Select Committee on European Scrutiny Eighteenth 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 evidence.

Legal base:Article 34 (2)(b) EU; consultation; unanimity
Document originated:(a) 27 November 2001

(b) 11 January 2002

Deposited in Parliament:(a) 29 November 2001

(b) 18 January 2002

Department:Home Office
Basis of consideration:(a) EM and Minister's letter of 4 December 2001

(b) EM and Minister's letter of 28 January 2002

Previous Committee Report:(a) HC 152-xi (2001-02), paragraph 2 (9 January 2002)
To be discussed in Council:28 February/1 March 2002
Committee's assessment:Legally and politically important
Committee's decision:(a) Cleared

(b) Not cleared; further information requested


  4.1  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, on 14 November and again on 9 January.

  4.2  We had 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 Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) 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.

  4.3  In his letter of 4 December, the Minister said he was not able to give the 'absolute commitment' we sought. He explained his view that a system whereby orders which request eventual confiscation would be made by judges or a judicial authority, but orders which only sought evidence would be made by judicial authorities, including a police authority in Denmark, was 'an acceptable compromise'. On 9 January we pressed the Minister to explain why he thought that a compromise on this question of principle was necessary, and why it should be made possible to secure the enforcement of orders made by police authorities. We asked the Minister if he had considered an alternative, whereby a limited derogation would be granted to the one Member State currently in question, without prejudicing the general rule that the order must be made by an authority which exercises judicial functions.

The Minister's letter

  4.4  In his letter of 28 January the Minister forwarded to us an Explanatory Memorandum covering a revised text of the proposal. In relation to the questions put to him, the Minister explained that Member States agreed on 17-18 January to define a judicial authority as in the national law of the issuing State, a proposal which the Minister described as being 'broadly consistent' with Article 6 of the Framework Decision on the European Arrest Warrant[10]. The Minister reported on the outcome of the meeting as follows:

"As you will be aware from previous correspondence, this is not a position which the UK supported. As outlined in my letter of 4 December we had previously sought a text which required that orders requesting eventual confiscation would 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 Convention on Mutual Assistance definition. Another possibility would have been to incorporate text similar to that appearing at Article 1 of the European Arrest Warrant instrument having the effect that the orders concerned should always be court decisions.

"Again at the recent Article 36 Committee meeting we supported a proposal that the executing state could refuse to execute a request not issued by a judge or public prosecutor. However we remain almost totally isolated on the point.

"Under the 1959 Convention it is only Denmark who have nominated a police authority — the Copenhagen Prefect of Police and the Police Commissioners — as a judicial authority, although I now understand that a similar position may prevail in Finland. I have noted the comments of the Committee from 9 January, which considered that regardless of this fact other Member States could secure the enforcement of police orders in the future; although there is no indication that this will be the case.

"Denmark has explained that under its system, at the local level the chief prosecutor is also the chief officer of police and under Danish law he/she is a 'judicial authority' for the purpose of making foreign requests. That is not the system which we, or for that matter other Member States have, but acknowledgement of differences in national practice is very much part of what mutual recognition is all about, provided that the necessary safeguards are put in place. There is no reason to believe that, as a result of their system, requests from Denmark would be ill-conceived or oppressive and that is certainly not our past experience with them when dealing with mutual legal assistance requests.

"In Finland a freezing order can be issued by the police, prosecutors or courts according to the circumstances. Where the police are involved, this is limited to provisional restraint, in cases or urgency, and must be approved by a court within a week — in default of which it automatically lapses; the order is also fully appealable. I should also add that where, as in the case of this draft instrument, international co-operation is envisaged, it is the practice in Finland for any orders made by the police to be approved by prosecutors.

"Given the further information we have received from Denmark and Finland, the Government is satisfied with the revised text of this Article. Even if this were not the case, there is virtually no chance of our obtaining agreement at this stage to any further significant amendments."

The revised proposal

  4.5  The revised proposal (document (b)) is not substantially altered by comparison with the version (document (a)) we considered on 9 January. Article 1, dealing with definitions, refers to an 'issuing authority' as being the state within which a judicial authority within the meaning of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 has made a freezing order. 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[11]. The Explanatory Memorandum indicates that the UK supported a proposal that an order could be refused by the executing state where it was not issued by a judge or a public prosecutor, but that there was no support for this view and that it was decided to incorporate a text comparable to the European Arrest Warrant, whereby judicial authorities would be defined in the national law of the issuing state.

  4.6  Article 2 sets out the list of offences in respect of which a freezing order may be made and recognised under the proposal. It now incorporates the agreement made by the Council that the scope of the offences covered should be consistent with the Framework Decision on the European Arrest Warrant. Article 2 accordingly applies to all offences which are punishable by a sentence of at least three years' imprisonment[12]. Article 2 contains the same list of offences as appears in Article 2(2) of the Framework Decision on the European Arrest Warrant. In these cases, the executing State may not insist on dual criminality[13] as a condition of enforcement.

  4.7  No substantial change has been made to Article 3 (transmission of freezing orders), Article 4 (recognition and immediate execution) or to Article 5 (duration of the freezing).

  4.8  In relation to Article 6 (grounds for non-recognition and execution) a number of Member States had made a proposal which would permit a refusal to execute the order if execution would infringe the ne bis in idem principle[14]. This has been incorporated in a new Article 6(1)(c) which, in the case of a request for confiscation, permits the executing State to refuse enforcement if from the certificate accompanying the request 'it is instantly clear that the execution of this request would infringe the ne bis in idem principle'.

  4.9  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. No provision has been included to explain the relationship between this draft Framework Decision and the provisions of Article 23a of the Framework Decision on the European Arrest Warrant, which also provides for the seizing and handing over of property which may be required as evidence or which has been acquired as a result of the offence by the person who is the subject of the warrant.

The Government's view

  4.10  In his Explanatory Memorandum of 28 January, the Minister describes in outline the changes in the present version, drawing attention to the definition of 'judicial authority' in Article 1 and the amended scope of Article 2. The Minister states that for offences not covered by the list in Article 2(1) 'the Framework Decision may be applied subject to the verification of dual criminality by the executing Member State with a minimum sentence of one year in the issuing state'.[15]


  4.11  We thank the Minister for his letter and Explanatory Memorandum. When we last considered this proposal we welcomed the indication given by the Minister that language would be included 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. We were concerned to see that no such language has been incorporated in the recitals in the revised version, and we ask the Minister to explain when this will appear.

  4.12  We consider it very unsatisfactory that a compromise 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 note the Minister's comment that 'acknowledgment of differences in national practice is very much part of what mutual recognition is all about' but we believe that such mutual recognition depends on acceptance by all parties of certain minimum standards, such as those of judicial impartiality and independence. The Minister has not shown us any compelling reason for accepting an obligation to recognise and enforce in this country an order made in another Member State which has not been approved by a judicial authority, in the sense in which that term is normally understood, and we invite the Minister to supply such reasons.

  4.13  We have noted previously that the European Arrest Warrant proposal contains provisions, inserted at a very late stage, which also deal with orders for seizing and handing over of property and therefore covering almost exactly the same ground as the present proposal.[16] However, the present proposal contains nothing to explain the relationship between these two sets of rules. We ask the Minister to explain the relationship between the two, and in particular, which is to take priority.

  4.14  We also ask the Minister what consultation has been carried out by him to ensure that the effects of the proposal on criminal law and procedure in Scotland and Northern Ireland have been assessed and taken account of.

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

10  A significant difference, however, is that the present proposal - unlike the European Arrest Warrant - does not require the decision making the order to be a court decision. See also HC 152-xvii (2001-02) (30 January 2002).  Back

11  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

12  This differs from the European Arrest Warrant which applies to all offences for which a sentence of at least one year may be imposed. Article 2(3) provides that, for offences not covered by Article 2(1), dual criminality may be required. It is not clear from this whether there is no lower limit on sentencing for the application of a freezing order, or whether it does not apply at all to a crime for which the sentence is less than three years.  Back

13  The principle in extradition law under which the conduct in respect of which the order is made should be criminal in both the issuing and the executing State. Back

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

15  As we have noted, the text before us ((23087) 5143/02) does not refer to any minimum sentence of one year. Back

16  HC 152-x (2001-02), paragraph 5.16 (12 December 2001). Back

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