Transmission of confiscation orders
1. A confiscation order shall be transmitted by means of a confiscation certificate. The issuing authority shall transmit the confiscation certificate provided for in Article 17 directly to the executing authority or, where applicable, to the central authority referred to in Article 24(2), by any means capable of producing a written record under conditions that allow the executing authority to establish the authenticity of the confiscation certificate.
2. Member States may make a declaration stating that, when a confiscation certificate is transmitted to them with a view to the recognition and execution of a confiscation order, the issuing authority is to transmit the original confiscation order or a certified copy thereof together with the confiscation certificate. However, only the confiscation certificate has to be translated, in accordance with Article 17(2).
3. Member States may make the declaration referred to in paragraph 2 prior to the date of application of this Regulation or at a later date. Member States may withdraw such a declaration at any time. Member States shall inform the Commission when they make or withdraw such a declaration. The Commission shall make such information available to all Member States and to the EJN.
4. As regards a confiscation order concerning an amount of money, where the issuing authority has reasonable grounds to believe that the person against whom the confiscation order was issued has property or income in a Member State, it shall transmit the confiscation certificate to that Member State.
5. As regards a confiscation order concerning specific items of property, where the issuing authority has reasonable grounds to believe that such items are located in a Member State, it shall transmit the confiscation certificate to that Member State.
6. The issuing authority shall inform the executing authority if it is aware of any affected persons. The issuing authority shall also, upon request, provide the executing authority with any information relevant to any claim that such affected persons may have in relation to the property, including any information identifying those persons.
7. Where, despite the information having been made available in accordance with Article 24(3), the competent executing authority is unknown to the issuing authority, the issuing authority shall make all necessary inquiries, including through the contact points of the EJN, in order to determine which authority is competent for the recognition and execution of the confiscation order.
8. Where the authority in the executing State which receives a confiscation certificate is not competent to recognise the confiscation order or to take the measures necessary for its execution, that authority shall immediately transmit the confiscation certificate to the competent executing authority in its Member State and shall inform the issuing authority accordingly.
Transmission of a confiscation order to one or more executing States
1. A confiscation certificate shall only be transmitted, pursuant to Article 14, to one executing State at any one time, unless paragraph 2 or 3 of this Article applies.
2. Where a confiscation order concerns specific items of property, the confiscation certificate may be transmitted to more than one executing State at the same time where:
(a)
the issuing authority has reasonable grounds to believe that different items of property covered by the confiscation order are located in different executing States; or
(b)
the confiscation of a specific item of property covered by the confiscation order would require action in more than one executing State.
3. Where a confiscation order concerns an amount of money, the confiscation certificate may be transmitted to more than one executing State at the same time where the issuing authority considers that there is a specific need to do so, in particular where:
(a)
the property concerned has not been frozen under this Regulation; or
(b)
the estimated value of the property which may be confiscated in the issuing State and in any one executing State is not likely to be sufficient for the confiscation of the full amount covered by the confiscation order.
Consequences of transmission of confiscation orders
1. The transmission of a confiscation order, in accordance with Articles 14 and 15, shall not restrict the right of the issuing State to execute the order.
2. The total amount obtained from the execution of a confiscation order concerning an amount of money shall not exceed the maximum amount specified in that order, regardless of whether that order was transmitted to one or to several executing States.
3. The issuing authority shall immediately inform the executing authority by any means capable of producing a written record where:
(a)
it considers that there is a risk that confiscation in excess of the maximum amount may occur, in particular on the basis of information received from the executing authority pursuant to point (b) of Article 21(1);
(b)
all or a part of the confiscation order has been executed in the issuing State or in a different executing State, in which case it shall specify the amount for which the confiscation order has not yet been executed; or
(c)
after the transmission of a confiscation certificate in accordance with Article 14, an authority of the issuing State receives any sum of money which has been paid in respect of the confiscation order.
Where point (a) of the first subparagraph applies, the issuing authority shall inform the executing authority as soon as possible when the risk referred to in that point ceases to exist.
Standard confiscation certificate
1. In order to transmit a confiscation order, the issuing authority shall complete the confiscation certificate set out in Annex II, shall sign it and shall certify its content as being accurate and correct.
2. The issuing authority shall provide the executing authority with a translation of the confiscation certificate in an official language of the executing State or in any other language that the executing State will accept in accordance with paragraph 3.
3. Any Member State may, at any time, state in a declaration submitted to the Commission that it will accept translations of confiscation certificates in one or more official languages of the Union other than the official language or languages of that Member State. The Commission shall make the declarations available to all Member States and to the EJN.
Recognition and execution of confiscation orders
1. The executing authority shall recognise a confiscation order transmitted in accordance with Article 14 and shall take the measures necessary for its execution in the same way as for a domestic confiscation order issued by an authority of the executing State, unless the executing authority invokes one of the grounds for non-recognition and non-execution provided for in Article 19 or one of the grounds for postponement provided for in Article 21.
2. Where a confiscation order concerns a specific item of property, the issuing authority and executing authority may, where the law of the issuing State so provides, agree that confiscation in the executing State can be carried out through the confiscation of a sum of money corresponding to the value of the property that was to be confiscated.
3. Where a confiscation order concerns an amount of money and the executing authority is unable to obtain payment of that amount, it shall execute the confiscation order in accordance with paragraph 1 on any item of property that is available for that purpose. Where necessary, the executing authority shall convert the amount of money to be confiscated into the currency of the executing State at the daily euro exchange rate as published in the C series of the Official Journal of the European Union for the date on which the confiscation order was issued.
4. Any part of the amount of money that is recovered pursuant to the confiscation order in any State other than the executing State shall be deducted in full from the amount to be confiscated in the executing State.
5. Where the issuing authority has issued a confiscation order but has not issued a freezing order, the executing authority may, as part of the measures provided for in paragraph 1, decide to freeze the property concerned of its own motion in accordance with its national law with a view to subsequent execution of the confiscation order. In such a case, the executing authority shall inform the issuing authority without delay and, where possible, prior to freezing the property concerned.
6. As soon as the execution of the confiscation order has been completed, the executing authority shall inform, by any means capable of producing a written record, the issuing authority of the results of the execution.
Grounds for non-recognition and non-execution of confiscation orders
1. The executing authority may decide not to recognise or execute a confiscation order only where:
(a)
executing the confiscation order would be contrary to the principle of ne bis in idem;
(b)
there is a privilege or immunity under the law of the executing State that would prevent the confiscation of the property concerned or there are rules on the determination or limitation of criminal liability that relate to the freedom of the press or the freedom of expression in other media that prevent the execution of the confiscation order;
(c)
the confiscation certificate is incomplete or manifestly incorrect and has not been completed following the consultation referred to in paragraph 2;
(d)
the confiscation order relates to a criminal offence committed, wholly or partially, outside the territory of the issuing State and, wholly or partially, in the territory of the executing State and the conduct in connection with which the confiscation order was issued does not constitute a criminal offence under the law of the executing State;
(e)
the rights of affected persons would make it impossible under the law of the executing State to execute the confiscation order, including where that impossibility is a consequence of the application of legal remedies in accordance with Article 33;
(f)
in a case falling under Article 3(2), the conduct in connection with which the confiscation order was issued does not constitute a criminal offence under the law of the executing State; however, in cases that involve taxes or duties or customs and exchange regulations, the recognition or execution of the confiscation order shall not be refused on the grounds that the law of the executing State does not impose the same kind of taxes or duties or does not provide for the same type of rules as regards taxes and duties or the same type of customs and exchange regulations as the law of the issuing State;
(g)
according to the confiscation certificate, the person against whom the confiscation order was issued did not appear in person at the trial that resulted in the confiscation order linked to a final conviction, unless the confiscation certificate states that, in accordance with further procedural requirements defined in the law of the issuing State, the person:
(i)
was summoned in person in due time and was thereby informed of the scheduled date and place of the trial that resulted in the confiscation order, or actually received, by other means, official information of the scheduled date and place of that trial in such a manner that it was established unequivocally that that person was aware of the scheduled trial, and was informed in due time that such a confiscation order could be handed down if that person did not appear at the trial;
(ii)
being aware of the scheduled trial, had given a mandate to a lawyer, who was either appointed by the person concerned or by the State, to defend that person at the trial and was actually defended by that lawyer at the trial; or
(iii)
after having been served with the confiscation order and having been expressly informed of the right to a retrial or an appeal, in which the person would have the right to participate and which would allow a re-examination of the merits of the case including an examination of fresh evidence, and which could lead to the original confiscation order being reversed, expressly stated that he or she did not contest the confiscation order, or did not request a retrial or appeal within the applicable time limits;
(h)
in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of the confiscation order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence.
2. In any of the cases referred to in paragraph 1, before deciding not to recognise or execute the confiscation order, whether wholly or partially, the executing authority shall consult the issuing authority by any appropriate means and, where appropriate, shall request the issuing authority to supply any necessary information without delay.
3. Any decision not to recognise or execute the confiscation order shall be taken without delay and notified immediately to the issuing authority by any means capable of producing a written record.
Time limits for recognition and execution of confiscation orders
1. The executing authority shall take the decision on the recognition and execution of the confiscation order without delay and, without prejudice to paragraph 4, no later than 45 days after the executing authority has received the confiscation certificate.
2. The executing authority shall communicate, without delay and by any means capable of producing a written record, the decision on the recognition and execution of the confiscation order to the issuing authority.
3. Unless grounds for postponement under Article 21 exist, the executing authority shall take the concrete measures necessary to execute the confiscation order without delay and, at least, with the same speed and priority as for a similar domestic case.
4. Where it is not possible, in a specific case, to meet the time limit set out in paragraph 1, the executing authority shall inform the issuing authority without delay by any means, giving the reasons for which it was not possible to meet that time limit, and shall consult with the issuing authority on an appropriate schedule for the recognition and execution of the confiscation order.
5. The expiry of the time limit set out in paragraph 1 shall not relieve the executing authority of its obligation to take a decision on the recognition and execution of the confiscation order, and to execute that order, without delay.
Postponement of the execution of confiscation orders
1. The executing authority may postpone the recognition or execution of a confiscation order transmitted in accordance with Article 14 where:
(a)
its execution might damage an ongoing criminal investigation, in which case the execution of the confiscation order may be postponed until such time as the executing authority considers reasonable;
(b)
as regards a confiscation order concerning an amount of money, it considers that there is a risk that the total amount obtained from the execution of that confiscation order might considerably exceed the amount specified in the confiscation order because of the simultaneous execution of the confiscation order in more than one Member State;
(c)
the property is already the subject of ongoing confiscation proceedings in the executing State; or
(d)
a legal remedy as referred to in Article 33 has been invoked.
2. Notwithstanding Article 18(5), for as long as the execution of a confiscation order is postponed, the competent authority of the executing State shall take all the measures it would take in a similar domestic case to prevent the property from no longer being available for the purpose of the execution of the confiscation order.
3. The executing authority shall, without delay and by any means capable of producing a written record, report to the issuing authority on the postponement of the execution of the confiscation order, specifying the grounds for the postponement and, where possible, the expected duration of the postponement.
4. As soon as the grounds for postponement have ceased to exist, the executing authority shall take, without delay, the measures necessary for the execution of the confiscation order and inform the issuing authority thereof by any means capable of producing a written record.
Impossibility to execute a confiscation order
1. Where the executing authority considers that it is impossible to execute a confiscation order, it shall notify the issuing authority thereof without delay.
2. Before notifying the issuing authority in accordance with paragraph 1, the executing authority, where appropriate, shall consult with the issuing authority, taking into account also the possibilities provided for under Article 18(2) or (3).
3. The non-execution of a confiscation order under this Article may only be justified where the property:
(a)
has already been confiscated;
(b)
has disappeared;
(c)
has been destroyed;
(d)
cannot be found in the location indicated on the confiscation certificate; or
(e)
cannot be found because its location has not been indicated in a sufficiently precise manner, despite the consultations referred to in paragraph 2.
4. As regards the situations under points (b), (d) and (e) of paragraph 3, where the executing authority subsequently obtains information that allows it to locate the property, the executing authority may execute the confiscation order without a new confiscation certificate having to be transmitted, provided that, prior to executing the confiscation order, the executing authority has verified with the issuing authority that the confiscation order is still valid.
5. Notwithstanding paragraph 3, where the issuing authority has indicated that property of equivalent value could be confiscated, the executing authority shall not be required to execute the confiscation order where one of the circumstances set out in paragraph 3 exists and there is no property of equivalent value that can be confiscated.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
