Select Committee on European Scrutiny Eleventh Report




Draft Council Framework Decision on the execution in the European Union
of orders freezing assets or evidence.

Draft Council Framework Decision on the execution in the European Union
of orders freezing property or evidenc

Legal base:Article 34 (2)(b) EU; consultation; unanimity
Document originated:(a) 5 October 2001
(b) 27 November 2001
Deposited in Parliament: (a) 23 October 2001
(b) 29 November 2001
Department:Home Office
Basis of consideration: (a) EM of 2 November and Minister's letter of 1 November 2001
(b) EM and Minister's letter of 4 December 2001
Previous Committee Report: (a) HC 152-vi (2001-02), paragraph 2 (14 November 2001)
To be discussed in Council: No date fixed
Committee's assessment:Legally and politically important
Committee's decision:(a) Cleared
(b) Not cleared; further information requested


  2.1  This proposal is based on the principle of mutual recognition and enforcement of pre-trial orders so as to enable competent authorities quickly to secure evidence and to seize assets situated in other EU Member States and which are easily movable. The previous Committee considered this draft Framework Decision on 28 March, and we considered it on 17 October and again on 14 November.

  2.2  On that last occasion, we asked the Minister for an account of his efforts to secure fair and accessible rights of appeal for those affected by freezing orders. We also expressed our concern that an ambiguity should have arisen over the meaning of 'judicial authority' as a term describing those authorities which would be entitled to issue a freezing order under the Framework Decision. We asked the Minister to give us his assurance that the proposal would not require or permit freezing orders to be executed in this country unless they had been made by a court or authority which was 'judicial' in the sense commonly understood in this country.

The revised proposal

  2.3  Document (b) is a revised version of the document (document (a)) we considered on 14 November. As before, the draft Framework Decision sets out a mechanism for orders made in one Member State freezing assets or evidence to be recognised and enforced in another Member State with the minimum of formality. The revised version contains a number of quite substantial changes, but in many cases the changes appear to be far from being agreed by Member States.

  2.4  Two additional recitals have been agreed in principle, both relating to the effect of the European Convention on Human Rights (ECHR) on the Framework Decision. The first will include a reference to the need for freezing orders to be taken in accordance with fundamental rights as safeguarded by the ECHR. The second will clarify that 'nothing in the Framework Decision may be construed as leading to a violation of fundamental rights as safeguarded by' the ECHR.

  2.5  Article 1, dealing with definitions, continues to refer to a "judicial authority" or a "competent judicial authority" as the authority which makes a "freezing order"(i.e. any measure 'in order provisionally to prevent the destruction, transformation, moving, transfer or disposal of assets that could be subject to confiscation by the issuing State or material that could constitute evidence'). As with the previous versions, "judicial authority" is not separately defined in the revised proposal, but is referred to as a judicial authority "within the meaning of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959". The 1959 Convention does not define "judicial authority", but Article 24 of that Convention permits Contracting States to make a declaration defining what authorities it will, for the purposes of the Convention, deem to be judicial authorities[1]. It is the case that one Member State, namely Denmark, has designated a police authority as a 'judicial authority' for the purposes of that Convention.

  2.6  It is apparent that there is a difference of opinion between Member States on this issue. One delegation would be content with a reference to a 'judicial authority' without any further definition. Others consider that the definition should be restricted to judges and prosecutors. The Council Legal Service has suggested a compromise proposal which some delegations were prepared to consider, whilst others have entered a reservation. The Council Legal Service proposal distinguishes between orders in respect of property required in evidence and orders in respect of property that could be subject to confiscation. Orders relating to evidence would be made by any judicial authority within the meaning of Article 24 of the 1959 Convention, but orders in respect of property subject to confiscation would only be made by a judicial authority within the meaning of Article 18(3) of the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime[2].

  2.7  Article 2 sets out the list of offences in respect of which a freezing order may be made and recognised under the proposal. It is substantially unchanged from the earlier version, but the Council has agreed that the scope of the offences covered should be consistent with the Framework Decision on the European Arrest Warrant, so that the provisions of Article 2 may need to be substantially amended.

  2.8  Article 3 has been expanded so as to allow the United Kingdom and Ireland to require freezing orders and their accompanying certificates to be sent to a central authority or authorities in those countries, rather than direct to judicial authorities.

  2.9  In relation to Article 6 (grounds for non-recognition and execution) a number of Member States are seeking to include a right to refuse to recognise or enforce an order where this would not be in accordance with fundamental principles of national law. A further proposal has been made which would permit refusal to execute the order if execution would infringe the ne bis in idem principle[3].

  2.10  The remaining Articles of the proposal are substantially unchanged. Article 9 continues to provide for rights of appeal to be available to bona fide third parties. Additions to Article 10 (compensation) are being considered which would provide for compensation in the case of negligence or undue delay by the issuing State.

The Government's view

  2.11  In his letter of 4 December, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) describes in outline the changes in the present version, as follows:

    "Most notably the UK has achieved the insertion of: preambular text relating to the protection of fundamental rights as safeguarded by the ECHR — footnote 1 page 5 refers; provisions relating to the involvement of central authorities in the UK for receipt of incoming requests (pending the adoption of Schengen Implementation Convention provisions on mutual assistance and the ongoing mutual legal assistance review); and the addition of safeguards in Articles 9(4) and 9(5) (together with new para. 5a in the draft certificate). We are generally content with the instrument but COREPER and the Council still have important discussions in several areas, particularly relating to the scope of offences, reimbursement, grounds for non recognition and execution, and the definition of a judicial authority."

  2.12  The Minister goes on to address the important question of principle relating to the definition of a 'judicial authority' in these terms:

    "The UK did previously consider that there was a need to establish in this instrument the need for some independent judicial scrutiny in the country of origin of the decision to make the original freezing order. However our proposals in this area received no support, and as such we reluctantly decided to concentrate on seeking a range of safeguards in other areas relating to appeals and the ECHR to ensure that individual rights were adequately protected in all such decisions. As outlined above I consider that these have now been achieved.

    "The current text of the instrument in Article 1 defines a judicial authority within the meaning of the 1959 Convention on Mutual Assistance; Article 24 of that Convention requires all Member States to designate their judicial authorities. The list of these designated authorities under the Convention includes only one country which designated a police authority, Denmark.

    "Whilst we are sympathetic — given our originally held views — with those delegations who now seek to ensure that orders will not be made by police authorities, we consider that the proposal in footnote 1 of page 6 whereby orders which request eventual confiscation will be made by judges or a judicial authority — as under Article 18(3) of the 1990 Money Laundering Convention — whilst orders seeking evidence will be made by authorities under the 1959 definition, is an acceptable compromise and adequate safeguard. Of course it must be remembered that these are provisional freezing orders and any request for transfer of evidence will still be subject to mutual legal assistance provisions as allowed for under Article 8.

    "Whilst therefore I am afraid that I cannot give the absolute commitment sought by the Committee in this area, I consider that this compromise is acceptable and the one which is most likely to secure agreement at future negotiations."

  2.13  In his Explanatory Memorandum of 4 December the Minister provides a detailed commentary on each of the Articles of the proposal. On the definition of 'judicial authority' in Article 1 the Minister comments as follows:

    "The definition of 'judicial authority' is still under discussion with some delegations wishing to ensure that freezing orders cannot be made by police authorities. This is consistent with a position previously taken by the UK delegation. In order to reach agreement and respecting the judicial systems of all member states, the UK favours the compromise proposal which has been suggested in footnote 1 on page 6 of COPEN 75. In this proposal, orders in respect of property which could be subject to confiscation should be made by a judge or judicial authority as allowed for under Article 18(3) of the 1990 Council of Europe Convention, but in respect of orders which freeze evidence the definition of a judicial authority under Article 24 of the 1959 Convention on Mutual Assistance would apply."

  2.14  In relation to the proposal by some Member States for a widening of the grounds of non-recognition under Article 6, the Minister comments as follows:

    "A number of Member States have proposed that Article 6(1)(b) be changed to allow for non-execution where to agree to the request would not be in accordance with the fundamental principles of national law. The UK has opposed such a broad exclusion, which would create a major loophole and not be consistent with the confidence in each other's systems which mutual recognition requires. Another proposal (by the Presidency) would permit non-execution in the case of freezing for confiscation where it is clear to the executing state that such ultimate confiscation would not be possible under national law. These issues are being discussed in COREPER and the Council and remain unresolved."

  2.15  The question of appeals is dealt with in Article 9, the effect of which is summarised by the Minister as follows:

    "This Article allows for appeals (without suspensive effect) against a freezing order, in either the issuing or the executing state, in accordance with national law. It now specifically provides that third parties shall also enjoy such rights. However, as before, Article 9(2) rules out appeals against the substance of the order in the executing state.

    "As previously outlined the UK sought a range of safeguards to ensure that the appeals system in all member states is as user friendly as possible and that all defendants have a right of appeal, wherever it may lie, against any decision which affects them and which is fair and easily accessible. Articles 9(4) and 9(5) — together with new para. 5a in the certificate[4] — explicitly provide for such rights."


  2.16  We thank the Minister for his letter and Explanatory Memorandum. The inclusion of language in the recitals to make clear that the issue and execution of freezing orders are to be in accordance with the European Convention on Human Rights is a welcome achievement.

  2.17  Nevertheless, we remain concerned that the Framework Decision could oblige judicial authorities in this country to enforce orders issued by police authorities in other Member States. We note the Minister's explanation that only one Member State has designated a police authority under the 1959 Convention on Mutual Assistance, and that the Minister appears ready to accept the issue of orders by police authorities to freeze evidence as an 'acceptable compromise', even though a number of Member States are seeking to exclude the recognition and enforcement of such police orders.

  2.18  We ask the Minister to explain why he considers that a compromise on this issue of principle is necessary, and why it should be made so as to accommodate the one Member State which designates a police authority as a 'judicial authority' and so make possible the enforcement of police orders which have not been approved by a judicial authority. We also ask him to explain why he supports a compromise the effect of which is to allow any Member State to secure the enforcement of police orders in the future, and if he has considered an alternative whereby a limited derogation is granted to that one Member State, without prejudicing the general rule that the order must be made by an authority which exercises judicial functions.

  2.19  We also ask the Minister for an account of any further discussions on the question of grounds for non-recognition of the order under Article 6 and 6a.

  2.20  In the meantime, we clear document (a), as it has been superseded, but we shall hold document (b) under scrutiny.

1  It is therefore open to State B to declare that it will only regard certain of State A's judicial authorities as a judicial authority for the purposes of the Convention. State B is not therefore obliged to accept the classification made by State A. The draft Framework Decision does not provide for any declarations of the kind provided for in Article 24 of the 1959 Convention.  Back

2  Article 18(3) of the 1990 Convention permits a State to refuse cooperation if the request is not authorised 'by either a judge or another judicial authority, including public prosecutors'. Back

3  i.e. the avoidance of double jeopardy. Back

4  The certificate must provide the name and contact details of a person from whom information can be obtained on procedures for appeal, and on availability of legal assistance and translation facilities.  Back

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