9. EXECUTION OF CONFISCATION ORDERS
(a)
(23635)
9955/02
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(b)
(23973)
13772/02
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Communication from the kingdom of Denmark — Initiative by the kingdom of Denmark with a view to Council adoption of a Draft Framework Decision on the execution in the European Union of confiscation orders.
Draft Framework Decision on the execution in the European Union of confiscation orders.
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| Legal base: | Articles 31(a) and 34(2)(b) EU; unanimity; consultation
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| Document originated: | (b) 11 November 2002
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| Deposited in Parliament: | (b) 18 November 2002
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| Department: | Home Office
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| Basis of consideration: | EM of 4 December 2002
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| Previous Committee Report: | (a) HC 152-xxxix (2001-02), paragraph 6 (23 October 2002)
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| To be discussed in Council: | No date set
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | (a) Cleared
(b) Not cleared; further information requested
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Background
9.1 The proposed Framework Decision forms part of a programme
of measures to assist in the fight against organised crime and
money laundering and to implement the principle of mutual recognition
in criminal matters.
The documents
9.2 Document (b) is the revised proposal which replaces
document (a). Article 1 of the revised proposal sets out the objective
of the Framework Decision, which is to facilitate the recognition
and execution of confiscation orders between Member States. Section
1 of the article has been amended to make it clear that the proposed
instrument will apply only to orders made by a court, and not
to orders made by any other judicial authority.
9.3 Article 2 covers the definitions used in the text.
The definition of "issuing state" has been amended to
make clear that the order to be enforced must have been made by
a court. Article 2(c) has been altered to provide that the confiscation
order to be enforced must be an final one. Article 2(d) now provides
that the instrument will apply to the "instrumentalities"
of crime, and not just to its proceeds.
9.4 Article 3 concerns the competent authorities for
issuing and receiving confiscation orders. It continues to allow
any Member State to require that a request be made through a central
authority, where this is necessary as a result of the organisation
of a State's internal system.
9.5 Article 5 defines the offences in respect of which
an order for enforcement under this instrument can be made. The
original offence of "the smuggling of human beings"
has been changed to "facilitation of unauthorised entry and
residence", which is the wording used in the Framework Decision
on the European Arrest Warrant.
9.6 Article 6 provides for the recognition and execution
of orders. Article 6(2) allows the issuing and executing States
to agree that a request for the confiscation of a particular item
of property may be satisfied by the payment of a sum of money
corresponding to the value of the property. Article 6(3) contains
a new provision, requiring the executing state to convert the
amount to be confiscated into its own currency if necessary.
9.7 Article 7, which remains unamended except for minor
changes, sets out the grounds on which the executing state may
refuse to recognise or execute a confiscation order.
9.8 Article 8 has been amended to make clear that the
remedies to be made available to interested third parties have
the effect of suspending the recognition and execution of the
confiscation order, but not of suspending the order itself.
9.9 Article 9 covers the postponement of execution and
has been amended to require the executing state, if possible,
to take the necessary measures to prevent the property from being
dissipated during the postponement.
9.10 Article 10 covers the way in which competing confiscation
orders from different Member States should be dealt with. It maintains
executing States' essential discretion in the matter but has been
amended to add an additional factor to provide guidance for their
consideration — the dates of transmission of the respective
orders.
9.11 Article 11 concerns the law governing execution.
Article 11(2) has been amended to allow the defendant to provide
evidence that a confiscation order has been met, in whole or in
part, in another State and for the issuing and executing States
to consult each other where such evidence is produced. Article
11(5) has been amended to prevent the executing State from imposing
any alternative sanction for non-payment without the prior consent
of the issuing State. (The previous text referred only to imprisonment.)
9.12 Articles 12 to 20 of the proposed measure remain
largely unchanged except for minor amendments to Article 15, which
concerns the duty to transmit information on the result of the
execution, and Article 18, which governs the relationship of the
proposed framework decision with other agreements and arrangements
between Member States.
The Government's view
9.13 In his Explanatory Memorandum of 4 December 2002,
the Parliamentary Under-Secretary of State (Anti-drugs Co-ordination
and Organised Crime), Home Office (Mr Bob Ainsworth) confirms
the Government's general support for the principle of mutual recognition
and the aim of developing "a system by which each EU Member
State recognises as valid certain pre- and post-conviction decisions
of other Member States' judicial authorities with the minimum
of formality." He says that:
"the new document makes a number of changes to the last deposited
version, and overall we regard it as an improvement. However,
in the Government's view, it is likely that a number of other
changes will be needed in particular to ensure compatibility with
the Proceeds of Crime Act 2002."
9.14 Regarding Articles 1 to 6, the Minister states that
the Government generally welcomes these changes. He adds, however,
that in relation to Article 2(c), which has been altered to provide
that the confiscation order to be enforced must be a final one,
"the Government will try to clarify the meaning of 'final'
in the context of this instrument. In many States, it will be
possible for a confiscation order to be varied, or even cancelled,
in the light of later evidence. It would be unreasonable to expect
the issuing State to wait for possibly indefinite periods, until
any chance of the order being changed has been exhausted."
9.15 In relation to Article 2(d), the Minister states
that the Government welcomes the proposed extension of the instrument
to the instrumentalities of crime, but
"believes that some amendments will be needed to the remainder
of the definition of 'property' in Article 2(d). The current text
requires the Court to come to a view that there is an established
link between the proceeds to be confiscated and particular offences.
This would not reflect the procedures for extended confiscation
under Part 2 of the Proceeds of Crime Act."
9.16 Concerning amended Article 7, the Minister notes
that
"the Government has some difficulty with the provision in
Article 7(2(a), allowing execution to be refused if a confiscation
order has been made in respect of the same offence in a country
other than the issuing or executing States, and can no longer
be executed under that State's law. This seems too wide a provision
and could cover for example cases where execution can no longer
take place for procedural reasons, or because the defendant had
no assets in the State where the original confiscation order was
issued."
9.17 In reply to our request for an explanation of Article
7(2(g)) and, in particular, for the Government's view on whether
previous criminal convictions should operate as a bar to subsequent
confiscation proceedings in another Member State, the Minister
states that:
"Article 2(c) makes it clear that a confiscation order cannot
be enforced under this instrument unless it has been made following
criminal proceedings. This means that the defendant must have
been convicted of an offence before an enforceable confiscation
order can be made. If the defendant has previously been convicted
of the offence elsewhere and no confiscation order has been made,
then for an order enforceable under this measure to exist, there
must have been another criminal prosecution on the same facts.
This could have double-jeopardy implications."
"However, the Government is concerned that the first part
of Article 7(2(g)), as currently drafted, goes beyond this, and
allows enforcement to be refused in cases where we think there
is a need for it taking place. The Government remains to be convinced
that the fact that the executing State has decided not to launch
a prosecution, or to halt proceedings, should prevent another
State with jurisdiction having its confiscation orders enforced."
9.18 The Minister indicates the Government's general
support for the changes to Articles 8 to 10. He questions, however,
why the requirement to take the necessary measures to prevent
the property from being dissipated during the postponement of
execution, contained in Article 9, should apply only "if
possible", given that Article 8(1) places an absolute obligation
on the executing State to hold the property pending a challenge
from a third party. In relation to Article 10, the Minister notes
that the wording of the Article "remains fairly unspecific"
but does not go on to say whether the Government will seek its
amendment.
9.19 In response to our question on Article 12, namely
whether the envisaged grant of an amnesty or pardon under that
Article runs counter to the basic principles of mutual recognition,
the Minister comments as follows:
"It is true that, on a strict approach, Article 12(1) is
not wholly in accordance with these principles. However, a number
of Member States would have serious constitutional difficulties
with a provision that did not allow them to grant amnesty or pardon
when acting as executing States. The Government can therefore
support Article 12(1) as a concession to them, especially as it
is not envisaged that such amnesty or pardon will be granted very
often."
9.20 Regarding our request for an explanation of the
relationship between Articles 12(2) and 8(2), the Minister concedes
that these provisions do appear to cover much the same ground
but adds that the Government "will be seeking clarification
in the working group."
9.21 Finally, in relation to Articles 11 and 13 to 20,
the Minister indicates that he is in broad agreement with the
revised text.
Conclusion
9.22 We welcome the amendments to the original proposal
and share the Government's view that the revised text of the proposed
measure is overall an improvement. We particularly welcome the
amendment to Article 1, which now makes clear that the instrument
will apply only to confiscation orders made by courts.
9.23 We thank the Minister for his explanation of
the Government's position in relation to Article 7(2)(g), and
we share the Government's continuing concern about the possible
implications of the Article in its revised form.
9.24 We note the Government's concern about the compatibility
of aspects of the proposal with domestic legislation and its intention
to seek further changes to the proposed instrument to ensure compatibility
with the Proceeds of Crime Act 2002. We look forward to receiving,
in due course, further information in relation to the request
for clarification which the Government will be making.
9.25 We clear the original proposal, which has now
been superseded by the revised text, and will hold the revised
text (document (b)) under scrutiny until receipt of the further
information requested and the deposit of a revised proposal.
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