EXECUTION OF ORDERS FREEZING ASSETS OR
Draft Council Framework Decision on the execution in the European Union of orders freezing assets or evidence.
Draft Council Framework Decision on the execution in the European Union of orders freezing assets or evidence.
||Article 34 (2)(b) EU; consultation; unanimity
||(b) 26 July 2001|
|Deposited in Parliament:
||(b) 22 August 2001
|Basis of consideration:
||(b) EM and Minister's letter of 17 September 2001
|Previous Committee Report:
||(a) HC 28-x (2000-01), paragraph 4 (28 March 2001)
|To be discussed in Council:
||Justice and Home Affairs Council December 2001
||Legally and politically important
(b) Not cleared; further information requested
5.1 This proposal is based on the principle of mutual
recognition of pre-trial orders so as to enable competent authorities
quickly to secure evidence and to seize assets which are easily
movable. The previous Committee considered this draft Framework
Decision on 28 March and raised the question of safeguards for
the rights of defendants and third parties, and the admissibility
of evidence secured by pre-trial orders. The previous Committee
held the document under scrutiny pending the Minister's reply.
5.2 The Parliamentary Under-Secretary of State at
the Home Office (Mr Bob Ainsworth) wrote to our sister Committee
in the Lords on 17 September to explain a number of changes which
had been made to the earlier proposal, but did not deal with the
points raised by the previous Committee.
5.3 Document (b) is a revised version of the document
(document (a)) considered by the previous Committee on 28 March.
As before, the draft Framework Decision sets out a mechanism for
orders made in one Member State freezing assets or evidence to
be recognised and enforced in another Member State with the minimum
of formality. The revised version contains a number of detailed
5.4 One significant change is made to Article 1
(Definitions), where a 'freezing order' is no longer defined as
including an order made for the purposes of restitution of property
to the true owner. (However, it would continue to apply to orders
to secure evidence and property which may be the subject of confiscation).
The definitions have also been expanded to allow enforcement of
orders seizing items used in the commission of an offence.
5.5 As before, Article 2 limits the scope of freezing
orders to a list of matters which, under the law of the issuing
State, constitute one of the offences of illicit trafficking in
narcotic drugs, fraud affecting the European Communities' financial
interests, laundering of the proceeds of crime, counterfeiting
of the euro, corruption, or trafficking in human beings. The Presidency
has asked all delegations to consider whether any further offences
should be added.
5.6 Article 3 remains unchanged and provides for
the notification of the freezing order directly to the competent
judicial authority in the executing State.
5.7 Article 4 is a key provision, providing for
recognition and enforcement of the freezing order in the enforcing
State without any further formality being required. Limited grounds
for refusing enforcement are set out in Article 6 (failure to
produce a certificate, production of a certificate which is incomplete),
to which a new ground has been added, namely where there is an
absolute immunity or privilege under the law of the executing
state making it impossible to execute the freezing order. A new
Article 6a has been added to allow enforcement of an order to
be postponed where this might damage an ongoing criminal investigation
in the enforcing state, or where the assets or evidence concerned
have already been the subject of a freezing order made in the
context of another criminal investigation.
5.8 No substantial change has been made to Article
7 (standard form certificate accompanying the freezing order)
or to Article 8 ( treatment of the frozen asset after notification
of the freezing order).
5.9 Article 9 (appeals) has remained substantially
unchanged. It allows for appeals, but without any suspensory effect,
against a freezing order in either the issuing or the executing
State. The appeal may be made by the defendant, "the victim
or any natural or legal person claiming to be a bona fide third
party", but it is only in the issuing State that an appeal
may be made as to the substance of the freezing order. Consideration
is being given to the principle of ne bis in idem 
as an additional ground of appeal, with a proposal that an appeal
be available in the executing state where the freezing order seeks
confiscation in circumstances where such confiscation could not
be obtained as a final order under arrangements between Member
States for mutual legal assistance.
5.10 As before, Article 10 provides for the liability
of the issuing State in cases where information on the certificate
is inaccurate at the time of transmission and has resulted in
the enforcement of a freezing order which has caused "injury"
to one of the persons referred to in Article 9. In cases where
the executing State has paid damages in satisfaction of proceedings
brought against it, the issuing State is to reimburse such sums
The Government's view
5.11 In his letter of 17 September to the Chairman
of our sister Committee in the Lords, the Parliamentary Under-Secretary
of State at the Home Office (Mr Bob Ainsworth) describes the amendments
made in the following general terms:
"There are a number
of amendments (and, in our view, generally improvements) over
the original text. These are fully described in the Explanatory
Memorandum, but most significantly, it is no longer proposed that
this instrument should at this stage at least be used for the
purposes of restitution of stolen goods to their rightful owners
or victims (which would have greatly complicated the procedures).
The text is also improved in relation to the maximum duration
of freezing orders and extends the grounds on which execution
of a foreign order can be declined."
5.12 In his Explanatory Memorandum of 17 September
the Minister comments on each Article of the proposal and on the
amendments made. The Minister comments that he is content with
the removal of orders for the purpose of restitution from the
scope of the proposal, and with the inclusion of items used in
the commission of an offence within its scope. The principal detailed
comments of the Minister are the following.
5.13 On Article 2 (offences) the Minister comments
"The UK is satisfied
that, as a first measure applying the mutual recognition principle,
the offences listed are generally appropriate. All listed crimes
are subject to existing EU measures which means that there should
be a commonly accepted definition of the offence concerned in
all Member States. However, we are undertaking consultation on
the possible addition of further offences to the list again based
on existing measures with commonly accepted definitions of offences.
Also with regards to Article 2(b) we can see no reason why the
scope should not be extended to beyond just that which affects
the Communities' interests. In the UK's view further consideration
will need to be given to the technical implications of including
the wide concept of 'money laundering' in the list. The Working
Group will also need to consider whether there should be some
specific mechanism for amending the list."
5.14 On the principle of mutual recognition set
out in Article 4, the Minister repeats the point made by the then
Minister of State at the Home Office that mutual recognition must
be accompanied by common minimum standards. The Minister adds
that action taken under the draft instrument in the UK will need
to be in full compliance with the Human Rights Act, and points
to the serious effects which freezing orders can have on unconvicted
persons. In this regard, the Minister refers to a number of proposals
being made by the UK, as follows:
"We are proposing that
there must be a clear indication in the certificate that where
an order is to freeze with a view to later use as evidence that
the specified material is likely to be of substantial value to
the investigation, or where the order is with a view to eventual
confiscation that there is a clear link satisfied that the issuing
state has considered the need for the order and can provide a
short summary of it. There would however be no question of the
executing state coming to its own independent view in these cases,
except in the most blatant cases of uncertainty where we would
expect there to be full consultation between the states involved
before a decision is taken on execution."
5.15 On Article 6 (grounds for non-recognition or
non-execution) the Minister comments as follows:
"The Article has been
substantially amended from the earlier text to allow for non recognition
where there is an absolute immunity or privilege - such as legal
professional privilege in the UK - or in cases where it is practically
impossible to execute the order; if it is not at the location
specified or has been destroyed for example. In addition a new
Article 6a allows for the postponement of an order under certain
circumstances such as where execution would damage an ongoing
criminal investigation in the executing state, or in cases where
the assets in question have already been frozen by another order.
"The UK has proposed and supported the need
for additional grounds for refusal at the first working group
meeting in June and as such considers that the new clauses represent
a welcome addition to the instrument.
"The Government also understands that the Committee
have received a submission from JUSTICE which considers the principle
of ne bis in idem as a significant ground for non-execution.
This principle was discussed at the working group however it was
considered that as these are provisional measures prior to any
possible conviction (and that a judge in one country will have
no knowledge of whether the subject of the order in another has
been acquitted of a potential offence which has led to the order
being made) then this would not be a practical ground for non
execution. If execution occurred and the principle of ne bis
in idem was then raised by an individual, this fact can be
brought to the attention of the issuing state and considered by
the issuing court in the usual way.
"However, refusal remains discretionary and
the order may still be enforced if an equivalent document is available
or the information available is regarded by the executing state
5.16 On the question of appeals under Article 9,
the Minister explains that the UK has suggested a number of additions
to make the appeal system as 'user friendly' as possible in all
Member States so that defendants have a right of appeal against
any decision which affects them and which is fair and easily accessible.
Specifically, the Minister refers to the following safeguards
proposed by the UK:
"(i) When enforcing
the order, and afterwards on request, the executing state must
notify any person having custody of the material, or any other
person who claims to have a material interest in the proceedings,
of the rights of appeal against the order which exist in the issuing
and executing states.
"(ii) That notification shall be accompanied
by adequate information in the language of the executing state,
and shall be available in the main language of any Member States
upon request, as to how such an appeal should be pursued. It shall
be the responsibility of the issuing state to supply such information
for onward transmission by the executing state.
"(iii) Any time limit in the issuing state for
the submission of such an appeal from the executing state must
be of sufficient length as to reflect the special nature of the
proceedings under mutual recognition, in particular the fact that
parties affected may be located in another Member State.
"(iv) The issuing state shall ensure that all
documents relating to an appeal on its territory are available
in the language of the executing state, and in the main language
of any Member States upon request.
"(v) The issuing state must ensure that adequate
legal advice and assistance is available to those bringing, or
contemplating an appeal against such an order. The issuing state
should also provide and publicise a contact point in its administration
from which anyone bringing or contemplating an appeal can obtain
free information by telephone, fax or e-mail on the procedures
for such an appeal. Such information shall be provided in the
main language of any Member States upon request."
5.17 On Article 10 (which concerns the liability
of the issuing state where inaccurate information has been submitted)
the Minister explains that the UK has suggested that the provision
should be extended to cover cases where the issuing state has
"made some other mistake or has been tardy or negligent".
The Minister further comments:
"In Member States we
assume that those adversely affected by such misconduct would
be able to seek redress from those responsible and we would propose
that the text should reflect this. The guiding principle should
be that whichever state was in default should be liable. Where
therefore under its national law in a purely domestic case the
executing state would have been liable the aim should be to pass
such liability to the issuing state, except where the executing
state was in some way responsible."
5.18 We shall look forward to a reply by the
Minister to the points raised by the previous Committee, notably
on the question of what is meant by 'evidence' in Article 1, and
whether it includes material which is admissible in evidence in
the issuing state but not in the executing state, on the question
of whether Article 9(3) gives the issuing state a right of intervention
in appeal proceedings, and on whether under Article 10 it is necessary
for an injured party to commence proceedings in order to
recover compensation from the executing state.
5.19 We note that the scope of the proposal,
since it is confined to a number of listed offences, is considerably
narrower than that of the proposal for a Framework Decision for
a European arrest warrant (which would apply to any offence carrying
a sentence of imprisonment of twelve months or more). We ask the
Minister for his views on the scope of Article 2, and on which
additional offences he will propose in response to the invitation
of the Presidency.
5.20 Whilst we welcome the Minister's efforts
to secure fair and accessible rights of appeal for all defendants,
we would be grateful if he would confirm that such rights will
be made available also to all third parties acting in good faith.
5.21 We are content to clear document (a) from
scrutiny, on the grounds that it has been superseded, but we shall
hold document (b) under scrutiny pending a reply to all the points
which we and the previous Committee have raised.
4 i.e. the avoidance of double jeopardy Back