Select Committee on European Scrutiny Twenty-Third Report


TWENTY-THIRD REPORT


The European Scrutiny Committee has agreed to the following Report:—

EXECUTION OF ORDERS FREEZING ASSETS OR EVIDENCE

(a)
(23087)
5143/02


(b)
(23153)
5882/02


(c)
(23245)
6552/02


(d)
(23144)
6980/02


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



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



Draft Council Framework Decision on the execution in the European Union
of orders freezing property 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) 11 January 2002
(b) 4 February 2002
(c) 22 February 2002
(d) 13 March 2002
Deposited in Parliament: (a) 18 January 2002
(b) 4 February 2002
(c) 28 February 2002
(d) 15 March 2002
Department:Home Office
Basis of consideration: (a) EM and Minister's letter of 11 February 2002
(b) EM and Minister's letter of 6 February 2002
(c) and (d) EM and Minister's letter of 20 March 2002
Previous Committee Report: (a) HC 152-xviii (2001-02), paragraph 4 (6 February 2002)
Discussed in Council: 28 February/1 March 2002
Committee's assessment:Legally and politically important
Committee's decision:(a), (b) and (c) cleared
(d) For debate in European Standing Committee B



Background

  1.1  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, 14 November, 9 January and 6 February.

  1.2  We had expressed our concern that an ambiguity had 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. In his reply of 4 December, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) was unable to give us his assurance that the proposal would require or permit freezing orders to be executed in this country only if they had been made by a court or authority which was 'judicial' in the sense commonly understood in this country.

  1.3  We pressed the Minister on this point on 9 January and again on 6 February. We considered that the Minister had not shown 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 made or approved by a judicial authority in the sense in which that term is normally understood. We asked the Minister to supply such a reason.

  1.4  When we considered the proposal on 9 January we welcomed the indication given by the Minister that language would be included in the recitals to make it clear that the issue and execution of freezing orders would be in accordance with the European Convention on Human Rights (ECHR). We noted with concern that no such language had been included in the version we considered on 6 February and asked the Minister to explain when such language might appear. We also asked the Minister to explain the relationship between the present proposal and the provisions in the European Arrest Warrant, both of which appeared to deal with the seizing and handing over of property as evidence. Finally, we asked the Minister to explain whether any consultation had been engaged in as to the effects of the proposal on criminal law and procedure in Scotland and Northern Ireland.

  1.5  On 6 February, the Minister submitted an Explanatory Memorandum with a revised version of the proposal (document (b)). The Minister replied on 11 February setting out his answers to the concerns we had raised on 6 February. A revised text of the proposal (document (c)) was produced on 22 February for consideration by senior officials in preparation for a discussion at the JHA Council on 28 February and 1 March. A further revision of the proposal (document (d)), incorporating the conclusions of the Council was produced on 13 March, and it is on this document that it is intended to seek the views of the European Parliament. As documents (a), (b) and (c) are now superseded, and as the issues of principle we had identified remain unresolved in the latest revised text, it is appropriate to consider the Minister's answers in his letters of 11 February and 20 March in the light of the text which emerged from the JHA Council (document (d)).

The revised proposal

  1.6  The revised proposal (document (d)) is not substantially altered by comparison with the version (document (a)) we considered on 6 February. The recitals now include a reference stating that the Framework Decision "respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected by the Charter of Fundamental Rights of the European Union", but there is no explicit reference to the ECHR. Paragraph 6 of the recitals further provides that:

    "Nothing in this Framework Decision may be interpreted as prohibiting refusal to freeze property for which a freezing order has been issued when objective elements exist for believing that the freezing order is issued for the purpose of prosecuting or punishing a person on account

    of his or her sex, race, religion, ethnic origin, nationality, political opinion or sexual orientation, or that that person's position may be prejudiced for any of these reasons."[1]

  1.7  A further recital provides that the Framework Decision:

    "shall not prevent any Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media."[2]

  1.8  The "issuing State" continues to be defined as the "Member State in which a judicial authority, as defined in the national law of the issuing State" has made, validated or in any way confirmed[3] a freezing order. "Executing State" is defined as the Member State in whose territory the property or evidence is located.

  1.9  The definition of what constitutes a "judicial authority" is wholly a matter for the national law of the Issuing State. If the law of the Issuing State classifies the authority as "judicial", this appears to be conclusive and no provision is made for the Executing State to object. Neither is any provision made for a Member State to make any declaration similar to that which may be made under Article 24 of the 1959 European Convention on mutual assistance in criminal matters[4]. It appears that the Executing State has no discretion and must accept whatever classification is made by the Issuing State, even if the order is made, validated or confirmed by a police force[5].

  1.10  In what is now Article 3 of the current version, the scope of offences covered has been amended, partly in order to make it more consistent with the European Arrest Warrant proposal. In principle, the Framework Decision now applies to all offences, and there is no minimum threshold[6]. However, Article 3(1) now distinguishes between orders for securing evidence (Article 3(1)(i)) and orders for the purpose of confiscation (Article 3(1)(ii).

  1.11  As under the European Arrest Warrant proposal, the principle of dual criminality[7] is not to be applied to orders in respect of offences carrying a penalty of three years' imprisonment and which are listed in Article 3(2). In cases not falling within Article 3(2), and where the order is sought for securing evidence , the recognition and enforcement of a freezing order may be made subject to the condition that the offence to which it relates is also an offence under the law of the Executing State. Where the order is sought for the purposes of confiscation in respect of an offence not falling within Article 3(2), recognition or enforcement may be made conditional on the acts constituting an offence for which such an order may be made in the Executing State.

  1.12  No substantial change has been made to what is now Article 4 (transmission of freezing orders). Article 5 (recognition and immediate execution) has been slightly amended to include a requirement that the executing judicial authority make a decision on the order as soon as possible and "where practicable" within 24 hours of receipt of the freezing order. Article 6 (duration of the freezing) remains unchanged.

  1.13  Article 7 reproduces the limited grounds for non-recognition which appeared in the previous versions. The competent judicial authorities of the Executing State may refuse recognition only if the certificate provided for under Article 9 is not produced or is incomplete or "manifestly does not correspond" to the freezing order, or if there is an immunity or privilege under the law of the Executing State which makes it impossible to execute the freezing order. In addition, recognition may be refused if it is "instantly clear" from the information in the certificate that transfer of the evidence or confiscation of the property "would infringe the ne bis in idem principle'[8], or if the order relates to a case where dual criminality may be required under Article 3(4). Finally, recognition and enforcement may be refused where it is impossible in practice to execute the order. There is, therefore, no general ground for refusing recognition based on considerations of fundamental rights.

  1.14  Grounds for postponing enforcement of the order are now in Article 8, and include the case where there are ongoing criminal investigations in the Executing State, and where the property or evidence is already subject to a freezing order granted in criminal proceedings. Article 8(1)(c) provides that execution of a freezing order with a view to subsequent confiscation of property may be postponed where the property is already subject to an order made in the course of other proceedings in the executing State. However, this provision is only to apply where the order so made would have priority over subsequent national freezing orders granted in criminal proceedings.

  1.15  The remaining Articles (Articles 9 to 15) of the proposal are substantially unchanged. Article 11 continues to provide for rights of appeal to be available to bona fide third parties, but exercise of the right of appeal is, in any event, to have no suspensive effect. Article 11(2) provides that the "substantial reasons" for issuing the freezing order may be challenged only in the court of the Issuing State.

  1.16  There is still no provision to explain the relationship between this draft Framework Decision and the provisions of Article 23a of the Framework Decision on the European Arrest Warrant. This 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

  1.17  The Government's views are set out in letters of 11 February and 20 March and an Explanatory Memorandum from the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth). In his letter of 11 February the Minister seeks to address the concerns we expressed on 6 February. On the question of including language to make clear that the issue and execution of a freezing order are to be in accordance with the European Convention on Human Rights, the Minister comments as follows:

    "I have noted the comments with regards to the inclusion of ECHR provisions in the instrument. As you will see from the new version of the text — COPEN 11, 5882/02 — forwarded on 6 February, the sixth recital contains such a provision, based on recital 12 in the European Arrest Warrant (EAW) instrument. In addition the UK has proposed the addition of Article 1(3) from this latter instrument to a new Article 1a or 1(bis), to give further explicit reference in the body of the instrument to the need to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union."

  1.18  On the central issue of the definition of judicial authority, the Minister sets out his views as follows:

    "I am concerned to read of the Committee's continuing dissatisfaction with the definition of the term judicial authority. We have given this question very careful consideration but I remain of the view that the limited circumstances and conditions, outlined in my letter of 28 January, under which Finland and Denmark can issue orders via a police authority for execution in another EU Member State, together with the wider safeguards relating to appeals and human rights in the Framework Decision, provide adequate reassurance that an individual's fundamental rights and freedoms will be protected. As you are aware, freezing orders are provisional measures and any request for transfer of the assets or evidence would be subject to full mutual legal assistance safeguards as required by Article 8."[9]

  1.19  On the relationship between the present proposal and the provisions in the European Arrest Warrant relating to the seizure and handing over of property, the Minister comments as follows:

    "The two sets of provisions address very different sets of circumstances. In the case of the European Arrest Warrant (Article 23a) the effect is to require, in accordance with national law, the seizure and hand over of evidence. However this relates to material which is physically associated with the subject at the time of his arrest, for instance that found on his person or in the premises in which he is at the time of his arrest. The Framework Decision, as far as the freezing of evidence is concerned, however, will not depend on there being any particular suspect; indeed the investigation may be at an early stage with no particular offence established. Property will be seized and detained by the police, often from third parties, pending the receipt of a formal request for its transmission to the issuing state. Such material need not be physically associated with the suspect and would not therefore be subject to seizure under the EAW provisions in the event that an arrest warrant were to be subsequently executed. Conversely, if arrest under the EAW were carried out first, only evidence associated with the subject could be seized; any further evidence required would need to be the subject of a freezing order and subsequent mutual assistance request."

  1.20  We also asked the Minister to explain what consultation there has been 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. The Minister replies as follows:

    "From the outset, my officials have been keeping their opposite numbers in the Northern Ireland Office, Northern Ireland Court Service, Scottish Executive and Crown Office fully advised of the instrument and developments in negotiations. Their views have regularly been sought and there have also been several meetings to discuss the effect of the proposal on legislation and implications for implementation of the Framework Decision."

  1.21  In his letter of 20 March, accompanying an Explanatory Memorandum of the same date, the Minister explains that the Justice and Home Affairs Council on 28 February 'approved a general approach' on the draft Framework Decision, but that the text remained subject to six national parliamentary scrutiny reserves, including the United Kingdom's, and that the European Parliament would be reconsulted. The Minister also explained that the date for implementation would need to be revised, that the certificate[10]would need to be redrafted in the light of the new text and that the document 6980/02 (document (d)) represented the outcome of the February JHA Council.

  1.22  In relation to the lack of any definition of the term 'judicial authority', the Minister comments that the United Kingdom has nominated Procurators Fiscal to be 'judicial authorities' for the purposes of the 1959 European Convention on Mutual Assistance in Criminal Matters. The Minister comments further that Procurators Fiscal:

    "are certainly not independent of the investigative process since they are responsible for overall direction of the police in criminal cases, attend crime scenes and can for instance instruct the police as to which witnesses to interview."[11]

  1.23  The Explanatory Memorandum of 20 March describes the changes which have been made to the proposal. In relation to the question of dual criminality, the Explanatory Memorandum explains that dual criminality may not be required in respect of those offences which are in the list under Article 3(2) and which are punishable by a maximum of at least three years' imprisonment. In respect of other offences, it is explained that Article 3(4) provides that dual criminality may be required where an order seeks to secure evidence or is granted for the purpose of confiscation, and that in this latter case, enforcement may be made subject to the condition that a freezing order could have been granted in respect of the offence in the Executing State. The Explanatory Memorandum comments on this point as follows:

    "Whilst the government does not accept the need for two tests when executing for eventual confiscation, this is a permissive test and the limited application of a dual capacity to restrain in relation to outgoing requests, for offences outside of the list will have little practical effect for the UK. The major offences which are the subject of most restraint requests are contained in Article 2(2) — and the amendment was necessary in order to achieve agreement of the instrument with certain Member States."

Conclusion

  1.24  We thank the Minister for his letters and Explanatory Memorandum. Whilst these are helpful in explaining the Government's attitude to this proposal, they give us cause for serious concern.

  1.25  First, we are concerned that there is still no clear provision requiring the issue and execution of freezing orders to be in accordance with the European Convention on Human Rights (ECHR). The language now proposed is vague and ambiguous, containing no express reference to the ECHR and referring only to discrimination, freedom of expression and freedom of association, thus giving rise to an arguable implication that recognition of a freezing order may not be refused on the grounds that it infringes any other rights guaranteed by the ECHR. If human rights are to be preserved by this proposal, we do not understand why it should not be stated in clear and simple terms that the making, recognition and enforcement of a freezing order are to be subject to the ECHR.

  1.26  Secondly, we repeat our concern that the concept of "judicial authority" is left to Member States to determine, so leaving open the possibility of a police authority being designated as competent to issue freezing orders which must then be recognised and enforced in all other Member States. The Minister's own reply of 11 February in relation to the scope of the freezing order and its relationship with the European Arrest Warrant shows how wide-ranging and invasive such orders might be. As these orders would be made without notice being given to the persons affected, we consider that it is essential that the recognition and enforcement of such orders should be conditional on their having been made or approved by a judge or other judicial officer in the issuing State, as is the case with the European Arrest Warrant, which must be a "court decision". It is all the more important that there should be judicial oversight of the original order when, as in the present case, the right to appeal is so limited and has no suspensive effect and must in practice be exercised in the foreign jurisdiction. Without the minimum safeguard of judicial involvement in and oversight of the making of orders in the issuing State, we do not consider there is any proper basis for their recognition and enforcement in this country.

  1.27  Thirdly, we do not consider that the relationship of this proposal with the seizure powers under Article 23a of the European Arrest Warrant is adequately explained. The provision in the European Arrest Warrant is not confined to evidence but applies also to property acquired as a result of an offence, so its subject matter is indistinguishable from the subject matter of a freezing order. Moreover, we do not find in Article 23a of the European Arrest Warrant, in the version deposited, any limitation to property which is physically associated with the requested person. The two provisions appear to us to have the same material scope, but to have different rules for such matters as appeals. This is notably the case for third parties, who have no rights of appeal under Article 23a of the European Arrest Warrant where their property or rights may be affected. It may be that the problem has been caused by the last-minute insertion of Article 23a into the European Arrest Warrant, but we consider that the confusion which now arises should be resolved by the present proposal before it is formally adopted.

  1.28  As documents (a), (b) and (c) are now superseded, there is no purpose in holding them under scrutiny, and we are content to clear them.

  1.29  However, the three issues we identify are of basic importance to document (d), and we recommend a debate in European Standing Committee B. In our view, the debate could usefully consider the degree to which Framework Decisions of this type should expressly preserve the rights guaranteed by the European Convention on Human Rights, the question of whether mutual recognition and enforcement of decisions should apply only in the case of decisions which have been made or approved by judges or other judicial officers in the issuing State and, finally, the need to ensure coherence between Framework Decisions dealing with similar subject-matter.


1  This is said to be based on recital 12 to the European Arrest Warrant, but it is not explained why discrimination should be a special ground for refusing to freeze property, when no such ground is provided in respect of human rights more generally.  Back

2  The recital appears to exclude by implication those rights which are guaranteed under Articles 5,7,8 and 9 of the ECHR. It is not clear if 'constitutional rules relating to due process' include national rules of criminal procedure, but they would seem to include - in the UK at least - the requirements of Article 6 ECHR as given effect under the Human Rights Act 1998.  Back

3  The words 'validated or in any way confirmed' are new. Back

4  Article 24 of that Convention permits Contracting States to make a declaration defining what authorities of other Contracting States it will deem to be judicial authorities for the purposes of the Convention.  Back

5  Assuming that the law of the Issuing State classifies such an authority as 'judicial' for these purposes, which appears to be the case in Denmark. Back

6  The previous version (document (a)) contained a minimum threshold of one year's imprisonment. Back

7  The principle in extradition law under which a person may not be extradited unless the conduct for which his extradition is sought is also criminal under the law of the extraditing State.  Back

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

9  Now Article 10 in the current version. Back

10  i.e.the certificate provided for in Article 9. Back

11  However, a Procurator Fiscal is not a member of any police force. Back


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 22 April 2002