is an international cooperation article focus on the provision of assistance No interest in the mechanisms of how this is done, so long as it can be done (efficiency)
Given the intrusive nature of this article, parties are allowed to import the standard MLA requirements used for search and seizure – link back to COE conventions on MLA
e.g. foreign exchange accounts not held in banks

4. Article 17 – Information on bank accounts
17.4 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.
Refers to MLA rules on search & seizure such as
Dual criminality
Consistency with domestic law
17.5: Restriction to designated category of offences (appendix) allowed
17.6 Parties may extend this provision to accounts held in non-bank financial institutions. Such extension may be made subject to the principle of reciprocity.
Novelty: extension beyond banking sector (see also art. 7)
Reciprocity condition acceptable
Added value – not contained in previous COE international cooperation instruments
Mandatory and discretionary provisions
What is the point of this article? Having the ability to be able to identify accounts of natural or legal persons who under investigation – which would seem obvious in the anti-money laundering arena
As this is an international cooperation article focus on the provision of assistance No interest in the mechanisms of how this is done, so long as it can be done (efficiency)
Given the intrusive nature of this article, parties are allowed to import the standard MLA requirements used for search and seizure – link back to COE conventions on MLA
e.g. foreign exchange accounts not held in banks

5. Article 18 – information on banking transactions
18.1 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.
See art. 7.2b
Bank accounts identified - next logical step
General requirement : not necessarily related to holders or beneficial owners subject to criminal investigation (art. 17)
Sending or recipient account: follow the money trail
18.2 to 5: analogy art. 17.2, 3, 4 & 6
Can be seen as a follow-up to Art 17
You have the bank details and now you want the substantive evidence and importantly information about onward movements
Mandatory and discretionary provisions

6. Article 19 – Monitoring banking transactions
19.1 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.
See art. 7c
Formulation softer than artt. 17 & 18: must provide capacity to comply with such requests  requested party decides/determines conditions (art & 4)
Real time surveillance of accounts, limited in time
Art & 5: analogy art. 17 & 18
Real time surveillance of bank accounts – but will be time limited
Mandatory and discretionary provisions

7. Article 17 – Information on bank accounts Article 18 – information on banking transactions Article 19 – Monitoring banking transactions
Level of compliance/effective implementation
Requests received and fully executed?
Incomplete requests refused or sent back?
Subject to search & seizure conditions? Which?
Prevents effective implementation?
Art. 17 : Limited list of relevant offences? Conformity with appendix?
Extension to NBFIs (discretionary)? If not, legal obstacles?

8. Section 4: Confiscation
Art. 23: Obligation to confiscate
Art. 24: Execution of confiscation
Art. 25: Confiscated property
Art. 26: Right of enforcement and maximim amount of confiscation
Art. 27: Imprisonment in default

9. Article 23 – Obligation to confiscate
23.1 A party, which has received a request 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
Identical to 1990 Convention
See art. 3 (domestic)
Quid object of the offence (autonomous ML)?
a) Exequatur , and/or b) Initiate own procedure (Art. 23.2)
Non-conviction based confiscation – much more a common law tradition
Limited mandatory provision
Link back to Art 5

10. Article 23 – Obligation to confiscate
23.3 : Enforcement equivalent value confiscation
See 1990 Convention
Property (any nature) located in requested Party
If no payment: claim to be executed on any available property
23.4: Confiscation request related specific item
Possibility to enforce in the form of equivalent value
Discretionary : if both Parties agree
Non-conviction based confiscation – much more a common law tradition
Limited mandatory provision
Link back to Art 5

11. Article 23 – Obligation to confiscate
23.5 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.
Novelty : Non-conviction based confiscation (in rem)
Divergent common law – civil law principles
Conditions: judicial authority/criminal offence/ proceeds & art. 5 property
“Shall” - “Widest extent” – quid constitutional barriers?
Non-conviction based confiscation – much more a common law tradition
Limited mandatory provision
Link back to Art 5

12. Article 23 – Obligation to confiscate
Paragraph 6 – to what extent is this effectively implemented and how has this been demonstrated?
“shall to the widest possible extent possible under their domestic law”
Limited mandatory provision
Are there any barriers to providing assistance under this paragraph and have the been explained?
Have requests been made and executed, if yes, has evidence been provided by way of statistics?
Limited mandatory provision – can allow for refusal/rejection of assistance

13. Article 25 – Confiscated property
25.1 Disposal of confiscated property according to domestic law & procedures
25.2 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.
Mandatory provision, but conditional
Victimology: priority to restitution & compensation
“Limited” Mandatory – it has a qualification – but remember on the template that it does not have an asterisk
Asset sharing - discretionary

14. Article 25 – Confiscated property
25.3 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.
Asset sharing
Discretionary
“Limited” Mandatory – it has a qualification – but remember on the template that it does not have an asterisk
Asset sharing - discretionary

15. Article 25 – Confiscated property
Paragraph 2 – can property be returned?
If yes, what evidence has been provided to demonstrate this? If no, why not?
Paragraph 3 – have any asset sharing agreements been entered into? What countries?
Statistics on assets shared. Examples?

16. Section 5: Refusal and postponement of cooperation
Art. 28: Grounds for refusal
Art. 29: Postponement
Art. 30: Partial or conditional granting of a request

17. Article 28 – Discretionary rounds for refusal (general)
Co‑operation under this chapter may be refused if:
28.1.a. Against the fundamental principles of the legal system
28.1.b. Prejudice to sovereignty other essential interest
28.1.c. Request disproportionate to importance of the case
28.1.d. Fiscal exception, save financing of terrorism
28.1.e Political offence, except for financing of terrorism
28.1.f. Ne bis in idem (double jeopardy)
28.1.g. Dual criminality
- S.2 (invest. ass.): only if coercive action
- conduct underlying the offence
Cfr Convention (except bold)
Discretionary
Exclusive (no other grounds accepted)
Discretionary
Fiscal and political offences – go back to COE MLA/Extradition convention
But ML cannot be considered a fiscal offence or political offence
Further erosion is financing of terrorism – so that cannot be considered a fiscal or political offence

18. Article 28 – Discretionary Grounds for refusal (other)
& 3. : Ch. IV - Sect. 2 (coercive investigative assistance) & Sect.3 (provisional measures) - not provided or permitted in domestic law - request not emanating from judicial authority 28.4.a. to e. Miscellaneous & procedural grounds 28.4.f & 6. In absentia – rights of defence 28.7 Bank secrecy cannot be invoked - request emanating from judicial authority : no refusal grounds a. Legal persons b. Death or dissolution of legal person c. Author of predicate offence
Discretionary
Fiscal and political offences – go back to COE MLA/Extradition convention
But ML cannot be considered a fiscal offence or political offence
Further erosion is financing of terrorism – so that cannot be considered a fiscal or political offence

19. Article 28 – Grounds for refusal
Par. 1d and 1e – have these exceptions been exercised? If yes, how many times has it been invoked?
Compare with number of requests for assistance
Par. 8c – has this been invoked? Statistics.
If refused, fundamental principle argument acceptable?

20. Section 7: Procedural and other general Rules
Article 34 – Direct communication
Art Between Central Authorities (CA)
Art Urgency: between judicial authorities (uncluding PP) with copy to CA
Art Use of Interpol communication line
Art Reference to competent authority in case of mistake
Art Non-coercive Sect. 2 requests (investigative assistance): direct communication between competent authorities
Art Possibility to send draft requests/communications between judicial authorities prior to formal request
Practical arrangements to enhance efficiency
Check average execution time (urgent/ not urgent)