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Comparative Law Study of the Implementation of Mutual COMPARATIVE LAW STUDY OF THE IMPLEMENTATION OF MUTUAL RECOGNITION OF ORDERS TO FREEZE AND CONFISCATE CRIMINAL ASSETS IN THE EUROPEAN UNION JUST/2011/JPEN/PR/0153/A4 FINAL FINDINGS REPORT Justice EUROPEAN COMMISSION Directorate-General for Justice and Consumers Directorate B — Criminal justice Unit B.1 — Procedural criminal law B-1049 Brussels E-mail: JUST-CRIMINAL-JUSTICE @ec.europa.eu HOW TO OBTAIN EU PUBLICATIONS Free publications: • one copy: via EU Bookshop (http://bookshop.europa.eu); • more than one copy or posters/maps: from the European Union’s representations (http://ec.europa.eu/represent_en.htm); from the delegations in non-EU countries (http://eeas.europa.eu/delegations/index_en.htm); by contacting the Europe Direct service (http://europa.eu/europedirect/index_en.htm) or calling 00 800 6 7 8 9 10 11 (freephone number from anywhere in the EU) (*). (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you). Priced publications: • via EU Bookshop (http://bookshop.europa.eu). Priced subscriptions: • via one of the sales agents of the Publications Office of the European Union (http://publications.europa.eu/others/agents/index_en.htm). Neither the European Commission nor any person acting on behalf of the Commission is responsible for the use which might be made of the following information. Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number (*): 00 800 6 7 8 9 10 11 (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you). LEGAL NOTICE This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. More information on the European Union is available on the Internet (http://www.europa.eu). Luxembourg: Publications Office of the European Union, 2014 ISBN 978-92-79-45602-2 doi:10.2838/727210 © European Union, 2014 Submitted by Jean ALBERT, Chantal CUTAJAR, Cécile FARGIER, Frédéric LEPLAT November 2013 COMPARATIVE LAW STUDY OF THE IMPLEMENTATION OF MUTUAL RECOGNITION OF ORDERS TO FREEZE AND CONFISCATE CRIMINAL ASSETS IN THE EUROPEAN UNION JUST/2011/JPEN/PR/0153/A4 FINAL FINDINGS REPORT Table of contents Preliminary notes .................................................................................... 10 Acknowledgements ................................................................................. 10 Introduction .......................................................................................... 13 Short Summary ...................................................................................... 18 Executive Summary .................................................................................. 19 The state of play ............................................................................... 19 Mutual recognition ............................................................................ 23 Non conviction based orders and mutual recognition ...................................... 25 Fundamental rights ............................................................................ 27 1. CHAPTER 1: National Measures and International and European Instruments facilitating mutual recognition of freezing and confiscation orders in criminal matters . 30 1.1. The international context .............................................................. 30 1.1.1. Mutual Assistance .......................................................... 31 1.1.2. Mutual Recognition ......................................................... 33 1.2. The European regulatory context ..................................................... 34 1.2.1. The 90s ....................................................................... 34 1.2.2. The impact of the Treaties of Amsterdam and Nice .................. 34 1.2.3. The Treaty establishing a Constitution for Europe .................... 35 1.2.4. The Tampere European Council and the Hague Programme ........ 35 1.2.5. The Treaty of Lisbon ....................................................... 35 1.2.6. Eurojust ...................................................................... 36 1.2.7. Relevant legal and policy instruments adopted ....................... 36 1.3. General rules on the freezing and confiscation of criminal assets .................. 42 1.4. General rules on the freezing criminal assets ........................................ 43 1.5. General rules on confiscation of criminal assets ..................................... 47 1.5.1. Definitional aspects ........................................................ 47 1.5.2. Type of offences concerned .............................................. 47 1.5.3. Person concerned .......................................................... 48 1.5.4. Type of assets ............................................................... 51 1.5.5. Objects of the confiscation ............................................... 52 1.6. Specific rules on confiscation of criminal assets ..................................... 52 1.6.1. Criminal non-conviction based confiscation of criminal assets ..... 54 1.6.2. In Rem non-conviction based confiscation of criminal assets ....... 58 1.6.3. Extended confiscation of criminal assets ............................... 60 1.7. Recent developments on the freezing and confiscation of criminal assets ........ 65 1.7.1. Recent changes related to substantive regulations on confiscation ................................................................. 65 1.7.2. Recent changes related to mutual recognition ........................ 66 1.8. Framework Decisions .................................................................. 67 1.9. Transposition status of Framework Decision 2003/577/JHA ........................ 68 1.9.1. Transposition in the Member States and in Croatia ................... 69 1.9.2. Recent implementations of the Framework Decision 2003/577/JHA .............................................................. 71 1.9.3. Scope of implementation ................................................. 73 1.9.4. Suggestions for improvements for Framework Decision 2003/577/JHA .............................................................. 75 1.9.5. Improvements relating to translation ................................... 75 1.9.6. Improvements relating to seizures for purpose of compensation of victims .................................................................... 76 1.9.7. Improvements relating to seizures for purpose of enforcement bodies ........................................................................ 76 1.9.8. Improvements relating to enquiry powers and sharing of information .................................................................. 77 1.9.9. Improvements relating to interim measures ........................... 78 1.9.10. Closer harmonisation? ..................................................... 78 1.10. Transposition status of Framework Decision 2006/783/JHA ........................ 79 1.10.1. Transposition in the Member States ..................................... 80 1.10.2. Level of implementation .................................................. 82 1.10.3. Method of implementation in the Member States .................... 84 1.10.4. Suggestion on improvement for Framework Decision 2006/783/JHA .............................................................. 84 1.11. Implementation of Article 54 of the 2003 United Nations Convention on Corruption .............................................................................. 86 1.12. Implementation of Article 13 of the 2000 United Nations Convention on transnational organised crime ........................................................ 91 1.13. Implementation of Articles 5 and 7 of the 1988 United Nations Convention on drug trafficking ......................................................................... 95 1.13.1. Implementation of Articles 5 ............................................. 95 1.13.2. Implementation of Articles 7 ............................................. 96 1.14. General impact of 12, March 2012 Directive Proposal ............................... 99 1.14.1. Changes relating to freezing and confiscation processes .......... 104 1.14.2. Changes relating to freezing process ................................. 105 Page 6 of 477 1.14.3. Changes relating to confiscation process ............................. 109 1.14.4. Third party confiscation ................................................. 110 1.14.5. Extended confiscation ................................................... 110 1.14.6. Non-Conviction based confiscation .................................... 111 1.14.7. Other changes impacting the Member States ........................ 113 2. CHAPTER 2: Process of freezing and confiscating criminal assets ........................ 120 2.1. Procedure ............................................................................. 122 2.1.1. Decision to freeze criminal assets ..................................... 125 2.1.2. Decision to confiscate criminal assets ................................ 155 2.2. Competent enforcement authorities ............................................... 173 2.2.1. Competent authorities identifying criminal assets ................. 174 2.2.2. Competent authorities enforcing orders to freeze and/or confiscate criminal assets .............................................. 179
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