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Recognition and execution of confiscation orders
The European Union (EU) is facilitating the direct execution of confiscation orders for proceeds of crime by establishing simplified procedures for recognition among EU countries and rules for dividing confiscated property between the country issuing the confiscation order and the one executing it.
This framework decision is intended to strengthen cooperation between European Union (EU) countries by enabling judicial decisions to be recognised and executed within strict deadlines (principle of mutual recognition of judicial decisions).
For the purposes of this framework decision, each EU country 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 EU countries.
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 country, or another official language of the EU as indicated by that country, will be sent directly to the competent authority of the EU country 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 country that is competent to recognise and execute the order, it will make enquiries, including through the European Judicial Network.
A written record of the transmission of the order must be available to the executing country, which checks that it is genuine.
The transmission of a confiscation order does not restrict the right of the issuing country to execute the order itself. Where appropriate, the competent authority in the executing country must be informed.
The executing country recognises and executes the order forthwith and without requiring the completion of any further formalities. The order is executed in accordance with the law of the executing country and in a manner decided upon by its authorities. A confiscation order applying to legal persons must be executed even if the executing country does not recognise the criminal liability of legal persons.
Where two or more requests for execution relate to the same person, the executing country 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 country as follows:
- if the amount is below EUR 10 000, it accrues to the executing country;
- if it is above that amount, 50% of it is transferred to the issuing country.
Both the executing and the issuing country can grant a pardon or amnesty, while the issuing country alone is responsible for appeals on substance of the case lodged against the order.
Partial abolition of double criminality
Confiscation orders can generally be applied to any offence. At the same time, in order to facilitate the procedure, the double criminality check has been abolished in relation to a list of 32 offences, provided that these offences are punishable in the issuing country by a custodial sentence of at least three years. This means that the executing country cannot refuse to recognise and execute an order issued by the issuing country for an offence that does not exist in its legal order.
For all types of crime other than those listed in the framework decision, the executing country 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 according to its law.
Reasons for non-recognition and non-execution and postponement
In some cases the executing country 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 country 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 country;
- 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 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 country or outside the territory of the issuing country and the law of the executing country does not permit legal proceedings to be taken in respect of such offences;
- if the confiscation order is statute-barred under the national law of the executing country, provided that the acts fall within the jurisdiction of that country under its criminal law.
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 country;
- when it is deemed necessary to have the confiscation order translated.
EU countries 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 country. If the latter's national law so provides, the action may have suspensive effect in respect of the confiscation order;
- substantial reasons for issuing the confiscation order can be challenged before a court in the issuing country.
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.
The programme of measures designed to implement the principle of mutual recognition in the field of criminal law adopted by the Council in November 2000 provides for improvement of the recognition and direct execution of confiscation orders issued by EU countries (Measure 19). This framework decision represents an elaboration of that measure.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
|Framework Decision 2006/783/JHA||
OJ L 328 of 24.11.2006
|Amending act(s)||Entry into force||Deadline for transposition in the Member States||Official Journal|
|Framework Decision 2009/299/JHA||
OJ L 81 of 27.3.2009
Successive amendments and corrections to Framework Decision 2006/783/JHA have been incorporated in the basic text. This consolidated version is for reference purposes only.