Viadrina Logo
Jura Logo
Foto Logo

Article Comparison - Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism

Section 5
Refusal and postponement of cooperation

Article 28
Grounds for refusal

1. Cooperation 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 cooperation under Section 2 only in so far as the assistance sought involves coercive action. Where dual criminality is required for cooperation 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. Cooperation 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, cooperation 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. Cooperation 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 cooperation under this chapter. Where its domestic law so requires, a Party may require that a request for cooperation 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 cooperation 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 cooperation under this chapter.