Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence
Date: 2003-07-22
Institutions: Council of the European Union
Subjects: confiscation of property, judicial cooperation in criminal matters in the EU, mutual recognition principle, proof, seizure of goods

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(Acts adopted pursuant to Title VI of the Treaty on European Union)

COUNCIL FRAMEWORK DECISION 2003/577/JHA

of 22 July 2003

on the execution in the European Union of orders freezing property or evidence

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the initiative by the Republic of France, the
Kingdom of Sweden and the Kingdom of Belgium (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

The European Council, meeting in Tampere on 15 and
16 October 1999, endorsed the principle of mutual
recognition, which should become the cornerstone of
judicial cooperation in both civil and criminal matters
within the Union.

The principle of mutual recognition should also apply to
pre-trial orders,
in particular to those which would
enable competent judicial authorities quickly to secure
evidence and to seize property which are easily movable.

On 29 November 2000 the Council, in accordance with
the Tampere conclusions, adopted a programme of
measures to implement the principle of mutual recogni-
tion in criminal matters, giving first priority (measures 6
and 7) to the adoption of an instrument applying the
principle of mutual
recognition to the freezing of
evidence and property.

Cooperation between Member States, based on the prin-
ciple of mutual recognition and immediate execution of
judicial decisions, presupposes confidence that the deci-
sions to be recognised and enforced will always be taken
in compliance with the principles of legality, subsidiarity
and proportionality.

Rights granted to the parties or bona fide interested third
parties should be preserved.

This Framework Decision respects
the fundamental
rights and observes the principles recognised by Article
6 of the Treaty and reflected by the Charter of Funda-
mental Rights of the European Union, notably Chapter
VI thereof. Nothing in this Framework Decision may be

(1) OJ C 75, 7.3.2001, p. 3.
(2) Opinion delivered on 11 June 2002 (not yet published in the Offi-

cial Journal).

interpreted as prohibiting refusal to freeze property for
which a freezing order has been issued when there are
reasons to believe, on the basis of objective elements,
that
the freezing order is issued for the purpose of
prosecuting or punishing a person on account of his or
ethnic origin, nationality,
her
language, political opinions or sexual orientation, or that
that person's position may be prejudiced for any of these
reasons.

religion,

race,

sex,

This Framework Decision does not prevent any Member
State from applying its constitutional rules relating to
due process,
the
press and freedom of expression in other media,

freedom of association,

freedom of

HAS ADOPTED THIS FRAMEWORK DECISION:

TITLE I

SCOPE

Article 1

Objective

The purpose of the Framework Decision is to establish the rules
under which a Member State shall recognise and execute in its
territory a freezing order issued by a judicial authority of
another Member State in the framework of criminal proceed-
ings. It shall not have the effect of 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 judi-
cial authority, as defined in the national law of the issuing
State, has made, validated or in any way confirmed a
freezing order in the framework of criminal proceedings;

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

— computer-related crime,

territory the property or evidence is located;

(c) ‘freezing order’ property that could be subject to confisca-

tion or evidence;

(d) ‘property’

includes 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 referred to in Article 3, or
equivalent to either the full value or part of the value of
such proceeds, or

— constitutes the instrumentalities or the objects of such

an offence;

(e) ‘evidence’ shall mean objects, documents or data which
could be produced as evidence in criminal proceedings
concerning an offence referred to in Article 3.

Article 3

Offences

— environmental crime, including illicit trafficking in endan-
gered animal species and in endangered plant species and
varieties,

— facilitation of unauthorised entry and residence,

— murder, grievous bodily injury,

— illicit trade in human organs and tissue,

— kidnapping, illegal restraint and hostage-taking,

— racism and xenophobia,

— organised or armed robbery,

— illicit trafficking in cultural goods, including antiques and

works of art,

— swindling,

— racketeering and extortion,

— counterfeiting and piracy of products,

— forgery of administrative documents and trafficking therein,

This Framework Decision applies to freezing orders issued

1.
for purposes of:

— forgery of means of payment,

(a) securing evidence, or

(b) subsequent confiscation of property.

The following offences, as they are defined by the law of
2.
the issuing State, and if they are punishable in the issuing State
by a custodial sentence of a maximum period of at least three
years shall not be subject to verification of the double crimin-
ality of the act:

— participation in a criminal organisation,

— terrorism,

— trafficking in human beings,

— sexual exploitation of children and child pornography,

— illicit

trafficking in narcotic drugs

and psychotropic

substances,

— illicit trafficking in weapons, munitions and explosives,

— corruption,

— fraud, including that affecting the financial interests of the
European Communities within the meaning of the Conven-
tion of 26 July 1995 on the Protection of the European
Communities' Financial Interests,

— laundering of the proceeds of crime,

— counterfeiting currency, including of the euro,

— illicit trafficking in hormonal substances and other growth

promoters,

— illicit trafficking in nuclear or radioactive materials,

— trafficking in stolen vehicles,

— rape,

— arson,

— crimes within the jurisdiction of the International Criminal

Tribunal,

— unlawful seizure of aircraft/ships,

— sabotage.

The Council may decide, at any time, acting unanimously
3.
after consultation of the European Parliament under the condi-
tions laid down in Article 39(1) of the Treaty, to add other
categories of offence to the list contained in paragraph 2. The
Council shall examine, in the light of the report submitted by
the Commission pursuant to Article 14 of this Framework
Decision, whether the list should be extended or amended.

For cases not covered by paragraph 2, the executing State
4.
may subject the recognition and enforcement of a freezing
order made for purposes referred to in paragraph 1(a) to the
condition that the acts for which the order was issued consti-
tute an offence under the laws of that State, whatever the
constituent elements or however described under the law of the
issuing State.

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For cases not covered by paragraph 2, the executing State may
subject the recognition and enforcement of a freezing order
made for purposes referred to in paragraph 1(b) to the condi-
tion that the acts for which the order was issued constitute an
offence which, under the laws of that State, allows for such
elements or however
constituent
freezing, whatever
described under the law of the issuing State.

the

Article 5

Recognition and immediate execution

TITLE II

PROCEDURE FOR EXECUTING FREEZING ORDERS

Article 4

Transmission of freezing orders

1.
A freezing order within the meaning of this Framework
Decision, together with the certificate provided for in Article 9,
shall be transmitted by the judicial authority which issued it
directly to the competent judicial authority for execution by
any means capable of producing a written record under condi-
tions allowing the executing State to establish authenticity.

The United Kingdom and Ireland,

2.
respectively, may,
before the date referred to in Article 14(1), state in a declara-
tion that the freezing order together with the certificate must
be sent via a central authority or authorities specified by it in
the declaration. Any such declaration may be modified by a
further declaration or withdrawn any time. Any declaration or
withdrawal shall be deposited with the General Secretariat of
the Council and notified to the Commission. These Member
States may at any time by a further declaration limit the scope
of such a declaration for the purpose of giving greater effect to
paragraph 1. They shall do so when the provisions on mutual
the Convention implementing the Schengen
assistance of
Agreement are put into effect for them.

If

the competent

judicial authority for execution is
3.
unknown, the judicial authority in the issuing State shall make
all necessary inquiries, including via the contact points of the
European Judicial Network (1), in order to obtain the informa-
tion from the executing State.

4. When the judicial authority in the executing State which
receives a freezing order has no jurisdiction to recognise it and
take the necessary measures for its execution, it shall, ex officio,
transmit the freezing order to the competent judicial authority
for execution and shall so inform the judicial authority in the
issuing State which issued it.

(1) Council Joint Action 98/428/JHA of 29 June 1998 on the Creation

of the European Judicial Network (OJ L 191, 7.7.1998, p. 4).

1.
The competent judicial authorities of the executing State
shall recognise a freezing order, transmitted in accordance with
Article 4, without any further formality being required and
shall forthwith take the necessary measures for its immediate
execution in the same way as for a freezing order made by an
authority of the executing State, unless that authority decides
to invoke one of the grounds for non-recognition or non-
execution provided for in Article 7 or one of the grounds for
postponement provided for in Article 8.

Whenever it is necessary to ensure that the evidence taken is
valid and provided that such formalities and procedures are not
contrary to the fundamental principles of law in the executing
State, the judicial authority of the executing State shall also
observe the formalities and procedures expressly indicated by
the competent judicial authority of the issuing State in the
execution of the freezing order.

A report on the execution of the freezing order shall be made
forthwith to the competent authority in the issuing State by
any means capable of producing a written record.

2.
Any additional coercive measures rendered necessary by
the freezing order shall be taken in accordance with the applic-
able procedural rules of the executing State.

3.
The competent judicial authorities of the executing State
shall decide and communicate the decision on a freezing order
as soon as possible and, whenever practicable, within 24 hours
of receipt of the freezing order.

Article 6

Duration of the freezing

1.
The property shall remain frozen in the executing State
until that State has responded definitively to any request made
under Article 10(1)(a) or (b).

However, after consulting the issuing State, the executing
2.
State may in accordance with its national law and practices lay
down appropriate conditions in the light of the circumstances
of the case in order to limit the period for which the property
will be frozen. If, in accordance with those conditions, it envi-
inform the issuing State,
it shall
sages lifting the measure,
which shall be given the opportunity to submit its comments.

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The judicial authorities of the issuing State shall forthwith
3.
notify the judicial authorities of the executing State that the
freezing order has been lifted. In these circumstances it shall be
the responsibility of the executing State to lift the measure as
soon as possible.

evidence has not been indicated in a sufficiently precise
manner, even after consultation with the issuing State, the
competent judicial authorities of the issuing State shall likewise
be notified forthwith.

Article 7

Grounds for non-recognition or non-execution

The competent judicial authorities of the executing State

1.
may refuse to recognise or execute the freezing order only if:

(a) the certificate provided for in Article 9 is not produced, is
incomplete or manifestly does not correspond to the
freezing order;

(b) there is an immunity or privilege under the law of the
executing State which makes it impossible to execute the
freezing order;

(c) it is instantly clear from the information provided in the
to
certificate that rendering judicial assistance pursuant
Article 10 for the offence in respect of which the freezing
order has been made, would infringe the ne bis in idem
principle;

(d) if, in one of the cases referred to in Article 3(4), the act on
which the freezing order is based does not constitute an
offence under the law of the executing State; however, in
relation to taxes or duties, customs and exchange, execu-
the freezing order may not be refused on the
tion of
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.

In case of paragraph 1(a), the competent judicial authority

2.
may:

(a) specify a deadline for

its presentation, completion or

correction; or

(b) accept an equivalent document; or

(c) exempt the issuing judicial authority from the requirement
if it considers that the information provided is sufficient.

3.
Any decision to refuse recognition or execution shall be
taken and notified forthwith to the competent judicial authori-
ties of the issuing State by any means capable of producing a
written record.

Article 8

Grounds for postponement of execution

1.
The competent judicial authority of the executing State
may postpone the execution of a freezing order transmitted in
accordance with Article 4:

(a) where its execution might damage an ongoing criminal

investigation, until such time as it deems reasonable;

(b) where the property or evidence concerned have already
been subjected to a freezing order in criminal proceedings,
and until that freezing order is lifted;

(c) where, in the case of an order freezing property in criminal
proceedings with a view to its subsequent confiscation, that
property is already subject to an order made in the course
of other proceedings in the executing State and until that
order is lifted. However, this point shall only apply where
such an order would have priority over subsequent national
freezing orders in criminal proceedings under national law.

A report on the postponement of the execution of the
2.
freezing 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.

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

4.
The competent judicial authority of the executing State
shall inform the competent authority of the issuing State about
any other restraint measure to which the property concerned
may be subjected.

Article 9

Certificate

4.
In case it is in practice impossible to execute the freezing
order for the reason that the property or evidence have disap-
peared, have been destroyed, cannot be found in the location
indicated in the certificate or the location of the property or

1.
The certificate, the standard form for which is given in
the Annex, shall be signed, and its contents certified as accu-
rate, by the competent judicial authority in the issuing State
that ordered the measure.

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The certificate must be translated into the official
2.
language or one of the official languages of the executing State.

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

3.
Any Member State may, either when this Framework
Decision is adopted or at a later date, state in a declaration
deposited with the General Secretariat of the Council that it will
accept a translation in one or more other official languages of
the institutions of the European Communities.

Article 10

Subsequent treatment of the frozen property

If the action is brought in the executing State, the judicial
3.
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.

1.

The transmission referred to in Article 4:

(a) shall be accompanied by a request for the evidence to be

transferred to the issuing State;

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 the interested parties.

or

(b) shall be accompanied by a request

for confiscation
requiring either enforcement of a confiscation order that
has been issued in the issuing State or confiscation in the
executing State and subsequent enforcement of any such
order;

or

(c) shall contain an instruction in the certificate that the prop-
erty shall remain in the executing State pending a request
referred to in (a) or (b). The issuing State shall indicate in
the certificate the (estimated) date for submission of this
request. Article 6(2) shall apply.

2.
Requests referred to in paragraph 1(a) and (b) shall be
submitted by the issuing State and processed by the executing
State in accordance with the rules applicable to mutual assis-
tance in criminal matters and the rules applicable to interna-
tional cooperation relating to confiscation.

3.
However, by way of derogation from the rules on mutual
assistance referred to in paragraph 2, the executing State may
not refuse requests referred to under paragraph 1(a) on grounds
of absence of double criminality, where the requests concern
the offences referred to in Article 3(2) and those offences are
punishable in the issuing State by a prison sentence of at least
three years.

Article 12

Reimbursement

1. Without prejudice to Article 11(2), where the executing
State under its law is responsible for injury caused to one of
the parties mentioned in Article 11 by the execution of a
freezing order transmitted to it pursuant
the
issuing State shall reimburse to the executing State any sums
paid in damages by virtue of that responsibility to the said
party except if, and to the extent that, the injury or any part of
it is exclusively due to the conduct of the executing State.

to Article 4,

Paragraph 1 is without prejudice to the national law of
2.
the Member States on claims by natural or legal persons for
compensation of damage.

TITLE III

FINAL PROVISIONS

Article 13

Territorial application

Article 11

Legal remedies

This Framework Decision shall apply to Gibraltar.

1. Member States shall put in place the necessary arrange-
ments to ensure that any interested party, including bona fide
third parties, have legal remedies without suspensive effect
against a freezing order executed pursuant to Article 5, 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.

Article 14

Implementation

1. Member States shall
take the necessary measures to
comply with the provisions of this Framework Decision before
2 August 2005.

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By the same date Member States shall transmit to the
2.
General Secretariat of the Council and to the Commission the
text of the provisions transposing into their national law the
obligations imposed on them under this Framework Decision.
On the basis of a report established using this information and
a written report by the Commission, the Council shall, before 2
August 2006, assess the extent to which Member States have
complied with the provisions of this Framework Decision.

Article 15

Entry into force

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

Done at Brussels, 22 July 2003.

The General Secretariat of

3.
shall notify
Member States and the Commission of the declarations made
pursuant to Article 9(3).

the Council

For the Council

The President

G. ALEMANNO

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ANNEX

CERTIFICATE PROVIDED FOR IN ARTICLE 9

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