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Through Which The "convention On Laundering, Search, Seizure And Confiscation Of The Proceeds From Crime" Approved, Done At Strasbourg On 8 November 1990

Original Language Title: Por medio de la cual se aprueba el "Convenio sobre Blanqueo, Detección, Embargo y Confiscación de los Productos de un Delito", hecho en Estrasburgo el 8 de noviembre de 1990

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1017 OF 2006

(February 27)

Official Journal No. 46.195 of 27 February 2006

CONGRESS OF THE REPUBLIC

By means of which the "Convention on Laundering, Detection, Seizure and Confiscation<1> of the Products of a Crime" is approved, made in Strasbourg on November 8, 1990.

Vigency Notes Summary

THE CONGRESS OF THE REPUBLIC

Having regard to the text of the "Convention on Laundering, Detection, Seizure and Confiscation <1> of the Products of a Crime", made in Strasbourg on 8 November 1990, which reads:

(To be transcribed: photocopy of the full text of the International Instrument mentioned).

BILL NUMBER 245 OF 2005 SENATE

by means of which the "Convention on Laundering, Detection, Seizure and Confiscation <1> of the Products of a Crime" is approved,
made in Strasbourg on November 8, 1990.

THE CONGRESS OF THE REPUBLIC

Having regard to the text of the "Convention on Laundering, Detection, Seizure and Confiscation <1> of Products of a Crime", made in Strasbourg on 8 November 1990.

(To be transcribed: photocopy of the full text of the International Instrument mentioned).

European Treaty Series number 141.

CONVENTION ON BLEACHING, DETECTION,
SEIZURE AND SEIZURE OF
PRODUCTS FROM A DELO

Strasbourg, Council of Europe, Publishing and Documentation Service December 1990.

PREAMBLE

The Member States of the Council of Europe and the other signatory States of the present;

Whereas the aim of the Council of Europe is to achieve greater unity among its members;

Convinced of the need to pursue a common criminal policy aimed at the protection of society;

Whereas the fight against serious crimes, which has progressively become an international problem, requires the use of modern and effective methods at international level;

Believing that one of these methods is to deprive criminals of the proceeds of crime;

Whereas in order to achieve this objective it is also necessary to establish a system of international cooperation that has a good functioning,

You have agreed to the following:

CHAPTER I.

USE OF THE TERMS.

ARTICLE 1o. USE OF THE TERMS. For the purposes of this Convention:

(a) "products" means any economic advantage obtained from the commission of a crime. It may consist of any property as defined in subparagraph (b) of this article;

(b) "property" includes property of any kind, whether material or immaterial, movable or immovable, as well as documents or instruments that reveal the title or any interest on such property;

(c) "instruments" means any property used or intended to be used, in any form, in whole or in part, to commit a crime or crimes;

d) "Confiscation<1>" means a penalty or measure, ordered by a Court following a court proceeding related to a crime or crimes, that ends with the deprivation of the property;

e) "base crime" means any crime as a result of which products have been generated that may be the object of a crime as defined in Article 6o of this Convention.

CHAPTER II.

MEASURES TO BE TAKEN AT NATIONAL LEVEL.

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ARTICLE 2o. CONFISCATION MEASURES. <1>

1. Each Party shall take such legislative or other measures as may be necessary to permit the confiscationthe instruments and products of an offence<1> , or of the property whose value corresponds to those instruments and products. products.

2. Any Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by means of a declaration addressed to the Secretary-General of the Council of Europe, declare that paragraph 1 of this Article applies only to those offences or classes of offences specified in that statement.

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ARTICLE 3o. INVESTIGATION AND PROVISIONAL MEASURES.

Each Party shall take such legislative or other measures as may be necessary to enable the identification and identification of properties that are liable to be confiscated pursuant to Article 2 (1), and prevent them from being traded, transmitted or disposed of.

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ARTICLE 4. SPECIAL POWERS AND TECHNIQUES OF INVESTIGATION.

1. Each party shall take such legislative or other measures as may be necessary in order to empower its courts or other competent authorities to order the files of a bank, financial or commercial to be placed on the market. at their disposal or on board, in order to carry out the actions referred to in Articles 2 and 3. No Party may refrain from acting under the provisions of this Article on the basis of banking secrecy.

2. Each Party shall take into consideration the adoption of those legislative or other measures which may be necessary for the use of special research techniques to facilitate the identification and monitoring of the products of a crime and the meeting of evidence related to it.

Such techniques may include command control, observation, interception of telecommunications, access to computer systems, and orders to present specific documents.

Effective Case-law
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ARTICLE 5o. LEGAL RESOURCES.

Each Party shall take such legislative or other measures as may be necessary to ensure that the interested parties affected by the measures referred to in Articles 2 and 3 have effective legal remedies in the order to protect their rights.

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ARTICLE 6o. MONEY LAUNDERING OFFENCES.

1. Each Party shall take such legislative or other measures as may be necessary to consider as crimes under its domestic law, where they are intentionally committed:

(a) The conversion or transfer of property, with knowledge that these properties are the product of a crime for the purpose of concealing or disguising the illicit origin of the property or of assisting any person involved in the property. commission of the criminal offence to evade the legal consequences of its actions;

b) The concealment or disguise of the true nature, origin, location, disposition, movement, property or rights in relation to property, with knowledge that such properties are the proceeds of a crime, and subject to its principles constitutional and the basic concepts of its legal system;

c) The acquisition, possession or use of property, with knowledge that, at the time of its receipt, such properties were the proceeds of a crime;

d) Participation in association or conspiracy to commit, attempt to commit and assist, induce or facilitate and advise and commit any of the crimes that are stable in accordance with this article.

2. For the purposes of implementing or implementing paragraph 1 of this Article:

a) It shall be irrelevant that the base offense is or is not subject to the Party's criminal jurisdiction;

(b) it may be available that the offences referred to in that paragraph do not apply to persons who committed the basic offence;

(c) The knowledge, intention or purpose required as an element of the offences referred to in that paragraph may be inferred from objective, factual circumstances.

3. Each Party may take such measures as it considers necessary to also establish as a crime under its domestic law all or some of the actions referred to in paragraph 1 of this Article, in all or some of the following cases, when the offender:

a) I should have presumed that the property was a product of a crime;

b) I act with the mobile to make a profit;

c) acted in order to make it easier for more criminal actions to take place.

4. 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 the Article shall apply only to the basic offences or categories of such offences specified in that declaration.

CHAPTER III.

INTERNATIONAL COOPERATION.

SECTION 1.

OF INTERNATIONAL COOPERATION.

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ARTICLE 7o. GENERAL PRINCIPLES AND MEASURES FOR INTERNATIONAL COOPERATION.

1. The parties shall cooperate with each other to the fullest extent possible for the purposes of investigations and judicial proceedings involving the confiscationthe instruments and products of a crime<1> .

2. Each Party shall take such legislative or other measures as may be necessary to enable it to comply, under the conditions laid down in this Chapter, with applications:

a) Confiscation<1> of specific goods that are products or instruments of a crime, as well as of forfeiture<1> of products of a crime that consist of the obligation to pay a sum of money that corresponds to the value of such products;

b) To assist in the investigation and interim measures that are intended for any of the forms of confiscation<1> referred to in the preceding paragraph.

SECTION 2.

HELP IN RESEARCH.

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ARTICLE 8o. OBLIGATION TO ASSIST.

The Parties shall provide each other, upon request, with the greatest possible assistance in identifying and monitoring the instruments, products of a crime, and other properties that are susceptible to confiscation<1>. Such assistance shall include any measure that provides and ensures means of proof relating to the existence, location or movement, nature, legal status or value of the above properties.

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ARTICLE 9o. RUNNING THE HELP.

The aid provided for in Article 8o shall be provided in the manner permitted and provided for by the party's internal law and in accordance with the procedures specified in the application, in so far as these are not incompatible with the said application. internal law.

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ARTICLE 10. SPONTANEOUS INFORMATION.

Without prejudice to your own investigations or court proceedings, any Party may, without prior request, send to another Party information about instruments or products of a crime, when it considers that disclosure of such information may make it easier for the receiving Party to initiate or to carry out investigations or court proceedings, or may lead the Party to make an application under this Chapter.

SECTION 3.

INTERIM MEASURES.

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ARTICLE 11. OBLIGATION TO TAKE PROVISIONAL MEASURES.

1. At the request of a Party that has initiated a criminal procedure or a procedure involving a confiscation of<1>, another Party shall take the necessary provisional measures, such as blocking or freezing, to prevent it from being negotiated, any property that, at a later time, may be subject to confiscation request<1> or which may serve as a legal basis for such an application, is transmitted or ensejan.

2. Any Party that has received an application for confiscation<1> pursuant to Article 13 shall, upon request, adopt the measures referred to in paragraph 1 of this Article in relation to any property that is the subject of the request or that it may serve as a legal basis for such a request.

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ARTICLE 12. EXECUTION OF INTERIM MEASURES.

1. The provisional measures referred to in Article 11 shall be implemented in the manner permitted and provided for in the internal law of the requested Party and in accordance with the procedures specified in the application, in so far as they are not incompatible with that domestic law.

2. Before leaving any provisional measure adopted pursuant to this Article without effect, and where possible, the party which has been the subject of the application shall give the applicant Party the opportunity to present its claims in favour of the maintenance of the measure.

SECTION 4.

CONFISCATION. <1>

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ARTICLE 13. OBLIGATION TO CONFISCATE.<1>

1. Any Party that has received from another Party an application for confiscation<1> relating to instruments or products of a crime located on its territory shall:

a) Mandate to execute a confiscation order<1> issued by a Court of the requesting Party in connection with such instruments or products of a crime; or

b) Reissue the request to its competent authorities in order to obtain a confiscation order<1> and, once obtained, execute it.

2. For the purposes of applying paragraph 1 of this Article, any Party shall, whenever necessary, be competent to initiate a confiscation procedure<1> in accordance with its domestic law.

3. The provisions of paragraph 1 of this Article shall also apply to confiscation<1> consisting of the obligation to pay a sum of money corresponding to the value of the proceeds of a crime, when the property on the The confiscation may be executed in the territory of the requested party. in these cases, if when you execute the<1> confiscation as provided for in paragraph 1 the required party does not obtain the payment, you may execute the claim on any available property to that end.

4. Where the confiscation request<1> refers to a specific asset, the Parties may agree that the requested Party may execute the confiscation<1> in the form of an obligation to pay a sum of money corresponding to the value of that good.

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ARTICLE 14. EXECUTING THE CONFISCATION.<1>

1. The procedures for obtaining and executing the confiscation<1> under Article 13 shall be governed by the Party's internal right.

2. The requested Party shall be bound by the finding of the facts to the extent that they are reflected in a conviction or judgment of the requesting Party, or in so far as such a conviction or judgment is based on implicitly in them.

Effective Case-law

3. Each party may, at the time of signature or deposit its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary-General of the Council of Europe, declare that paragraph 2 of this Article Article shall apply only in accordance with its constitutional principles and the basic concepts of its legal system.

4. When confiscation<1> consists of the obligation to pay a sum of money, the competent authority of the requested Party shall convert the amount of the sum to its legal tender, at the exchange rate in force at the time it is adopted. the resolution to run the<1>

.

5. In the case provided for in Article 13 (1) (a), the requesting Party shall be competent to decide on any request for review of the confiscation order<1>.

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ARTICLE 15. CONFISCATED PROPERTY.<1>

The Party that has been the subject of the application shall have any property confiscated<1> in accordance with its domestic law, unless otherwise agreed by the Parties concerned.

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ARTICLE 16. RIGHT OF EXECUTION AND MAXIMUM AMOUNT OF CONFISCATION.<1>

1. The<1> confiscation request made in accordance with Article 13 does not affect the right of the requesting Party to execute the<1>confiscation resolution itself.

2. Nothing in this Convention shall be construed as allowing the total value of the confiscation<1> to exceed the amount of money specified in the confiscation order<1>. If one of the Parties finds that this situation may be present, the Parties concerned shall initiate consultations to prevent such an effect from occurring.

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ARTICLE 17. PRISON FOR NON-PAYMENT.

The Party that has been the subject of the application may not impose a prison for non-payment, no other restrictive measure of a person's freedom as a result of an application made pursuant to Article 13, if the requesting Party has specified in your request.

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SECTION 5.

DENIAL AND POSTPONEMENT OF COOPERATION.

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ARTICLE 18. GROUNDS FOR DENIAL.

1. The cooperation provided for in this Chapter may be refused

:

(a) The measure requested is contrary to the fundamental principles of the legal system of the requested Party; or

(b) The execution of the application may prejudice the sovereignty, security, public order or other essential interests of the requested Party; or

(c) In the view of the requested Party, the importance of the matter to the European Parliament in respect of the application does not justify the adoption of the measure requested; or

d) The offense to which the application refers is a political or fiscal offense; or

e) The requested Party considers that compliance with the requested measure would be contrary to the principle of ne bis in idem; or

(f) The offence referred to in the application does not constitute a crime under the domestic law of the requested Party, if it has been committed within its jurisdiction. However, this reason for refusal applies to the cooperation provided for in Section 2 only to the extent that the assistance requested involves the adoption of coercive measures.

2. The cooperation provided for in Section 2, in so far as the assistance requested involves the adoption of coercive measures, as well as that provided for in Section 3 of this Chapter, may also be refused where the measures requested are not may be adopted pursuant to the Party's internal law required for the purposes of investigations or judicial proceedings, if it were a similar internal matter.

3. Where the legal order of the requested party so requires, the cooperation provided for in Section 2, in so far as assistance involves the adoption of coercive measures, as well as that provided for in Section 3 of this Chapter, may also be refused where the requested measures or any other measures having similar effects are not permitted by the legal order of the requesting Party, or as regards the competent authorities of the Party applicant, where the application is not authorised by a judge or other judicial authority, including the Prosecutor's Office, acting either of these authorities in relation to criminal offences.

4. The cooperation provided for in Section 4 of this Chapter may also be refused

:

(a) In accordance with the legal order of the requested Party, confiscation<1> in relation to the type of crime referred to in the application is not foreseen; or

(b) Without prejudice to the obligation referred to in Article 13 (3), it shall be contrary to the principles of the Party's internal legal order relating to the limits of confiscation<1> with respect to the relationships between a crime and;

i. An economic advantage that can be considered as your product; or

ii. Any property that may be considered as your instrument; or

c) in accordance with the legal order of the Requested Party the confiscation<1> may no longer be imposed or executed by reason of prescription; or

d) The application does not concern a prior conviction, a decision of a legal nature, or a statement of clarity in that decision that one or more offences have been committed, on the basis of which the order has been ordered or requested. <1>; or

e) forfeiture<1> is not enforceable in the requesting Party, or is still subject to the ordinary resource paths; or

f) The application relates to a confiscation order<1> resulting from a resolution adopted in the absence of the person against whom the commandment is directed and, in the judgment of the requested Party, the procedure followed by the Party applicant to reach such a resolution does not satisfy the legally recognized minimum rights of defense to any person against whom a criminal charge is directed.

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ARTICLE 19. DEFERRAL.

The requested Party may defer the execution of an application, where such enforcement may prejudice the investigations or procedures carried out by its authorities.

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ARTICLE 20. PARTIAL OR CONDITIONAL ACCEPTANCE OF A REQUEST.

Before refusing or postponing the cooperation provided for in this Article, the requested Party shall examine, where appropriate after consulting the requesting Party, the possibility of granting the requested party in part or subject to such cooperation. conditions that you deem necessary.

SECTION 6.

NOTIFICATION AND PROTECTION OF THIRD PARTY RIGHTS.

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ARTICLE 21. DOCUMENT NOTIFICATION.

1. The Parties shall provide each other with as much assistance as possible for the notification of court documents to persons affected by the provisional and confiscation measures<1>.

2. Nothing in this article is intended to interfere with:

(a) The possibility of sending court documents directly to people who are abroad;

(b) The possibility that judicial agents, officials or other competent authorities of the Party of origin shall make the notification of judicial documents directly through the consular authorities of that Party, or through judicial officers, officials or other competent authorities of the Party of destination, except where the Party of destination makes a statement to the contrary to the Secretary-General of the Council of Europe at the time of signature or to deposit its instrument of ratification, acceptance, approval or accession.

3. Where court documents are notified to persons who are abroad affected by provisional or confiscation measures<1> issued by the sending Party, that Party shall indicate the legal remedies available to them. persons under their domestic law.

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ARTICLE 22. RECOGNITION OF FOREIGN RESOLUTIONS.

1. When processing a request for cooperation under Sections 3 and 4, the requested Party shall recognize any judicial decision taken in the requesting Party regarding rights claimed by third parties.

2. Recognition may be refused when:

a) Third parties have not had sufficient opportunity to assert their rights; or

b) The resolution is incompatible with a resolution previously adopted in the requested Party on the same subject; or

c) Be incompatible with the public order of the required party; or

(d) The resolution has been adopted against the provisions on exclusive jurisdiction provided for in the legal order of the requested Party.

SECTION 7.

RULES AND OTHER GENERAL RULES.

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ARTICLE 23. CENTRAL AUTHORITY.

1. The Parties shall designate a central authority or, if necessary, various authorities, which shall be responsible for sending and answering requests made pursuant to this Chapter, for the execution of such requests or for the transmission of the same to the competent authorities for their implementation.

2. Each Party shall, at the time of signature or deposit its instrument of ratification, acceptance, approval or accession, communicate to the Secretary-General of the Council of Europe the names and addresses of the designated authorities in compliance with paragraph 1 of this Article.

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ARTICLE 24. ADDRESS COMMUNICATION.

1. The central authorities shall communicate directly to each other.

2. In case of urgency the requests or communications provided for in this Chapter may be sent directly by the judicial authorities, including the Ministry of Public Prosecutor, of the requesting Party to such authorities of the requested Party. In such cases a copy shall be sent at the same time to the central authority of the requested Party through the central authority of the requesting Party.

3. Any request or communication made pursuant to paragraphs 1 and 2 of this Article may be submitted through the International Criminal Police Organization (Interpol).

4. Where an application is made in accordance with paragraph 2 of this Article and the authority is not competent to deal with such a request, it shall transmit it to the competent national authority and shall inform the competent national authority directly of the request. Requesting party.

5. Applications or communications made pursuant to Section 2 of this Chapter which do not involve the adoption of coercive measures may be transmitted directly by the competent authorities of the requesting Party to the the competent authorities of the requested Party.

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ARTICLE 25. FORM AND LANGUAGE OF REQUESTS.

1. All applications provided for in this Chapter shall be made in writing. Modern means of telecommunications, such as fax, may be used.

2. Subject to the provisions of paragraph 3 of this Article, translations of applications and documents which serve as support shall not be required.

3. At the time of signature or deposit of its instrument of ratification, acceptance, approval or accession, any Party may, by means of a declaration addressed to the Secretary-General of the Council of Europe, communicate the right to require that the requests made to it and the documents supporting them are accompanied by a translation into their own language or one of the official languages of the Council of Europe, or one of the languages indicated by it. With this same occasion you can declare that you are willing to accept translations into any other language you specify. The other parties may apply the principle of reciprocity.

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ARTICLE 26. LEGAL.

Documents sent pursuant to this Chapter shall be exempt from all legalization formalities.

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ARTICLE 27. CONTENT OF THE APPLICATION.

1. Any request for cooperation under this Chapter shall specify:

(a) The authority making the application and the authority responsible for investigations or judicial proceedings;

b) The object and reason for the request;

c) The topics included, the relevant facts (such as the date, place and circumstances of the offence), which are referred to in the investigations or court proceedings, except in the case of a request for notification;

d) To the extent that cooperation involves the adoption of coercive measures:

i. The text of the legal provisions or, where a report on the applicable legal rules is not possible; and

ii. An indication that the requested measure or any other measure having a similar effect may be adopted in the territory of the requesting Party by virtue of its own domestic law;

e) When necessary and as far as possible:

i. Details about the person or persons involved, including name, date and place of birth, nationality and situation and, in the case of a legal person, their registered office; and

ii. The property in relation to which the cooperation is requested, its situation, its relationship with the person or persons involved, any connection with the offence, as well as any information that it has in relation to the interests of others persons on that property; and

f) any special procedures that the requesting Party wants to follow.

2. The application for interim measures under Section 3 relating to the seizure of property which could be the subject of a confiscation order<1> consisting of the payment of a sum of money, shall also indicate the amount the maximum that is intended to be recovered over that good.

3. In addition to the information referred to in paragraph 1, any application made under Section 4 shall contain:

(a) In the case of Article 13, paragraph 1.a:

i. A certified true copy of the confiscation order<1> issued by the Court of the requesting Party as well as a report of the grounds that served as the basis for adopting such a resolution, where they are not indicated in the own resolution;

ii. A certificate from the requesting Party's competent authority that the confiscation order<1> is enforceable and is not subject to the ordinary remedies;

iii. Information about the extent to which the resolution is requested to run; and

iv. Information about the need to adopt interim measures;

(b) In the case of Article 13 (1) (b), a report of the facts invoked by the requesting Party is sufficient to permit the requested Party to obtain the decision under its domestic law:

c) When third parties have had the opportunity to claim rights, those documents prove that they have been.

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ARTICLE 28. DEFECTIVE REQUESTS.

1. Where an application does not comply with this Chapter or the information provided is not sufficient to enable the requested Party to process the application, that Party may request the requesting Party to subsc the sun or the complete with supplemental information.

2. The requested Party may set a deadline for the receipt of such modifications or information.

3. Pending amendments or information requested in connection with the applications provided for in Section 4 of this Chapter, the requested Party may take any of the measures referred to in Sections 2 or 3 of this Chapter. Chapter.

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ARTICLE 29. PLURALITY OF REQUESTS.

1. Where the requested Party receives more than one application under Sections 3 or 4 of this Chapter relating to the same person or property, the plurality of applications shall not prevent that Party from dealing with those applications which it entails. the adoption of provisional measures.

2. In the case of a plurality of applications under Section 4 of this Chapter, the requested Party shall examine the possibility of consulting the applicant Parties.

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ARTICLE 30. OBLIGATION TO MOTIVATE.

The requested Party shall give reasons for any decision to refuse, defer or condition any cooperation requested under this Chapter.

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ARTICLE 31. INFORMATION.

1. The requested Party shall inform the requesting Party as soon as possible:

(a) Actions initiated as a result of a request made under this Chapter;

b) The end result of the actions performed as a result of the request;

c) The decision to refuse, defer or condition; in whole or in part, any cooperation provided for in this Chapter;

d) Circumstances that make it impossible to perform the requested action, or that may delay it considerably; and

e) In the case of provisional measures taken pursuant to an application for those provided for in Sections 2 or 3 of this Chapter, of those provisions of their domestic law which would automatically lead to the lifting of the measure provisional.

2. The requesting Party shall inform the requested Party as soon as possible of:

a) Any review, resolution, or other circumstance by reason of which the<1> confiscation order is no longer enforceable, in whole or in part; and

(b) Any event, in fact legal, for which any action initiated under this Chapter is no longer justified.

3. When a Party, based on the same confiscation order<1>, requests the confiscation<1> in more than one other Party, it must inform all Parties affected by the execution of the order referred to in the request.

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ARTICLE 32. RESTRICTED USE.

1. The requested Party may subordinate the enforcement of an application to the condition that the information or evidence obtained cannot be used or transmitted, without its prior consent, by the authorities of the Party applicant for investigations or court proceedings other than those specified in the application.

2. Either Party may, at the time of signature or deposit its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary-General of the Council of Europe, declare that without its consent prior to, the information or evidence referred to in this Chapter may not be used or transmitted by the authorities of the requesting Party for investigations or judicial proceedings other than those specified in the request.

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