Initiative of the Kingdom of Denmark with a view to the adoption of a Council Framework Decision on the execution in the European Union of confiscation orders
Date: 2002-08-02
Institutions: Denmark
Subjects: EC Decision, confiscation of property, decision, document, fight against crime, judicial cooperation in criminal matters in the EU, mutual recognition principle, offence

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Initiative of the Kingdom of Denmark with a view to the adoption of a Council Framework
Decision on the execution in the European Union of confiscation orders

(2002/C 184/05)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in
particular Article 31(a) and Article 34(2)(b) thereof,

Having regard to the initiative by the Kingdom of Denmark,

Having regard to the opinion of the European Parliament,

Whereas:

(1) The European Council, meeting in Tampere on 15 and 16
October 1999, stressed that the principle of mutual recog-
nition should become the cornerstone of judicial coop-
eration in both civil and criminal matters within the
Union.

at

(2) According to paragraph 51 of the conclusions of the
Tampere European Council of 15 and 16 October
the very heart of
1999, money laundering is
organised crime, and should be rooted out wherever it
occurs. The European Council
is determined to ensure
that concrete steps are taken to trace, freeze, seize and
confiscate the proceeds of crime. In that connection, the
European Council calls for the approximation of criminal
law and procedures on money laundering (e.g. tracing,
freezing and confiscating funds)
(see paragraph 55 of
the conclusions).

(3) All Member States have ratified the Council of Europe
Convention of 8 November 1990 on Laundering,
Search, Seizure and Confiscation of the Proceeds from
Crime. The Convention obliges signatories to recognise
and enforce a confiscation order made by another party,
or to submit the request to its competent authorities for
the purpose of obtaining an order of confiscation and, if
such order is granted, enforce it. The Parties may refuse
requests for confiscation inter alia if the offence to which
the request relates would not be an offence under the law
of the requested Party, or if under the law of the requested
Party confiscation is not provided for in respect of the
type of offence to which the request relates.

(4) The Council Framework Decision 2001/500/JHA of 26
June 2001 (1) lays down provisions on money laundering,
freezing, seizing and confis-
the identification,
cation of instrumentalities and the proceeds from crime.
Under that Framework Decision, Member States are also

tracing,

(1) OJ L 182, 5.7.2001, p. 1.

obliged not to make or uphold reservations in respect of
the Council of Europe Convention
the provisions of
concerning
is
as
punishable by deprivation of
liberty or a detention
order for a maximum of more than one year.

the offence

confiscation,

insofar

(5) On 30 November 2000 the Council

recognition of decisions

adopted a
programme of measures to implement the principle of
mutual
in criminal matters,
giving first priority (measures 6 and 7) to the adoption
of an instrument applying the principle of mutual recog-
nition to the freezing of evidence and property. Moreover,
pursuant to paragraph 3.3 of the programme, the aim is
to improve enforcement in one Member State of a confis-
cation order, inter alia for the purpose of restitution to a
victim of a criminal offence, issued in another Member
State, taking into account the existence of the European
Convention on Laundering, Search, Seizure and Confis-
the Proceeds from Crime of 8 November
cation of
1990. With a view to achieving this aim,
it must be
examined in particular whether the grounds for refusal
of enforcement of a confiscation measure in Article 18
of
the 1990 Convention are all compatible with the
principle of mutual recognition.

(6) Finally, on 30 November 2000 the French Republic, the
Kingdom of Sweden and the Kingdom of Belgium
submitted a proposal for a Framework Decision on the
execution in the European Union of orders freezing
property or evidence.

(7) The main motive for organised crime is financial gain. In
order to be effective, therefore, any attempt to prevent
and combat such crime must focus on tracing, freezing,
seizing and confiscating the proceeds from crime. It is not
enough merely to ensure mutual recognition within the
temporary legal measures such as
European Union of
freezing and seizure; effective control of economic crime
also requires
to
confiscate the proceeds from crime.

recognition of orders

the mutual

(8) The purpose of this Framework Decision is to facilitate
cooperation between Member States as regards the recog-
nition and execution of orders to confiscate proceeds so
as to oblige a Member State to recognise and execute in
its territory confiscation orders issued by judicial auth-
orities of
Framework
another Member State. This
Decision is linked to the Framework Decision on confis-
this
cation of
Framework Decision is to ensure that all Member States
have effective rules governing the confiscation of proceeds
inter alia in relation to the onus of proof
from crime,
regarding the
assets held by a person
convicted of an offence related to organised crime.

the proceeds of crime. The aim of

source of

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recognition

of mutual

(9) Cooperation between Member States, based on the
immediate
principle
judicial decisions, presupposes confidence
execution of
that
the decisions to be recognised and enforced will
always be taken in compliance with the principles of
legality,
also
proportionality.
presupposes that
the rights granted to the parties or
bona fide interested third parties will be preserved.

subsidiarity

and

and

It

(10) This Framework Decision respects the fundamental rights
and principles recognised in Article 6 of the Treaty on
European Union and reflected in the Charter of Funda-
mental Rights of the European Union, notably Chapter VI
thereof. Nothing in this Framework Decision may be
interpreted as prohibiting refusal to confiscate property
for which a confiscation order has been issued when
objective grounds exist for believing that the confiscation
the purpose of prosecuting or
order was issued for
punishing a person on account of his or her sex, race,
language, political
religion, ethnic origin, nationality,
opinion or
that person's
that
sexual orientation, or
position may be prejudiced for any of these reasons.

(11) This Framework Decision shall not prevent any Member
inter alia

State from applying its constitutional rules,
relating to due process,

HAS ADOPTED THE FOLLOWING FRAMEWORK DECISION:

Article 1

Objective

1.
The purpose of this Framework Decision is to facilitate
cooperation between Member States as regards the recognition
and execution of confiscation orders so as to oblige a Member
State to recognise and execute in its territory a confiscation
order issued by a judicial authority of another Member State.

This Framework Decision shall not have the effect of
2.
amending the obligation to respect
the fundamental rights
and fundamental legal principles as enshrined in Article 6 of
the Treaty.

Article 2

Definitions

For the purposes of this Framework Decision:

(a)

‘issuing State’ shall mean the Member State in which a
law of the
judicial authority, as defined in the national
issuing State, has
in any way
confirmed a confiscation order within the framework of
criminal proceedings;

issued, validated or

(b) ‘executing State’ shall mean the Member State in whose

territory the property to be confiscated is located;

(c)

‘confiscation’ shall mean a sanction or measure ordered by
a court following proceedings in relation to a criminal
offence or offences, resulting in the definitive expropriation
of property;

(d) ‘property’ shall mean property of any description, whether
corporeal or incorporeal, movable or immovable, and legal
documents and instruments evidencing title to or interest in
such property, which the competent judicial authority in
the issuing State considers is the proceeds of an offence, or
equivalent to either the full value or part of the value of
such proceeds;

(e)

‘proceeds’ shall mean any economic advantage derived from
criminal activities. It may consist of any form of property;

(f)

‘order’ shall mean a final sanction or measure imposed by a
competent
judicial authority in respect of an offence
whereby confiscation is ordered.

Article 3

Determination of the competent authorities

The issuing judicial authority shall be the court of the

1.
issuing State which has issued the confiscation order.

2.
The executing judicial authority shall be the judicial
authority of the executing State which is competent under
the law of that State.

3.
Each Member State shall inform the General Secretariat of
the Council of the European Union (General Secretariat of the
Council), of
If a
Member State so desires, it may inform the General Secretariat
of the Council of the central authority through which a request
for execution of a confiscation order may be transmitted.

the competent authorities under its law.

Article 4

Transmission of confiscation orders

1.
this
A confiscation order within the meaning of
Framework Decision, together with a certificate as provided
for in this Article, may be transmitted to a Member State in
which the natural or legal person against whom the order has
been issued has property or income, is normally resident or, in
the case of a legal person, is registered or has its head office.

2.
The certificate, the standard form for which is given in
the Annex, shall be signed, and its contents certified as
accurate, by the competent authority in the issuing State.

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shall be transmitted by the competent

The order or a certified copy thereof, together with the
3.
certificate,
judicial
authority in the issuing State directly to the judicial authority
in the executing State which is competent to execute it by any
means which leaves a written record under conditions allowing
the executing State to establish authenticity.

4.
If the judicial authority competent to execute the order is
not known to the judicial authority in the issuing State, the
latter shall make all necessary enquiries,
including via the
contact points of the European judicial network, in order to
obtain information from the executing State.

5. Where the judicial authority in the executing State which
receives an order has no jurisdiction to recognise it and take
it shall, ex officio,
the necessary measures for its execution,
transmit
authority which is
inform the competent
competent
authority in the issuing State accordingly.

to execute it, and shall

the order

to the

judicial

Article 5

Offences

The following offences,

1.
they are punishable in the
if
issuing State by a custodial sentence of a maximum of at
least three years as defined by the law of the issuing State,
shall give rise to execution on the basis of a confiscation
order without verification of the double criminality of the act:

— environmental

crime,

including

endangered animal
species and varieties,

species

illicit

in
and in endangered plant

trafficking

— smuggling of human beings,

— murder, grievous bodily injury,

— illicit trade in human organs and tissue,

— kidnapping, illegal restraint and hostage-taking,

— acts of racism and xenophobia,

— organised or armed robbery,

— illicit trafficking in cultural goods, including antiques and

works of art,

— swindling,

— racketeering and extortion,

— counterfeiting and product piracy,

— forgery of administrative documents and trafficking therein,

— participation in a criminal organisation,

— forgery of means of payment,

— acts of terrorism,

— trafficking in human beings,

— illicit trafficking in hormonal substances and other growth

promoters,

— illicit trafficking in nuclear or radioactive materials,

— sexual exploitation of children and child pornography,

— motor vehicle crime,

— illicit

trafficking in narcotic drugs

and psychotropic

substances,

— illicit trafficking in weapons, munitions and explosives,

— rape,

— arson,

— corruption,

— crimes within the jurisdiction of the International Criminal

Tribunal,

— fraud, including that affecting the financial interests of the
the
European Communities within the meaning of
the
Convention of 26 July 1995 on the protection of
European Communities' financial interests,

— unlawful seizure of aircraft/ships,

— sabotage.

— laundering of the proceeds of crime,

— counterfeiting of the euro,

— computer-related crime,

2.
The Council may decide to add other categories of
offence to the list contained in paragraph 1 at any time,
the European
acting unanimously after
Parliament under the conditions laid down in Article 39(1) of
the Treaty. The Council shall consider, in the light of the report
submitted by the Commission pursuant to Article 19 of this
Framework Decision, whether the list should be extended or
amended.

consultation of

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For offences other than those covered by paragraph 1,
3.
the executing State may make the recognition and execution of
a confiscation order subject to the condition that the acts for
which the order was issued constitute an offence which permits
confiscation under the law of the executing State, whatever the
constituent elements or however it is described under the law
of the issuing State.

Article 6

Recognition and execution of orders

1.
The competent authorities in the executing State shall
recognise and execute an order which has been transmitted
in accordance with Article 4 without further formality, and
shall forthwith take all the necessary measures for its execution,
unless the competent authorities decide to invoke one of the
grounds for non-recognition or non-execution provided for in
Article 7.

2.
If a request for confiscation concerns a specific item of
the parties may agree that confiscation in the
property,
executing State may take the form of a requirement to pay a
sum of money corresponding to the value of the property.

Article 7

Reasons for non-recognition or non-execution

The competent authority in the executing State may
1.
the
oppose the recognition and execution of
certificate provided for
is
incomplete, has not been translated into one of the official
languages of
the executing State or manifestly does not
correspond to the order.

in Article 4 is not produced,

the order if

The competent authority in the executing State may also
it is

2.
oppose the recognition and execution of the order if
established that:

(a) a confiscation order has been issued against the person

concerned in respect of the same acts

— in the executing State, or

— in any State other than the issuing or the executing
State, and that order has been executed,
is in the
process of being executed or can no longer be
executed under the law of
the State in which the
judgment was issued;

(b) in one of the cases referred to in Article 5(3), the confis-
cation order relates to acts which do not constitute an
offence under the law of the executing State; however, in
relation to taxes, duties, customs duties and exchange
activities, execution of a confiscation 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 the same types of rules concerning taxes, duties,
customs duties and exchange activities as the law of the
issuing State;

(c)

there is immunity or privilege under
the
executing State, which makes it impossible to execute the
confiscation order,

the law of

(d) third party rights under the law of the executing State
make it impossible to execute the confiscation order;

(e) a confiscation order in respect of a criminal offence was
issued against a natural or legal person in absentia, and the
person concerned was not served with the order in person
or otherwise informed of the date and place of the hearing
which led to the order in absentia, provided that the person
concerned has not had an opportunity to challenge or
appeal against the order in the issuing State;

(f)

the confiscation order relates to criminal offences which:

— under the law of the executing State, are regarded as
having been committed wholly or partly within its
territory, or in a place equivalent to its territory, or

— were committed outside the territory of

the issuing
State, and the law of
the executing State does not
legal proceedings to be taken in respect of
permit
such offences where they are committed outside that
State's territory;

(g) the judicial authorities in the executing State have decided
not to institute legal proceedings in respect of the offence
which forms the basis for the confiscation order, or where
the person concerned has had another final
judgement
delivered against him in respect of the same acts in a
Member State, thereby precluding further legal proceedings;

(h) under the law of the executing State, the period of limi-
tation has expired with regard to the issuing or execution
of a confiscation order in connection with the offence
which forms the basis for the confiscation order, and the
executing State is competent under its own law.

3.
Before deciding not to recognise or execute an order, the
competent authority in the executing State shall consult the
competent authority in the issuing State. The competent
authority in the issuing State shall be requested inter alia to
supply without delay any information which is needed for the
decision to recognise and execute the confiscation order. If it is
obvious that the confiscation order cannot be executed, it shall
not be necessary to consult the issuing State.

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Article 8

Legal remedies

States

in place

shall put

1. Member
the necessary
including
arrangements to ensure that any interested party,
bona fide third parties, have legal remedies with suspensive
effect against a confiscation order executed pursuant
to
Article 6,
in order to preserve their legitimate interests. The
action shall be brought before a court in the issuing State or in
the executing State in accordance with the national law of each
State. The executing State shall take the necessary measures to
hold the property while the relevant order is being issued.

2.
The substantial reasons for issuing the confiscation order
can be challenged only in an action brought before a court in
the issuing State.

3.
If the action is brought in the executing State, the judicial
authority of the issuing State shall be informed thereof and of
the grounds of the action, so that it can submit the arguments
that it deems necessary. It shall be informed of the outcome of
the action.

4.
The issuing and executing States shall take the necessary
measures to facilitate the exercise of the right to bring an
action mentioned in paragraph 1, in particular by providing
adequate information to interested parties.

5.
The issuing State shall ensure that any time limits for
bringing an action mentioned in paragraph 1 are applied in
a way that guarantees the possibility of an effective legal
remedy for interested parties.

Article 9

Postponement of execution

The competent

1.
judicial authority may postpone the
execution of a confiscation order transmitted in accordance
with Article 4:

(a)

in the cases referred to in Article 8, or

(b) where its execution might damage an ongoing criminal
investigation, until such time as it deems reasonable, or

(c)

in cases where it is considered necessary to have the order
or parts thereof translated, until such time as the trans-
lation is made available.

As soon as the ground for postponement has ceased to
3.
exist, the competent judicial authority shall forthwith take the
necessary measures for the execution of the confiscation order
and inform the competent authority in the issuing State thereof
by any means capable of producing a written record.

Article 10

Decision in the event of multiple requests

1.
If two or more Member States have each issued one or
more confiscation orders against one or more persons, and the
persons concerned in the executing State do not have sufficient
means to enable all of the orders to be executed, the decision
on which of the confiscation orders is or are to be executed
shall be taken by the judicial authority in the executing State
with due consideration of all the circumstances, in particular
the involvement of frozen assets, the relative seriousness and
the place of the offence, the extent to which the confiscated
amount is to be used to cover compensation claims and the
dates of the respective orders.

The judicial authority may consult Eurojust with a view

2.
to taking the decision referred to in paragraph 1.

Article 11

Law governing execution

1. Without prejudice to paragraph 3 of this Article, the
execution of the order shall be governed by the law of the
executing State and its authority alone shall be competent to
decide on the procedures for execution and to determine all the
measures relating thereto.

Any part of the amount in the case of confiscation of
2.
proceeds that is recovered in whatever manner in any State
other than the executing State shall be deducted in full from
the amount which is to be confiscated in the executing State.

3.
An order for confiscation from a legal person shall be
executed even if the executing State does not recognise the
principle of criminal liability of legal persons.

A confiscation order shall be executed even if the natural
4.
confiscation order
subject of
person who is
subsequently dies or the legal person which is the subject of
the confiscation order is subsequently dissolved.

the

the

A report on the postponement of the execution of the
2.
confiscation order, including the grounds for the postponement
and, if possible, the expected duration of the postponement,
shall be made forthwith to the competent authority in the
issuing State by any means capable of producing a written
record.

5.
The executing State may not impose a custodial sentence
or any other measure limiting a person's freedom as an alter-
native legal remedy as a result of a request pursuant to Article
4, unless the issuing State has given its consent to this in the
request.

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Article 12

Amnesty, pardon, review of order

with the General Secretariat of the Council that it will accept a
translation in one or more other official languages of the Insti-
tutions of the European Communities.

Amnesty and pardon may be granted by the issuing State

1.
and also by the executing State.

Only the issuing State may decide on an application for

2.
review of the order.

Article 13

Termination of execution

The competent authority of the issuing State shall forthwith
inform the competent authority of the executing State of any
decision or measure as a result of which the order ceases to be
enforceable or shall be withdrawn from the executing State for
any other reason.

The executing State shall terminate execution of the order as
soon as it
is informed by the competent authority of the
issuing State of that decision or measure.

Article 14

Sharing of assets

the sale of confiscated
Confiscated assets or proceeds of
property shall, after deduction of the executing State's costs,
be returned to the issuing State unless otherwise agreed
between the issuing State and the executing State.

Article 15

Information on the result of the execution

The competent authority of the executing State shall without
delay inform the competent authority of the issuing State by
any means which leaves a written record:

(a) as soon as execution of the order has been completed;

(b) of the total or partial non-execution of the order for the
reasons referred to in Article 7, Article 12(1) or Article 13.

Article 16

Languages

The

1.
translated into the official
language or one of the official languages of the executing State.

certificate

shall be

2.
Any Member State may, when this Framework Decision
is adopted or at a later date, state in a declaration deposited

Article 17

Costs

Without prejudice to Article 14 on the sharing of assets,
Member States may not claim from each other the refund of
costs resulting from application of this Framework Decision.

Article 18

Relationship with other agreements and arrangements

This Framework Decision shall not affect the application of
more favourable provisions concerning the execution of confis-
cation orders
in bilateral or multilateral agreements or
arrangements between Member States.

Article 19

Implementation

1. Member States shall
comply with this Framework Decision by 30 June 2004.

take the necessary measures to

2. Member States shall communicate to the General Secre-
tariat of the Council and to the Commission the text of the
provisions transposing into their national law the obligations
resulting from this Framework Decision. On the basis of a
report established on the basis of
this information by the
Commission, the Council shall, no later than 31 December
2004, assess the extent to which Member States have taken
the necessary measures
to comply with this Framework
Decision.

3.
The General Secretariat of the Council shall notify the
Member States and the Commission of the declarations made
pursuant to Article 16(2), and of the contact points designated
under Article 3(3).

Article 20

Entry into force

This Framework Decision shall enter into force on the day of
its publication in the Official Journal.

Done at . . .

For the Council

The President

. . .

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ANNEX

CERTIFICATE AS REFERRED TO IN ARTICLE 4

1. Issuing State

2. Competent authority issuing the order

2.1. Name

2.2. Address

2.3. Telephone/fax/e-mail (including international dialling code)

2.4. Language(s) in which it is possible to communicate with the issuing authority

3. Details of the person to whom the confiscation order applies

3.1. Name

3.2. Last known address

3.3. Location of property to be confiscated (if known)

4. Details of the order

4.1. Type and extent of the confiscation

4.2. Indication of the provisions infringed and the extent to which they are covered by the list in Article 5(1)

4.3. Description of the facts constituting the offence

5. Status of the order

Confirm that:

5.1. The order is final

5.2. Execution of the order is not barred by statutory time limitations

6. Notification of proceedings

Confirm that the person to whom the confiscation order applies has been duly notified of:

6.1. The proceedings against him

6.2. Any procedures and deadlines for appeal

7. Partial execution of the order

State whether:

7.1. Any part of the amount to be confiscated has already been confiscated

7.2. If so, the amount which has been confiscated

8. Alternative legal remedy

8.1. Does the issuing State allow the application of alternative legal remedies?

8.2. Can the issuing State agree to application of an alternative legal remedy in this case?

8.2.1. If so, alternative legal remedies should be listed together with the maximum penalty in each case.

Done at . . . on . . .

Signature and/or stamp . . .