COM(2024) 177 Recommendation for a COUNCIL DECISION authorising the European Commission to participate, on behalf of the European Union, in negotiations on an additional protocol to the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198)

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EUROPEAN COMMISSION

Brussels, 17.4.2024

COM(2024) 177 final

Recommendation for a

COUNCIL DECISION

authorising the European Commission to participate, on behalf of the European Union,

in negotiations on an additional protocol to the Council of Europe Convention on

Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the

Financing of Terrorism (CETS No. 198)

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EXPLANATORY MEMORANDUM

1. CONTEXT OF THE RECOMMENDATION

This recommendation is submitted to the Council in order for the Commission to receive

authorisation to participate in negotiations on behalf of the European Union on an additional

Protocol (the ‘Protocol’) in the area of criminal asset recovery to the Convention on

Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the

Financing of Terrorism (CETS No. 198).

Reasons for and objectives of the recommendation

Serious and organised crime is a major threat to security within and beyond the EU as well as

the functioning of our economy. A major feature of organised crime is that it is profit driven.

The revenue obtained through illicit activities is used for other criminal activities or invested

to infiltrate the legal economy. This has far-reaching and destabilising consequences for

society, the rule of law and trust in public authorities.

Approximately EUR 4.1 billion of criminal assets were frozen on average per year in 2020

and 2021 in EU Member States. This represents an increase compared to earlier years, but

it still remains less than 2% of the estimated yearly proceeds of organised crime1.

Depriving criminals of their ill-gotten gains is essential for effectively fighting organised

crime. Effective asset recovery deters criminal activity by removing its main driver, while

protecting the integrity of the financial system and broader economy through reducing the

circulation of assets from illicit origin. Moreover, asset recovery allows for the compensation

of the victims of crime, supporting social cohesion and justice. In addition, effective

application of asset recovery measures, including tracing, freezing, confiscation, asset

management and disposal of assets, is proven to be a key tool in uncovering and dismantling

the criminal networks operating at an international level.

The European Union signed the Convention on Laundering, Search, Seizure and Confiscation

of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198) (‘Warsaw

Convention’ or ‘Convention’)2 on 2 April 2009. The European Union has not ratified the

Convention yet. As of 18 December 2023, 25 Member States3 have signed the Convention, 23

of which4 have ratified it.

The Warsaw Convention, adopted on 16 May 2005, covers multiple aspects of the prevention

and the combatting of money laundering and the financing of terrorism. The Warsaw

Convention builds on the Convention on laundering, search, seizure and confiscation of the

proceeds from crime (CETS No. 141) (‘Strasbourg Convention’)5.

1 Europol (2023), European Financial and Economic Crime Threat Assessment 2023 - The Other Side of

the Coin: An Analysis of Financial and Economic Crime, Publications Office of the European Union,

Luxembourg. 2 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from

Crime and on the Financing of Terrorism, CETS No. 198, adopted on 16 May 2005. 3 All EU Member States except Czechia and Ireland have signed the Convention No. 198. 4 All EU Member States except Czechia, Finland, Ireland and Luxembourg have ratified the Convention

No. 198. A number of Member States have made reservations with regard to individual provisions of

the Convention. 5 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds

from Crime, ETS No. 141, adopted on 8 November 1990. The Union is not a Party to this Convention

which does not contain a clause allowing the Union to become a party to the Convention.

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The Convention criminalises money laundering (Article 9), including negligent money

laundering and stand-alone money laundering. Furthermore, the Convention covers issues

such as corporate liability (Article 10), Financial Intelligence Units (Article 12), investigative

powers and techniques, including the tracing, freezing and seizing of assets (Article 4),

international cooperation, including cooperation between Financial Intelligence Units, the

exchange of information for banking data and mutual legal assistance for investigative

purposes (Articles 15 to 20). Finally, and most importantly for the Additional Protocol, the

Convention covers domestic rules on confiscation (Article 5), including value confiscation,

extended confiscation, asset management (Article 6) and rules on confiscated property

(Article 25) including the return of assets to victims and asset sharing agreements as well as

rules on judicial cooperation for the purposes of asset freezing and confiscation (Articles 21 to

30) and procedural rights and safeguards of affected persons (Articles 31 and 32).

Background for negotiations for an additional Protocol for the Convention

In the area of criminal asset recovery, the criminality landscape has been evolving rapidly

since the adoption of the Convention in 2005. As there are new challenges, and as criminal

proceeds are not confiscated sufficiently, there is an urgent need to have a stronger legal

framework and to facilitate international cooperation regarding asset recovery.

Therefore, the possible need to enhance the effectiveness of the existing legal framework on

asset recovery has been discussed by experts during various intiatives. The Conference of

Parties to the Warsaw Convention (‘C198-COP’) agreed that a new instrument could be

needed to enable Parties to respond to challenges in the areas that are covered by the

Convention.

In 2019, the Committee of Experts on the Operation of European Conventions on Cooperation

in Criminal Matters (‘PC-OC’) completed a comprehensive study on the possible added value

and feasibility of preparing a new binding instrument in the Council of Europe on

international co-operation as regards the management, recovery and sharing of assets derived

from crime.

Further to the findings of this study, the C198-COP and the PC-OC held a number of

consultative meetings. These meetings culminated in the organisation of a Joint session of

C198-COP and PC-OC in November 2022. That session gathered representatives from both

committees and experts from around the globe, including relevant international organisations

and specialised institutes, to discuss and consider the development of an additional instrument

in the field of asset recovery. In the course of the discussions, experts identified the following

topics as most pressing: international cooperation in management and sharing of confiscated

assets (including the enhancement on asset sharing arrangements between States), the

application and execution of non-conviction-based forfeiture and the effective management of

seized and confiscated assets.

The Council of Europe took into account that some of these issues were, at the time, also

addressed in the proposal of the European Commission for a new Directive on asset recovery

and confiscation6. Therefore, it was also essential for the Council of Europe to integrate these

elements into a wider pan-European framework in a timely manner.

At the 15th meeting of the 198-COP on 9 and 10 November 2023 the 198-COP took note of

the planned set-up of a committee of experts on criminal asset recovery, working under the

6 Proposal for a Directive of the European Parliament and of the Council on asset recovery and

confiscation of 25 May 2022 (COM/2022/245 final).

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authority of the Committee of Ministers and of the European Committee on Crime Problems

(‘CDPC’)7. Draft terms of reference for a committee of Experts on Criminal Asset Recovery

(‘PC-RAC’) responsible for the drafting of an additional Protocol to the Warsaw Convention

had been prepared and presented at the meeting. According to these draft terms of reference,

the Committee “shall ensure that the draft Additional Protocol includes, inter alia, the

following:

• provisions to enhance certainty and consistency in the sharing of confiscated

assets between States Parties in transnational cases;

• provisions to ensure efficient and effective management of seized, confiscated

and repatriated assets, including the execution of confiscation decisions;

• provisions to facilitate the introduction of non-conviction-based confiscation

procedures and of extended confiscation in criminal matters, including

cooperation regarding and execution of requests in transnational cases;

• any other issue which it deems to be of consequence to strengthen co-operation

among Parties with respect to asset recovery.”

Such issues would in any case relate to the areas covered by the Convention.

On 23 November 2023, the Committee of Ministers of the Council of Europe adopted the

Terms of Reference establishing the Committee of Experts on Criminal Asset Recovery. The

Committee of Experts on Criminal Asset Recovery is entrusted, under the authority of the

Committee of Ministers and the European Committee on Crime Problems, to elaborate an

Additional Protocol supplementing the Council of Europe Convention on laundering, search,

seizure and confiscation of the proceeds from crime and on the financing of terrorism, as well

as a draft explanatory report. In line with the discussions held within the 198-COP, this work

was proposed to start on 29 May 2024 and is expected to be completed by the end of 2025.

Specific objectives of the recommendation

This recommendation is submitted to the Council in order for the Commission to receive

authorisation to negotiate, on behalf of the European Union, an Additional Protocol to the

Convention, to adopt negotiating directives and to appoint the Commission as negotiator,

pursuant to Article 218 TFEU.

The European Union is a signatory to the Warsaw Convention. As regards the subject matters

to be covered by the envisioned Protocol, i.e., the field of asset recovery, the EU has exercised

its competence by adopting common rules based on Articles 82(1), 83(1) and (2), 87(2) of the

Treaty on the Functioning of the European Union (‘TFEU’) through in particular Regulation

(EU) 2018/1805 of the European Parliament and of the Council8 and the new Directive on

asset recovery and confiscation9.

The aim of the Union in the negotiations should be to ensure the effective recovery of

criminal assets by parties to the Convention and to promote cross-border cooperation in the

7 Meeting report, 15th meeting of the conference of parties of the Council of Europe Convention on

Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of

Terrorism (CETS No. 198) on 9 and 10 November 2023, C198-COP(2023)10. 8 Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on

the mutual recognition of freezing orders and confiscation orders (OJ L 303, 28.11.2018, p. 1–38). 9 Proposal for a Directive of the European Parliament and of the Council on asset recovery and

confiscation of 25 May 2022 (COM/2022/245 final).

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area of asset recovery, to avoid any discrepancies with Union legislation and to ensure that the

matters regulated in the Protocol at Council of Europe level are compatible with the rules laid

down in the Union’s acquis on asset recovery and the new Directive on asset recovery and

confiscation.

The successful outcome of the negotiations is expected to lead to clearer rules on asset

recovery among Members States of the Council of Europe.

Consistency with existing provisions in the policy area

The negotiations on a new Protocol to the Warsaw Convention directly relate to common EU

rules on asset recovery.

The new Directive on asset recovery provides for standard forms of confiscation, including

rules on extended confiscation. Furthermore, the new Directive provides for non-conviction-

based confiscation in specific circumstances. The new Directive also provides for the

confiscation of unexplained wealth where a conviction is not possible, but the court is

satisfied that the property to be confiscated stems from criminal offences. On asset

management, rules on the establishment of asset management offices and the possibility to

sell frozen property before the confiscation are set out in the new Directive on asset recovery

and confiscation. Joint Action 98/699/JHA10, point (a) of Article 1 and Articles 3 and 4 of

Framework Decision 2001/500/JHA11, and the first four indents of Article 1 and Article 3 of

Framework Decision 2005/212/JHA12, remain in force as regards Denmark.

Regulation (EU) 2018/1805 sets out rules on judicial co-operation between Member States for

the purpose of the recognition and execution of freezing and confiscation orders. This

includes, inter alia, rules on the transmission, recognition and procedure for the execution of

freezing and confiscation orders, the management and disposal of frozen and confiscated

property (including interlocutory sales), restitution of property to victims as well as the

disposal of confiscated property or money obtained after the sale of property, including with a

view to victim compensation and to regulating the sharing of assets between Member States.

Moreover, the Regulation contains rules on the bearing and sharing of costs related to the

execution of cross-border freezing orders and on procedural rights of affected persons,

including as regards notification obligations and legal remedies. Regulation (EU) 2018/1805

replaced Council Framework Decisions 2003/577/JHA13 and 2006/783/JHA14, which remain

in force as regards cooperation with Ireland and Denmark, who do not participate in

Regulation (EU) 2018/1805.

In addition, the European Public Prosecutor’s Office (EPPO) is the Union body competent to

investigate, prosecute and bring to judgment the perpetrators of, and accomplices to, criminal

offences affecting the financial interests of the Union which are provided for in Directive

10 Joint Action 98/699/JHA of 3 December 1998 adopted by the Council on the basis of Article K.3 of the

Treaty on European Union, on money laundering, the identification, tracing, freezing, seizing and

confiscation of instrumentalities and the proceeds from crime (OJ L 333, 9.12.1998, p. 1). 11 Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification,

tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ L 182,

5.7.2001, p. 1). 12 Council Framework Decision 2005/212/JHA of 24 February 2005 on confiscation of crime-related

proceeds, instrumentalities and property (OJ L 68, 15.3.2005, p. 49). 13 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of

orders freezing property or evidence (OJ L 196, 2.8.2003, p. 45–55). 14 Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of

mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p. 59–78).

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(EU) 2017/1371.15 The EPPO should be entitled to order or request the freezing of

instrumentalities or proceeds of crime, including assets, that are expected to be subject to

confiscation by the trial court, where there is reason to believe that the owner, possessor or

controller of those instrumentalities or proceeds will seek to frustrate the judgement ordering

confiscation. To perform its tasks, the EPPO should be in a position to cooperate, including in

the field of asset recovery, with the competent authorities Member States that do not

participate in the EPPO – and it does so on the basis of, among others, Regulation (EU)

2018/1805 – as well as with the competent authorities of non-EU countries.

Given the Union acquis covering the subject-matter of the negotiations, the Union should aim

to ensure coherence, and, to the level appropriate, consistency, between the new rules on asset

recovery at Council of Europe level and those under Union law.

2. LEGAL ELEMENTS OF THE RECOMMENDATION

• Legal basis

Article 218(3) TFEU provides that the Commission shall submit recommendations to the

Council, which shall adopt a decision authorising the opening of negotiations and nominating

the Union negotiator. The Commission shall be appointed as the negotiator. According to

Article 218(4) TFEU, the Council may address directives to the negotiator. The procedural

legal basis for the Council Decision authorising the Commission to participate, on behalf of

the Union, in the negotiations on the additional Protocol is therefore Article 218(3) and (4)

TFEU.

The substantive legal basis for the envisaged Protocol can only be determined when its

precise scope and content are known. According to Article 4(2)(j) TFEU, the Union has

competence in the area of freedom, security and justice, which is, in principle, shared with the

Member States. Article 83(1) and (2) TFEU empower the Union to establish minimum rules

concerning the definition of criminal offences and the sanctions for such offences, including

the freezing and confiscation of proceeds of crime. Article 82(1) TFEU empowers the Union

to adopt rules in order to facilitate cooperation between judicial or equivalent authorities of

the Member States in relation to proceedings in criminal matters, and the enforcement of

decisions. Article 82(2) TFEU provides for the approximation of the laws and regulations of

the Member States as regards certain aspects of criminal procedure, including the rights of

individuals in criminal procedure and the rights of victims of crime. While the scope of

Article 83(1) and (2) TFEU is limited in terms of the criminal offences covered, such is not

the case as regards Article 82(1) and (2) TFEU. Measures on asset tracing and asset

identification, or cooperation between asset recovery offices and asset management offices

are covered by Article 87(2) TFEU.

Article 3(2) TFEU provides that the Union has exclusive competence “for the conclusion of

an international agreement (...) in so far as its conclusion may affect common rules or alter

their scope”. In particular, the European Court of Justice has clarified that a “finding that there

is such a risk [of affectation or alteration of EU rules by international commitments] does not

presuppose that the areas covered by the international commitments and those covered by the

EU rules coincide fully” but that “the scope of common EU rules may be affected or altered

by such commitments also where those commitments fall within an area which is already

15 Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight

against fraud to the Union's financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29–

41).

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largely covered by such rules”16. The analysis of the nature of the Union competence must

take into account the areas covered by the EU rules and by the provisions of the agreement

envisaged, their foreseeable future development and the nature and content of those rules and

those provisions, in order to determine whether the envisaged agreement is capable of

undermining the uniform and consistent application of the EU rules and the proper

functioning of the system which they establish.

The Union has exercised its competence in the area of freedom, security and justice by the

adoption of numerous instruments on law enforcement and judicial cooperation in criminal

matters and the establishment of minimum rules on measures concerning freezing and

confiscation. Moreover, the Union has adopted several directives that reinforce procedural

rights of suspects and accused persons. The following instruments are particularly relevant

with regard to the elements being considered for the envisaged Protocol, namely the sharing

and management of frozen and confiscated assets, execution of confiscation decisions,

procedures for non-conviction-based confiscation and extended confiscation and cooperation

in transnational cases:

• New Directive on asset recovery and confiscation, which replaces, inter alia

Directive 2014/42 and Framework Decisions 2001/500 and 2005/212;

• Regulation 2018/1805 on mutual recognition of freezing and confiscations

orders;

• Framework Decisions 2003/577 and 2006/783, which provide for mutual

recognition of freezing orders and confiscation orders, respectively, remain

applicable for relations between Member States not bound by Regulation

2018/1805 and for relations between the latter Member States and Member

States bound by Regulation 2018/1805 (see recital 52 of Regulation

2018/1805).

In light of the above, the area of criminal asset recovery must be considered as an area which

is largely covered by Union law.

Since the envisaged protocol is likely to contain rules in the area of criminal asset recovery, it

must be regarded as capable of affecting or altering the scope of common rules in the area of

criminal asset recovery.

Therefore, the Union has exclusive external competence based on Article 3(2) TFEU, as

interpreted by the European Court of Justice, in so far as the conclusion of the envisaged

protocol may affect common EU rules or alter their scope.

• Fundamental rights

A variety of fundamental rights and freedoms enshrined in the Charter of Fundamental Rights

of the European Union (‘the Charter’)17 have to be taken into account during the negotiations

on the Protocol. The rights which are particularly relevant include the rights to privacy and

the protection of personal data (Article 7 and 8 of the Charter), the right to property (Article

17 of the Charter) the right to an effective remedy and a fair trial (Article 47 of the Charter),

the presumption of innocence and the right of defence (Article 48 of the Charter), the

principles of legality and proportionality of criminal offences and penalties (Article 49 of the

Charter) and the right not to be tried or punished twice in criminal proceedings for the same

16 Case C-114/12, Commission v. Council, ECLI: ECLI:EU:C:2014:2151, paragraph 69-70. 17 Charter of Fundamental Rights of the European Union, OJ C 202, 7.6.2016, p. 389–405.

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criminal offence (ne bis in idem, Article 50 of the Charter). As the participation in the

negotiations on behalf of the European Union should not compromise the level of protection

of fundamental rights in the Union, this initiative proposes to pursue a high level of protection

of fundamental rights.

• Subsidiarity (for non-exclusive competence)

Not applicable.

• Proportionality

This initiative does not go beyond what is necessary to achieve the policy objectives at stake.

The Union is best placed to act as the Union has already exercised internal competence in this

area through the adoption of various legal instrument in the area of asset recovery.

Therefore, a common EU approach should be taken in the negotiations to avoid discrepancies

between the the rules on asset recovery at Council of Europe level with Union law.

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Recommendation for a

COUNCIL DECISION

authorising the European Commission to participate, on behalf of the European Union,

in negotiations on an additional protocol to the Council of Europe Convention on

Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the

Financing of Terrorism (CETS No. 198)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular

Article 218(3) and (4) thereof,

Having regard to the recommendation from the European Commission,

Whereas:

(1) The Union signed the Convention on Laundering, Search, Seizure and Confiscation

of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198) on 2

April 2009. As of 18 December 2023, 25 Member States1 have signed the

Convention, 23 of which2 have ratified it.

(2) On 23 November 2023, the Committee of Ministers of the Council of Europe

adopted the Terms of Reference establishing the Committee of Experts on Criminal

Asset Recovery. The Committee of Experts on Criminal Asset Recovery is entrusted,

under the authority of the Committee of Ministers and the European Committee on

Crime Problems, to elaborate an additional Protocol supplementing the Council of

Europe Convention on laundering, search, seizure and confiscation of the proceeds

from crime and on the financing of terrorism. This work was proposed to start on 29

May 2024 and to be completed by the end of 2025.

(3) According to the Terms of Reference, the envisaged additional Protocol is likely to

contain provisions "to enhance certainty and consistency in the sharing of confiscated

assets between States Parties in transnational cases, provisions to ensure efficient and

effective management of seized, confiscated and repatriated assets, including the

execution of confiscation decisions, provisions to facilitate the introduction of non-

conviction-based confiscation procedures and of extended confiscation in criminal

matters, including cooperation regarding and execution of requests in transnational

cases and any other issue which it deems to be of consequence to strengthen co-

operation among Parties with respect to asset recovery”.

(4) The Union has already adopted common rules that overlap to a large extent with

certain elements being considered for the content of the envisaged additional

Protocol. Those common rules include in particular the Directive on asset recovery

1 All EU Member States except Czechia and Ireland have signed the Convention No. 198 with or without

reservations. 2 All EU Member States except Czechia, Finland, Ireland and Luxembourg have ratified the Convention

No. 198.

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and confiscation and Regulation 2018/18053 on the mutual recognition of freezing

orders and confiscation orders Moreover, Framework Decisions 2003/577/JHA4 and

2006/783/JHA5 remain applicable in the relations between certain Member States.

Therefore, the area of criminal asset recovery is an area already covered to a large

extent by Union rules which risk being affected or altered in scope by the elements

being considered for the envisaged additional Protocol.

(5) Therefore, the Union should participate in the negotiations on an additional Protocol

supplementing the Convention on Laundering, Search, Seizure and Confiscation of

the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198).

HAS ADOPTED THIS DECISION:

Article 1

The Commission is hereby authorised to negotiate, on behalf of the Union, the additional

Protocol of the Council of Europe Convention Convention on Laundering, Search, Seizure

and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No.

198).

Article 2

The negotiating directives are set out in the Annex.

Article 3

The negotiations shall be conducted in consultation with the [name of the special committee to

be inserted by the Council].

Article 4

This Decision is addressed to the Commission.

3 Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on

the mutual recognition of freezing orders and confiscation orders (OJ L 303, 28.11.2018, p. 1, ELI:

http://data.europa.eu/eli/reg/2018/1805/oj). 4 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of

orders freezing property or evidence (OJ L 196, 2.8.2003, p. 45,

http://data.europa.eu/eli/dec_framw/2003/577/oj). 5 Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of

mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p. 59, ELI:

http://data.europa.eu/eli/dec_framw/2006/783/oj).

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Done at Brussels,

For the Council

The President

19.04.2024

Recommendation for a COUNCIL DECISION authorising the European Commission to participate, on behalf of the European Union, in negotiations on an additional protocol to the Council of Europe Convention on Laundering, Search, Seizure and Confscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198)

Otsuse ettepanek koordinatsioonikogule

Kujundada seisukoht

Kaasvastutaja sisendi tähtpäev 25.04.2024

KOKi esitamise tähtpäev 30.04.2024

VV esitamise tähtpäev 02.05.2024

Ettepaneku selgitus: Peavastutaja Justiitsministeerium

Kaasvastutajad Siseministeerium ja Rahandusministeerium

Seisukoha valitsusse toomise alus ja põhjendus

Algatuse reguleerimisala nõuab vastavalt Eesti Vabariigi põhiseadusele seaduse või Riigikogu otsuse vastuvõtmist, muutmist või kehtetuks tunnistamist (RKKTS § 152¹ lg 1 p 1);

Algatuse vastuvõtmisega kaasneks oluline majanduslik või sotsiaalne mõju (RKKTS § 152¹ lg 1 p 2);

Sisukokkuvõte

Ettepanekuga soovitakse kinnitada läbirääkimismandaat, millega volitatakse Euroopa Komisjoni esindama liitu Euroopa Nõukogu rahapesu, kriminaaltulu avastamist, arestimist ja konfskeerimist ning terrorismi rahastamist käsitleva konventsiooni nr 198 (Varssavi konventsioon), lisaprotokolli läbirääkimistel.

Euroopa Liit on Varssavi konventsiooni allkirjastanud. Kavandatava lisaprotokolli teemadega seonduvalt on Euroopa Liit teostanud oma pädevust, võttes vastu määruse (EL) 2018/1805, mis käsitleb arestimis- ja konfskeerimisotsuste vastastikust tunnustamist ja konfskeerimise direktiivi (vastu võetud 12.04 2024.a, ülevõtmiseks ette nähtud 30 kuud). Direktiiviga antakse liikmesriikidele paremad vahendid võitluses organiseeritud

kuritegevuse ja sellega seotud ebaseadusliku tulu vastu. Direktiiviga pannakse ELi riikidele ühtlasi kohustus tagada, et ametiasutustel on oma tegevuseks vajalikud vahendid. Neid norme kohaldatakse ka sanktsioonide rikkumise suhtes.

Liidu eesmärk Euroopa Nõukogu läbirääkimistel on tagada tõhus koostööraamistik konventsiooniosaliste vahel ja edendada piiriülest koostööd varade arestimisel ja konfskeerimisel. Lisaks on eesmärk tagada kooskõla kavandatava lisaprotokolli ja ajakohastatud EL õigusraamistiku vahel. Nõukogu otsuse lisas on selleks toodud läbirääkimisjuhised komisjonile.

Kas EL algatus reguleerib karistusi või haldustrahve? Ei

Kas nähakse ette uue asutuse loomine (järelevalvelised või muud asutused)? Ei

Kas lahenduse rakendamine vajab IT-arendusi? Ei

Mõju ja sihtrühm

Inimeste õigused: Algatus mõjutab menetlusosaliste põhiõigusi

Siseturvalisus: Konventsiooni lisaprotokolli vastuvõtmisel muutub rahvusvaheline koostöö varade arestimisel ja konfskeerimisel tõhusamaks, millel on oluline mõju organiseeritud kuritegevuse ja terrorismi tõkestamisel.

2

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EUROPEAN COMMISSION

Brussels, 17.4.2024

COM(2024) 177 final

ANNEX

ANNEX

to the

Recommendation for a COUNCIL DECISION

authorising the European Commission to participate, on behalf of the European Union,

in negotiations on an additional protocol to the Council of Europe Convention on

Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the

Financing of Terrorism (CETS No. 198)

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ANNEX

Regarding the process of the negotiations, the Union should aim to achieve that:

(1) The negotiation process is open, inclusive and transparent, and based on cooperation

in good faith.

(2) Inputs received from all the States Parties to the Convention are considered on an

equal basis to ensure an inclusive process.

(3) The negotiation process is based on an effective and realistic work programme.

Regarding the general objectives for the negotiations, the Union should aim to achieve that:

(4) The Protocol is compatible with existing Union law and Member States’ obligations

under Union law on asset recovery. The Union acquis on asset recovery includes, in

particular, Regulation (EU) 2018/1805 on the mutual recognition of freezing orders

and confiscation orders, and Framework Decisions 2003/577/JHA and

2006/783/JHA, which are still applicable in cross-border cases involving Ireland and

Denmark. The relevant Union acquis for the purpose of the Protocol also includes

Regulation (EU) 2017/1939 on the establishment of the European Public

Prosecutor’s Office (EPPO).

(5) The Protocol is compatible with the new Directive on asset recovery and

confiscation.

(6) The Protocol respects the Union acquis on procedural rights in criminal proceedings,

in particular Directive 2010/64/EU on the right to interpretation and translation in

criminal proceedings1, Directive 2012/13/EU of the European Parliament and of the

Council of 22 May 2012 on the right to information in criminal proceedings2,

Directive 2013/48/EU of the European Parliament and of the Council of 22 October

2013 on the right of access to a lawyer in criminal proceedings and in European

arrest warrant proceedings, and on the right to have a third party informed upon

deprivation of liberty and to communicate with third persons and with consular

authorities while deprived of liberty3, and Directive (EU) 2016/343 on the

strengthening of certain aspects of the presumption of innocence and of the right to

be present at the trial in criminal proceedings4.

(7) The Protocol ensures respect for the fundamental rights and freedoms as enshrined in

the European Union Treaties and the Charter of Fundamental Rights of the European

Union, and that it creates rules to facilitate cooperation among parties to the

Convention in a manner which is compliant with EU standards on fundamental rights

and procedural safeguards, including the Charter of Fundamental Rights of the

European Union, in particular Articles 7, 8, 17, 19, 47, 48, 50 and 52 thereof, as well

as the EU procedural rights acquis and Union rules on data protection.

(8) The rules in the Protocol are proportionate to the level of trust existing between

Council of Europe Member States as well as the strength of accompanying

procedural rights and safeguards established in the protocol.

Regarding the substance of the negotiations, the Union should aim to achieve that:

1 OJ L 280, 26.10.2010, p. 1–7. 2 OJ L 142, 1.6.2012, p. 1–10. 3 OJ L 294, 6.11.2013, p. 1–12. 4 OJ L 65, 11.3.2016, p. 1–11.

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(9) The specific objectives set out in detail below are reached, while ensuring that the

outcome of the negotiations is compatible with the Union’s internal rules on asset

recovery. These internal rules serve as the reference point for the Union’s negotiating

position.

(10) The Protocol and Union acquis on asset recovery, as well as the new Directive on

asset recovery and confiscation, mutually reinforce each other in their objectives to

increase the effectiveness of asset recovery by creating clear rules that inter alia

facilitate cooperation among all the States Parties to the Convention.

(11) The provisions in the Protocol on sharing of confiscated assets between States Parties

in transnational cases are clear and compatible with those of the Regulation (EU)

2018/1805, in particular with the rules on the bearing and sharing of costs related to

the execution of cross-border freezing and confiscation orders, victim compensation

and restitution of property to victims.

(12) The provisions in the Protocol on asset management ensure an efficient and effective

management of frozen and confiscated assets and are compatible with the asset

management rules laid down in the new Directive on asset recovery and confiscation,

including the possibility to sell frozen property before the confiscation.

(13) The provisions in the Protocol on asset management in a cross-border context, in

particular the rules on interlocutory sales and transfers of property prior to

confiscation, facilitate cross-border cooperation and are compatible with those laid

down in Regulation (EU) 2018/1805.

(14) The provisions in the Protocol facilitate victim compensation and restitution of

property to victims in cross border cases and are compatible with the rules laid down

in Regulation (EU) 2018/1805. Rules on interlocutory sales and the disposal of

confiscated assets in cross-border cases should not prejudice the rights of victims in

any way.

(15) The provisions in the Protocol facilitate the introduction of non-conviction-based

confiscation procedures and of extended confiscation to an appropriate extent and are

compatible with the rules laid down in the new Directive on asset recovery and

confiscation, including the safeguards established therein and the Charter taking into

account the declaration of the Commission with regards to the interpretation of the

Directive. The rules of the protocol should not limit the circumstances in which

extended and non-conviction-based confiscation measures shall be applicable in the

EU. Furthermore, the rules should not limit the scope of crimes to which extended

confiscation and the non-conviction-based confiscation measures are applicable in

the EU.

(16) The provisions in the Protocol on the recognition and execution of decisions for the

freezing or confiscation of property in cross-border cases facilitate international

cooperation and are compatible with Union law, in particular Regulation 2018/1805.

(17) As regards any other additional topic that might be discussed because it is of

consequence for strengthening co-operation between the parties, including

cooperation with the European Public Prosecutor’s Office, the suggested rules are

compatible with the Union acquis on asset recovery and other relevant acquis.

(18) The Protocol contains provisions that ensure the effective tracing and identification

of assets, including through a more systematic launch of asset tracing investigations

and the establishment of specialised asset recovery offices that can facilitate cross-

border cooperation. For that purpose, these offices should, to an appropriate extent,

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be provided with effective powers and access to relevant information, taking into

account the differences in data protection standards of the parties to the Convention.

Regarding the functioning of the Convention, the Union should aim to achieve that:

(19) The Additional Protocol preserves existing global and regional instruments to which

the Union is a party.

(20) The Additional Protocol includes a disconnection clause that allows the Member

States in their mutual relations, to continue to apply Union law in matters covered by

the scope of the additional Protocol.

(21) The Additional Protocol contains general and institutional clauses, in particular on

the implementation mechanisms, the settlement of disputes, ratification, acceptance,

approval and accession, entry into force, amendments, suspension and denunciation,

which allow the Union to exercise fully its external competence.

    Resolutsiooni liik: Riigikantselei resolutsioon Viide: Justiitsministeerium / / ; Riigikantselei / / 2-5/24-00667

Resolutsiooni teema: Euroopa Nõukogu varade konfiskeerimise konventsiooni lisaprotokolli läbirääkimismandaat

Adressaat: Justiitsministeerium Ülesanne: Tulenevalt Riigikogu kodu- ja töökorra seaduse § 152` lg 1 p 2 ning Vabariigi Valitsuse reglemendi § 3 lg 4 palun valmistada ette Vabariigi Valitsuse seisukoha ja otsuse eelnõu järgneva algatuse kohta, kaasates seejuures olulisi huvigruppe ja osapooli: - Recommendation for a COUNCIL DECISION authorising the European Commission to participate, on behalf of the European Union, in negotiations on an additional protocol to the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198), COM(2024) 177.

EISi toimiku nr: 24-0182

Tähtaeg: 29.04.2024

Adressaat: Rahandusministeerium, Siseministeerium Ülesanne: Palun esitada oma sisend Justiitsministeeriumile seisukohtade kujundamiseks antud eelnõu kohta (eelnõude infosüsteemi (EIS) kaudu).

Tähtaeg: 25.04.2024

Lisainfo: Eelnõu on kavas arutada valitsuse 02.05.2024 istungil ja Vabariigi Valitsuse reglemendi § 6 lg 6 kohaselt sellele eelneval nädalal (30.04.2024) EL koordinatsioonikogus. Esialgsed materjalid EL koordinatsioonikoguks palume esitada hiljemalt 26.04.2024.

Kinnitaja: Katrin Juhandi, Euroopa Liidu asjade direktor Kinnitamise kuupäev: 19.04.2024 Resolutsiooni koostaja: Elen Nurme [email protected], 693 5201      

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