Recognition and execution of confiscation orders

SUMMARY OF:

Council Framework Decision 2006/783/JHA — applying the principle of mutual recognition to confiscation orders

WHAT IS THE AIM OF THE FRAMEWORK DECISION?

It allows a judicial authority in one European Union (EU) country to send an order to freeze or confiscate property directly to the judicial authority in another EU country where it will be recognised and carried out without any further formality.

KEY POINTS

What is a confiscation order?

It is a permanent measure to take illegally obtained property away from criminals or their accomplices.

Offences

For a number of serious offences,years it is not necessary for the offence to be a crime in both the EU country issuing the order (issuing countryyears) and the one carrying it out (executing countryyears). However, the offence must be punishable in the issuing country by a jail sentence of a maximum period of at least 3years. The offences include:
- participation in a criminal organisation;
- terrorism;
- corruption and fraud;
- trafficking in human beings;
- racism and xenophobia;
- rape.

Transmission

A confiscation order for money or property may be sent to the EU country where it has reasonable grounds to believe the person or company concerned has property or income. If there are no reasonable grounds, the order may be sent to the EU country in which the person is resident or the company has its registered seat.
A confiscation order concerning property may be sent to more than one EU country at the same time where:
- there are reasonable grounds to believe that different items covered by the order are held in several EU countries;
- confiscation of a specific item involves action in more than one EU country; or
- the item concerned may be located in one of two or more EU countries.
A confiscation order concerning money may be sent to more than one EU country at the same time where:
- the property concerned has not been frozen under Council Framework Decision 2003/577/JHA; or
- the value of the property to be confiscated in the issuing state and in any one executing state is not likely to be enough to cover the full amount of the confiscation order.

Recognition and execution

The judicial authority of the issuing country must send a certificate, based on the standard form annexed to this decision, 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 steps to execute it immediately.

Non-recognition and non-execution

Execution of an order may be refused if the certificate is not produced, is incomplete or clearly does not correspond to the order. It may also be refused in a number of other situations including where:

execution would be against rules protecting citizens from being prosecuted twice for the same offence;
the order is not an offence in the executing country;
there is immunity or privilege under the law of the executing country which prevents the execution of a confiscation order on the property;
under the law of the executing country, the offence is considered to have taken place wholly or partly within its territory;
the offence was not committed in the territory of the issuing state and, under the law of the executing state, this is not considered grounds for legal proceedings.

Postponing execution

Execution may be postponed in several cases including where:

it might damage an ongoing criminal investigation;
the property is already the subject of confiscation proceeding in the executing country;
the order or part of the order needs to be translated.

Interested parties

EU countries must ensure that any interested party, including legitimate third parties, have legal remedies against the recognition and execution of a confiscation order, in order to preserve their rights.

FROM WHEN DOES THE FRAMEWORK DECISION APPLY?

It has applied since 24 November 2006 EU countries had to incorporate it into national law by 24 November 2008.

BACKGROUND

Confiscation and freezing of assets.

MAIN DOCUMENT

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)

Subsequent amendments to Framework Decision 2006/783/JHA have been incorporated into the basic text. This consolidated version is of documentary value only.