2008. évi LXIII. törvény
az Európa Tanács pénzmosásról, a bűncselekményből származó jövedelmek felkutatásáról, lefoglalásáról és elkobzásáról, valamint a terrorizmus finanszírozásáról szóló, Varsóban, 2005. május 16-án kelt Egyezménye kihirdetéséről, valamint a pénzmosás és a terrorizmus finanszírozása megelőzéséről és megakadályozásáról szóló 2007. évi CXXXVI. törvény módosításáról1
1. § Az Országgyűlés e törvénnyel felhatalmazást ad az Európa Tanács pénzmosásról, a bűncselekményből származó jövedelmek felkutatásáról, lefoglalásáról és elkobzásáról, valamint a terrorizmus finanszírozásáról szóló, Varsóban, 2005. május 16-án kelt Egyezménye (a továbbiakban: Egyezmény) kötelező hatályának elismerésére.
2. § Az Országgyűlés az Egyezményt e törvénnyel kihirdeti.
3. § Az Egyezmény hiteles angol nyelvű szövege és annak hivatalos magyar nyelvű fordítása a következő:
Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism)~„Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism
Preamble
The member States of the Council of Europe and the other Signatories hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
Convinced of the need to pursue a common criminal policy aimed at the protection of society;
Considering that the fight against serious crime, which has become an increasingly international problem, calls for the use of modern and effective methods on an international scale;
Believing that one of these methods consists in depriving criminals of the proceeds from crime and instrumentalities;
Considering that for the attainment of this aim a well functioning system of international co-operation also must be established;
Bearing in mind the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS No. 141 - hereinafter referred to as „the 1990 Convention”);
Recalling also Resolution 1373(2001) on threats to international peace and security caused by terrorist acts adopted by the Security Council of the United Nations on 28 September 2001, and particularly its paragraph 3.d;
Recalling the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999 and particularly its Articles 2 and 4, which oblige States Parties to establish the financing of terrorism as a criminal offence;
Convinced of the necessity to take immediate steps to ratify and to implement fully the International Convention for the Suppression of the Financing of Terrorism, cited above,
Have agreed as follows:
CHAPTER I
USE OF TERMS
Article 1
Use of terms
For the purposes of this Convention:
a „proceeds” means any economic advantage, derived from or obtained, directly or indirectly, from criminal offences. It may consist of any property as defined in subparagraph b of this article;
b „property” includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title to or interest in such property;
c „instrumentalities” means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences;
d „confiscation” means a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property;
e „predicate offence” means any criminal offence as a result of which proceeds were generated that may become the subject of an offence as defined in Article 9 of this Convention;
f „financial intelligence unit” (hereinafter referred to as „FIU”) means a central, national agency responsible for receiving (and, as permitted, requesting), analysing and disseminating to the competent authorities, disclosures of financial information
i concerning suspected proceeds and potential financing of terrorism, or
ii required by national legislation or regulation, in order to combat money laundering and financing of terrorism;
g „freezing” or „seizure” means temporarily prohibiting the transfer, destruction, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority;
h „financing of terrorism” means the acts set out in Article 2 of the International Convention for the Suppression of the Financing of Terrorism, cited above.
CHAPTER II
FINANCING OF TERRORISM
Article 2
Application of the Convention to the financing of terrorism
1 Each Party shall adopt such legislative and other measures as may be necessary to enable it to apply the provisions contained in Chapters III, IV and V of this Convention to the financing of terrorism.
2 In particular, each Party shall ensure that it is able to search, trace, identify, freeze, seize and confiscate property, of a licit or illicit origin, used or allocated to be used by any means, in whole or in part, for the financing of terrorism, or the proceeds of this offence, and to provide co-operation to this end to the widest possible extent.
CHAPTER III
MEASURES TO BE TAKEN AT NATIONAL LEVEL
SECTION 1
GENERAL PROVISIONS
Article 3
Confiscation measures
1 Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds and laundered property.
2 Provided that paragraph 1 of this article applies to money laundering and to the categories of offences in the appendix to the Convention, each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this article applies
a only in so far as the offence is punishable by deprivation of liberty or a detention order for a maximum of more than one year. However, each Party may make a declaration on this provision in respect of the confiscation of the proceeds from tax offences for the sole purpose of being able to confiscate such proceeds, both nationally and through international cooperation, under national and international tax-debt recovery legislation; and/or
b only to a list of specified offences.
3 Parties may provide for mandatory confiscation in respect of offences which are subject to the confiscation regime. Parties may in particular include in this provision the offences of money laundering, drug trafficking, trafficking in human beings and any other serious offence.
4 Each Party shall adopt such legislative or other measures as may be necessary to require that, in respect of a serious offence or offences as defined by national law, an offender demonstrates the origin of alleged proceeds or other property liable to confiscation to the extent that such a requirement is consistent with the principles of its domestic law.
Article 4
Investigative and provisional measures
Each Party shall adopt such legislative and other measures as may be necessary to enable it to identify, trace, freeze or seize rapidly property which is liable to confiscation pursuant to Article 3, in order in particular to facilitate the enforcement of a later confiscation.
Article 5
Freezing, seizure and confiscation
Each Party shall adopt such legislative and other measures as may be necessary to ensure that the measures to freeze, seize and confiscate also encompass:
a the property into which the proceeds have been transformed or converted;
b property acquired from legitimate sources, if proceeds have been intermingled, in whole or in part, with such property, up to the assessed value of the intermingled proceeds;
c income or other benefits derived from proceeds, from property into which proceeds of crime have been transformed or converted or from property with which proceeds of crime have been intermingled, up to the assessed value of the intermingled proceeds, in the same manner and to the same extent as proceeds.
Article 6
Management of frozen or seized property
Each Party shall adopt such legislative or other measures as may be necessary to ensure proper management of frozen or seized property in accordance with Articles 4 and 5 of this Convention.
Article 7
Investigative powers and techniques
1 Each Party shall adopt such legislative and other measures as may be necessary to empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized in order to carry out the actions referred to in Articles 3,4 and 5. A Party shall not decline to act under the provisions of this article on grounds of bank secrecy.
2 Without prejudice to paragraph 1, each Party shall adopt such legislative and other measures as may be necessary to enable it to:
a determine whether a natural or legal person is a holder or beneficial owner of one or more accounts, of whatever nature, in any bank located in its territory and, if so obtain all of the details of the identified accounts;
b obtain the particulars of specified bank accounts and of banking operations which have been carried out during a specified period through one or more specified accounts, including the particulars of any sending or recipient account;
c monitor, during a specified period, the banking operations that are being carried out through one or more identified accounts; and,
d ensure that banks do not disclose to the bank customer concerned or to other third persons that information has been sought or obtained in accordance with sub-paragraphs a, b, or c, or that an investigation is being carried out.
Parties shall consider extending this provision to accounts held in non-bank financial institutions.
3 Each Party shall consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto, such as observation, interception of telecommunications, access to computer systems and order to produce specific documents.
Article 8
Legal remedies
Each Party shall adopt such legislative and other measures as may be necessary to ensure that interested parties affected by measures under Articles 3, 4 and 5 and such other provisions in this Section as are relevant, shall have effective legal remedies in order to preserve their rights.
Article 9
Laundering offences
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as offences under its domestic law, when committed intentionally:
a the conversion or transfer of property, knowing that such property is proceeds, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of the predicate offence to evade the legal consequences of his actions;
b the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property, knowing that such property is proceeds;
and, subject to its constitutional principles and the basic concepts of its legal system;
c the acquisition, possession or use of property, knowing, at the time of receipt, that such property was proceeds;
d participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article.
2 For the purposes of implementing or applying paragraph 1 of this article:
a it shall not matter whether the predicate offence was subject to the criminal jurisdiction of the Party;
b it may be provided that the offences set forth in that paragraph do not apply to the persons who committed the predicate offence;
c knowledge, intent or purpose required as an element of an offence set forth in that paragraph may be inferred from objective, factual circumstances.
3 Each Party may adopt such legislative and other measures as may be necessary to establish as an offence under its domestic law all or some of the acts referred to in paragraph 1 of this article, in either or both of the following cases where the offender
a suspected that the property was proceeds,
b ought to have assumed that the property was proceeds.
4 Provided that paragraph 1 of this article applies to the categories of predicate offences in the appendix to the Convention, each State or the European Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this article applies:
a only in so far as the predicate offence is punishable by deprivation of liberty or a detention order for a maximum of more than one year, or for those Parties that have a minimum threshold for offences in their legal system, in so far as the offence is punishable by deprivation of liberty or a detention order for a minimum of more than six months; and/or
b only to a list of specified predicate offences; and/or
c to a category of serious offences in the national law of the Party.
5 Each Party shall ensure that a prior or simultaneous conviction for the predicate offence is not a prerequisite for a conviction for money laundering.
6 Each Party shall ensure that a conviction for money laundering under this Article is possible where it is proved that the property, the object of paragraph 1.a or b of this article, originated from a predicate offence, without it being necessary to establish precisely which offence.
7 Each Party shall ensure that predicate offences for money laundering extend to conduct that occurred in another State, which constitutes an offence in that State, and which would have constituted a predicate offence had it occurred domestically. Each Party may provide that the only prerequisite is that the conduct would have constituted a predicate offence had it occurred domestically.
Article 10
Corporate liability
1 Each Party shall adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the criminal offences of money laundering established in accordance with this Convention, committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on:
a a power of representation of the legal person; or
b an authority to take decisions on behalf of the legal person; or