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Court orders freezing criminal assets or evidence — recognition abroad

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Court orders freezing criminal assets or evidence — recognition abroad

SUMMARY OF:

Framework Decision 2003/577/JHA — executing freezing orders abroad

SUMMARY

WHAT DOES THIS FRAMEWORK DECISION DO?

  • It establishes rules for the recognition and execution by an EU country of a freezing order issued by the judicial authority of another EU country in a criminal proceeding. It also covers the freezing of evidence.
  • It works alongside Framework Decision 2006/783/JHA on the mutual recognition of confiscation orders in depriving criminals of their assets even when they are held in another EU country.
  • From May 2017, the rules of this Framework Decision which deal with the freezing of evidence will be replaced by Directive 2014/41 regarding the European Investigation Order in criminal matters.

KEY POINTS

What is a freezing order?

It is a temporary order from a judicial authority to prevent criminals hiding, selling on or using property, documents or data in criminal activity.

This decision applies to freezing orders issued for the purpose of:

  • securing elements which could be used as evidence in a criminal proceeding, or
  • subsequent confiscation orders to permanently stop offenders from benefiting from their criminal conduct and prevent criminal property from being laundered or reinvested, potentially fuelling further criminality.

Offences

A number of serious offences do not require a check for double criminality - i.e. that the offence be a crime in both the EU country issuing the order (issuing country) and the one executing it (executing country). The offence must, however, be punishable in the issuing country by a jail 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.

Recognition and execution

The judicial authority of the issuing country sends a certificate to the judicial authority of the executing country to request execution of the order. The executing country must:

  • recognise the order without further formality and take the necessary measures for its immediate execution;
  • observe the formalities and procedures set out by the issuing state in executing the freezing order, unless they are contrary to the fundamental principles of law in the executing state.

Non-recognition or non-execution

The executing state may refuse to recognise or execute the 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 any judicial assistance would infringe the legal principle that 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 is not an offence under the law of the executing state unless:
    • it is listed amongst the serious offences for which execution is automatic
    • it relates to taxes or duties, customs and exchange.

Postponing execution

Execution of the order may be postponed where:

  • it 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 in another proceeding in the executing state. However, such an order must have priority over any future national freezing orders in criminal proceedings under national law.

Interested parties

EU countries must ensure that any interested party affected by the freezing order, including legitimate third parties, has access to legal remedies to protect their legitimate interests, without requiring the order to be suspended.

FROM WHEN DOES THE DECISION APPLY?

It entered into force on 2 August 2003. EU countries had to incorporate it into national law by 2 August 2005.

BACKGROUND

Confiscation and freezing of assets

ACT

Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2.8.2003, pp. 45–55)

Corrigendum to Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2.8.2003) (OJ L 374, 27.12.2006, p. 20)

RELATED ACTS

Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328, 24.11.2006, pp. 59-78)

Report from the Commission 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 of 22.12.2008)

Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ L 130, 1.5.2014, pp.1-36)

last update 25.01.2016

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