Law 12/2003, of 21 may, blocking of the financing of terrorism, in his first final provision, enables the Government to adopt the necessary regulations for its implementation and development, especially in terms of performance and status of agreements the Commission's monitoring of activities of financing of terrorism.
This Royal Decree comes to comply with such habilitation and serves as a tool to meet the commitments made by our country in the field relating to the exchange of information and cooperation on terrorist offences, international in this matter.
It law 10 / 2010, of 28 of April, of prevention of the bleaching of capital and of the financing of the terrorism, solved it dysfunctional existing between the Law 19 / 1993, of 28 of December, on certain measures of prevention of bleaching, and it law 12 / 2003, of 21 mayo, inasmuch as this last reproduced obligations of it first. In addition, it was the unification of the regimes of the laundering of capital and financing of terrorism.
Starting from then the lock of character administrative is configured as a measure of prevention of the financing of the terrorism, resulting alamani them violations derived of the breach from them subject forced that not adopt them measures necessary to do effective that lock. The Commission of surveillance of activities of funding of the terrorism is the organ with power for agree any lock, attributing to the Council of Ministers the power to impose them sanctions corresponding, to proposed of the Minister of the Interior; reserving the rest of competences in the field of prevention of money laundering and financing of terrorism to the Ministry of economy and competitiveness.
The entry into force of this law was furthermore the modification of law 12/2003, of 21 May. Such modification referred to in its first final provision, affecting mainly the own name of the above-mentioned legal norm, deleting is the term 'prevention'; as well as the obligations of persons and entities, monitoring and sanctioning regime. Collects also this available end the Constitution, powers and operation of the aforementioned Commission, which is precisely object of development in this regulation; as well as his working relationship with the Committee on prevention of laundering of capital and monetary offences and the participation of the Service Executive of the Commission for prevention of money laundering and monetary offences in the meetings of the Commission.
On the other hand, must be taken is the commitments entered into by Spain at the international level such as the resolutions of the Security Council of United Nations on 'al Qaeda', individuals and entities associated with the regulation of the European Community for the implementation of the measures adopted by the sanctions Committee United Nations, which reproduced the lists of successive resolutions for the purpose of freezing of funds.
Also, the position common 931 / 2001 / CFSP of the Council European, of 27 of December of 2001, and the Regulation No. 2580 / 2001, as standard own of the Union European to make effective the freezing of funds of the list European of terrorist.
With this regulation is given one step further in the regulation and functioning of the Commission's monitoring of activities of financing of terrorism as an instrument to develop the direction and momentum of the activities of prevention of the use of the financial system for the Commission of terrorist acts.
This Royal Decree consists of a descriptive part, a single article which approves the regulation of the Commission monitoring of activities of financing of terrorism, an additional provision and two final provisions, the first empowers the Minister of the Interior to issue the necessary provisions for the implementation of the approved regulation and the second refers to the entry into force of the Royal Decree.
Regard to the regulation, consists of three chapters, the chapter I referred to them provisions General, the chapter II to the composition and operation of the Commission of surveillance of activities of financing of the terrorism, and the chapter III relative to them agreements of this Commission, with a total of 15 articles.
This Royal Decree has been subject to report from the Agency Spanish of protection of data.
In his virtue, to proposal of the Minister of the Interior, with it approval prior of the Minister of Hacienda and administrations public, in accordance with the Council of State, and prior deliberation of the Council of Ministers in its meeting of the day 29 of mayo of 2015, HAVE: article only. Approval of the regulation of the Commission's surveillance activities of financing of terrorism.
Is approves the regulation of the Commission's surveillance activities financial of the terrorism, that is inserted below.
Provision additional unique. Operation.
The functioning of the Commission's monitoring of activities for financing of terrorism will be attended with the personal, technical and budgetary resources allocated to the superior body to which is attached.
Available end first. Enabling legislation.
He Minister of the Interior will dictate few provisions are necessary for the development of it established in the regulation that is approved by the present real Decree.
Available to finish second. Entry into force.
This Royal Decree shall enter into force on the twentieth day of its publication in the «Official Gazette».
Given in Madrid, the 29 de mayo of 2015.
The Minister of the Interior, JORGE FERNANDEZ DIAZ REGULATION OF THE COMMISSION OF SURVEILLANCE OF ACTIVITIES OF FINANCING of the TERRORISM CHAPTER I provisions general article 1. Object.
This regulation regulates the nature, composition, functions and operation of the Commission of surveillance of activities of financing of the terrorism (in forward, the Commission), in development of it law 12 / 2003, of 21 of mayo, of lock of the financing of the terrorism.
CHAPTER II composition and functioning of the Commission article 2. Nature and composition.
1. the Commission is a body college affiliated to the Ministry of the Interior. Will be chaired by the Secretary of State of security e integrated by them vocal that then is detailed, as well as by the Director of the center of intelligence against the terrorism and the crime organized, in its condition of Secretary, that will act with voice but without vote and that will be the charge of direct it unit organic that play the Secretariat of the Commission.
2 will be members of the Commission: A member of the public prosecutor, appointed by the Attorney General.
A representative of the ministries of Justice, of the Interior, finance and public administration, and Economics and competitiveness, appointed by the holders of the respective departments.
3. the Director of the Executive service of the Commission on the prevention of money laundering and monetary offences shall attend the meetings of the Committee with voice but without vote.
4. at the meetings of the Commission may assist independent experts, with voice but without vote, when President considers it necessary for the purposes of specific advice in matters to treat.
5. the members of the Committee shall be appointed for a period of two years. If there is any change in the course of this time, both with regard to the Ministries represented as to administrative structures which integrate voice, will remain the composition of the Commission until the corresponding period.
In all case, if is produced the cessation of some vocal by any circumstance not vary the period of two years for which was designated the vocal to which replace.
Article 3. Secretariat of the Commission.
1. the Secretariat of the Commission, planned in the article 9 of the law 12 / 2003, of 21 of mayo, will be exerted by the center of intelligence against the terrorism and the crime organized (CITCO), dependent of the Secretariat of State of security.
(2. will correspond to the Secretariat: to) instruct them procedures sanctioning to any place by them infringements to it law 12 / 2003, of 21 of mayo, including the formulation of proposed of resolution for the Commission.
(b) receive of them administrations public and people forced the information related with the lock of the funding of activities of the terrorism that is concerns the article 4 of the law 12 / 2003, of 21 of mayo.
(c) receive and process, in accordance with the rules of this regulation, requests for authorization of release or provision of funds or economic resources locked in execution of a Commission agreement.
(d) receive and process requests for Suppression of individuals and entities from the list of terrorists drawn up by the European Union and United Nations.
(e) prepare reports that allow the Commission to decide on requests for identity verification referred to in article 12.
(f) any other tasks entrusted to the Commission.
Article 4. Suppletive regime.
In relation to the regime of replacements and substitutions, convening, and quorum at meetings, the Commission will hold its activity to provisions of chapter II of title II of law 30/1992, of November 26, legal regime of public administrations and common administrative procedure.
Regarding the deadline to resolve and notify the interested parties and the effects of administrative silence, is will be, similarly, provisions of law 30/1992, of 26 November.
Article 5. Functions.
The functions of the Commission are: to) remember locking on the terms article 2 of law 12/2003, 21 May.
(b) receive them reports of intelligence financial that you are referred by the Service Executive of the Commission of prevention of the bleaching of capital e infractions monetary, in the frame of them powers that you attributed the law 12 / 2003, of 21 of mayo.
(c) study the motions for resolutions, along with records, in the proceedings, instructed by the Secretary of the Committee to the Minister of the Interior.
(d) authorize the release or provision of funds or economic assets blocked under the terms established in article 13 of this regulation.
(e) auxiliary to those organs jurisdictional criminal and to the Ministry tax in the exercise of the functions that them are own.
Article 6. Duty of confidentiality.
1 persons who perform an activity for the Commission and are aware of actions or restricted data will be required to maintain proper secrecy. This duty will involve the prohibition of communicate, publish, or disseminate data or documents reserved, even after have ceased in the service, except authorization express granted by the Commission. He breach of this duty will give place to the responsibilities provided for by the laws.
(2. them data, documents e information that held in power of the Commission have character reserved and not may be reported, except in them following alleged, and whenever not put in danger a research police, judicial or of the Ministry Fiscal, or the execution of a measure of lock of funds and resources economic agreed by the Commission: to) the broadcasting publication or communication of data when the interested party expressly consents to it.
(b) the publication of data added for purposes statistical, or them communications in form summary or added, so that the people or subject interested not can be identified even indirectly.
(c) communication of information carried out at the request of a Parliamentary Commission of inquiry into the Congress of Deputies, the Senate or both houses.
((d) the contribution of information to requirement of the Ministry tax or of an authority judicial e) the contribution of information or requirements of authority administrative u organ or unit administrative that, by virtue of it established in standards with range of law, are empowered to such effects. In this case, the applicant authority expressly invoked the legal precept that enable the information request, and will be responsible for the regularity of the requirement.
(f) the application of reports or information requirements carried out by the Commission for prevention of money laundering and monetary offences or their support bodies.
(g) the communication to the State tax administration agency, for the fulfilment of its functions legally assigned, of the agreements adopted by the Commission concerning blocking balances, accounts and positions, as well as the cessation of measures of blockade and release authorizations or provision of funds or economic resources blocked.
3. the authorities, persons or public bodies that receive reserved information from the Commission or any of its organs are also subject to the duty of secrecy regulated in this article, and must take appropriate measures that will guarantee your reservation. You can only use it within the framework of the performance of the functions that are attributed by reason of his office.
CHAPTER III agreements by the Commission article 7. Regime of adoption of agreements.
1 agreements shall be adopted by unanimous vote of the attending members in the case of the functions referred to in paragraphs to)) and (d) of article 5, and for most, also of the attending members, in the remaining cases.
2. not may be subject of agreement no matter which figure not included in the agenda, unless all members are present and the urgency of the matter to be declared unanimously.
3. the voting procedure will allow to know the meaning of the vote or abstention of members of the Commission, unless motivated way request otherwise any of them and such request is approved unanimously.
Article 8. Minutes of meetings.
Of each session that celebrate the Commission is rise Act by the Secretary, that specify necessarily them assistants, the order of the day of the meeting, them circumstances of the place and time in that is has held, them points main of them deliberations, as well as the content of them agreements adopted and, if had votes, his form of celebration and result.
Article 9. Notification of the agreements.
Without prejudice of it willing in the article 4, for ensure the effectiveness of the agreement of lock it Commission may perform, with the collaboration of the Service Executive of it Commission of prevention of the bleaching of capital e infractions monetary, notifications of it measure agreed to them subject of the article 2.1 of it law 10 / 2010, of 28 of April, of prevention of the bleaching of capital and of it financing of the terrorism.
Article 10. Blocking of balances, accounts and positions.
1. in accordance with law 12/2003, of 21 may, corresponds to the Commission the Faculty agree on blocking of balances, accounts and positions, including the goods deposited in safe deposit boxes, opened by people or entities linked to terrorist organizations in any of the entities listed in article 2 of the law 10/2010 of 28 April as well as the ban on the opening of new accounts that figure as a licensee, authorized to operate or representative, any such persons or entities.
Equally the Commission may agree blocking cash, securities and other instruments from transactions or financial operations to the originator or the beneficiary, directly or through intermediary, it had made with reason or occasion of perpetrating terrorist activities or to contribute to the purposes or objectives pursued by terrorist organizations or groups.
2. for the adoption of these agreements the Commission may act of trade or under information that could be sent by others agencies national, of the Union European or foreign. The Commission set the form in which them proposals must be presented and them criteria that will determine its valuation.
3. in relation to the duration of the effects of them agreements of lock will be of application it willing in the article 2 of the law 12 / 2003, of 21 of mayo. The cessation of the lock will be agreed when not is accredited the relationship with funding of activities terrorist or when disappear the causes that it motivated.
4. agreed by it Commission the cessation of it measure of lock or when the organ judicial competent resolved it nullity of the agreement or denied your extension, such circumstance there will be of be communicated immediately, with the collaboration of the Service Executive of it Commission of prevention of the bleaching of capital e infractions monetary, to them subject expected in the article 2 of it law 10 / 2010 , of 28 of April.
5. when the Commission consider that is meet them requirements planned in the normative of them Nations United or of the Union European may propose the inclusion of it person physical or legal in them lists of terrorist approved by the Council of security of Nations United or by it Union European. The proposal of the Commission will be sent to the Ministry of the Interior that, if it estimated from, it will be to the Ministry of affairs foreign and of cooperation.
Article 11. Implementation of the measures of blockade.
1 required subjects referred to in article 2 the law 10/2010 of 28 April, must run, within the framework of their respective areas, the agreement of the blocking of the funds or economic resources adopted and notified the Commission, communicating without delay and in writing its fulfillment, for their transfer to the General Directorate of the Treasury and financial policy.
2. the execution of the blocking measure shall not prevent financial or credit institutions receive funds transferred to the blocked accounts and paid them in them, provided all new input is also blocked. Credit and financial institutions shall report such operations without delay to the Commission and the General Directorate of the Treasury and financial policy.
3. the extent of blocking shall not apply to manure in blocked accounts of interest or other benefits corresponding to those accounts or payments due because of contracts, agreements or obligations, provided that such interest, benefits and payments are also blocked, immediately.
However, there will be obliged to retain and enter in the corresponding tax administration, the amounts which, in accordance with the tax legislation, were required in relation to such payments.
Article 12. Requests for verification of identity.
1. the physical or legal persons running blocking of funds or economic resources as agreed upon by the Commission may ask is the realization of the necessary steps in order to verify if the identity of the person on which it has implemented is the blocking measure corresponds with the person referred to in the agreement , without prejudice to the execution of the measure until the verification.
2. for this purpose, the Secretary of the Commission shall seek all information and reports may be required to verify the identity of subjects, raising report to the Commission that, in view of its content, will decide on the origin or not for the maintenance of the blocking measure.
Article 13. Authorization of release or provision of funds or economic resources blocked.
1 Notwithstanding the provisions of article 10, the Commission may agree to the release or provision of funds or economic resources that have been subject to blocking, by agreement of the Commission, in the cases referred to in this article.
(2. may agree it release or put to provision of funds or resources economic that have been object of however judicial or administrative, established before the date in that the person, entity or group has been object of any type of measure from the Commission, and whenever converge them following circumstances: to) when them funds or resources economic go to be employees exclusively for meet them amounts guaranteed by such embargoes.
(b) when the however not benefit to the person, entity u body that has been subject to the measure of lock of funds or resources economic by agreement of the Commission, by resolution of the Council of security of Nations United or by a regulation of the Union European;
3. the Commission may authorize, equally, it release or put to available of certain funds or resources economic blocked for the payment derived of a contract held by it person, entity u body that has been subject to the measure of lock of funds or resources economic, or of an obligation that corresponds to a person, entity u body that has been object of any type of measure from it Commission ((, provided that the following circumstances: a) when the date of the contract or of the obligation in question is previous to that in which the person, entity or body has been object of any of the measures b) when the funds or economic resources to be used to make a payment by a person, entity or body subject to measures mentioned to a third party in good faith.
(c) when the payment does not contribute to an activity prohibited and, in particular, when not contributes to the development of activities or groups terrorist.
4 the Commission may authorize the release or the making available of certain funds or economic resources blocked, where is determined, through adopted agreement to the effect on the funds or economic resources, any of the following circumstances: to) that are needed to cover basic needs of the person and the family dependants, such as the payment of food , rentals or mortgages, drugs and treatments medical, debts and penalties tax and raw's safe.
(b) that are destined exclusively to the payment of fees professional reasonable or to the refund of expenses related with assistance legal representation.
(c) that they are intended exclusively for payment of fees or expenses incurred for ordinary services of custody or maintenance of funds or frozen economic resources.
(d) have designed the satisfaction of character wage debts, tax, social security or any other nature that to avoid damage to third parties in good faith.
(e) that have the condition of unattachable of compliance with the legislation current.
5. However, subject to the provisions of paragraphs 2, 3 and 4 of this article, if the obligation for the payment of which will release funds is not referred to in article 5 of Regulation (EC) 2580 / 2001 of the Council of 27 December 2001 on specific restrictive measures aimed at specific individuals and entities in order to combat terrorism prior consultation with the Member States of the European Union, in whose territory the funds or economic resources have been frozen will require.
6. the competence to resolve about requests for authorization of release or provision of funds or economic resources blocked the Commission shall. Its resolutions will exhausted administrative remedies, without prejudice that the optional replacement appeal can be lodged before the same body that has issued the resolution, in accordance with articles 116 and 117 of the law 30/1992, of 26 November.
Article 14. Requests of suppression of a name of the lists of terrorist elaborated by the Union European or the Nations United.
All person physical or legal of nationality Spanish or resident in Spain included in a list of people linked with the financing of the terrorism approved by the Council of security of them Nations United or by the Council of the Union European, and that consider that, or not exists Foundation legal for the adoption of such decision, or them circumstances that motivated the adoption have ceased , can go is to the Commission, which will assess if this request is justified. In case Yes or from lack of data for to pronounce is, it shall send to the organ competent. In case negative, the Commission shall reply accordingly to the interested, who can bring the corresponding resource against that decision.