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
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on 23 April 2026
(17th sitting) (see Doc.
16385, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Constantinos Efstathiou). Text adopted by the Assembly on
23 April 2026 (17th sitting).
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
of 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 been opened for signature more than two decades ago,
has still not been signed or ratified by several Council of Europe member
States, and that it 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 the light of its extensive work on combating organised
crime, money laundering and the financing of terrorism, including
its
Resolution 2218 (2018) “Fighting
organised crime by facilitating the confiscation of illegal assets”,
its
Resolution 2279 (2019) “Laundromats:
responding to new challenges in the international fight against
organised crime, corruption and money laundering”, its
Resolution 2365 (2021) “Urgent
need to strengthen financial intelligence units – Sharper tools
needed to improve confiscation of illegal assets” and its
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 (the Court), 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 appropriate that
the draft additional protocol leaves States Parties a certain margin
of discretion 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, the Convention)
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 the 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 aim to ensure the practical and effective protection
of the fundamental rights of the persons affected by the 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 its
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.
