Freezing
1. Member States shall take the necessary measures to enable the freezing of property necessary to ensure a possible confiscation of that property under Articles 12 to 16. The freezing measures shall consist of freezing orders and immediate action.
2. Immediate action shall be taken where necessary in order to preserve the property until a freezing order has been issued. Where immediate action does not take the form of a freezing order, Member States shall limit the temporary validity of that immediate action.
3. Without prejudice to the powers of other competent authorities, Member States shall enable asset recovery offices to take immediate action pursuant to paragraph 2 where there is an imminent risk of the disappearance of the property that those offices have traced and identified in the exercise of their tasks pursuant to Article 5(2), point (b). The validity of such immediate action shall not exceed seven working days.
4. Member States shall ensure that freezing measures are taken only by a competent authority and that the reasons for such measures are set out in the relevant decision or recorded in the case file if the freezing measure is not ordered in writing.
5. The freezing order shall remain in force only for as long as necessary to preserve the property with a view to possible subsequent confiscation. Frozen property which is not subsequently confiscated shall be unfrozen without undue delay. The conditions or procedural rules under which such property is unfrozen shall be determined by national law.
Confiscation
1. Member States shall take the necessary measures to enable the confiscation, either wholly or in part, of instrumentalities and proceeds stemming from a criminal offence subject to a final conviction, which may also result from proceedings in absentia.
2. Member States shall take the necessary measures to enable the confiscation of property the value of which corresponds to instrumentalities or proceeds stemming from a criminal offence subject to a final conviction, which may also result from proceedings in absentia. Such confiscation may be subsidiary or alternative to confiscation pursuant to paragraph 1.
Confiscation from a third party
1. Member States shall take the necessary measures to enable the confiscation of proceeds, or other property the value of which corresponds to proceeds, which, directly or indirectly, were transferred by a suspected or accused person to third parties, or which were acquired by third parties from a suspected or accused person.
The confiscation of proceeds or other property as referred to in the first subparagraph shall be possible where a national court has established, based on the concrete facts and circumstances of a case, that the relevant third parties knew or ought to have known that the purpose of the transfer or acquis ition was to avoid confiscation. Such facts and circumstances include:
(a)
the transfer or acquis ition was carried out free of charge or in exchange for an amount which is clearly disproportionate to the market value of the property; or
(b)
the property was transferred to closely related parties while remaining under the effective control of the suspected or accused person.
2. Paragraph 1 shall not prejudice the rights of bona fide third parties.
Extended confiscation
1. Member States shall take the necessary measures to enable the confiscation, either wholly or in part, of property belonging to a person convicted of a criminal offence where the offence committed is liable to give rise, directly or indirectly, to economic benefit, and where a national court is satisfied that the property is derived from criminal conduct.
2. In determining whether the property in question is derived from criminal conduct, account shall be taken of all the circumstances of the case, including the specific facts and available evidence such as that the value of the property is disproportionate to the lawful income of the convicted person.
3. For the purposes of this Article, the notion of ‘criminal offence’ shall include at least the offences listed in Article 2, paragraphs 1 to 3, where such offences are punishable by deprivation of liberty of a maximum of at least four years.
Non-conviction-based confiscation
1. Member States shall take the necessary measures to enable, under the conditions set out in paragraph 2 of this Article, the confiscation of instrumentalities, proceeds or property as referred to in Article 12, or proceeds or property transferred to third parties as referred to in Article 13, where criminal proceedings have been initiated but could not be continued because of one or more of the following circumstances:
(a)
illness of the suspected or accused person;
(b)
absconding of the suspected or accused person;
(c)
death of the suspected or accused person;
(d)
the limitation period for the relevant criminal offence prescribed by national law is below 15 years and has expired after the initiation of criminal proceedings.
2. Confiscation without a prior conviction under this Article shall be limited to cases where, in the absence of the circumstances set out in paragraph 1, it would have been possible for the relevant criminal proceedings to lead to a criminal conviction for, at least, offences liable to give rise, directly or indirectly, to substantial economic benefit, and where the national court is satisfied that the instrumentalities, proceeds or property to be confiscated are derived from, or directly or indirectly linked to, the criminal offence in question.
Confiscation of unexplained wealth linked to criminal conduct
1. Member States shall take the necessary measures to enable, where, in accordance with national law, the confiscation measures of Articles 12 to 15 may not be applied, the confiscation of property identified in the context of an investigation in relation to a criminal offence, provided that a national court is satisfied that the identified property is derived from criminal conduct committed within the framework of a criminal organisation and that conduct is liable to give rise, directly or indirectly, to substantial economic benefit.
2. When determining whether the property referred to in paragraph 1 should be confiscated, account shall be taken of all the circumstances of the case, including the available evidence and specific facts, which may include:
(a)
that the value of the property is substantially disproportionate to the lawful income of the affected person;
(b)
that there is no plausible licit source of the property;
(c)
that the affected person is connected to people linked to a criminal organisation.
3. Paragraph 1 shall not prejudice the rights of bona fide third parties.
4. For the purposes of this Article, the notion of ‘criminal offence’ shall include offences referred to in Article 2(1) to (3), where such offences are punishable by deprivation of liberty of a maximum of at least four years.
5. Member States may provide that the confiscation of unexplained wealth in accordance with this Article shall be pursued only where the property to be confiscated has been previously frozen in the context of an investigation in relation to a criminal offence committed within the framework of a criminal organisation.
Effective confiscation and execution
1. Member States shall take the necessary measures to enable the tracing and identification of property to be frozen and confiscated even after a final conviction for a criminal offence or following proceedings for confiscation pursuant to Articles 15 and 16.
2. For the purpose of paragraph 1, Member States shall ensure that competent authorities are able to use tracing and identification tools that are as effective as those available for the tracing and freezing of assets under Chapter II of this Directive.
3. Member States may conclude cost-sharing agreements with other Member States on the execution of freezing and confiscation orders.
Compensation of victims
1. Member States shall take appropriate measures to ensure that where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Directive, such claims are taken into account within the relevant asset-tracing, freezing and confiscation proceedings.
2. Member States shall enable competent authorities responsible for asset-tracing investigations pursuant to Article 4 to provide, upon request, to the authorities responsible for deciding upon restitution and compensation claims or executing such decisions, any information on assets identified that might be relevant for the purposes of such claims. Member States may also enable competent authorities responsible for asset-tracing investigations pursuant to Article 4 to provide such information without such a request being made.
3. Member States shall ensure that asset recovery offices may trace and identify instrumentalities and proceeds or property which is or might become the object of a decision to compensate or to restitute property to a victim, at least where asset recovery offices act in cross-border cases in accordance with Article 5(2), point (b), and where the decision is issued by a court having competence in criminal matters in another Member State in the course of the criminal proceedings.
4. Where a victim is entitled to the restitution of property that is or might become subject to a confiscation measure provided for under this Directive, Member States shall take the necessary measures to restitute the property concerned to the victim, under the conditions set out in Article 15 of Directive 2012/29/EU.
5. Member States shall take the necessary measures to ensure that the execution of confiscation measures provided for under this Directive does not prejudice victims’ rights to obtain compensation. Member States may decide to limit such measures to situations in which the lawful assets of the offender are not sufficient to cover the total amount of compensation.
Further use of the confiscated property
1. Member States are encouraged to take the necessary measures to allow the possibility of using confiscated property, where appropriate, for public interest or social purposes.
2. Without prejudice to applicable international law, Member States may use the instrumentalities, proceeds or property confiscated in relation to the offences referred to in Directive (EU) 2024/1226 to contribute to mechanisms to support third countries affected by situations in response to which Union restrictive measures have been adopted, in particular in cases of war of aggression. The Commission may provide guidance on the arrangements for such contributions.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
