8. EXECUTION OF CONFISCATION ORDERS
(a)
(23973)
13772/02
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(b)
(24206)
15884/02
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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) 20 December 2002
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| Deposited in Parliament: | (b) 27 January 2003
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| Department: | Home Office
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| Basis of consideration: | EM of 5 February 2003
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| Previous Committee Report: | (a) HC 63-vii (2002-03), paragraph 9 (15 January 2003)
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| To be discussed in Council: | 27-28 February 2003
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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
8.1 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
8.2 Document (b) is a revised proposal which replaces
document (a). Article 1 of the revised proposal sets out the objective
of the proposed measure, which is to facilitate the recognition
and execution of court confiscation orders between Member States.
8.3 Article 2 covers the definitions used in the text.
Article 2(d) requires property for the purposes of the framework
decision to be either "the proceeds of an offence" or
"the instrumentalities of the objects of such an offence."
The revised proposal leaves Articles 2 or 3 unchanged.
8.4 Article 4(1) has been changed to require the confiscation
order to be sent to the Member State in which there is believed
to be property which is subject to it. Article 4(3) has been amended
to allow the executing state to insist that the original of the
confiscation order, or a certified copy of it, and the original
of the certificate be sent to it.
8.5 In Article 7, which sets out the grounds which the
executing state may use to refuse to execute a confiscation order,
Article 7(2)(a) has been simplified, and now allows refusal if
execution would be contrary to the principle of double jeopardy.
Article 7(2)(e), concerned with confiscation orders made in
absentia, now allows execution to be refused where the defendant
did not appear personally in the confiscation proceedings, unless
the certificate states that he was informed of them (either personally
or through his representative) in accordance with national law.
8.6 In Article 7(3), which covers the executing states'
duty to consult the issuing state before refusing execution, the
revised text restricts the duty to consult to those grounds for
a refusal which do not exclusively relate to the law of the executing
state and on which the issuing state's representations are likely
to be relevant.
8.7 In Article 9, which covers the postponement of execution,
Article 9(1)(c) now allows the executing state as much time as
is necessary to have the order translated, should it consider
this necessary. Article 9(2) has been changed to require the executing
state to "take all measures it deems necessary to prevent
the property absconding" during any period in which execution
is postponed.
8.8 Article 10, covering the procedure if a court receives
more than one confiscation request for an individual, has been
amended to remove the reference, formerly in Article 10(2), to
the executing state consulting Eurojust when deciding which order
to execute.
8.9 Articles 11, 12 and 13 remain substantially unchanged.
8.10 The previous text of Article 14 stated that 100%
of the confiscated assets, after deductions of the executing state's
costs, should be returned to the issuing state. The revised Article
14 now provides that, where an amount above a certain threshold
(still to be determined) is confiscated, a fixed percentage (also
still to be determined) of the net assets (the confiscated assets
minus the executing state's costs) will be returned to the issuing
state.
8.11 A new Article 15(a) has been inserted. It provides
that the issuing state may no longer continue with the execution
of a confiscation order after it has forwarded the order to another
state for execution.
8.12 A new fourth paragraph has been inserted into Article
19. Article 19(4) allows a Member State that experiences repeated
lack of activity by another Member State on the execution of confiscation
orders to refer the matter to the Council.
8.13 None of the articles not referred to above has been
amended in any substantive way.
The Government's view
8.14 In his Explanatory Memorandum of 5 February 2003
the Parliamentary Under-Secretary of State (Anti drugs co-ordination
and organised crime), Home Office (Mr Bob Ainsworth) states that
"the Government still believes that a number of further changes
will be needed in particular to ensure compatibility with the
Proceeds of Crime Act 2002 ('POCA')."
8.15 In relation to the unchanged Article 2, the Minister
comments:
"We consider that Article 2(d), on the definition of property,
needs to be changed in order to make the instrument compatible
with the confiscation procedures used in POCA. This is the issue
on which the European Scrutiny Committee requested information
in its report of 15 January 2003. The current definition requires
the assets to be, or represent, the proceeds of a specific offence.
However, 'criminal lifestyle' confiscation orders under POCA will
not link the assets to be confiscated to a specific offence. Property
to be confiscated under a POCA order would not, under the current
definition, qualify as 'property' for the purposes of the instrument.
This would mean that the instrument would not allow us to have
most of our confiscation orders enforced, which is obviously undesirable.
8.16 In order to make the definition of "property"
compatible with POCA, the Minister explains that he has proposed
an amendment to Article 2(d). This would include within the definition
of "property" any property that the issuing state "is
required under its national law to assume derives from general
criminal conduct". This change would ensure that "criminal
lifestyle" confiscation orders would be covered and is a
matter still under discussion.
8.17 Concerning the revised Article 4 the Minister says:
"Article 4(1) has been changed to require the confiscation
order to be sent to the Member State in which there is believed
to be property that is subject to it. This causes us difficulties
because a confiscation order of the sort we will be issuing under
POCA are not directed at specific property. It is simply an order
to pay a sum of money equivalent to the convicted person's benefit
from crime. We will therefore need to try and get Article 4(1)
modified, in order to make it compatible with POCA.
"Article 4(3) has been amended to allow the executing state
to insist that the original of the confiscation order, or a certified
copy of it, and the original of the certificate be sent to it.
This could cause difficulties if the issuing state is seeking
to enforce the order in more than one Member State, and both demand
the original of the same document."
8.18 In relation to Article 7, which enumerates permissible
reasons for refusing execution of a confiscation order, the Minister
welcomes the simplification of Article 7(2)(a), which now allows
refusal if execution would be contrary to the principle of double
jeopardy. The Government is concerned about the wording of Article
7(2)(e) because in its present form the provision "would
not allow an order to be enforced against a defendant who had
absconded following his conviction, but before the confiscation
hearing. Such a defendant could not be informed of the date of
the confiscation hearing, but could nevertheless be subject to
a confiscation order under POCA. We would wish to have such orders
enforced under the Framework Decision." The Government is
satisfied with the changes made to Article 7(3).
8.19 In respect of Article 9, which covers the postponement
of execution, the Minister welcomes the changes made to Article
9(1)(c), which now allows the executing state only as much time
as is necessary to have the order translated, should it consider
this necessary. The Minister notes that he regards the revised
wording as "more workable than the previous text, which only
allowed postponement for an undefinable 'reasonable period of
time'." The Minister is also pleased that Article 9(1)(c)
now makes it explicit that the executing state must pay for any
translation. In relation to Article 9(2) the Minister notes that
the concept of property "absconding" is taken from Article
12 of the Framework Decision on the European Arrest Warrant, but
that it makes less sense in the present context. He indicates
that the Government will seek to have the provision changed accordingly.
8.20 The Minister indicates that the Government supports
the amendments to Articles 10 and 11 on the grounds that the changes
will lead to the efficient enforcement of confiscation orders.
8.21 The Minister welcomes the departure from the original
intention in Article 14 to return the entire net confiscated assets
to the requesting state. He writes that "we did not support
this because we did not consider that it recognised the considerable
amount of work that is involved when a State traces and confiscates
assets on behalf of another State." He adds that "the
current text of Article 14 provides that, where an amount above
a certain threshold (to be determined) is confiscated, a fixed
percentage (also to be determined) of the net assets will be returned
to the issuing state. We are discussing this amendment with other
Departments, in particular HM Treasury. The Article remains under
negotiation."
8.22 The Minister welcomes the new Article 15(a) which,
provides that the issuing state will lose the right to execute
if it has made a request for execution to another state although
provision is made for the issuing state both to recover or withdraw
the right to execute from the executing state. The Minister supports
the new Article 19(4), which allows Member States to refer to
the Council of Ministers cases where a Member State has repeatedly
failed to abide by its obligations under the proposed framework
decision. In the Ministers view, the new provision "could
provide an additional tool" to ensure the efficient and speedy
mutual recognition of confiscation orders.
8.23 In conclusion the Minister informs us that the financial
implications of the proposed measure still have to be assessed
and that this will depend in part on the eventual wording of Article
14.
Conclusion
8.24 We thank the Minister for his detailed explanation
of the Government's position in relation both to the amendments
made to the previous proposal and to the further changes the Government
deems necessary.
8.25 We note in particular the Government's continuing
concern about the compatibility of aspects of the proposal with
the Proceeds of Crime Act 2002. We look forward to receiving,
in due course, further information on the Government's progress
in securing amendments which would ensure compatibility.
8.26 We are concerned about the possible financial
implications of the proposal. While we agree with the Government's
view that adequate account must be taken of the amount of work
involved in tracing and confiscating assets on behalf of another
state, we ask the Minister to explain the Government's position
on how a balance should be struck between the conflicting aims
of reimbursing the executing state for the cost of tracing and
confiscation while ensuring an adequate return for the issuing
state.
8.27 We clear the previous proposal, which has now
been superseded, and will hold the revised text (document (b))
under scrutiny until receipt of the further information requested.
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