The EU is facilitating the direct execution of confiscation orders for the proceeds of crime by establishing simplified procedures for recognition among Member States and rules for dividing confiscated property between the Member State issuing the confiscation order and the one executing it.
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ACT
Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders.
SUMMARY
This framework decision is intended to strengthen cooperation between Member States by enabling judicial decisions to be executed immediately (principle of mutual recognition).
For the purposes of this framework decision, each Member State must inform the General Secretariat of the Council of the contact details of the issuing and executing authorities responsible for enforcing domestic law. This information is made available to all Member States.
Transmission, recognition and execution of the confiscation order
The confiscation order, together with a certificate of which a copy is annexed to the framework decision and that must be translated into the official language of the executing state or, if that state so decides, into another official language of the European Union (EU), will be sent directly to the competent authority of the Member State(s) where the natural or legal person concerned:
- has property or income;
- is normally resident or has its registered seat.
If the issuing authority cannot identify the authority in the executing state that is competent to recognise and execute the order, the issuing state will make enquiries, including through the European Judicial Network.
A written record of the transmission of the order must be available to the executing Member State, which checks that it is genuine.
The transmission of a confiscation order does not restrict the right of the issuing state to execute the order itself. Where appropriate, the competent authority in the executing state must be informed.
The executing state recognises and executes the order forthwith and without requiring the completion of any formalities. The order is executed in accordance with the law of the executing Member State and in the manner decided upon by its authorities. There is one exception to this rule: a confiscation order applying to legal persons must be executed even if the executing state does not recognise the criminal liability of legal persons.
Where two or more requests for execution relate to the same person, the executing state must take a decision on the execution order, bearing in mind the seriousness of the offences and all other relevant circumstances.
The amounts confiscated are disposed of by the executing state as follows:
- if the amount is below EUR 10 000, it accrues to the executing state;
- if it is above that amount, 50% of it is transferred to the issuing state.
Both the executing and the issuing state can grant a pardon or amnesty, while the issuing state alone is responsible for appeals lodged against the order.
Partial abolition of double criminality
Double criminality will no longer apply to certain offences (which must be punished by the issuing Member State through the imposition of a custodial sanction of at least three years). These include participation in a criminal organisation, trafficking in human beings, child pornography, terrorism, illicit drug trafficking, computer-related crime, corruption, fraud, racism and xenophobia, crimes within the jurisdiction of the International Criminal Court, facilitating unauthorised entry and residence, murder, illicit trade in human organs, trafficking in cultural goods, hostage-taking, racketeering and extortion, armed robbery, forgery of administrative documents or means of payment, trafficking in radioactive materials, trafficking in stolen vehicles, rape, etc.
For all types of crime other than those listed in the framework decision, the executing state can continue to apply the principle of double criminality that is, it can make recognition and execution of the order dependent on the condition that the facts giving rise to the confiscation order constitute an offence permitting confiscation in its law.
Reasons for rejection and delay
In some cases the executing Member State may refuse to recognise and execute the order:
- if the certificate is missing or incomplete or does not correspond to the order;
- in accordance with the ne bis in idem principle (the same person has already been the subject of a confiscation order for the same facts);
- if the executing state provides for immunities or privileges that prevent execution;
- if the rights of the parties concerned and third persons acting in good faith make it impossible to execute the order under the law of the executing state;
- if the judgment was given in the absence of the person concerned, unless s/he was informed of the date and place of the trial and that an order may be handed down there regardless of his/her presence, or if s/he was represented by a legal counsellor, or if s/he did not contest the judgement nor request a retrial or an appeal within the set time-limit;
- if the offences were committed wholly or partly within the territory of the executing state or outside the territory of the issuing state and the law of the executing state does not permit legal proceedings to be taken in respect of such offences;
- if the confiscation order is out-dated under the national law of the executing state.
The framework decision also provides for the postponement of the execution of the order:
- when execution of the confiscation order might damage an on-going criminal investigation or on-going criminal proceedings in the executing state;
- when it is deemed necessary to have the confiscation order translated.
Remedies
Member States must adopt the necessary measures to guarantee that:
- the person concerned and third persons acting in good faith can lodge an appeal with a court in the executing state. If the latter’s national law so provides, the action may have suspensive effect in respect of the confiscation order;
- the assets concerned are kept intact during the procedure.
Background
In October 1999, the Tampere European Council defined the principle of mutual recognition as a fundamental principle underpinning judicial cooperation in civil and criminal matters and stated that it should be possible to apply the principle to pre-trial orders as well as to the final decision.
In November 2000, the programme of measures designed to implement the principle of mutual recognition in the field of criminal law adopted by the Council provided for improvement of the recognition and direct execution of confiscation orders issued by Member States (Measure 19). This framework decision represents an elaboration of Measure 19.
REFERENCES
Framework Decision 2006/783/JHA
Entry into force: 24.11.2006
Deadline for transposition in the Member States: 24.11.2008
Official Journal: OJ L 328 of 24.11.2006
Amending act:
Framework Decision 2009/299/JHA
Entry into force: 28.3.2009
Deadline for transposition in the Member States: 28.3.2011
Official Journal: OJ L 81 of 27.3.2009
