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European Standing Committee B Debates

Execution of Orders Freezing Assets or Evidence

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European Standing Committee B

Thursday 9 May 2002

[Mr. Bill O'Brien in the Chair]

Execution of Orders Freezing Assets or Evidence

The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): The Committee is debating the draft European Union framework decision on the execution in the European Union of orders freezing property or evidence. The Justice and Home Affairs Council in February gave its approval to the general approach of the instrument, but a number of Member States, including of course the United Kingdom, have continuing parliamentary scrutiny reserves. The text has also been resubmitted to the European Parliament, and its comments are awaited.

The draft instrument is the first practical proposal for the application of the principle of mutual recognition, which was described by Heads of State and Government at the special European Council at Tampere in Finland, as the cornerstone of future judicial co-operation in the European Union. As its title suggests, it addresses the important issue of how evidence needed in criminal proceedings—in terrorism-related cases, for instance—and assets likely to be subject to a confiscation order, can be best secured against disappearance or destruction.

Those involved in organised crime are adept at concealing their traces, and national boundaries mean nothing to them. Speed and ease of action by law enforcement is therefore of the essence, but that is not an objective to be achieved if that involves unacceptable encroachment on personal rights.

The Government have argued—successfully, in the main—for a range of amendments to protect such rights. As the Committee is aware, the draft instrument has already been the subject of extensive correspondence between myself and the European Scrutiny Committee, and a number of issues have also been raised by the relevant Scrutiny Committee in another place.

I should add that there is nothing in this draft instrument which compels any member state to transmit property or evidence to another state. In other words, with one exception, to which I will return, the framework decision is concerned entirely with provisional measures.

I shall now take the Committee briefly through the draft instrument. Article 1 lays down the purpose of the instrument, which is to provide the framework of rules under which member states shall enforce freezing orders made in other states. It also contains a specific provision to the effect that the instrument does not affect the obligations for member states to respect their obligations as enshrined in article 6 of the EU treaty. Article 6 requires member states when acting in the European Union to respect the rights guaranteed by the European convention on human rights.

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Article 2 provides some important definitions. I know that the Committee is concerned about the definition of the ''issuing state'' and its ability to define the ''judicial authorities'' that issue freezing orders. I am sure that we will come back to that question in the debate.

Article 3 describes the offences in respect of which the mutual recognition arrangements will be available. It falls into two groups. First there is a list of specific offences—terrorism, drug trafficking and so on—which must be punishable in the issuing state by a maximum prison term of at least three years. In respect of those, the executing state cannot apply a dual criminality requirement as a condition of executing the order. For offences other than those in the list the executing state can apply a dual criminality requirement and can also make it a condition that the offence is one for which a freezing order would be available on its territory in a purely domestic case. Article 4 provides that orders, along with a special certificate, shall be transmitted on a judicial authority to judicial authority basis. However there are special provisions relation to the UK and Ireland which will permit us to continue to require incoming requests to be routed via a central authority. There are good practical reasons why those should continue to apply.

Article 5 is the central provision in many respects. It imposes an obligation on member states to recognise and enforce a freezing order made in another state

    ''without any further formality being required''.

It also requires that the executing state shall, when enforcing the order, comply with any special requirements specified by the issuing state to ensure the admissibility of the evidence. However, no such obligation arises if to do so would be contrary to the fundamental principles of law of the executing state. The article also requires the executing state to decide on the execution of the order and inform the issuing state as soon as possible, and whenever practicable within 24 hours.

Article 6 contains an important provision whereby the executing state can lay down a maximum period for which the assets in question can remain frozen. It also puts an obligation on the issuing state to tell the executing state forthwith if it has lifted the freezing order.

Article 7 lays down a range of grounds on which freezing orders may not be executed. Those are generally technical or factual in nature—for instance, incompleteness in the special certificate or the existence of a privilege or immunity in the executing state. Provision is also made to cover cases where it is clear that to transmit the property in question to the issuing state would infringe the principle of double jeopardy.

Article 8 contains provisions outlining the grounds for postponement of execution of a freezing order. It covers such circumstances as where such execution would damage an ongoing criminal investigation or where the property in question is already the subject of a freezing order.

Article 9 refers to the special certificate, the text of which is annexed to the draft, although revision will be required. It is a requirement that the certificate is

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translated into the official language of the executing state. Article 10 deals with what happens to the property or evidence after it has been frozen.

Article 11 deals with the important subject of appeals. It provides that appeals against the enforcement of a freezing order can be brought in either the issuing or the executing state by any interested parties. However, there are two important conditions. First, such remedies must be without suspensive effect, which is necessary to avoid giving the person in whose custody the material may be, the chance to conceal or destroy it. Secondly, the article provides that any appeal in the executing state must not relate to the

    ''substantial reasons for issuing the freezing order'',

which are for the issuing state alone to determine.

Article 12 contains provisions regarding reimbursement by the respective states in the event that one or other of them has to pay damages.

That is a brief outline of the main elements of the document. I look forward to the debate, and I stand ready to try to reply to the Committee.

The Chairman: I remind hon. Members that we have until 3.30 for questions to the Minister. Questions should be asked one at a time, and questions must relate to the proposal for executing the European Union orders freezing assets or evidence, and the detailed provisions in the document.

Mr. Kelvin Hopkins (Luton, North): May I ask my hon. Friend the Minister about a simple point of information? I am not a lawyer, and my study of Latin was rather a long time ago, so I am not absolutely sure what ''ne bis in idem'' means. Is it double jeopardy in Latin?

Mr. Ainsworth: I did not take Latin, but I am told that my hon. Friend is absolutely right.

Jane Griffiths (Reading, East): I apologise for having arrived a little late, Mr. O'Brien. There is possible ambiguity in the term ''judicial authority''. Could a war tribunal, for example, be considered to be a judicial authority in certain circumstances?

Mr. Ainsworth: The judicial authorities are those that are currently engaged in the issuing of that documentation in other EU states. The main controversy arises within other judicial frameworks where there are—in Denmark, for instance—issuing authorities that have those responsibilities as well. The fundamental principle of mutual recognition is that we accept their system, as they are obliged to accept ours. We do not seek to impose our own standards on the people of Denmark or Scotland, and vice versa.

Mr. Robert Walter (North Dorset): The document refers to a number of human rights issues, such as discrimination, and freedom of expression and association, but there is no specific reference to the European convention on human rights as such. As that convention has been in existence for 50-odd years, and we are now playing with the idea of a European charter of fundamental rights, will the Minister explain why there is no specific reference to the convention?

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Mr. Ainsworth: The hon. Gentleman will see that article 1, taken together with the words in the preamble, refers specifically to the points that he has mentioned:

    ''The purpose of the Framework Decision is to establish the rules under which a Member State shall recognize and execute in its territory a freezing order issued by a judicial authority of another Member State. It shall not have the effect of amending the obligation to respect the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.''

We believe that that, with the preamble, fully covers all the issues of ECHR compliance in relation to all the decisions taken within this framework.

Dr. Nick Palmer (Broxtowe): Article 3.4 says that if an offence is not an offence in the executing state, the executing state may subject the recognition and enforcement to a condition. In other words, the executing state does not have to issue the freezing order if the offence is not an offence in that state. Who is to decide? What is the procedure? If a freezing order arrives for an offence that is not an offence in Britain, normally it would go through the judicial authorities, which would immediately execute it. What would happen in the case that I have described? What is the procedure for deciding whether to apply the order if the offence is not an offence in Britain?


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