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Execution of orders freezing property or evidence

The mutual recognition principle is the cornerstone of cooperation in civil and criminal matters between the European Union (EU) Member States. The principle presumes that judgments to be recognised and enforced always comply with the principles of legality, subsidiarity and proportionality. With this framework decision, the Council extends the principle to pre-trial orders freezing property or evidence.

ACT

Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.

SUMMARY

The Council adopted this framework decision in 2003 on an initiative by Belgium, France and Sweden. The purpose of the framework decision is to establish the rules under which a Member State is to recognise and execute in its territory a freezing order issued by a judicial authority of another Member State in the framework of criminal proceedings.

Mutual recognition of pre-trial orders

The Council extends the mutual recognition principle to pre-trial orders freezing property or evidence. "Freezing order" means any measure taken by a judicial authority in a Member State to prevent the destruction, transformation, displacement, etc. of property. The evidence to which the framework decision applies means objects, documents or data that could be produced as evidence in criminal proceedings.

The state that has made, validated or in any way confirmed a freezing order in the framework of criminal proceedings is called the "issuing state". The "executing state" is the Member State in whose territory the property or evidence is located.

Decisions executed without verification of double criminality

Article 3 of the framework decision lists a series of serious offences. They are not subject to verification of the double criminality of the act if they are punishable in the issuing state by a custodial sentence of a maximum period of at least three years. The offences include:

  • participation in a criminal organisation;
  • terrorism;
  • corruption and fraud;
  • trafficking in human beings;
  • racism;
  • rape.

The list is not exhaustive; the Council may decide at any time to add further categories. The Commission is to draft a report on the basis of which the Council is to decide whether the list should be extended. The Council is to act unanimously after consultation of the European Parliament.

Conditions for recognition and enforcement of a decision

For offences not included in the list, the executing state may subject the recognition and enforcement of a freezing order to certain conditions:

  • obtaining evidence: the acts for which the order was issued constitute an offence under the laws of that state, whatever the constituent elements or however described under the law of the issuing state;
  • confiscation of property: the acts for which the order was issued must constitute an offence which, under the laws of the executing state, allows for such freezing, whatever the constituent elements or however described under the law of the issuing state.

The execution procedure

The framework decision provides for a certificate for the request for execution. The certificate is transmitted by the judicial authority that issued it directly to the competent judicial authority for execution in the other Member State. The United Kingdom and Ireland may state in a declaration before 2 August 2005 that the freezing order together with the certificate must be sent via a central authority or authorities specified by them in their declarations. They may at any time limit the scope of such a declaration by a further declaration.

The competent judicial authorities of the executing state must recognise a freezing order without any further formality being required and forthwith take the necessary measures for its immediate execution. The executing state must also observe the formalities and procedures expressly indicated by the competent judicial authority of the issuing state in the execution of the freezing order. If such formalities and procedures are contrary to the fundamental principles of law in the executing state, it is not required to observe them.

The property must remain frozen in the executing state until that state has responded definitively to any request.

Grounds for non-recognition or non-execution

The competent judicial authorities of the executing state may refuse to recognise or execute the freezing order if:

  • the certificate is not produced, is incomplete or manifestly does not correspond to the freezing order;
  • there is an immunity or privilege under the law of the executing state that makes it impossible to execute the freezing order;
  • it is instantly clear from the information provided in the certificate that rendering judicial assistance would infringe the ne bis in idem principle – new proceedings cannot be brought if a final judgment has already been given for the same facts;
  • the act on which the freezing order is based does not constitute an offence under the law of the executing state. Two conditions apply here:

- the act must not be on the list of offences in Article 3 for which execution is automatic;

- in relation to taxes or duties, customs and exchange, execution of the freezing order may not be refused on the ground that the law of the executing state does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing state.

The competent judicial authority of the executing state may postpone the execution of a freezing order transmitted where:

  • execution might damage an ongoing criminal investigation;
  • the property or evidence concerned have already been subjected to a freezing order in criminal proceedings;
  • the property is already subject to an order made in the course of other proceedings in the executing state. However, such an order must have priority over subsequent national freezing orders in criminal proceedings under national law.

Member States must ensure that any interested party, including bona fide third parties, have legal remedies without suspensive effect against a freezing order.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal

Framework Decision 2003/577/JHA

2.8.20032.8.2005OJ L 196 of 2.8.2005

RELATED ACTS

Report from the Commission of 22 December 2008 based on Article 14 of the Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence [COM(2008) 885 final – Not published in the Official Journal].
This report evaluates the transposition measures that Member States have taken to implement Framework Decision 2003/577/JHA. However, by October 2008, only 19 Member States had notified the Commission of the transposition of the provisions into national law. Furthermore, several omissions and misinterpretations were found in the national laws, and some laws did not make any reference to the framework decision. Consequently, implementation of the framework decision cannot be deemed satisfactory.
The objective of the framework decision as well as the definitions have generally been well implemented by Member States. Similarly, a high number of Member States have implemented the list of offences that are not subject to a dual criminality check.
In terms of the procedure, more improvement is needed regarding the direct transmission of freezing orders between judicial authorities. Currently, many Member States require transmission through a central authority. Nevertheless, almost all Member States have implemented provisions on the immediate execution of decisions and on the duration of the freezing.
More improvements are needed on the implementation of the provisions concerning the grounds for non-recognition and non-execution. Member States have implemented most of these grounds, but they were transposed mostly as obligatory grounds. In addition, 14 Member States have applied additional grounds for refusal, which is not in line with the framework decision.
Concerning grounds for postponement of execution, most Member States have implemented the provisions at least in part. Furthermore, legal remedies are in place in all Member States and usually the measures provided do not require suspensive effect.
The Commission recommends that Member States take this report into consideration, proceed with the necessary legislative actions and transmit all relevant information in accordance with Article 14 of the framework decision to the Commission and the General Secretariat of the Council of the European Union.

Last updated: 12.02.2009

See also

For further information, please visit the "Mutual recognition of judicial decisions" website of the European Commission Directorate-General for Justice, Freedom and Security.

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