L.S. 9.15 Regolamenti dwar l-Esekuzzjoni fl-Unjoni Ewropea ta’ Ordnijiet ta’ Konfiska

(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 Citation. Definitions. 1 2 CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.15 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 (

1. 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: (
2. a)a scheduled offence; or (
3. 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; Cap. 460. Limitation. Competent authorities. "the Treaty" shall have the same meaning assigned to it by article 2 of the European Union Act. 3. 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. 4. For the purposes of these regulations: (
4. 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 (
5. b)a court of criminal jurisdiction shall be competent to issue confiscation orders. Mode of transmission. 5.

(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) [ S.L.9.15 6.

(1)A confiscation order shall contain a statement that the order relates to: 3 Details of confiscation orders. (

1. a)conduct which (
2. i)is a scheduled offence; and (
3. 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 (
4. b)conduct which (
5. i)would constitute an offence under the law of Malta if it occurred in Malta; and (
6. 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

(1)(b)(

1. i)(
2. 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; (
3. 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; (
4. 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: (

1. a)confiscating one or more specific items of property; or (
2. b)confiscating an amount of money. 7. 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. Certificate by Attorney General. 8.

(1)A confiscation order shall not be recognised by the Attorney General if: Grounds for nonrecognition. (

1. a)the certificate provided for in Schedule 2 is not produced, is incomplete or manifestly does not correspond to the confiscation order; (
2. b)execution of the confiscation order would be contrary 4 CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.15 to the principle of ne bis in idem; (
3. 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; (
4. 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; (
5. 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; (
6. 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: (
7. 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 (
8. 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 reexamined 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; (
9. g)the confiscation order is based on criminal proceedings in respect of criminal offences which: (
10. 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) [ S.L.9.15 (
11. 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; (
12. 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), (

1. f)or (g); (
2. b)the ground listed in sub-regulation

(1)(

1. e)and information is not being provided to the issuing state of any action brought before a Court in Malta; (
2. 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. 9.

(1)The Attorney General may postpone the execution of a confiscation order transmitted in accordance with regulation 5 in the following cases: (

1. 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; (
2. b)in the case where an interested party is seeking legal Grounds for postponement of execution. 5 6 [ S.L.9.15 CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) remedies against the recognition and execution of a confiscation order; (
3. c)where its execution might damage an ongoing criminal investigation or proceedings, until such time as he deems reasonable; (
4. d)where it is considered necessary to have the confiscation order or parts thereof translated, for the time necessary to obtain its translation, or (
5. 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 subregulation

(1)(

1. b)to (
2. 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. Execution after issue of certificate.

1. 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
2. Enforcement of confiscation order. 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. Cap. 101.

(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 eightyseven 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. Alternative execution. 12.

(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) [ S.L.9.15 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. 13.

(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. Determination of amount to be enforced.

(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. 14.

(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: (

1. 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; (
2. 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. Disposal of confiscated property. 7 8 CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.15 Multiple confiscation orders. 15. Where two or more confiscation orders have been issued concerning (

1. 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 (
2. 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 (
3. i)(
4. ii)(iii) (
5. iv)the involvement of frozen assets; the relative seriousness and place of the offence; the date of the respective orders; and the date of transmission of the respective orders, that preference should be given to executing one or more of the other orders. Information on the result of the execution. 16. 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: (
6. a)a decision not to recognise the confiscation order, together with the reasons for such decision; (
7. 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. Issue of confiscation orders. 17.

(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: (

1. a)the certificate provided for in Schedule 2 purporting to reproduce details setting out the information required by the same certificate; (
2. b)a statement indicating that the order has been issued for the purpose of: (
3. i)confiscating one or more specific items of property; or (
4. 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) [ S.L.9.15 be construed as a reference to a confiscation order referred to under these regulations. 18.

(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. Consequences of transmission of confiscation orders. 9 10 [ S.L.9.15 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 (Regulation 5) CERTIFICATE [ S.L.9.15 11 Amended by: L.N. 426 of 2012. referred to in Article 4 of Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders (

1. a)(
2. b)Issuing and executing States * Issuing State: ............................................................................................ * Executing State: ....................................................................................... 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(
3. 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) 12 [ S.L.9.15 CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) (
4. 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(
5. 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) (
6. 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) ...................................................................................... (
7. e)Authority or authorities which may be contacted (if point (
8. c)and/or (
9. d)has (have) been completed: † Authority mentioned under point (
10. b)Can be contacted for questions concerning: ........................................................ † Authority mentioned under point (
11. c)Can be contacted for questions concerning: ........................................................ † Authority mentioned under point (
12. d)Can be contacted for questions concerning: ........................................................ CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.15 13 (
13. 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): ....................................................................................................... .......................................................................................................................................... .......................................................................................................................................... (
14. 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(
15. 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. 2.1. 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. 2.2. 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(
16. s)(to be specified): .............................................................. .................................................................................................................. 14 [ S.L.9.15 CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) (
17. 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(
18. s)which the person understands (if known): ............................ 1.1. If the confiscation order concerns an amount of money: The confiscation order is transmitted to the executing State because (tick the relevant box): † (
19. 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) [ S.L.9.15 15 Location of the property of the person/source of income (if not known, the last known location): .................................................... † (
20. 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: ........................................ ........................................................................................................ 1.2. If the confiscation order concerns specific item(
21. s)of property: The confiscation order is transmitted to the executing State because (tick the relevant box): † (
22. a)the specific item(
23. s)of property is(are) located in the executing State (See point (i)) † (
24. b)the issuing State has reasonable grounds to believe that all or part of the specific item(
25. 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(
26. s)of property is located in the executing State: ........................................................ ........................................................................................................ † (
27. 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: ...................................................................... 2.1. 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. 16 [ S.L.9.15 † (
28. a)CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) 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): .................................................... † (
29. 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: ........................................... ........................................................................................................ 2.2. If the confiscation order concerns specific item(
30. s)of property: The confiscation order is transmitted to the executing State because (tick the relevant box): † (
31. a)the specific item(
32. s)of property is (are) located in the executing State (See point (i)) † (
33. b)the issuing State has reasonable grounds to believe that all or part of the specific item(
34. 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(
35. s)of property is (are) located in the executing State: ........................................................ ........................................................................................................ † (
36. 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) (
37. i)[ S.L.9.15 17 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 1.1. 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(
38. s)of property: Description of the specific item(
39. s)of property: ........................................ Location of the specific item(
40. s)of property (if not known, the last known location): .................................................................................................. Where the confiscation of the specific item(
41. s)of property involves action in more than one executing State, description of the action to be taken: .................................................................................................................. 1.2. The Court has decided that the property (tick the relevant box(es)): † (
42. i)is the proceeds of an offence, or is equivalent to either the full value or part of the value of such proceeds, † (
43. 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), (
44. 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: † † (
45. 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, † (
46. 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 † (
47. 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 (
48. 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: .................................................................................................................. .................................................................................................................. 18 CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.15 2. Information on the offence(
49. s)resulting in the confiscation order 2.1. A summary of facts and a description of the circumstances in which the offence(
50. s)resulting in the confiscation order has(have) been committed, including time and place ........................................................................... .................................................................................................................. .................................................................................................................. 2.2. Nature and legal classification of the offence(
51. s)resulting in the confiscation order and the applicable statutory provision/code on basis of which the decision was made: .............................................................. .................................................................................................................. .................................................................................................................. 2.3. If applicable, indicate one or more of the following offences to which the offence(
52. s)identified under point 2.2 relate(s), if the offence(
53. 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) 2.4. (
54. j)[ S.L.9.15 19 † 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(
55. 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(
56. s)concerned (this should cover the actual criminal activity involved as opposed for instance to legal classifications): ......................................................................................... .................................................................................................................. 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; OR † 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) [ S.L.9.15 20 OR † 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; OR † 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 † 4. (
57. k)the person did not request a retrial or appeal within the applicable time frame. 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: .................................................................................................................. .................................................................................................................. .................................................................................................................. Conversion and transfer of property 1. 2. 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. † yes † no 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: † yes † no CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) (
58. l)[ S.L.9.15 21 Alternative measures, including custodial sanctions 1. 2. 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 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): .......................................................................................................... .......................................................................................................... (
59. m)Other circumstances relevant to the case (optional information): ............................................................................................................................ ............................................................................................................................ (
60. 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) 22 [ S.L.9.15 CONFISCATION ORDERS (EXECUTION IN THE EUROPEAN UNION) Schedule 3 (Regulation 3) Member States of the European Union Austria 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) [ S.L.9.15 23 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: 24 [ S.L.9.15 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
3. 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) - [ S.L.9.15 25 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: (

1. 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, (
2. 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, (
3. 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. 26 [ S.L.9.15 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.