7 Mutual recognition and execution of
confiscation orders
| (a)
(24921)
13052/03
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(b)
(25335)
5738/04
—
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Draft Framework Decision on the application of the principle of mutual recognition to confiscation orders
Draft Framework Decision on the application of the principle of mutual recognition to confiscation orders
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| Legal base | Articles 31(a) and 34(2)(b) EU; consultation; unanimity
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| Document originated | (b) 5 February 2004
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| Deposited in Parliament | (b) 9 February 2004
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| Department | Home Office |
| Basis of consideration | EM of 23 February 2004
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| Previous Committee Report | (a) HC 63-xxxvii (2002-03), para 8 (12 November 2003)
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| To be discussed in Council | JHA Council 30 March 2004
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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
7.1 The proposed Framework Decision provides for confiscation
orders made in one Member State to be recognised and 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 of decisions
in criminal matters. The aim of the 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 minimal formalities.
The document
7.2 Document (b) is a revised proposal which replaces document
(a). There have been a number of detailed amendments to the text.
7.3 Recital 11 of the proposal has been aligned with
the text of recital 6 of the Framework Decision on the mutual
recognition of orders freezing evidence and property and the Framework
Decision on the mutual recognition of financial penalties. It
provides that this Framework Decision does not prevent a Member
State from applying its constitutional rules relating to due process,
freedom of association, freedom of the press and freedom of expression
in other media.
7.4 Article 1(1) has been amended to make clear that
it is for courts competent in criminal matters to issue confiscation
orders. Article 1(2) has likewise been amended so that the Framework
Decision will not have the effect of amending the obligation to
respect fundamental rights and fundamental legal principles as
enshrined in Article 6 of the Treaty on the European Union, and
any obligations incumbent on judicial authorities in this respect
shall remain unaffected.
7.5 Article 4(1) has been amended to specify where
a confiscation order should be sent depending on its content.
If a confiscation order is value-based, i.e. if it concerns sums
of money, it should be sent to the competent authority in the
state in which the person against whom the order has been made
has property or income. An order relating to specific items of
property should be sent to the state where the property is located.
Article 4(2), previously Article 4(1), establishes that the original
confiscation order or a copy be sent by any means capable of producing
a written record, along with the original certificate, to the
competent authority in the executing state. It also provides
that the executing state may require either the original or certified
copies of the documents to be sent to it.
7.6 A new Article 4(a) has been inserted into the
proposal to give effect to the agreement reached between Member
States on new provisions regarding the issue of simultaneous transmission,
i.e. whether or not a confiscation order made in one Member State
should be able to be sent to more than one Member State if it
is thought that relevant property is located in a number of different
states. Article 4(a)(1) establishes the general principle that
only one confiscation order may be transmitted to one executing
state at a time. By way of exception to this, Article 4(a)(2)
permits the transmission of a confiscation order concerning specific
items of property to more than one executing state at a time.
Article 4(a)(3) permits orders concerning an amount of money
to be sent to more than one executing state at a time where the
competent authority in the executing state deems there is a need
to do so. The examples given are cases where the property concerned
has not been frozen under the earlier mutual recognition instrument
on freezing, or where the value of the property which may be confiscated
in the issuing state and one executing state is not sufficient
to require the full amount covered by the confiscation order.
7.7 Article 7 deals with the reasons for non-recognition
and non-execution of confiscation orders. It has been amended
in several ways. Article 7(2)(c) has been changed to provide
that enforcement may be refused where "there is immunity
or privilege under the law of the executing state, which would
prevent the execution of the domestic confiscation order on the
property concerned". (The previous text provided for a refusal
of enforcement only where the immunity or privilege made it impossible
to execute the confiscation order). Article 7(2)(d) permits enforcement
to be refused where the rights of third parties under the law
of the executing state make it impossible to execute the confiscation
order. The provision now defines such a third party as a person
acting in good faith. Read in conjunction with Article 8 this
means that an order may be refused, among other grounds, as a
result of the application of legal remedies to protect third parties.
Article 7(2)(e) is the "in absentia" ground for refusal
where the subject of the confiscation order did not appear personally
in proceedings and was not represented by a lawyer. It has been
aligned with the equivalent provision in the draft Framework Decision
on the mutual recognition of financial penalties so that enforcement
may not be refused where a person has been informed personally
or via a representative of proceedings or where a person has indicated
that he or she does not contest the case.
7.8 Article 8(1) has been amended so that any action
brought about as a result of legal remedies to protect third party
rights must be brought before a court in the executing state.
Such action will no longer have automatic suspensive effect but
will have such effect only in accordance with the law of the executing
state. Article 8(3) ensures that the issuing state is informed
of the action taken. The last part of the provision, which enabled
the issuing state to submit any arguments it may have to the executing
state, has been deleted. This follows on from the amendment in
Article 8(1), which restricts the availability of legal remedies
to third parties to the court of the executing state. Article
8(4) of the previous proposal has likewise been deleted.
7.9 Article 9 has been amended as a result of the
new provisions concerning the issue of simultaneous transmission.
Article 9(1)(aa) has been added to enable postponement of execution
by the executing state where, due to a confiscation order being
sent to more than one state for execution, there is a risk that
the total value of the confiscation order may exceed the amount
specified in the order. Article 9(1)(a) has been added and ensures
that competent authorities take all necessary measures to prevent
property from being removed during the postponement. Article
9(1)(b) provides for written information to be provided to the
issuing state when postponement has taken place due to the risk
of over-execution. Article 9(2) provides for a report to be made
when the execution of a confiscation order is postponed. It has
been amended to refer only to paragraphs 1(a), (b) and (c) and
makes clear that the provision refers to the competent authority
in the executing state.
7.10 Article 10 addresses the issue of procedure
in the event of two or more confiscation orders relating to the
same person or property being sent to a state for execution.
It has been amended to cover cases where the executing state receives
two or more confiscation orders concerning the same specific item
of property as well as value-based orders, and provides that the
question of which order is to be given priority should be determined
in accordance with the national law of the executing state.
7.11 The reference to "sentenced person"
in Article 11(2) has been changed to "the person concerned".
Article 12(a) replaces and amends Article 15(a) as a result of
the new provisions of Article 4(a). Article 12(a)(1) makes clear
that the issuing state retains the right to execute the order
itself where assets are located in its territory. Article 12(a)(2)
states that the amount confiscated must not exceed the amount
stated in the order. It provides for the competent authority
of the issuing state to inform the executing state if it considers
that there is a risk of over-execution. In this case the executing
state may postpone the execution. The issuing state shall also
inform an executing state if part of the confiscation order has
been executed in the issuing state or in another executing state.
In particular, under Article 12(a)(3) the issuing state will
also inform the executing state if a person has voluntarily put
forward a sum of money to cover the confiscation order.
7.12 The revised proposal incorporates the new text
of Article 14 and Article 17(2) which had already been communicated
and explained to us in the last Explanatory Memorandum on document
(a) and has not been amended since.
7.13 Article 15(a) is another provision inserted
as a result of new Article 4(a) on simultaneous transmission.
It ensures that the issuing state will reimburse the executing
state sums to cover injuries to any party under Article 8 (legal
remedies) except if the injury is due to the conduct of the executing
state. The wording is identical to the provision on reimbursement
in Article 12 of the mutual recognition instrument on freezing
orders.
The Government's view
7.14 In her Explanatory Memorandum of 23 February
2004, the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) expresses the Government's agreement with the
above revisions of the proposal. The Minister does, however,
draw attention to new Article 4(a) on simultaneous execution and
Article 9(1)(aa). The Minister writes that the Government supports
the principle behind both provisions but thinks that the detailed
drafting requires further consideration by the working group.
7.15 The Minister also informs us that the Government
is continuing its consultations with the law enforcement, judicial
and government agencies concerned with confiscation. She adds
that the Irish Presidency is aiming to reach a "general approach"
on this proposal at the Justice and Home Affairs Council on 30
March.
Conclusion
7.16 We thank the Minister for her helpful summary
and comments on the latest amendments to the proposal. We agree
with the Government's assessment that the amendments are acceptable,
either in full or in principle. We note the Government's reservations
about the text of Articles 4(a) and 9(1)(aa) and ask the Minister
to keep us informed about any progress made in the working group
on revising the drafting of these provisions.
7.17 We are content to clear document (a), as
this has been superseded, but hold document (b) under scrutiny
pending submission of a further revised proposal.
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