CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) REGULATIONS

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

SUBSIDIARY LEGISLATION 9.15

CONFISCATION ORDERS (EXECUTION IN THE

EUROPEAN UNION) REGULATIONS

22nd October, 2010

LEGAL NOTICE 464 of 2010, as amended by Legal Notice 426 of 2012.

The title of these regulations is the Confiscation Orders

(Execution in the European Union) Regulations.

In these regulations, unless the context otherwise requires -

"the Arrangement" means the Council Framework Decision

2006/783/JHA of 6 October, 2006 on the application of the

principle of mutual recognition to confiscation orders as amended

by Council Framework Decision 2009/299/JHA of 26 February

2009;

"certificate" means the form, as contained in the Annex to the

Arrangement, purporting to reproduce details setting out the

information required by the same form, set out in Schedule 2;

"confiscation order" means a final penalty or measure imposed

by a court on a natural or legal person, following proceedings in

relation to a criminal offence or offences, resulting in the definitive

deprivation of property;

"Council Framework Decision 2005/212/JHA" means Council

Framework Decision of 24 February 2005 on Confiscation of

Crime-Related Proceeds, Instrumentalities and Property, set out in

Schedule 4;

"cultural objects forming part of the national cultural heritage"

shall be defined in accordance with Article 1(1) of Council

Directive 93/7/EEC of 15 March 1993 on the return of cultural

objects unlawfully removed from the territory of a Member State;

"the European Union" means the European Union as referred to

in the Treaty;

"executing State" means the Member State to which a

c on f isc a ti o n or d e r h a s bee n tr a n s m i tt e d f or th e pu r po s e of

execution;

"instrumentalities" means any property used, or intended to be

used, in any manner, wholly or in part, to commit a criminal

offence or offences;

"issuing State" means the Member State in which a court has

issued a confiscation order within the framework of criminal

proceedings;

"proceeds" means any e conomic advanta ge derive d from

criminal offences, which may consist of any form of property;

"property" means property of any description, whether corporeal

or incorporeal, movable or immovable, and legal documents and

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

instruments evidencing title to or interest in such property, which

the court in the issuing State has decided

(a) is the proceeds of a relevant offence, or equivalent to

either the full value or part of the value of such

proceeds, or

(b) constitutes the instrumentalities of such an offence, or

(c) is liable to confiscation resulting from the application

in the issuing State of any of the extended powers of

confiscation specified in Article 3(1) and (2) of

Framework Decision 2005/212/JHA, or

(d) is liable to confiscation under any other provisions

relating to extended powers of confiscation under the

law of the issuing State;

"relevant offence" means

(a) a scheduled offence; or

(b) any other offence liable to the punishment of

imprisonment or of detention for a term of more than

one year;

"scheduled offence" is any offence in the list of offences set out

in Schedule 1;

"the Treaty" shall have the same meaning assigned to it by article

2 of the European Union Act.

These regulations shall be limited to the transmission and

execution of confiscation orders between Malta and a Member

State of the European Union listed in Schedule 3 and shall apply to

confiscation orders received in Malta after the 24th November,

2008.

For the purposes of these regulations

(a) the Attorney General shall be competent to receive

confiscation orders issued in the issuing State and to

transmit to the executing State confiscation orders

issued in Malta by a court of criminal jurisdiction, and

(b) a court of criminal jurisdiction shall be competent to

issue confiscation orders.

(1) A confiscation order shall be transmitted with the

certificate provided for in Schedule 2 containing the information

prescribed therein, by any means capable of producing a written

record under conditions allowing the executing State to establish

authenticity.

(2) The certificate shall be in either the Maltese or English

language

Provided that it shall not be necessary for the confiscation order

to be in either the Maltese or English language.

(3) The original of the confiscation order, or a certified copy

thereof, and the original of the certificate shall be transmitted to the

executing State if it so requires.

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

(1) A confiscation order shall contain a statement that the

order relates to

(a) conduct which -

(i) is a scheduled offence; and

(ii) carries a sentence of imprisonment or another

form of detention of a maximum period of at

least three years in the issuing State

Provided that in such cases there shall be no

verification of the double criminality of the act; or

(b) conduct which -

(i) would constitute an offence under the law of

Malta if it occurred in Malta; and

(ii) is punishable under the laws of Malta with

imprisonment or another form of detention for a

term of twelve months or a greater punishment.

(2) In determining for the purposes of this regulation whether

a n o ff e n c e f a l l s w i t h i n t h e r e q u i r e m e n t s o f s u b - r e g u l a ti o n

(a) the description of the offence shall not be regarded as

material if the offence under the law of Malta and the

law of the issuing State are substantially of the same

nature;

(b) if the conduct relates to a tax or duty, it is immaterial

that the law of Malta does not impose the same kind of

tax or duty or does not contain rules of the same kind

as those of the law of the issuing State;

(c) if the conduct relates to customs or exchange, it is

immaterial that the law of Malta does not contain rules

of the same kind as those of the law of the issuing

State.

(3) A confiscation order shall indicate whether the order has

been issued for the purpose of

(a) confiscating one or more specific items of property; or

(b) confiscating an amount of money.

Where the Attorney General receives a confiscation order

within the meaning of these regulations, the Attorney General shall,

in his own individual judgement and subject to the provisions of

regulations 8 and 9, issue a certificate to the effect that the

authority which issued a confiscation order has the function of

issuing confiscating orders in the issuing State and such certificate

shall be conclusive of its contents.

(1) A confiscation order shall not be recognised by the

Attorney General if

(a) the certificate provided for in Schedule 2 is not

produced, is incomplete or manifestly does not

correspond to the confiscation order;

(b) execution of the confiscation order would be contrary

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

to the principle of ne bis in idem;

(c) the act on which the confiscation order is based is not

one falling within the list of scheduled conduct and

does not constitute an offence under the law of Malta;

(d) there is an immunity or privilege under the law of

Malta which prevents the execution of a domestic

confiscation order on the property concerned;

(e) the rights of any interested party, including bona fide

third parties, under the law of Malta, make it

impossible to execute the confiscation order

Provided that if any action is brought before the courts

of Malta by any interested party, the issuing State shall

be informed thereof;

(f)

according to the certificate provided for in Schedule 2,

the person against whom the order was issued did not

appear personally at the trial resulting in the decision,

unless the said certificate states that the person, in

accordance with procedural requirements defined in

the law of the issuing State

(i) in due time was summoned in person and

thereby informed of the scheduled date and

place of the trial which resulted in the

confiscation order, or by other means actually

received official information of the scheduled

date and place of that trial in such a manner that

it was unequivocally established that he was

aware of the scheduled trial and was informed

that such a confiscation order may be handed

down if he does not appear for the trial, or

(ii) being aware of the scheduled trial, had given a

mandate to his legal counsel appointed by the

said person or by the State, to defend him at his

trial, and was indeed defended by the said legal

counsel at the trial, or

(iii) after being served with the confiscation order

and being expressly informed of the right to a

retrial, or an appeal, in which he has the right to

participate and which allows the merits of the

case, including fresh evidence, to be re-

examined and which may lead to the original

decision being reversed, he expressly stated that

he does not contest the confiscation order or he

did not request a retrial or an appeal within the

applicable time-frame;

(g) the confiscation order is based on criminal

proceedings in respect of criminal offences which

(i) under the law of Malta, are regarded as having

been committed wholly or partly within its

territory, or in a place equivalent to its territory,

or

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

(ii) were committed outside the territory of the

issuing State, and the law of Malta does not

permit legal proceedings to be taken in respect

of such offences where they are committed

outside the Maltese territory;

(h) the execution of a confiscation order is barred by

prescription according to the law of Malta and the acts

constituting the offence for which the confiscation

order was issued fall within the jurisdiction of the

Maltese courts.

(2)

If it appears to the Attorney General that -

(a) the confiscation order was issued in circumstances

where confiscation of the property was ordered as a

result of the application, in the issuing State, of any of

the extended powers of confiscation specified in

Article 3(1) and (2) of Council Framework Decision

2005/212/JHA, and

(b) the confiscation order falls outside the scope of the

option adopted by the executing State under Article

3(2) of Council Framework Decision 2005/212/JHA,

the confiscation order shall be executed at least to the extent

provided for in similar cases under the law of Malta.

(3) The Attorney General shall consult with the authorities of

the issuing state when he makes a decision to refuse recognition or

execution of a confiscation order based on

(a) the grounds listed in sub-regulation (1)(a), (b), (f) or

(g);

(b) the ground listed in sub-regulation (1)(e) and

information is not being provided to the issuing state

of any action brought before a Court in Malta;

(c) the grounds mentioned in sub-regulation (2).

(4) In the event that execution of the confiscation order is

impossible due to the fact that the property to be confiscated has

already been confiscated, has disappeared, has been destroyed,

cannot be found in the location indicated in the certificate or the

location of the property has not been indicated in a sufficiently

precise manner, the competent judicial authorities of the issuing

state shall be notified.

(1) The Attorney General may postpone the execution of a

confiscation order transmitted in accordance with regulation 5 in

the following cases

(a) if, in the case of a confiscation order concerning an

amount of money, he considers that there is a risk that

the total value derived from its execution may exceed

the amount specified in the confiscation order because

of simultaneous execution of the confiscation order in

more than one Member State;

(b) in the case where an interested party is seeking legal

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

remedies against the recognition and execution of a

confiscation order;

(c) where its execution might damage an ongoing criminal

investigation or proceedings, until such time as he

deems reasonable;

(d) where it is considered necessary to have the

confiscation order or parts thereof translated, for the

time necessary to obtain its translation, or

(e) where the property is already subject to an order made

in the course of other proceedings in Malta.

(2) If a postponement for any of the grounds mentioned in sub-

regulation (1)(b) to (e) is deemed necessary, the Attorney General

shall inform the issuing judicial authority of this fact and of the

grounds for the postponement and, if possible, the expected

duration of the postponement.

(3) Once the grounds for postponement have ceased to exist,

the provisions of regulations 7 and 10 shall apply and the Attorney

General shall inform the issuing State accordingly.

Where a certificate has been issued by the Attorney

General under regulation 7, and without the need of any further

authority other than the authority conferred by this regulation, the

confiscation order shall be executed by the Attorney General in

accordance with regulation 11.

(1) The following provisions of this regulation shall apply

to a confiscation order to which regulation 10 applies.

(2) The certificate issued under regulation 7 shall be filed

before the First Hall of the Civil Court together with the

confiscation order to which it refers.

(3) The provisions of article 24D(2) to (12), both inclusive, of

the Dangerous Drugs Ordinance, hereinafter in these regulations

referred to as "the Ordinance" shall apply mutandis mutandis to a

confiscation order to which this regulation applies, as if it were an

order referred to in article 24D(1) of the Ordinance.

(4) No action can be brought before the Maltese courts

challenging the substantial reasons accounting for the issue of a

confiscation order.

(5) Any person who acts in contravention of a confiscation

order mentioned in these regulations shall be guilty of an offence

and shall on conviction be liable to a fine (multa) not exceeding

eleven thousand and six hundred and forty-six euro and eighty-

seven cents (11,646.87), or to imprisonment for a period not

exceeding twelve months, or to both such fine and imprisonment,

and the court may order the person so found guilty to deposit in a

bank to the credit of the accused the amount of moneys or the value

of other movable property paid or delivered in contravention of that

court order.

(1) Where a confiscation order has been issued for the

purpose of confiscating a specific item of property and upon

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

agreement with the issuing state, the Attorney General may demand

that the person against whom the order was issued be ordered to

pay an amount of money which is the equivalent to the value of the

property, and the provisions of regulation 11 shall apply to a

confiscation order to which this regulation refers.

(2) Where a confiscation order has been issued for the purpose

of confiscating an amount of money, if payment is not obtained, the

confiscation order shall be executed on any item of property in

accordance with regulation 11.

(1) Where a confiscation order has been issued for the

purpose of confiscating an amount of money, the amount to be

confiscated may be converted into Euro currency, provided that the

rate of exchange applied must be that of the date on which the

confiscation order was issued.

(2) Where the person against whom the confiscation order was

issued is able to furnish proof of payment, totally or in part, in any

State, the issuing State shall be consulted and any part of the

amount, in the case of confiscation of proceeds, that is recovered

pursuant to that order in any State other than Malta, shall be

deducted in full from the amount which is to be confiscated.

(1) Without prejudice to the provisions of article 24D(7)

of the Ordinance, any property so forfeited shall be disposed of in

accordance with the provisions of this regulation.

(2) Money which has been obtained from the execution of the

confiscation order shall be disposed of as follows

(a) where the amount gathered from the execution of the

confiscation order is less than ten thousand euro

(€10,000), or the equivalent to that amount, the

amount shall accrue to the Government of Malta;

(b) in all other cases, fifty per centum of the amount

which has been obtained from the execution of the

confiscation order shall be transferred to the issuing

State.

(3) Property, other than money, which has been obtained from

the execution of the confiscation order shall, in so far as is

possible, be disposed of in any of the following ways

(a) by selling the property, in which case the proceeds

shall be disposed of in accordance with sub-regulation

(2)(a);

(b) by transferring the said property to the issuing State

Provided that if the confiscation order covers an

amount of money, the property may only be transferred

to the issuing State when that State has given its

consent.

(4) Notwithstanding the provisions of sub-regulation (3),

specific items covered by the confiscation order which constitute

cultural objects forming part of the national heritage of Malta shall

not be sold or returned to the issuing State.

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

Where two or more confiscation orders have been issued

concerning -

(a) an amount of money against the same person and the

said person does not possess sufficient means in Malta

to enable all the orders to be executed, or

(b) the same specific item of property,

the Attorney General shall decide which confiscation order is or are

to be executed in accordance with these regulations, if it appears to

the Attorney General, having regard to all the circumstances of the

case and in particular -

(i)

the involvement of frozen assets;

(ii)

the relative seriousness and place of the offence;

(iii)

the date of the respective orders; and

(iv)

the date of transmission of the respective orders,

that preference should be given to executing one or more of the

other orders.

The Attorney General shall immediately inform any of the

issuing States by any means capable of producing a written record

of any of the following

(a) a decision not to recognise the confiscation order,

together with the reasons for such decision;

(b) the total or partial non-execution of the order in terms

of regulation 13(2) or for the reasons referred to in

regulation 15;

(c) upon completion of the execution of the confiscation

order.

(1) Where an order for forfeiture is made by a court of

criminal jurisdiction against a natural or legal person found guilty

of a relevant offence and having property, monies or other income

in another Member State, the provisions of this regulation shall

apply.

(2) Upon the issue of an order for forfeiture by a court of

criminal jurisdiction, the Attorney General shall append to the

order

(a) the certificate provided for in Schedule 2 purporting to

reproduce details setting out the information required

by the same certificate;

(b) a statement indicating that the order has been issued

for the purpose of

(i) confiscating one or more specific items of

property; or

(ii) confiscating an amount of money.

(3) The Attorney General shall sign and certify as authentic the

contents of the certificate.

(4)

For purposes of this regulation, an order for forfeiture shall

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

be construed as a reference to a confiscation order referred to under

these regulations.

(1) The transmission of a confiscation order shall not

prevent the execution of the confiscation order by the Maltese

Courts.

(2) Where a confiscation order concerning an amount of money

is transmitted to more than one executing State, the total value

derived from its execution may not exceed the maximum amount

specified in the order.

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

Schedule 1

(Regulation 6)

Scheduled offences

participation in a criminal organisation,

terrorism,

trafficking in human beings,

sexual exploitation of children and child pornography,

illicit trafficking in narcotic drugs and psychotropic substances,

illicit trafficking in weapons, munitions and explosives,

corruption,

fraud, including that affecting the financial interests of the European

Communities within the meaning of the Convention of 26 July 1995 on the

protection of the European Communities’ financial interests,

laundering of the proceeds of crime,

counterfeiting currency, including of the euro,

computer-related crime,

environmental crime, including illicit trafficking in endangered animal

species and in endangered plant species and varieties,

facilitation of unauthorised entry and residence,

murder, grievous bodily injury,

illicit trade in human organs and tissue,

kidnapping, illegal restraint and hostage-taking,

racism and xenophobia,

organised or armed robbery,

illicit trafficking in cultural goods, including antiques and works of art,

swindling,

racketeering and extortion,

counterfeiting and piracy of products,

forgery of administrative documents and trafficking therein,

forgery of means of payment,

illicit trafficking in hormonal substances and other growth promoters,

illicit trafficking in nuclear or radioactive materials,

trafficking in stolen vehicles,

rape,

arson,

crimes within the jurisdiction of the International Criminal Court,

unlawful seizure of aircraft/ships,

sabotage.

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

Schedule 2

Amended by

L.N. 426 of 2012.

(Regulation 5)

CERTIFICATE

referred to in Article 4 of Council Framework Decision 2006/783/JHA on the

application of the principle of mutual recognition to confiscation orders

(a)

Issuing and executing States

*

Issuing State: ............................................................................................

*

Executing State: .......................................................................................

(b)

Court which issued the confiscation order

Official name:.....................................................................................................

Address: .............................................................................................................

File reference: ....................................................................................................

Tel. (country code) (area/city code) ....................................................................

Fax (country code) (area/city code) ....................................................................

E-mail (when available) .....................................................................................

Languages in which it is possible to communicate with the Court ......................

Contact details for person(s) to contact in order to obtain additional

information for the purpose of the execution of the confiscation order, or,

where applicable, for the purpose of coordination of the execution of a

confiscation order transmitted to two or more executing States, or for the

purpose of the transfer to the issuing State of monies or properties obtained

from the execution (name, title/grade, tel., fax, and, when available, email)

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

(c) Authority competent for the execution of the confiscation order in the issuing

State (if the authority is different from the Court under point (b))

Official name

Address: ..............................................................................................................

Tel. (country code) (area/city code) ....................................................................

Fax (country code) (area/city code) ....................................................................

E-mail (when available) ......................................................................................

Languages in which it is possible to communicate with the authority competent

for the execution: ................................................................................................

Contact details for person(s) to contact in order to obtain additional information

for the purpose of the execution of the confiscation order or, where applicable,

for the purpose of coordination of the execution of a confiscation order

transmitted to two or more executing States, or for the purpose of the transfer to

the issuing State of monies or properties obtained from the execution, (name,

title/grade, tel, fax, and, when available, email)

(d) Where a central authority has been made responsible for the administrative

transmission and reception of confiscation orders in the issuing State

Name of the central authority: ............................................................................

Contact person, if applicable (title/grade and name): ..........................................

Address: .............................................................................................................

File reference: .....................................................................................................

Tel. (country code) (area/city code) ....................................................................

Fax (country code) (area/city code) ....................................................................

E-mail (when available) ......................................................................................

(e) Authority or authorities which may be contacted (if point (c) and/or (d) has

(have) been completed

†

Authority mentioned under point (b)

Can be contacted for questions concerning: ........................................................

†

Authority mentioned under point (c)

Can be contacted for questions concerning: ........................................................

†

Authority mentioned under point (d)

Can be contacted for questions concerning: ........................................................

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

(f)

Where the confiscation order is a follow-up to a freezing order transmitted to

the executing State pursuant to Council Framework Decision 2003/577/JHA of 22 July

2003 on the execution in the European Union of orders freezing property or evidence *,

provide relevant information to identify the freezing order (the dates of issue and

transmission of the freezing order, the authority to which it was transmitted, reference

number, if available): .......................................................................................................

(g) Where the confiscation order has been transmitted to more than one executing

State, provide the following information

1. The confiscation order has been transmitted to the following other

executing State(s) (country and authority)

2. The confiscation order has been transmitted to more than one executing

State for the following reason (tick the relevant box))

* OJ L 196, 2.8.2003, p.45.

Where the confiscation order concerns one or more specific items of

property

Different specific items of property covered by the confiscation order are

believed to be located in different executing States.

The confiscation of a specific item of property involves action in more

than one executing State.

A specific item of property covered by the confiscation order is believed

to be located in one of two or more specified executing States.

Where the confiscation order concerns an amount of money

he property concerned has not been frozen under Framework Decision

2003/577/JHA of 22 July 2003 on the execution in the European Union

of orders freezing property or evidence.

The value of the property which may be confiscated in the issuing State

and anyone executing State is not likely to be sufficient for the execution

of the full amount covered by the confiscation order.

Other reason(s) (to be specified): ..............................................................

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

(h) Information regarding the natural or legal person against whom the

confiscation order has been issued

1. In the case of a natural person

Name: .......................................................................................................

Forename(s): ............................................................................................

Maiden name, (where applicable): ............................................................

Aliases, (where applicable): .....................................................................

Sex: ..........................................................................................................

Nationality: ..............................................................................................

A legally valid identification document number or social security

number (when possible): .........................................................................

Date of birth: ............................................................................................

Place of birth: ...........................................................................................

Last known address: .................................................................................

Language(s) which the person understands (if known): ............................

If the confiscation order concerns an amount of money

The confiscation order is transmitted to the executing State because (tick

the relevant box)

(a)

the issuing State has reasonable grounds to believe that the person

against whom the confiscation order has been issued has property

or income in the executing State. Add the following information

Grounds for believing that the person has property / income

Description of the property of the person / source of income: .........

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

Location of the property of the person/source of income (if not

known, the last known location): ....................................................

(b)

there are no reasonable grounds, as referred to under (a), which

would allow the issuing State to determine the Member State to

which the confiscation order may be sent, but the person against

whom the confiscation order has been issued is normally resident

in the executing State. Add the following information

Normal residence in the executing State: ........................................

If the confiscation order concerns specific item(s) of property

The confiscation order is transmitted to the executing State because (tick

the relevant box)

(a) the specific item(s) of property is(are) located in the executing

State

(See point (i))

(b)

the issuing State has reasonable grounds to believe that all or part

of the specific item(s) of property covered by the confiscation

order is (are) located in the executing State. Add the following

information

Grounds for believing that the specific item(s) of property is

located in the executing State: ........................................................

(c)

there are no reasonable grounds, as referred to in (b), which would

allow the issuing State to determine the Member State to which the

confiscation order may be transmitted, but the person against

whom the confiscation order has been issued is normally resident

in the executing State. Add the following information

Normal residence in the executing State: ........................................

2. In the case of a legal person

Name: .......................................................................................................

Form of legal person: ................................................................................

Registration number (if available)*: .........................................................

Registered seat (if available)*: .................................................................

Address of the legal person: ......................................................................

If the confiscation order concerns an amount of money

The confiscation order is transmitted to the executing State because (tick

the relevant box)

* Where a confiscation order is transmitted to the executing State because the legal person

against whom the confiscation order has been issued has its registered seat in that State,

Registration number and Registered seat must be completed.

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

(a)

the issuing State has reasonable grounds to believe that the legal

person against whom the confiscation order has been issued has

property or income in the executing State. Add the following

information

Grounds for believing that the person has property / income

Description of the property of the person / source of income

Location of the property of the person/source of income (if not

known, the last known location): ....................................................

(b)

there are no reasonable grounds, as referred to in (a), which would

allow the issuing State to determine the Member State to which the

confiscation order may be sent but the legal person against whom

the confiscation order has been issued has its registered seat in the

executing State. Add the following information

Registered Seat in the executing State: ...........................................

If the confiscation order concerns specific item(s) of property

The confiscation order is transmitted to the executing State because (tick

the relevant box)

(a)

the specific item(s) of property is (are) located in the executing

State

(See point (i))

(b)

the issuing State has reasonable grounds to believe that all or part

of the specific item(s) of property covered by the confiscation

order is (are) located in the executing State. Add the following

information

Grounds for believing that the specific item(s) of property is (are)

located in the executing State: ........................................................

(c)

there are no reasonable grounds, as referred to in (b), which would

allow the issuing State to determine the Member State to which the

confiscation order may be transmitted but the legal person against

whom the confiscation order has been issued has its registered seat

in the executing State. Add the following information

Registered seat in the executing State: ............................................

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

(i)

The confiscation order

The confiscation order was issued on (date): ......................................................

The confiscation order became final on (date): ...................................................

Reference number of the confiscation order (if available): .................................

1. Information on the nature of the confiscation order

Indicate (by ticking in the relevant box(es)) if the confiscation order

concerns

an amount of money

The amount for execution in the executing State with indication of

currency (in figures and words): ...............................................................

The total amount covered by the confiscation order with indication of

currency (in figures and words): ...............................................................

specific item(s) of property

Description of the specific item(s) of property: ........................................

Location of the specific item(s) of property (if not known, the last known

location): ..................................................................................................

Where the confiscation of the specific item(s) of property involves action

in more than one executing State, description of the action to be taken

The Court has decided that the property (tick the relevant box(es))

(i)

is the proceeds of an offence, or is equivalent to either the full value

or part of the value of such proceeds,

(ii)

constitutes the instrumentalities of such an offence,

(iii) is liable to confiscation resulting from the application in the issuing

State of extended powers of confiscation as specified in (a), (b) and

(c). The basis for the decision is that the Court, based on specific

facts, is fully convinced that the property in question has been

derived from

†

(a) criminal activities of the convicted person during a period

prior to conviction for the offence concerned which is deemed

to be reasonable by the Court in the circumstances of the

particular case,

†

(b) similar criminal activities of the convicted person during a

period prior to conviction for the offence concerned which is

deemed to be reasonable by the Court in the circumstances of

the particular case, or

†

(c) the criminal activity of the convicted person, and it has been

established that the value of the property is disproportionate to

the lawful income of that person

(iv) is liable to confiscation under any other provision relating to

extended powers of confiscation under the law of the issuing State.

If two or more categories of confiscation are involved, provide details on

which property is confiscated in relation to which category

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

2. Information on the offence(s) resulting in the confiscation order

A summary of facts and a description of the circumstances in which the

offence(s) resulting in the confiscation order has(have) been committed,

including time and place ...........................................................................

Nature and legal classification of the offence(s) resulting in the

confiscation order and the applicable statutory provision/code on basis

of which the decision was made: ..............................................................

If applicable, indicate one or more of the following offences to which the

offence(s) identified under point 2.2 relate(s), if the offence(s) are

punishable in the issuing State by a custodial sentence of a maximum of

at least 3 years (tick the relevant box(es))

participation in a criminal organisation;

terrorism;

trafficking in human beings;

sexual exploitation of children and child pornography;

illicit trafficking in narcotic drugs and psychotropic substances;

illicit trafficking in weapons, munitions and explosives;

corruption;

fraud, including that affecting the financial interests of the

European Communities within the meaning of the Convention of 26

July 1995 on the protection of the European Communities' financial

interests;

laundering of the proceeds of crime;

counterfeiting currency, including of the euro;

computer related crime;

environmental crime, including illicit trafficking in endangered

animal species and in endangered plant species and varieties;

facilitation of unauthorised entry and residence;

murder, grievous bodily injury;

illicit trade in human organs and tissue;

kidnapping, illegal restraint and hostage taking;

racism and xenophobia;

organised or armed robbery;

illicit trafficking in cultural goods, including antiques and works of

art;

swindling;

racketeering and extortion;

counterfeiting and piracy of products;

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

forgery of administrative documents and trafficking therein;

forgery of means of payment;

illicit trafficking in hormonal substances and other growth

promoters;

illicit trafficking in nuclear or radioactive materials;

trafficking in stolen vehicles;

rape;

arson;

crimes within the jurisdiction of the International Criminal Court;

unlawful seizure of aircraft/ships;

sabotage.

To the extent that the offence(s) resulting in the confiscation order

identified under point 2.2 is (are) not covered by point 2.3, give a full

description of the offence(s) concerned (this should cover the actual

criminal activity involved as opposed for instance to legal

classifications): .........................................................................................

(j)

Proceedings resulting in the confiscation order

Indicate if the person appeared in person at the trial resulting in the

confiscation order

1. Yes, the person appeared in person at the trial resulting in the

confiscation order.

2. No, the person did not appear in person at the trial resulting in the

confiscation order.

3. If you have ticked the box under point 2, please confirm the

existence of one of the following

3.1a the person was summoned in person on .................. (day/

month/year) and thereby informed of the scheduled date and

place of the trial which resulted in the confiscation order and

was informed that a decision may be handed down if he or she

does not appear for the trial;

3.1b the person was not summoned in person but by other means

actually received official information of the scheduled date

and place of the trial which resulted in the confiscation order,

in such a manner that it was unequivocally established that he

or she was aware of the scheduled trial, and was informed that

a decision may be handed down if he or she does not appear

for the trial;

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

3.2. being aware of the scheduled trial, the person had given a

mandate to a legal counsellor, who was either appointed by

the person concerned or by the State, to defend him or her at

the trial, and was indeed defended by that counsellor at the

trial;

3.3. the person was served with the confiscation order on

.......................... day/month/year) and was expressly

informed about the right to a retrial or appeal, in which he or

she has the right to participate and which allows the merits of

the case, including fresh evidence, to be re-examined, and

which may lead to the original decision being reversed, and

†

the person expressly stated that he or she does not

contest the decision;

OR

†

the person did not request a retrial or appeal within the

applicable time frame.

4. If you have ticked the box under points 3.1b, 3.2, 3.3 or 3.4 above, please

provide information about how the relevant condition has been met

(k)

Conversion and transfer of property

1. If the confiscation order concerns a specific item of property, state

whether the issuing State allows for the confiscation in the executing

State to take the form of a requirement to pay a sum of money

corresponding to the value of the property.

2. If the confiscation order concerns an amount of money, state whether

property, other than money obtained from the execution of the

confiscation order, may be transferred to the issuing State

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

(l)

Alternative measures, including custodial sanctions

1. State whether the issuing State allows for the application by the

executing State of alternative measures where it is not possible to

execute the confiscation order, either totally or in part

†

yes

†

no

2. If yes, state which sanctions may be applied (nature and maximum level

of the sanctions)

†

Custody (maximum period): ............................................................

†

Community service (or equivalent) (maximum period): ...................

†

Other sanctions (description)

(m)

Other circumstances relevant to the case (optional information)

(n)

The confiscation order is attached to the certificate.

Signature of the authority issuing the certificate and/or its representative

certifying the content of the certificate as accurate: ............................................

Name: .................................................................................................................

Post held (title/grade): ........................................................................................

Date: ...................................................................................................................

Official stamp (if available)

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

Schedule 3

(Regulation 3)

Member States of the European Union

Czech Republic

Denmark

Finland

Hungary

Latvia

Luxembourg

Poland

Portugal

Romania

Slovenia

Spain

The Netherlands

Schedule 4

(Regulation 2)

COUNCIL FRAMEWORK DECISION 2005/212/JHA of 24 February 2005 on

Confiscation of Crime-Related Proceeds, Instrumentalities and Property

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Articles 29,

31(1)(c) and 34(2)(b) thereof,

Having regard to the initiative of the Kingdom of Denmark (1),

Having regard to the opinion of the European Parliament,

Whereas

(1) The main motive for cross-border organised crime is financial gain. In

order to be effective, therefore, any attempt to prevent and combat such

crime must focus on tracing, freezing, seizing and confiscating the

proceeds from crime. However, this is made difficult, inter alia, as a

result of differences between Member States’ legislation in this area.

(2) In the conclusions of the Vienna European Council of December 1998,

the European Council called for a strengthening of EU efforts to combat

international organised crime in accordance with an action plan on how

best to implement the provisions of the Treaty of Amsterdam in an area

of freedom, security and justice (2).

(3) Pursuant to paragraph 50(b) of the Vienna Action Plan, within five years

of the entry into force of the Treaty of Amsterdam, national provisions

governing seizures and confiscation of the proceeds from crime must be

improved and approximated where necessary, taking account of the

rights of third parties in bona fide.

(4) Paragraph 51 of the conclusions of the Tampere European Council of 15

and 16 October 1999 stresses that money laundering is at the very heart

of organised crime, and should be rooted out wherever it occurs and that

the European Council is determined to ensure that concrete steps are

taken to trace, freeze, seize and confiscate the proceeds from crime. The

European Council also calls, in paragraph 55, for the approximation of

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

criminal law and procedures on money laundering (e.g. tracing, freezing

and confiscating funds).

(5) Pursuant to Recommendation 19 in the 2000 action plan entitled ‘The

prevention and control of organised crime: a European Union strategy

for the beginning of the new millennium’, which was approved by the

Council on 27 March 2000 (3), an examination should be made of the

possible need for an instrument which, taking into account best practice

in the Member States and with due respect for fundamental legal

principles, introduces the possibility of mitigating, under criminal, civil

or fiscal law, as appropriate, the onus of proof regarding the source of

assets held by a person convicted of an offence related to organised

crime.

(6) Pursuant to Article 12, on confiscation and seizure, of the UN

Convention of 12 December 2000 against Transnational Organised

Crime, States Parties may consider the possibility of requiring that an

offender demonstrate the lawful origin of alleged proceeds of crime or

other property liable to confiscation, to the extent that such a

requirement is consistent with the principles of their domestic law and

with the nature of judicial proceedings.

(7) All Member States have ratified the Council of Europe Convention of 8

November 1990 on Laundering, Search, Seizure and Confiscation of the

Proceeds from Crime. Some Member States have submitted declarations

with regard to Article 2 of the Convention concerning confiscation so as

to be obliged to confiscate proceeds only from a number of specified

offences.

(8) The Council Framework Decision 2001/500/JHA (4) lays down

provisions on money laundering, the identification, tracing, freezing,

seizing and confiscation of instrumentalities and the proceeds from

crime. Under that Framework Decision, Member States are also obliged

not to make or uphold reservations in respect of the provisions of the

Council of Europe Convention concerning confiscation, insofar as the

offence is punishable by deprivation of liberty or a detention order for a

maximum of more than one year.

(9) The existing instruments in this area have not to a sufficient extent

achieved effective cross-border cooperation with regard to confiscation

as there are still a number of Member States which are unable to

confiscate the proceeds from all offences punishable by deprivation of

liberty for more than one year.

(10) The aim of this Framework Decision is to ensure that all Member States

have effective rules governing the confiscation of proceeds from crime,

inter alia, in relation to the onus of proof regarding the source of assets

held by a person convicted of an offence related to organised crime.

This Decision is linked to a Danish draft Framework Decision on the

mutual recognition within the European Union of decisions concerning

the confiscation of proceeds from crime and asset-sharing, which is

being submitted at the same time.

(11) This Framework Decision does not prevent a Member State from

applying its fundamental principles relating to due process, in particular

the presumption of innocence, property rights, freedom of association,

freedom of the press and freedom of expression in other media,

HAS ADOPTED THIS FRAMEWORK DECISION

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

Article 1

Definitions

For the purposes of this Framework Decision

-

‘proceeds’ means any economic advantage from criminal offences. It may

consist of any form of property as defined in the following indent,

-

‘property’ includes property of any description, whether corporeal or

incorporeal, movable or immovable, and legal documents or instruments evidencing

title to or interest in such property,

-

‘instrumentalities’ means any property used or intended to be used, in any

manner, wholly or in part, to commit a criminal offence or criminal offences,

-

‘confiscation’ means a penalty or measure, ordered by a court following

proceedings in relation to a criminal offence or criminal offences, resulting in the

final deprivation of property,

-

‘legal person’ means any entity having such status under the applicable

national law, except for States or other public bodies in the exercise of State

authority and for public international organisations.

Article 2

Confiscation

1. Each Member State shall take the necessary measures to enable it to

confiscate, either wholly or in part, instrumentalities and proceeds from criminal

offences punishable by deprivation of liberty for more than one year, or property the

value of which corresponds to such proceeds.

2. In relation to tax offences, Member States may use procedures other than

criminal procedures to deprive the perpetrator of the proceeds of the offence.

Article 3

Extended powers of confiscation

1. Each Member State shall as a minimum adopt the necessary measures to

enable it, under the circumstances referred to in paragraph 2, to confiscate, either

wholly or in part, property belonging to a person convicted of an offence

(a) committed within the framework of a criminal organisation as defined

in Joint Action 98/733/JHA of 21 December 1998 on making it a

criminal offence to participate in a criminal organisation in the Member

States of the European Union (5), when the offence is covered by

-

Council Framework Decision 2000/383/JHA of 29 May 2000 on

increasing protection by criminal penalties and other sanctions

against counterfeiting in connection with the introduction of the

euro (6),

-

Council Framework Decision 2001/500/JHA of 26 June 2001 on

money laundering, the identification, tracing, freezing, seizing

and confiscation of instrumentalities and the proceeds of crime

(7),

-

Council Framework Decision 2002/629/JHA of 19 July 2002 on

combating trafficking in human beings (8),

-

Council Framework Decision 2002/946/JHA of 28 November

2002 on the strengthening of the penal framework to prevent the

facilitation of unauthorised entry, transit and residence (9),

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

-

Council Framework Decision 2004/68/JHA of 22 December 2003

on combating the sexual exploitation of children and child

pornography (10),

-

Council Framework Decision 2004/757/JHA of 25 October 2004

laying down minimum provisions on the constituent elements of

criminal acts and penalties in the field of illicit drug trafficking

(11),

(b) which is covered by the Council Framework Decision 2002/475/JHA of

13 June 2002 on combating terrorism (12),

provided that the offence according to the Framework Decisions referred to above

regarding offences other than money laundering are punishable with

criminal penalties of a maximum of at least between 5 and 10 years of

imprisonment,

regarding money laundering, are punishable with criminal penalties of a

maximum of at least 4 years of imprisonment,

and the offence is of such a nature that it can generate financial gain.

2. Each Member State shall take the necessary measures to enable confiscation

under this Article at least

(a) where a national court based on specific facts is fully convinced that the

property in question has been derived from criminal activities of the

convicted person during a period prior to conviction for the offence

referred to in paragraph 1 which is deemed reasonable by the court in

the circumstances of the particular case, or, alternatively,

(b) where a national court based on specific facts is fully convinced that the

property in question has been derived from similar criminal activities of

the convicted person during a period prior to conviction for the offence

referred to in paragraph 1 which is deemed reasonable by the court in

the circumstances of the particular case, or, alternatively,

(c) where it is established that the value of the property is disproportionate

to the lawful income of the convicted person and a national court based

on specific facts is fully convinced that the property in question has

been derived from the criminal activity of that convicted person.

3. Each Member State may also consider adopting the necessary measures to

enable it to confiscate, in accordance with the conditions set out in paragraphs 1 and

2, either wholly or in part, property acquired by the closest relations of the person

concerned and property transferred to a legal person in respect of which the person

concerned - acting either alone or in conjunction with his closest relations - has a

controlling influence. The same shall apply if the person concerned receives a

significant part of the legal person’s income.

4. Member States may use procedures other than criminal procedures to

deprive the perpetrator of the property in question.

Article 4

Legal remedies

Each Member State shall take the necessary measures to ensure that interested

parties affected by measures under Articles 2 and 3 have effective legal remedies in

order to preserve their rights.

CONFISCATION ORDERS

(EXECUTION IN THE EUROPEAN UNION)

Article 5

Safeguards

This Framework Decision shall not have the effect of altering the obligation to

respect fundamental rights and fundamental principles, including in particular the

presumption of innocence, as enshrined in Article 6 of the Treaty on European

Union.

Article 6

Implementation

1. Member States shall adopt the necessary measures to comply with this

Framework Decision by 15 March 2007.

2. Member States shall transmit to the General Secretariat of the Council and

to the Commission, by 15 March 2007, the text of the provisions transposing into

their national law the obligations imposed on them under this Framework Decision.

In accordance with a report established on the basis of this information and a written

report from the Commission, the Council shall assess, by 15 June 2007, the extent to

which Member States have taken the necessary measures in order to comply with

this Framework Decision.

Article 7

Entry into force

This Framework Decision shall enter into force on the day of its publication in the

Official Journal of the European Union.

Done at Brussels, 24 February 2005.

For the Council

The President

N. SCHMIT

(1) OJ C 184, 2.8.2002, p. 3.

(2) OJ C 19, 23.1.1999, p. 1.

(3) OJ C 124, 3.5.2000, p. 1.

(4) OJ L 182, 5.7.2001, p. 1.

(5) OJ L 351, 29.12.1998, p. 1.

(6) OJ L 140, 14.6.2000, p. 1.

(7) OJ L 182, 5.7.2001, p. 1.

(8) OJ L 203, 1.8.2002, p. 1.

(9) OJ L 328, 5.12.2002, p. 1.

(10) OJ L 13, 20.1.2004, p. 44.

(11) OJ L 335, 11.11.2004, p. 8.

(12) OJ L 164, 22.6.2002, p. 3.