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A. Draft Opinion
(open)
B. Explanatory memorandum
by Mr Constantinos Efstathiou, rapporteur
(open)
Report | Doc. 16385 | 21 April 2026
Draft 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
Committee on Legal Affairs and Human Rights
A. Draft Opinion 
(open)1. The Parliamentary Assembly
congratulates the European Committee on Crime Problems (CDPC) and the
Committee of Experts on Criminal Asset Recovery (PC-RAC) on the
finalisation of the draft 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 (hereinafter
the “draft additional protocol”).
2. Since the adoption, in 2005, 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, hereinafter
the “Warsaw Convention”), organised crime, money laundering and
the financing of terrorism have evolved significantly, taking advantage
from the increasingly easier movement of capital across borders
and advanced technological developments, including the rise of virtual
assets. Existing asset recovery measures have proven insufficient,
with only around 2% of estimated criminal proceeds being seized
and confiscated. This presents an urgent need to develop and implement
effectively additional legal frameworks.
3. In this context, the Assembly regrets that the Warsaw Convention,
despite having become open for signature more than two decades ago,
has still not been signed or ratified by several Council of Europe member
States and has not been ratified by the European Union. It calls
on these States and the European Union to sign and/or ratify it
as soon as possible. The Assembly also calls on observer States
of the Council of Europe and States whose parliaments enjoy observer
or partner for democracy status with the Assembly to consider signing,
ratifying or acceding to this convention if they have not already
done so.
4. In light of its extensive work on combating organised crime,
money laundering and the financing of terrorism, including Resolution 2218 (2018) “Fighting organised crime by facilitating the confiscation
of illegal assets”, Resolution
2279 (2019) “Laundromats: responding to new challenges in the international
fight against organised crime, corruption and money laundering”, Resolution 2365 (2021) “Urgent need to strengthen financial intelligence units
– Sharper tools needed to improve confiscation of illegal assets”,
and Resolution 2434 (2022) “How to put confiscated criminal assets to good use?”,
the Assembly welcomes the draft additional protocol as an answer
to its long-standing recommendations. It notes with satisfaction
that the draft additional protocol provides for a significant expansion
of tools aimed at enabling early cross-border asset tracing, confiscation
of property deriving from criminal conduct, management of seized
assets and victim compensation. Once adopted, the draft additional
protocol will become the most significant update to the Council
of Europe asset recovery framework, further strengthening the Organisation’s
leading role in the fight against organised crime, money laundering,
and the financing of terrorism.
5. The Assembly also refers to the extensive case law of the
European Court of Human Rights, which considers that States have
a wide margin of appreciation in implementing policies to fight
crime, including confiscation of property that is presumed to be
of unlawful origin, both within the framework of criminal proceedings
subject to a conviction or in non-conviction-based proceedings,
as well as extended confiscation. It is therefore welcome that the
draft additional protocol leaves parties a certain margin when enacting
domestic legislation to implement its provisions. The Assembly further
reiterates the primary role of national courts in protecting human
rights when confiscating property and notes that the Court considers
that, in general, Article 6 of the European Convention on Human
Rights (ETS No. 5) does not prevent States from using presumptions that
the assets were acquired unlawfully and reversing the burden of
proof onto the applicant to demonstrate their lawful origin. The
same approach has been adopted by the Court under Article 1 of Protocol
No. 1 to this Convention (ETS No. 9).
6. The Assembly shares the position of the European Court of
Human Rights and reiterates its own view that non-conviction-based
and extended confiscation mechanisms are both proportionate and
necessary measures for effective law enforcement. It reaffirms that
such mechanisms remain fully compatible with human rights standards,
including the presumption of innocence and the right to the peaceful
enjoyment of possessions, provided that they are governed by appropriate
legal frameworks and subject to effective and independent judicial
oversight.
7. Referring to its Resolution
2509 (2023) “Transnational repression as a growing threat to the
rule of law and human rights”, the Assembly reiterates that the
misuse of anti-money laundering and anti-terror financing measures
constitutes one of the tools of transnational repression. Having
regard to the judgment of the European Court of Human Rights in
the case of Shorazova v. Malta,
the Assembly reminds member States that mutual legal assistance
under international treaties should be carried out in compliance
with international human rights standards. It therefore welcomes
the safeguards included in the draft additional protocol, which are
aimed at ensuring the practical and effective protection of the
fundamental rights of the persons affected by measures implemented
under its provisions, in particular the explicit wording of Article 31.
In this context, the Assembly considers that future States Parties
to the protocol should pay particular attention to specific and credible
allegations of transnational repression and political persecution
when examining co-operation requests under the protocol and make
use of the option to refuse such requests on human rights grounds,
in accordance with Article 28 of the Warsaw Convention and their
existing obligations under international human rights law.
8. Referring further to its Resolution 2605 (2025) “Legal and human rights aspects of the Russian Federation’s
aggression against Ukraine” and Resolution 2557 (2024) “The role of sanctions in countering the Russian Federation’s
war of aggression against Ukraine”, the Assembly notes the utility
of tools provided for under the Warsaw Convention and its future
additional protocol for tracing, seizing, freezing and/or confiscating the
proceeds of crimes related to the Russian Federation's war of aggression
against Ukraine.
9. Considering that the draft additional protocol implements
the Assembly’s long-standing proposals contained in its past resolutions
and recommendations, the Assembly recommends that the draft additional protocol
be adopted by the Committee of Ministers and opened for signature
as soon as possible.
10. With a view to strengthening the procedural guidelines and
further improving its provisions, the Assembly proposes the following
amendment to the draft additional protocol:
10.1. in Article 10, paragraph 3, add the following sentence
at the end of the paragraph: “Where the duration of such measures
exceeds seven working days, each Party shall ensure that their extension
is subject to an authorisation by a court.”
11. Finally, the Assembly notes that its role in the process of
drafting new Council of Europe conventions and protocols merits
careful reflection. It regrets that, save for a few exceptions,
most of its past proposals for amendments to draft instruments have
not been accepted by the Committee of Ministers, without any real explanation.
The Assembly also notes that in order to accommodate the Committee
of Ministers’ requests to adopt its opinions as soon as possible,
it has needed to resort to debates under urgent procedure, thereby significantly
limiting its capacity to properly reflect upon the presented drafts.
While such haste may occasionally be warranted by exceptional circumstances,
it should not become the norm. Accordingly, the Assembly invites
the Committee of Ministers to engage in dialogue with the aim of
establishing a more effective and inclusive opinion process, allowing
the Assembly to have a more meaningful impact on the preparation
of new Council of Europe binding instruments.
B. Explanatory memorandum
by Mr Constantinos Efstathiou, rapporteur
(open)1. Introduction
1. In 1990, the Council of Europe
adopted its Convention on Laundering, Search, Seizure and Confiscation of
the Proceeds from Crime (ETS No. 141), which became the first binding
treaty focusing on money laundering. In 2005, 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, hereinafter
the “Warsaw Convention”), also commonly referred to as the Criminal
Asset Recovery Convention, became the first treaty covering both
the prevention and the control of money laundering and the financing
of terrorism. To date, the Warsaw Convention has been ratified by
39 States (including Morocco and the Russian Federation) and signed but
not ratified by four States and the European Union. Five member
States have neither signed, nor ratified the Warsaw Convention:
Andorra, Czechia, Ireland, Norway and Switzerland.
2. In 2019, an independent expert of the Committee of Experts
on the Operation of European Conventions on Co-operation in criminal
matters (PC-OC), Mr Martin Polaine, presented a 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 proceeding from crime. The study stressed the clear
need for an international framework that encourages assistance for
non-conviction-based confiscation (NCBC) and the need for provisions
on asset management. In response to a question whether NCBC should
extend to both the criminal and civil sphere, the expert shared
his view that the time had come to have obligatory NCBC provisions
in an instrument that would outline the situations in which NCBC
could be used, while encompassing clear safeguards.
The study stressed the clear
need for an international framework that encourages assistance for
non-conviction-based confiscation (NCBC) and the need for provisions
on asset management. In response to a question whether NCBC should
extend to both the criminal and civil sphere, the expert shared
his view that the time had come to have obligatory NCBC provisions
in an instrument that would outline the situations in which NCBC
could be used, while encompassing clear safeguards.3. In 2023, the Committee of Ministers adopted terms of reference
for the Committee of Experts on Criminal Asset Recovery (PC-RAC)
and entrusted it with completing a draft additional protocol supplementing
the Warsaw Convention, under the authority of the Committee of Ministers
and of the European Committee on Crime Problems (CDPC), taking into
account the human rights and rule of law standards of the Council
of Europe and the relevant case law of the European Court of Human
Rights. These terms of reference included, among
other things, an instruction to come up with provisions to facilitate
the introduction of NCBC procedures and of extended confiscation
(confiscation of assets not directly linked to the specific offence
resulting in a conviction) in criminal matters, including co-operation
and execution of requests in transnational cases. Between May 2024
and December 2025, the PC-RAC held seven meetings, culminating with
the adoption of the draft additional protocol to the Warsaw Convention
(hereinafter the “draft additional
protocol”) and its draft explanatory
report. During its 88th plenary meeting (25-27 November 2025),
the CDPC examined and approved the draft additional protocol as
agreed by the PC-RAC and transmitted it to the Committee of Ministers
for adoption. On 24 and 25 February 2026, at their 1551st meeting,
the Ministers’ Deputies agreed to transmit the draft additional
protocol to the Parliamentary Assembly for opinion as soon as possible.
The Assembly undertook to adopt its opinion during its second part-session
of 2026, so as to enable the adoption of the draft additional protocol
by the Committee of Ministers in due time, implying that the draft
opinion would need to be adopted by the Committee on Legal Affairs
and Human Rights (once seized by the Bureau of the Assembly) and
debated in the plenary under the urgent procedure. The committee
appointed me rapporteur at its meeting on 16 March 2026, subject
to reference to the committee for opinion under the urgent procedure.
These terms of reference included, among
other things, an instruction to come up with provisions to facilitate
the introduction of NCBC procedures and of extended confiscation
(confiscation of assets not directly linked to the specific offence
resulting in a conviction) in criminal matters, including co-operation
and execution of requests in transnational cases. Between May 2024
and December 2025, the PC-RAC held seven meetings, culminating with
the adoption of the draft additional protocol to the Warsaw Convention
(hereinafter the “draft additional
protocol”) and its draft explanatory
report. During its 88th plenary meeting (25-27 November 2025),
the CDPC examined and approved the draft additional protocol as
agreed by the PC-RAC and transmitted it to the Committee of Ministers
for adoption. On 24 and 25 February 2026, at their 1551st meeting,
the Ministers’ Deputies agreed to transmit the draft additional
protocol to the Parliamentary Assembly for opinion as soon as possible.
The Assembly undertook to adopt its opinion during its second part-session
of 2026, so as to enable the adoption of the draft additional protocol
by the Committee of Ministers in due time, implying that the draft
opinion would need to be adopted by the Committee on Legal Affairs
and Human Rights (once seized by the Bureau of the Assembly) and
debated in the plenary under the urgent procedure. The committee
appointed me rapporteur at its meeting on 16 March 2026, subject
to reference to the committee for opinion under the urgent procedure.4. Although no representative of the Assembly participated in
the work of PC-RAC, during its meeting in Strasbourg on 27 January 2026,
the committee held an exchange of views with Mr Cornel-Virgiliu Călinescu, President
of the PC-RAC. Mr Călinescu explained that a new binding instrument
was necessary given that less than 1% of criminal proceeds is effectively
recovered, with constantly evolving criminal tactics, involving
the use of new technologies, such as cryptocurrencies, obstructing
the authorities’ investigative capabilities. The drafting process
drew on the experience of 42 States and several expert organisations,
focusing on creating a comprehensive and adaptable legal instrument.
In Mr Călinescu’s view, the draft additional protocol responds to
the increasingly complex landscape of financial crime, updates standards
to address recent trends, and considers international best practices
and new European directives. Notably, it mandates the establishment
of formal Asset Recovery Offices and Asset Management Offices, tasked
with early cross-border asset-tracing and proper management of seized
assets throughout the criminal process. Additionally, the draft
additional protocol streamlines and accelerates co-operation at
both intelligence and judicial levels, providing tools like joint
investigation teams and simplified procedures for asset recovery.
Importantly, it prioritises victim compensation by ensuring that
proceeds from confiscated assets are used to redress victims’ losses.
This comprehensive approach marks the most significant update in
two decades to the Council of Europe’s asset recovery framework,
better equipping member States to tackle emerging forms of financial
and cyber-enabled crime. I am grateful to Mr Călinescu and all members
of the PC-RAC for their work on this valuable instrument.
5. In my explanatory memorandum, I begin by reviewing the Assembly’s
previous work on the identification, seizure and confiscation of
instruments or products of crime (section 2) before discussing the
key features of the draft additional protocol (section 3). I also
analyse the compatibility of the proposed solutions with the European
Convention on Human Rights (ETS No. 5) (section 4) and give my assessment
of the draft text (section 5). I will conclude by sharing some reflections
on the role of the Assembly in the process of preparing new Council
of Europe binding instruments (section 6).
2. Previous work of the Assembly to facilitate identification, seizure and confiscation of instruments or products of crime
6. In its Recommendation 1262 (1995) “Drugs trafficking, drugs-related crime and money laundering” (rapporteur:
Mr Tim Rathbone, United Kingdom), the Assembly noted that the immense
profits generated by transnational drug trafficking pose a direct
and escalating threat to the democratic stability and economic integrity
of member States. Among other things, it highlighted the urgent
need for enhanced cross-border financial intelligence sharing, recognising
that criminal syndicates actively exploit jurisdictional boundaries
to obscure illicit capital flows. Additionally, the recommendation
called for the implementation of strict customer due diligence and
reporting requirements within the banking sector to effectively
detect suspicious transactions. The Assembly also urged the creation
of specialised, adequately resourced law enforcement units dedicated
explicitly to tracing the financial footprints of major trafficking
organisations.
7. In its Resolution
2218 (2018) “Fighting organised crime by facilitating the confiscation
of illegal assets” (rapporteur: Mr Mart van de Ven, Netherlands,
ALDE), the Assembly stated that traditional conviction-based confiscation
models are frequently insufficient against complex syndicates that
systematically obscure the illicit origins of their wealth. Consequently,
it called for a widespread adoption of NCBC mechanisms across all member
States. It further noted that reversing the burden of proof regarding
unexplained wealth is both a proportionate and necessary measure
for effective law enforcement. Furthermore, the Assembly affirmed
that such mechanisms remain fully compatible with fundamental human
rights standards, including the presumption of innocence, provided
they are subject to strict, independent judicial oversight. It urged
national parliaments to integrate unexplained wealth orders or analogous
civil forfeiture instruments into their domestic legal frameworks.
The resolution also emphasised the operational need to enhance international
co-operation to trace, freeze, and seize assets across jurisdictional
boundaries.
8. In its Resolution
2365 (2021) and Recommendation
2195 (2021) “Urgent need to strengthen financial intelligence units
– Sharper tools needed to improve confiscation of illegal assets”
(rapporteur: Ms Thorhildur Sunna Ævarsdóttir, Iceland, SOC), the
Assembly addressed the operational limitations impeding the efficacy of
national Financial Intelligence Units (FIUs) across member States.
It called for the urgent allocation of enhanced financial and human
resources, alongside the rapid integration of advanced analytical
technologies, such as artificial intelligence and machine learning,
into financial intelligence frameworks. At the same time, the Assembly
stressed the absolute necessity of guaranteeing the operational
independence and autonomy of FIUs to shield them from undue political
or external interference. It further urged member States to grant
FIUs the legal authority to swiftly suspend suspicious transactions,
thereby providing law enforcement with the crucial temporal window
required to secure asset freezing and subsequent confiscation orders.
The resolution encouraged the development of robust public-private
partnerships, facilitating dynamic and secure information exchange
between regulatory authorities, financial institutions and law-enforcement
agencies. Recognising the inherently transnational nature of modern
financial crime, the Assembly advocated the removal of legal and administrative
barriers that currently hinder the seamless cross-border sharing
of financial intelligence.
9. In its Resolution
2434 (2022) and Recommendation
2229 (2022) “How to put confiscated criminal assets to good use?”
(rapporteur: Mr André Vallini, France, SOC), the Assembly addressed
the issue of asset disposition, calling for the social reuse of
confiscated illicit wealth. It noted that the mere deprivation of
criminal assets remains incomplete without a systemic approach to
repurposing those funds for the common benefit. The resolution encouraged
member States to establish dedicated, transparent mechanisms to
redirect confiscated properties and capital towards victim compensation,
community development projects and law- enforcement resourcing.
The Assembly highlighted that the social reuse of assets serves
as a potent deterrent, publicly demonstrating the cessation of criminal
profitability. Addressing the contemporary geopolitical challenges,
including those involving the Russian Federation’s war of aggression
against Ukraine, the Assembly considered that such frameworks provide
a legal foundation for managing and potentially repurposing the
frozen assets of sanctioned individuals and entities. The establishment
of accountable asset management systems was identified as a vital
safeguard against secondary corruption during the asset disposal
process.
3. Main features of the draft additional protocol
10. Chapter I of the draft additional
protocol contains common provisions on its purpose (Article 1) and
use of terms (Article 2). The draft additional protocol’s aim is
to supplement and modernise, between the Parties, the provisions
of the Warsaw Convention. This means that the draft additional protocol’s
interpretation cannot contradict the purposes and goals of the Warsaw
Convention. Article 2 broadens the Warsaw Convention’s scope to
explicitly cover “financial investigations” (targeting the identification
of criminal networks, tracing property liable to confiscation, and
collecting information for criminal proceedings or asset recovery processes),
“virtual assets” (covering digital representations of electronically
transferable and storable value not including fiat currencies or
securities), and “virtual asset service providers” (encompassing
those engaging in exchange, transfer, safekeeping or administration
of virtual assets for others).
11. Additionally, Article 2(2) aligns the definition of “financing
of terrorism” with that concerning offences set out in Article 2
of the United Nations International Convention for the Suppression
of the Financing of Terrorism and relevant Council of Europe instruments,
including the offences defined by the Council of Europe Convention
on the Prevention of Terrorism (CETS No. 196) and its amending protocol.
With regard to the latter amending protocol, I wish to point out
that following the adoption by the Assembly of its Opinion 307 (2025), the Committee of Ministers, on 9 July 2025, adopted
the Protocol amending the Council of Europe Convention on the Prevention
of Terrorism. Subsequently, on 10 December 2025, it decided to open
that protocol for signature on 26 May 2026. I understand that the
CDPC’s intention was for the draft additional protocol to reflect the
proposed amended definition of a “terrorist offence”, regardless
of the status of the protocol amending the Council of Europe Convention
on the Prevention of Terrorism. States should be mindful of this
aspect when ratifying the draft additional protocol.
12. Chapter II contains the substantive provisions of the draft
additional protocol, requiring Parties to enact legal and procedural
measures to broaden domestic confiscation measures (Section 1 –
Articles 3-5) and investigative and provisional measures (Section 2
– Articles 6-9), strengthen their financial intelligence units (Section 3
– Article 10), establish or designate an asset recovery office (Section 4
– Articles 11-12) and govern asset management (Section 5 – Articles 13-17).
13. Under Article 3, Parties shall be empowered to confiscate,
in whole or in part, the property of persons convicted of money
laundering, terrorism financing, or specified predicate offences,
where a court is satisfied that such property is derived, directly
or indirectly, from criminal conduct (extended confiscation). In determining
such provenance, courts must consider all relevant circumstances,
including the proportionality between the value of property and
the lawful income of the convicted person. The draft additional
protocol, however, allows Parties to enter reservations at the time
of signature or ratification, thereby limiting the obligation to
particular categories of offences, such as those punishable by significant
custodial penalties or which generate a major economic advantage,
as well as only to specific offences. However, the scope of possible
reservations is limited, since money laundering and the financing
of terrorism cannot be exempted.
14. Article 4 is a notable innovation, obliging Parties to provide
for NCBC of property determined by a court to be criminally derived,
where permitted by fundamental principles of domestic law. Here,
too, Parties may make reservations delimiting the circumstances
under which such confiscation is available, for instance when other
measures are unavailable or where offences meet defined seriousness
criteria. NCBC should always be ordered by a court, but it us up
to each Party to determine whether it should be pursued through
criminal, civil or administrative proceedings. Article 5 imposes
a further duty to ensure the confiscation of property held by third
parties, closing an avenue for the concealment of illicit gains,
provided the rights of bona fide owners
are respected. Parties may restrict this to cases where a third
party knew or should have known that property was transferred to
avoid confiscation (Article 5(3)).
15. In relation to provisional and investigative measures, Article 6
stipulates that Parties shall have urgent means at their disposal,
including, where appropriate, ex parte action
and proceedings without prior notice, to prevent the dissipation
of assets liable to confiscation. Such action is subject to constitutional
safeguards and must be time-limited to what is strictly necessary.
Article 7 requires legislative and other measures to empower courts
and competent authorities to order the production or seizure of
records from financial institutions and virtual asset service providers,
expressly precluding refusal on grounds of financial secrecy. This
article also covers powers to determine beneficial ownership and
account holdings, scrutinise historical account activity, conduct
real-time monitoring, and impose strict non-disclosure requirements
to prevent “tipping off” (Article 7(1)-(2)). Article 8 provides
that financial investigations must be proactively pursued at all
relevant stages by competent authorities, whether as stand-alone
processes or in conjunction with criminal proceedings, and encourages
the formation of multidisciplinary investigative teams to reinforce
complex financial casework (Article 8(1)-(4)).
16. Article 9 obliges Parties to establish a central, automated
mechanism or other similarly effective and timely mechanisms to
identify bank accounts, payment and securities accounts, safe-deposit
boxes, and virtual asset accounts, as well as beneficial owners
and authorised agents. Such systems must guarantee effective, timely
access to FIUs, asset recovery offices (AROs) and other authorities
necessary for criminal and asset recovery purposes, always subject
to applicable data protection legislation. Article 12 further obliges
that AROs be granted immediate and direct access to a broad range
of public databases and registries, including those related to real
estate, business entities, vehicles and beneficial ownership. Indirect
access or requests are permissible where direct connectivity is
not practicable, and Parties must provide for data protection and information
processing safeguards throughout (Article 12(2)-(4)). Article 17
complements these mechanisms by requiring the timely identification,
evaluation, and accessibility of data concerning frozen, seized,
or confiscated property for the benefit of asset management authorities
(Article 17(1)-(2)).
17. In accordance with Articles 10 and 28, FIUs play a central
role in preserving assets potentially subject to confiscation. They
are empowered to suspend or withhold consent for suspicious transactions,
freeze accounts or business relationships, and disseminate analytical
results to competent authorities for further action, subject to
a proportionality requirement and procedural safeguards protecting
the fundamental rights of affected persons. These powers may be
limited by reservation only with respect to the suspension of accounts and
business relationships at the time of ratification (Articles 10(6)
and 28(4)).
18. Article 11 requires the designation of AROs, responsible for
identification, tracing, and urgent provisional measures, with an
enhanced cross-border function and the necessity to maintain rapid
lines of communication with respective authorities. Article 14 deals
with asset management, obliging Parties to establish or designate competent
authorities as asset management offices to ensure proper storage,
valuation, maintenance, and eventual disposal of seized or confiscated
assets. These offices are required to co-operate both domestically and
internationally, and to have recourse to the sale of perishable
or rapidly depreciating property (Article 15), as well as consideration
for the social re-use of assets under domestic law if such a policy
is adopted (Article 16).
19. Chapter III, encompassing Articles 18 to 30, defines general
international co-operation principles under which Parties enforce
foreign freezing, seizure, or confiscation orders, without making
them conditional upon simultaneous domestic proceedings. Detailed
procedures govern requests for information about financial and virtual
asset accounts (Article 20), the monitoring of transactions (Article 22),
and the formation and operation of joint investigation teams (Article 23),
with provisions ensuring that requests must be substantiated and
must meet domestic legal prerequisites for search and seizure where
so required. Specific arrangements govern asset return and sharing:
confiscated or frozen property may be returned for victim compensation
or restitution to legitimate owners, and, where appropriate, shared
equally between requesting and requested States, with the possibility
to involve third contributing States (Articles 26-27). Co-operation
requests under this protocol may, in any case, be refused on the
grounds of Article 28 of the Warsaw Convention, including inter alia where the action sought
would be contrary to the fundamental principles of the legal system
of the requested Party. These principles may include criminal procedural
safeguards and the presumption of innocence, as well as the principles
of necessity and proportionality.
20. Article 29 provides that each Party shall adopt the legislative
and other measures necessary to ensure that its ARO exchanges information
with the AROs of other Parties, spontaneously or upon request, specifically for
purposes of identifying and tracing property liable to confiscation.
Requests must state the reasons and include all available information
to facilitate identification of the property. Importantly, the exchange
may be refused by the requested Party only on specified grounds
such as threatened sovereignty, security, public order or essential
interest, prejudice to investigations or proceedings, imminent threat
to life or physical integrity, clear disproportionality or irrelevance,
when the offence is political (with the exception of terrorist financing),
or when the ne bis in idem principle
would be violated. The draft additional protocol obliges the requested
ARO to consult with the requesting office before refusing a request,
and any refusal must be appropriately explained. Deadlines are set
for a prompt response: within fourteen days for non-urgent requests
and three days for urgent requests when direct database access is
available; these are subject to extension in particular circumstances,
with further obligations for timely notification if compliance is
not possible. To facilitate such co-operation, each Party shall
designate up to two (or three, where constitutionally necessary)
contact points capable of communicating in a timely manner with
their counterparts in other Parties and communicate these assignments
to the Secretary General of the Council of Europe.
21. Article 30 requires each Party to adopt the legislative and
other measures necessary to ensure that the rules governing the
management of frozen, seized, or confiscated property also apply
when the property is frozen, seized, or confiscated at the request
of another Party.
22. Under Article 31, all the powers and procedures provided for
in the protocol must be subject to the requirements of domestic
law, incorporating safeguards for human rights, the principles of
necessity and proportionality, and ensuring the right to an effective
remedy and to a fair trial. The draft explanatory report refers
in this context to obligations stemming from the applicable international
legal and regional human rights instruments, in particular the European
Convention on Human Rights, its protocols and the case law of the European
Court of Human Rights, as well as the International Covenant on
Civil and Political Rights. Affected persons have the right to be
summoned in confiscation proceedings, to be notified without undue
delay of decisions, and to pursue a suspensive remedy before a court
to challenge pre-confiscation disposals if these would cause irreparable
harm (Articles 31-32). Asset recovery offices must implement stringent
security measures to protect information (Article 33), and Parties
are obliged to invest appropriately in the human, technical, and
budgetary resources of specialised authorities, and to provide for
their ongoing training (Article 34).
23. Oversight and proper implementation of the draft additional
protocol are maintained via Article 35, which applies the monitoring
mechanism of the Conference of the Parties established under the
Warsaw Convention, sitting as necessary in a composition restricted
to protocol Parties, and vested with the adoption of standard forms
and the facilitation of policy or legal development exchanges among
the Parties.
24. The final clauses, contained in Articles 36 to 44, set out
procedures for signature, ratification, territorial application,
accession, and denunciation, and clarify the draft additional protocol’s
relationship to other international agreements. Most notably, Article 43
strictly circumscribes the Parties’ capacity to make reservations:
only reservations in respect of certain enumerated provisions are
permitted, ensuring a high degree of uniformity in the application
and implementation of the protocol’s substantive obligations. These provisions
resemble those found in other Council of Europe conventions.
4. Compatibility of proposed measures with the European Convention on Human Rights
25. The European Court of Human
Rights has consistently recognised a wide margin of appreciation
for States in combating serious crime and corruption, including
recourse to confiscation of property presumed to be of unlawful
origin, as well as assets constituting the proceeds, the object,
or the instruments of crime. This margin has been accepted across
criminal, administrative, and civil in
rem modalities, including extended confiscation based
on presumptions and, in some jurisdictions, preventive or non‑conviction-based mechanisms
targeting organised crime and unexplained wealth, subject always
to the requirements of legality, necessity and proportionality.
In this regard, the Court has expressly noted the emergence of common European
and universal legal standards that permit confiscation without a
prior criminal conviction, allow the shifting of the burden of proof
to the property holder to prove lawful origin and extend the reach
to transformed or intermingled assets and to complicit third parties
lacking good faith, provided adequate safeguards are respected in
the concrete application.
This margin has been accepted across
criminal, administrative, and civil in
rem modalities, including extended confiscation based
on presumptions and, in some jurisdictions, preventive or non‑conviction-based mechanisms
targeting organised crime and unexplained wealth, subject always
to the requirements of legality, necessity and proportionality.
In this regard, the Court has expressly noted the emergence of common European
and universal legal standards that permit confiscation without a
prior criminal conviction, allow the shifting of the burden of proof
to the property holder to prove lawful origin and extend the reach
to transformed or intermingled assets and to complicit third parties
lacking good faith, provided adequate safeguards are respected in
the concrete application. 26. The Court’s proportionality analysis typically proceeds on
the basis that confiscation is a control of use of property within
the meaning of the second paragraph of Article 1 of Protocol No.
1 to the European Convention on Human Rights (protection of property),
even where the applicant’s property was confiscated. Exceptionally,
where a permanent measure targets a third party’s property as an
instrument of crime, the interference has been analysed as a deprivation
of property.
Exceptionally,
where a permanent measure targets a third party’s property as an
instrument of crime, the interference has been analysed as a deprivation
of property. 27. The Court has upheld the proportionality of confiscation aimed
at neutralising proceeds from drug trafficking, organised crime,
and mafia-type activities, even without a conviction, emphasising
the difficulties faced by authorities in disrupting opaque criminal
economies and the systemic need to ensure that crime does not pay. In
this context, it has also said that such measures are in keeping
with the goals of the Warsaw Convention. The Court has also accepted
the application of confiscation measures to third parties, including family
members or close associates, where they are presumed to hold ill‑gotten
assets on behalf of suspects or otherwise lack good faith.
In
this context, it has also said that such measures are in keeping
with the goals of the Warsaw Convention. The Court has also accepted
the application of confiscation measures to third parties, including family
members or close associates, where they are presumed to hold ill‑gotten
assets on behalf of suspects or otherwise lack good faith. 28. In the specific setting of NCBC targeting corruption in the
public service, the Court has confirmed that such proceedings, when
compliant with relevant international standards and accompanied
by appropriate procedural guarantees, can strike a fair balance
between the protection of property and the general interest. Conversely,
measures imposed without adequate opportunity for adversarial challenge,
or outside a clear legal basis, will fall foul of the proportionality
or legality requirements. In a case concerning asset seizure executed pursuant
to a request for mutual legal assistance, the Court held that domestic
courts must apply Article 1 of Protocol No. 1 in substance and adapt
their review to the specificities of international co-operation,
including by assessing whether the request was genuine or politically
motivated. While acknowledging the importance of international co-operation
for effectively combating organised crime, the Court stressed that
mutual legal assistance should be carried out in compliance with
international human rights standards. In this case, a lack of relevant
procedural safeguards, such as the right to be heard and to have
an effective remedy capable of challenging the seizure, resulted
in a finding of a violation of Article 1 of Protocol No. 1.
Conversely,
measures imposed without adequate opportunity for adversarial challenge,
or outside a clear legal basis, will fall foul of the proportionality
or legality requirements. In a case concerning asset seizure executed pursuant
to a request for mutual legal assistance, the Court held that domestic
courts must apply Article 1 of Protocol No. 1 in substance and adapt
their review to the specificities of international co-operation,
including by assessing whether the request was genuine or politically
motivated. While acknowledging the importance of international co-operation
for effectively combating organised crime, the Court stressed that
mutual legal assistance should be carried out in compliance with
international human rights standards. In this case, a lack of relevant
procedural safeguards, such as the right to be heard and to have
an effective remedy capable of challenging the seizure, resulted
in a finding of a violation of Article 1 of Protocol No. 1. 29. According to the Court’s case law, presumptions of illicit
origin and the shifting of the burden of proof are not per se incompatible with Article 6
of the Convention (right to a fair trial) or Article 1 of Protocol
No. 1, provided affected persons have a real opportunity to rebut
them, disclosure is adequate, and judicial discretion exists to
disapply presumptions where they risk serious injustice. In civil
proceedings concerning proceeds of serious offences, proof beyond
reasonable doubt is not required; a balance of probabilities or
high probability, combined with the inability of the owner to justify
lawful origin, can suffice for proportionality purposes. However,
reliance solely on unexplained wealth presumptions and an income
to expenditure gap, without convincingly establishing a causal nexus
between predicate conduct and the assets, is inadequate.
In civil
proceedings concerning proceeds of serious offences, proof beyond
reasonable doubt is not required; a balance of probabilities or
high probability, combined with the inability of the owner to justify
lawful origin, can suffice for proportionality purposes. However,
reliance solely on unexplained wealth presumptions and an income
to expenditure gap, without convincingly establishing a causal nexus
between predicate conduct and the assets, is inadequate. 30. Additional factors relevant to proportionality include the
duration of the measure, the
necessity to maintain it in view of the criminal proceedings’ progress,
the consequences for the interested party, the conduct
of both the applicant and the authorities, and the availability
of an effective judicial remedy by which to challenge the imposition
and continuation of seizure.
the
necessity to maintain it in view of the criminal proceedings’ progress,
the consequences for the interested party, the conduct
of both the applicant and the authorities, and the availability
of an effective judicial remedy by which to challenge the imposition
and continuation of seizure. 31. The draft explanatory report also states that the new measures
provided for in the draft additional protocol, particularly NCBC
and confiscation from third parties, may be compatible with the
Convention standards as interpreted by the Court, particularly Articles
6 and 1 of Protocol No. 1. In
this context, it is important to note that the general safeguard
clause under Article 31 of the draft additional protocol (see paragraph
22 above) ensures the application of human rights standards derived
from the Convention and the International Covenant on Civil and
Political Rights, which are both explicitly mentioned in the Preamble.
This is relevant not only with regard to the application of new
confiscation measures within the territory of a State Party, but
also to co-operation requests between States Parties that may be
refused on human rights grounds (see paragraph 19 above). The Assembly
should emphasise the importance of preventing cases of misuse of mutual
legal assistance in the context of transnational repression, as
stated in its Resolution
2509 (2023).
In
this context, it is important to note that the general safeguard
clause under Article 31 of the draft additional protocol (see paragraph
22 above) ensures the application of human rights standards derived
from the Convention and the International Covenant on Civil and
Political Rights, which are both explicitly mentioned in the Preamble.
This is relevant not only with regard to the application of new
confiscation measures within the territory of a State Party, but
also to co-operation requests between States Parties that may be
refused on human rights grounds (see paragraph 19 above). The Assembly
should emphasise the importance of preventing cases of misuse of mutual
legal assistance in the context of transnational repression, as
stated in its Resolution
2509 (2023).5. Assessment of the draft additional protocol and proposed amendments
32. The draft additional protocol
to the Warsaw Convention is a timely and needed expansion of the
Council of Europe’s body of instruments targeting money laundering
and the financing of terrorism and enabling the repurposing of the
proceeds from crime. I congratulate the PC-RAC and the CDPC on their
impressive work. I note with great satisfaction that provisions
of the draft additional protocol implement many of the Assembly’s long-standing
proposals, summarised in Chapter 2 above.
33. I believe that the measures included in the draft additional
protocol offer adequate solutions to the problem of the increasing
sophistication of criminal networks, partly facilitated by the development
of new technologies that enable assets to be transferred at blistering
speed and obscure their origin. Given the challenges posed by the
rapid internationalisation and digitisation of financial networks,
measures such as the NCBC and extended confiscation appear to be
the only viable solution. In fact, according to the Financial Action Task
Force’s (FATF) Best Practices Paper related to the implementation
of its Recommendation 4, the accused party should be required to
prove on a balance of probabilities that a particular asset, transfer,
or expenditure has a legitimate source to evade confiscation. Currently, the
FATF only requires States to “consider” introducing the reversal
of the burden of proof to ensure compliance with its recommendations.
The draft additional protocol thus elevates this recommendation
to a binding international obligation, which is a welcome step.
Currently, the
FATF only requires States to “consider” introducing the reversal
of the burden of proof to ensure compliance with its recommendations.
The draft additional protocol thus elevates this recommendation
to a binding international obligation, which is a welcome step.34. Nevertheless, there are some aspects of the draft additional
protocol that could, in my view, be improved to further strengthen
this instrument. In particular, information collected in the framework
of my work as rapporteur on “Fighting back against transnational
repression” leads me to worry that the safeguards included in the
draft additional protocol might prove insufficient if a State authority
were to use some of its tools to persecute political opponents.
In 2024, the Royal United Services Institute (RUSI), a think-tank,
published an excellent policy brief, examining the abuse or misuse
of FATF standards against the civil society, including the above-mentioned
Recommendation 4. It noted, among other things, that
despite the protection requirements, victims of malicious bank account
freezing face considerable barriers and delays in accessing judicial
reviews and exemptions for justified expenses, as acknowledged by
the FATF itself. While I welcome the general safeguard clause included
in Article 31 and the reference to “what is strictly necessary”
in terms of duration in Article 10.3 of the draft additional protocol
(suspension or withholding of consent for suspicious transactions, accounts
and business relationships), I propose an amendment to the latter
provision to guarantee judicial review of prolonged suspensions
of suspicious accounts, business relationships and transactions.
Given that such relationships can relate to a vast category of professionals,
I believe that a certain cut-off date, beyond which a judicial authorisation
would be required, is warranted. Mindful of divergent standards
in this area, I propose this threshold to be seven working days.
It noted, among other things, that
despite the protection requirements, victims of malicious bank account
freezing face considerable barriers and delays in accessing judicial
reviews and exemptions for justified expenses, as acknowledged by
the FATF itself. While I welcome the general safeguard clause included
in Article 31 and the reference to “what is strictly necessary”
in terms of duration in Article 10.3 of the draft additional protocol
(suspension or withholding of consent for suspicious transactions, accounts
and business relationships), I propose an amendment to the latter
provision to guarantee judicial review of prolonged suspensions
of suspicious accounts, business relationships and transactions.
Given that such relationships can relate to a vast category of professionals,
I believe that a certain cut-off date, beyond which a judicial authorisation
would be required, is warranted. Mindful of divergent standards
in this area, I propose this threshold to be seven working days.6. Reflections on the Assembly’s role in the opinion process on draft Council of Europe binding instruments
35. Finally, I would like to make
some observations on the role of the Assembly in the process of
issuing statutory opinions on draft binding instruments transmitted
by the Committee of Ministers. With a few exceptions, most of its
past proposals for amendments to draft conventions and protocols
have not been accepted by the Committee of Ministers, without any
real explanation. This has even been the case when the Assembly
has been cautious and proposed only a few amendments, bearing in
mind that difficult compromises had already been reached within
inter-governmental committees, including with non-member States participating
in the negotiations. I believe that the Assembly’s role in this
process should be reviewed. One option would be for the Committee
of Ministers to transmit the drafts for opinion at an earlier stage,
giving the Assembly the opportunity to substantially contribute
to the public dialogue and to formally express its views during
the negotiations before providing its final opinion. Otherwise,
the Assembly will simply rubber stamp the Committee of Ministers’
decisions.
36. I also regret the recent practice whereby the Committee of
Ministers requests opinions from the Assembly as soon as possible,
with the aim of adopting the convention or protocol at a specific
ministerial session. This often forces the Assembly to issue the
opinion within a very short timeframe through the use of its urgent
procedure, thereby limiting its capacity to reflect meaningfully
upon the submitted drafts and to engage with relevant stakeholders.
While such haste may occasionally be warranted by exceptional circumstances,
it should not become the norm. According to the Assembly’s rules
of procedure (rule 52.1), the urgent procedure should not be used
for a statutory opinion “unless there are exceptional circumstances justifying
its use”. I therefore propose including an invitation to the Committee
of Ministers to engage in dialogue with the Assembly, with a view
to establishing a more effective and inclusive opinion process on
draft binding instruments.