6. Execution of Confiscation Orders
| (a)
(24432)
8353/03
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(b)
(24545)
9158/03
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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) 7 May 2003
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| Deposited in Parliament | (b) 20 May 2003
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| Department | Home Office |
| Basis of consideration | EM of 5 June 2003
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| Previous Committee Report | HC 63-xxiii (2002-03), paragraph 9 (4 June 2003)
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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; revised proposal awaited
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Background
6.1 The proposed framework decision provides for confiscation
orders made in one Member State to be enforced in any other Member
State. It 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 aim
of the programme of measures is to develop 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.
The document
6.2 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 between Member States of confiscation orders made
by a court.
6.3 Article 2 covers the definitions used in the text. The definition
of "property" in Article 2(d) has been extended in two
respects. Article 2(d)(iii) now refers to property which the issuing
state has decided "is liable to confiscation resulting from
the application in the issuing state of any of the extended powers
of confiscation specified in Article 3(1) and (2) of the draft
Framework Decision on confiscation of crime-related proceeds,
instrumentalities and property." Article 2 (d)(iv) now refers
to "property which the court has decided is liable to confiscation
under any other provisions relating to extended powers of confiscation
under the law of the issuing state."
6.4 Article 5(1) provides a list of offences which may give rise
to the execution of a confiscation order. Article 5(3), which
deals with certain exceptions to the general rule, provides that
recognition may be made subject to the condition that the acts
giving rise to the criminal proceedings on which the order was
based also constitute an offence in the executing State.
6.5 Article 7 sets out the grounds on which the executing State
may refuse to execute a confiscation order and has been amended
in minor respects. Articles 7.1 and 7.2 have been revised in the
light of developments on the draft Framework Decision on Financial
Penalties and now read that a Member State may "refuse to
recognise and execute" an order. Article 7.2(f) relates to
territoriality and has been amended to reflect practice under
the Proceeds of Crime Act 2002. More important is the additional
text inserted in new Article 7(g). Under Article 7(g), Member
States may refuse to recognise and execute a confiscation order
sent under Article 2(d)(iii) and (iv), where to do so would be
contrary to their fundamental legal principles. As far as Article
2(d)(iii) is concerned, it will be necessary in addition for the
executing state to have opted for a different extended confiscation
regime from the issuing state before it may refuse recognition
on this ground.
6.6 Article 9.1.(b) has been expanded to cover criminal "proceedings"
in addition to "criminal investigations." Article 9.2.
has also been amended and now more appropriately refers to property
being "removed."
6.7 Article 10 which deals with multiple requests has been amended
in two ways. First, it makes clear that the grounds given are
only examples and are not mandatory. Secondly, it removes earlier
reference to the use of the property to meet compensation claims.
6.8 Article 11, which deals with the law governing execution,
has likewise been revised. Article 11.4 has been deleted as impracticable.
Article 11.5. has been re-drafted and clarified as a result.
6.9 Article 14 on the sharing of assets remains under negotiation
and no new text has been included in this proposal.
6.10 All other Articles of the proposed measure remain unchanged.
The Government's view
6.11 In his letter of 5 June 2003 the then Parliamentary Under-Secretary
of State at the Home Office (Mr Bob Ainsworth) welcomes many
of the revisions to the latest proposal on the grounds that they
either bring the text into line with domestic legislation as restated
in the Proceeds of Crime Act 2002, or improve the drafting of
previously ambiguous or otherwise unclear provisions.
6.12 The Minister expressly welcomes the extension of the definition
of "property" in Article 2(d) through the addition of
subparagraphs 2(d)(iii) and 2(d)(iv) as these have been added
as a result of a proposal from the United Kingdom and certain
other Member States "to include extended confiscation provisions
in this Framework Decision." He notes that Article 2(d)(iv)
enables confiscation orders made the "criminal lifestyle"
provisions of the Proceeds of Crime Act to be sent for execution
to other Member States. He adds:
"You will be aware that with no language regarding extended
confiscation, the UK was in danger of becoming party to a mutual
recognition instrument under which UK confiscation orders made
under [the Proceeds of Crime Act] could not be sent to other Member
States for execution."
6.13 The addition in Article 5.3, of the words "criminal
proceedings on which the order was based" also reflects a
UK proposal and the Minister accordingly welcomes it. He adds
that "a similar amendment will be required in article 5.1."
6.14 The Minister likewise supports the amendments to Articles
7.1, and 7.2, including subparagraph (f) of 7.2, as these bring
the proposal into line with the provisions of both the draft Framework
Decision on Financial Penalties and current practice under the
Proceeds of Crime Act 2002. In relation to Article 7.2(g), which
allows Member States to refuse and execute a confiscation order
sent under Article 2(d)(iii) or (iv) where to do so would be contrary
to their fundamental legal principles, the Minister expresses
some reservations and comments:
"The Government acknowledges that this provision provides
for a wider range of grounds for non-recognition than is desirable,
including the ground that the issuing state has opted for different
extended confiscation measure in the harmonisation instrument
than the executing state. However, in order for a number of Member
States to accept the extended confiscation provisions needed by
the United Kingdom these non-recognition clauses are necessary."
6.15 The Minister adds that:
"Negotiations are still ongoing with regard to these proposals
for Article 2(d) and the grounds for non-recognition, and have
proved particularly difficult. However, the inclusion of these
provisions in the text marks a significant step forward for the
United Kingdom's position."
6.16 Finally the Minister endorses the changes made to Articles
9, 10 and 11. He adds that no new text has been suggested for
Article 14 and that the issue of how assets are to be shared remains
under negotiation.
Conclusion
6.17 We thank the Minister for his helpful comments on the
latest text of the proposal. We note the Government's reservations
about the new Article 7.2(g) but share its view that the new provision
can be accepted in return for the insertion in the latest text
of Article 2(d) of options (iii) and (iv). We agree with the
Government in welcoming the other amendments.
6.18 We are content to clear document (a), as this has been
superseded, but hold document (b) under scrutiny pending deposit
of a further revised proposal. We also ask the Minister to keep
us informed both about the negotiations on a new version of Article
14 on asset sharing and about any progress the Government is making
in securing the redrafting of Article 5.3.
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