Identification and confiscation of instrumentalities and proceeds from crime

The European Union (EU) aims to increase the effectiveness of cooperation between EU countries in identifying, tracing, freezing, seizing and confiscating proceeds from crime in order to counter criminal activity in the field of organised crime.

ACT

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 [See amending act(s)].

SUMMARY

To improve cooperation between European Union (EU) countries in the fight against organised crime, this joint action provides for the preparation, within the scope of operations of the European Judicial Network, of user-friendly guides on identifying, tracing, freezing or seizing and confiscating of instrumentalities and proceeds from crime. Each EU country must ensure that its guide is up-to-date and includes information on:

• where to obtain assistance;
• the assistance it is prepared to provide and the restrictions thereto;
• the information a country requesting assistance must supply.

These guides are sent to the General Secretariat of the Council, which translates them and distributes them to the EU countries, the European Judicial Network and Europol.

EU countries must promote direct contacts through the existing cooperation arrangements between their investigators, investigating magistrates and prosecutors, with a view to ensuring that no unnecessary requests for assistance are made through formal channels.

To make a formal request for assistance, the requesting EU country must first identify the precise nature of the assistance it needs. The request for assistance must be properly prepared and meet the requirements that the requested EU country has set down for such requests. In case the request is labelled as “urgent”, the requesting country must provide the reasons thereof. If the requested country cannot execute the request for assistance in a way expected by the requesting country, it must consult the requesting country and attempt to execute the request in an alternative way.

EU countries must ensure that their judiciary is acquainted with best practice in international cooperation on the identification, tracing, freezing or seizing and confiscation of instrumentalities and proceeds from crime, as well as that all officials concerned with international cooperation in this area are provided with appropriate training.

RELATED ACTS

Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property [Official Journal L 68 of 15.3.2005]. This framework decision supplements the arrangements provided for by Framework Decision 2001/500/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime. It requires each EU country to take the necessary measures to enable it to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences that are punishable by deprivation of liberty for more than one year, or property of a value corresponding to such proceeds.

In relation to tax offences, EU countries may use procedures other than criminal procedures to deprive the perpetrator of the proceeds of the offence. The aim of the framework decision is to ensure that all EU countries have effective rules governing the confiscation of proceeds from crime, especially in relation to the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime.

Last updated: 14.03.2011