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 property or evidence.
|Legal base:||Article 34 (2)(b) EU; consultation; unanimity
|Document originated:||(a) 27 November 2001
(b) 11 January 2002
|Deposited in Parliament:||(a) 29 November 2001
(b) 18 January 2002
|Basis of consideration:||(a) EM and Minister's letter of 4 December 2001
(b) EM and Minister's letter of 28 January 2002
|Previous Committee Report:||(a) HC 152-xi (2001-02), paragraph 2 (9 January 2002)
|To be discussed in Council:||28 February/1 March 2002
|Committee's assessment:||Legally and politically important
|Committee's decision:||(a) Cleared
(b) Not cleared; further information requested
4.1 This proposal is based on the principle of mutual
recognition and enforcement of pre-trial orders so as to enable
competent authorities quickly to secure evidence and to seize
assets situated in other EU Member States and which are easily
movable. The previous Committee considered this draft Framework
Decision on 28 March, and we considered it on 17 October, on 14
November and again on 9 January.
4.2 We had expressed our concern that an ambiguity should
have arisen over the meaning of 'judicial authority' as a term
describing those authorities which would be entitled to issue
a freezing order under the Framework Decision. We asked the Parliamentary
Under-Secretary of State at the Home Office (Mr Bob Ainsworth)
to give us his assurance that the proposal would not require or
permit freezing orders to be executed in this country unless they
had been made by a court or authority which was 'judicial' in
the sense commonly understood in this country.
4.3 In his letter of 4 December, the Minister said he
was not able to give the 'absolute commitment' we sought. He explained
his view that a system whereby orders which request eventual confiscation
would be made by judges or a judicial authority, but orders which
only sought evidence would be made by judicial authorities, including
a police authority in Denmark, was 'an acceptable compromise'.
On 9 January we pressed the Minister to explain why he thought
that a compromise on this question of principle was necessary,
and why it should be made possible to secure the enforcement of
orders made by police authorities. We asked the Minister if he
had considered an alternative, whereby a limited derogation would
be granted to the one Member State currently in question, without
prejudicing the general rule that the order must be made by an
authority which exercises judicial functions.
The Minister's letter
4.4 In his letter of 28 January the Minister forwarded
to us an Explanatory Memorandum covering a revised text of the
proposal. In relation to the questions put to him, the Minister
explained that Member States agreed on 17-18 January to define
a judicial authority as in the national law of the issuing State,
a proposal which the Minister described as being 'broadly consistent'
with Article 6 of the Framework Decision on the European Arrest
Warrant. The Minister
reported on the outcome of the meeting as follows:
"As you will be aware from previous correspondence, this
is not a position which the UK supported. As outlined in my letter
of 4 December we had previously sought a text which required that
orders requesting eventual confiscation would be made by judges
or a judicial authority as under Article 18(3) of the
1990 Money Laundering Convention whilst orders seeking
evidence will be made by authorities under the 1959 Convention
on Mutual Assistance definition. Another possibility would have
been to incorporate text similar to that appearing at Article
1 of the European Arrest Warrant instrument having the effect
that the orders concerned should always be court decisions.
"Again at the recent Article 36 Committee meeting we supported
a proposal that the executing state could refuse to execute a
request not issued by a judge or public prosecutor. However we
remain almost totally isolated on the point.
"Under the 1959 Convention it is only Denmark who have nominated
a police authority the Copenhagen Prefect of Police and
the Police Commissioners as a judicial authority, although
I now understand that a similar position may prevail in Finland.
I have noted the comments of the Committee from 9 January, which
considered that regardless of this fact other Member States could
secure the enforcement of police orders in the future; although
there is no indication that this will be the case.
"Denmark has explained that under its system, at the local
level the chief prosecutor is also the chief officer of police
and under Danish law he/she is a 'judicial authority' for the
purpose of making foreign requests. That is not the system which
we, or for that matter other Member States have, but acknowledgement
of differences in national practice is very much part of what
mutual recognition is all about, provided that the necessary safeguards
are put in place. There is no reason to believe that, as a result
of their system, requests from Denmark would be ill-conceived
or oppressive and that is certainly not our past experience with
them when dealing with mutual legal assistance requests.
"In Finland a freezing order can be issued by the police,
prosecutors or courts according to the circumstances. Where the
police are involved, this is limited to provisional restraint,
in cases or urgency, and must be approved by a court within a
week in default of which it automatically lapses; the
order is also fully appealable. I should also add that where,
as in the case of this draft instrument, international co-operation
is envisaged, it is the practice in Finland for any orders made
by the police to be approved by prosecutors.
"Given the further information we have received from Denmark
and Finland, the Government is satisfied with the revised text
of this Article. Even if this were not the case, there is virtually
no chance of our obtaining agreement at this stage to any further
The revised proposal
4.5 The revised proposal (document (b)) is not substantially
altered by comparison with the version (document (a)) we considered
on 9 January. Article 1, dealing with definitions, refers to an
'issuing authority' as being the state within which a judicial
authority within the meaning of the European Convention on Mutual
Assistance in Criminal Matters of 20 April 1959 has made a freezing
order. The 1959 Convention does not define "judicial authority",
but Article 24 of that Convention permits Contracting States to
make a declaration defining what authorities it will, for the
purposes of the Convention, deem to be judicial authorities.
The Explanatory Memorandum indicates that the UK supported a proposal
that an order could be refused by the executing state where it
was not issued by a judge or a public prosecutor, but that there
was no support for this view and that it was decided to incorporate
a text comparable to the European Arrest Warrant, whereby judicial
authorities would be defined in the national law of the issuing
4.6 Article 2 sets out the list of offences in respect
of which a freezing order may be made and recognised under the
proposal. It now incorporates the agreement made by the Council
that the scope of the offences covered should be consistent with
the Framework Decision on the European Arrest Warrant. Article
2 accordingly applies to all offences which are punishable by
a sentence of at least three years' imprisonment.
Article 2 contains the same list of offences as appears in Article
2(2) of the Framework Decision on the European Arrest Warrant.
In these cases, the executing State may not insist on dual criminality
as a condition of enforcement.
4.7 No substantial change has been made to Article 3
(transmission of freezing orders), Article 4 (recognition and
immediate execution) or to Article 5 (duration of the freezing).
4.8 In relation to Article 6 (grounds for non-recognition
and execution) a number of Member States had made a proposal which
would permit a refusal to execute the order if execution would
infringe the ne bis in idem principle.
This has been incorporated in a new Article 6(1)(c) which, in
the case of a request for confiscation, permits the executing
State to refuse enforcement if from the certificate accompanying
the request 'it is instantly clear that the execution of this
request would infringe the ne bis in idem principle'.
4.9 The remaining Articles of the proposal are substantially
unchanged. Article 9 continues to provide for rights of appeal
to be available to bona fide third parties. No provision has been
included to explain the relationship between this draft Framework
Decision and the provisions of Article 23a of the Framework Decision
on the European Arrest Warrant, which also provides for the seizing
and handing over of property which may be required as evidence
or which has been acquired as a result of the offence by the person
who is the subject of the warrant.
The Government's view
4.10 In his Explanatory Memorandum of 28 January, the
Minister describes in outline the changes in the present version,
drawing attention to the definition of 'judicial authority' in
Article 1 and the amended scope of Article 2. The Minister states
that for offences not covered by the list in Article 2(1) 'the
Framework Decision may be applied subject to the verification
of dual criminality by the executing Member State with a minimum
sentence of one year in the issuing state'.
4.11 We thank the Minister for his letter and Explanatory
Memorandum. When we last considered this proposal we welcomed
the indication given by the Minister that language would be included
in the recitals to make clear that the issue and execution of
freezing orders are to be in accordance with the European
Convention on Human Rights. We were concerned to see that no such
language has been incorporated in the recitals in the revised
version, and we ask the Minister to explain when this will appear.
4.12 We consider it very unsatisfactory that a compromise
should be made so as to accommodate the one Member State which
designates a police authority as a 'judicial authority' and so
make possible the enforcement of police orders which have not
been approved by a judicial authority. We note the Minister's
comment that 'acknowledgment of differences in national practice
is very much part of what mutual recognition is all about' but
we believe that such mutual recognition depends on acceptance
by all parties of certain minimum standards, such as those of
judicial impartiality and independence. The Minister has not shown
us any compelling reason for accepting an obligation to recognise
and enforce in this country an order made in another Member State
which has not been approved by a judicial authority, in the sense
in which that term is normally understood, and we invite the Minister
to supply such reasons.
4.13 We have noted previously that the European Arrest
Warrant proposal contains provisions, inserted at a very late
stage, which also deal with orders for seizing and handing over
of property and therefore covering almost exactly the same ground
as the present proposal.
However, the present proposal contains nothing to explain the
relationship between these two sets of rules. We ask the Minister
to explain the relationship between the two, and in particular,
which is to take priority.
4.14 We also ask the Minister what consultation has
been carried out by him to ensure that the effects of the proposal
on criminal law and procedure in Scotland and Northern Ireland
have been assessed and taken account of.
4.15 In the meantime, we shall clear document (a)
as it has been superseded but shall hold the current version (document
(b)) under scrutiny.
significant difference, however, is that the present proposal
- unlike the European Arrest Warrant - does not require the decision
making the order to be a court decision. See also HC 152-xvii
(2001-02) (30 January 2002). Back
is therefore open to State B to declare that it will only regard
certain of State A's judicial authorities as a judicial authority
for the purposes of the Convention. State B is not therefore obliged
to accept the classification made by State A. The draft Framework
Decision does not provide for any declarations of the kind provided
for in Article 24 of the 1959 Convention. Back
differs from the European Arrest Warrant which applies to all
offences for which a sentence of at least one year may be imposed.
Article 2(3) provides that, for offences not covered by Article
2(1), dual criminality may be required. It is not clear from this
whether there is no lower limit on sentencing for the application
of a freezing order, or whether it does not apply at all to a
crime for which the sentence is less than three years. Back
principle in extradition law under which the conduct in respect
of which the order is made should be criminal in both the issuing
and the executing State. Back
the avoidance of double jeopardy. Back
we have noted, the text before us ((23087) 5143/02) does not refer
to any minimum sentence of one year. Back
152-x (2001-02), paragraph 5.16 (12 December 2001). Back