EU to adopt arbitrary powers to freeze assets and seize evidence

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On 28 February the EU Justice and Home Affairs Council reached a provisional agreement on the content of an EU Framework Decision on the freezing of assets and evidence (full-text of Framework Decision) , subject to scrutiny reservations from six of the 15 national parliaments, Denmark, Ireland, Italy, the Netherlands, Sweden and the UK.

Based on the "mutual recognition" principle, the measure aims to allow investigating authorities to quickly secure evidence and seize assets in other member states. Effectively, a warrant issued in one member state authorising the freezing of property in relation to criminal investigations into an any of a list of 32 agreed offences (see below) and carrying a maximum custodial sentence of three years or more will be enforceable throughout the EU. Bob Ainsworth, UK Home Office minister has stated just how wide-ranging and intrusive these orders may be:

"The Framework Decision, as far as the freezing of evidence is concerned, … will not depend on there being any particular suspect; indeed the investigation maybe 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."

Negotiations began in November 2000 and have taken much longer than the controversial Framework Decisions on terrorism and the European Arrest Warrant. Of 26 identifiable EU documents relating to the "freezing" measure, only nine have been released in full to the public (11 have been kept secret, and six are subject to the partial access rule to hide negotiating positions).

Ben Hayes of Statewatch comments:

"Under this proposal one EU state will be able to order another to seize an individual's property or freeze their assets without providing a shred of evidence. The failure to include detailed standards on how affected individuals should be able to challenge these orders is incredible and it is now doubtful if implementation of the legislation will comply with the European Convention on Human Rights."

Issuing authorities

Each EU member state (MS) will designate a "judicial authority" which will be responsible for "validating or in anyway confirming" (article 2(a)) a "freezing order":

"any measure taken by a competent judicial authority in the issuing State in order provisionally to prevent the destruction, transformation, moving, transfer or disposal of property that could be subject to confiscation or evidence (art. 2(c))"

"Property" can be "of any description and include the suspected proceeds of crime; evidence covers anything which could be produced in criminal proceedings.

The text does not specify that the "judicial authority" must be a judge or magistrate, nor does it require that the freezing orders be equivalent to court decisions under national law. This leaves open the possibility for the MS to designate a police authority if they so wish. The UK House of Commons select committee on European scrutiny is so concerned that it suggests:

"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"

Scope of the Framework Decision

The Framework Decision covers "securing evidence" (art. 3.1(i)) and "subsequent confiscation of property" (art. 3.1(ii)); it was originally also intended to include the seizure of property with a view to restitution to the rightful owner, but this is now to follow in a separate instrument. Orders concerning the agreed list of offences, as long as they carry a maximum custodial sentence of at least three years - in the issuing state only - will not be subject to the dual criminality test (where the offence must be punishable to a minimum degree in both states). The list in full:

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