On December 2007 the Council of the European Union, on initiative of Belgium, Austria and Finland, adopt the Decision 2007/845/JHA concerning the cooperation between Asset Recovery Officies. ACI contributor Vania Puttati looks at what this has meant.
Legal Basis and background
The Decision had been adopted on the basis of the Articles 30(1)(a)-(b) and 34(2)(c) of the TEU:
“1. Common action in the field of police cooperation shall include: (a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences; b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data””
“2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may: (c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union”.
The Decision consist in a follow up of the Council adopted Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (2) and Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property.
“Cooperation between the Asset Recovery Offices and between the Asset Recovery Offices and other authorities charged with the facilitation of the tracing and identification of proceeds of crime should take place on the basis of the procedures and time limits provided for in Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (4), including the grounds for refusal contained therein”.
ATTACK FINANCIAL GAIN THROUGH COOPERATION AND EXCHANGE OF INFORMATION
Considering that “close cooperation is necessary between the relevant authorities of the Member States involved in the tracing of illicit proceeds and other property that may become liable to confiscation and provision should be made allowing for direct communication between those authorities”, the Council goal is to aim to the organised crime revenues by improving the exchange of information within Member States:
“The main motive for cross-border organised crime is financial gain. (…) To combat organised crime effectively, information that can lead to the tracing and seizure of proceeds from crime and other property belonging to criminals has to be exchanged rapidly between the Member States of the European Union.”
To do that, Members States need a national Asset Recovery Office that “should ensure that these offices can exchange information rapidly”. Such offices already exist in many MSs and Austria, Belgium, Germany, Ireland, Netherlands and the United Kingdom already created in 2004 a cooperation of practitioners and experts called CARIN (Camden Assets Recovery Inter-Agency Network) that “constitutes a global network of with the intention of enhancing mutual knowledge on methods and techniques in the area of cross-border identification, freezing, seizure and confiscation of the proceeds from, and other property related to, crime”.
ASSET RECOVERY OFFICES: A TOOL TO CONTRAST CRIME
The Decision push MSs to set “set up or designate a national Asset Recovery Office, for the purposes of the facilitation of the tracing and identification of proceeds of crime and other crime related property which may become the object of a freezing, seizure or confiscation order made by a competent judicial authority in the course of criminal or, as far as possible under the national law of the Member State concerned, civil proceedings”.
The AROs must cooperate by “exchanging information and best practices, both upon request and spontaneously” and the MSs “Member States shall ensure that this cooperation is not hampered by the status of the Asset Recovery Offices under national law, regardless of whether they form part of an administrative, law enforcement or a judicial authority”.
AROs can request to other AROs of another MS for information by specifing the object of and the reasons for the request and the nature of the proceedings. It also have to precify object and reasons of the request as well as the details of the property targeted and subjects involve. An AROs can also spontaneously exchange information in order to improve the work of other AROs.
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