Fiches Belges
Measure Implementation
Measure possibility

Legal Framework
Applicable Framework

Competent authority
Request/decision
Execute/recognise measure

Accepted Languages
Languages

Execution Deadline
Deadlines

Legal info
Special requirements
Other information

Fiches Belges: Franta

Confiscare (505)

1. MEASURE IMPLEMENTATION

Franta

Is this measure possible in your Member State under International Judicial Cooperation?

Confiscation consists of depriving the perpetrator of an offence of the ownership of, or of the right to dispose of an asset, in order to transfer the ownership of that asset to the State. There are two approaches to confiscation: • an approach in rem, which consists of considering the asset itself and of authorising its confiscation as soon as its illicit origin has been established, without the need for any declaration of guilt (conviction) to have taken place: this is particularly the case with anglo-saxon judicial systems, where the term used is "civil recovery"; and • an approach in personam, in which confiscation is a sentence pronounced against the perpetrator of an offence, which therefore presumes that a conviction has taken place: **this is the approach of the French system**. Act number 2010-768 of 9 July 2010 for the purpose of facilitating seizure and confiscation in criminal matters has reshaped the provisions on mutual assistance regarding seizure and confiscation matters with States that are not members of the European Union by codifying Acts numbers 90-1010 of 14 November 1990 and 96-392 of 13 May 1996 and by extending their scope to all the international conventions which include stipulations relating to the transnational execution of confiscation decisions. In fact, the Acts of 14 November 1990 and 13 May 1996 (now repealed) had been enacted in order to enable the implementation, respectively, of the Convention of Strasbourg of 1990 on the laundering, search, seizure and confiscation of the proceeds of crime and of the Vienna Convention of 1988 on narcotic drugs. The legislative provisions adopted on that occasion had, nevertheless, to be generalised to enable France to comply with the requirements of the new instruments which it had ratified and, in particular, to comply with the Convention of Palermo of 2000 and the Convention of Merida of 2003. Article 14 of the Act of 9 July 2010 therefore incorporated into the Code of Criminal Procedure articles 713-36 to 713-41 on the execution of confiscation decisions made by foreign authorities. These provisions have subsidiary application in relation to a convention to which France is a party. Conventional bilateral or multilateral instruments ratified by France provide that requests for mutual assistance for the purpose of confiscation can apply to the instruments, the products, or the value of the products (proceeds) of the offences. In relation to requests based on the principle of reciprocity, article 713-36 of the Code of Criminal Procedure provides that confiscation can apply to "movable or immovable property, whatever its nature, which has been used or intended to be used to commit the offence or which appears to be the direct or indirect product of the offence, and the confiscation can also be carried out in relation to any assets of which the value corresponds to the proceeds of the crime". Consequently the result, based as much on international instruments as on the provisions of domestic (national) law, is that the only confiscations that can be executed in France are "simple" confiscations of the instruments, the products or the value of the products of the offences, to the exclusion of extended or general confiscation measures. In view of this it is essential that the requesting foreign authority sets out, in its request for mutual assistance, the facts which support the belief that the property which it wants confiscated constitutes either the instrument or the product of a criminal offence.

2. LEGAL FRAMEWORK

Franta

International legal framework applicable for this measure in your Member State

• Framework Decision 2006/763/JHA of 6 October 2006 on the execution in the European Union of confiscation decisions; • The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and its two additional protocols of 17 March 1978 and 8 November 2001; • The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000; • The Convention of the Council of Europe, known as the Strasbourg Convention, of 8 November 1990 on the laundering, search, seizure and confiscation of the proceeds of crime; • The United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, known as the Vienna Convention, of 20 December 1988 • The United Nations Convention against Transnational Organised Crime, known as the Palermo Convention, of 15 November 2000 • The United Nations Convention against Corruption, known as the Merida Convention of 31 October 2003 • In the absence of a convention the provisions of the French Code of Criminal Procedure (article 713-36 et seq.) shall apply in the alternative.

3. COMPETENT AUTHORITY TO:

Franta

* receive the request/decision for judicial cooperation

Material competence: under articles 713-12 of the Code of Criminal Procedure for the certificate and 713-38 of the same Code for other requests, two judicial authorities have competence: - the public prosecutor, who is competent to receive requests for execution issued by competent foreign authorities; and - the criminal court, which is competent to rule on these requests. Territorial competence: article 713-13 paragraph 3 of the Code of Criminal Procedure for the certificate and article 713-41 for other requests stipulates that the criminal court with territorial jurisdiction is the one in the place where any one of the confiscated assets is located, or, failing that, the criminal court of Paris.

* execute/recognise the measure (if other than the receiving authority)

N/A

4. ACCEPTED LANGUAGES

Franta

Accepted languages for the request/decision

French; French translation of the certificate only.

5. EXECUTION DEADLINE

Franta

Deadlines for the execution of the request/decision (where applicable)

No fixed deadline.

6. CONCISE LEGAL PRACTICAL INFORMATION

Franta

a. Special requirements

The criminal court rules, upon the application of the Public Prosecutor's Office, by issuing a reasoned judgement. No time limit is fixed by law. The criminal court conducts a check of the lawfulness of the request by checking the substantive conditions of form and content required under articles 713-15 et seq. of the Code of Criminal Procedure. A VARIABLE DUAL CRIMINALITY TEST: when the confiscation decision is based on facts constituting an offence punishable by at least three years' imprisonment in the issuing state and when it is an offence in one of the 32 categories of offences set out in article 695-23 of the Code of Criminal Procedure it must be executed without the need for dual criminality, i.e. without the need to check that the offence is also an offence under French law. The legal classification and the applicable sentence with regard to the list of offences in article 695-23 of the Code of Criminal Procedure is exclusively determined by the competent authority of the issuing State in accordance with its own legislation. On the other hand, when the facts of the case do not constitute an offence within one of these 32 categories of offences (or if the offence is punishable by a sentence of less than three years), recognition of the decision will be subject to the dual criminality test: the enforcing jurisdiction will check whether the facts on which the judgment of confiscation is based constitute a criminal offence in France. In such a case, if the facts do not constitute an offence under French law, that will be grounds for refusing to recognise the foreign confiscation decision. It is the law of the issuing state that determines the legal classification and the applicable sentence. COMPULSORY GROUNDS FOR REFUSAL: a) The compulsory grounds for refusal under article 713-20 of the Code of Criminal Procedure are the following: - the certificate is defective, incomplete or does not correspond with the confiscation decision; - immunity creates a bar to confiscation or the assets are not subject to confiscation under French law; - the principle of non bis in idem (double jeopardy) is likely to apply; - the decision was made on political or discriminatory grounds; - the dual criminality test is not met; - the rights of third parties in good faith render the execution of the confiscation decision impossible under French law; - the person did not appear in court in person and was not represented at the proceedings which culminated in the confiscation decision, unless the certificate indicates that the person was informed of the proceedings or that the person indicated that he/she did not contest the confiscation decision; - the facts on which the confiscation decision is based fall within the remit of the French jurisdictions and the confiscation decision is provided for under French law. b) The ground for refusal in article 694-4 of the Code of Criminal Procedure: This concerns the common law refusal based on the likelihood of harm to public order or the fundamental interests of the Nation. c) the compulsory ground specific to extended confiscations under article 713-20 paragraph 11 of the Code of Procedure. An extended confiscation decision made by a State can, in most cases, be recognised and executed. However in certain cases it will be impossible to recognise and execute such a confiscation decision. OPTIONAL GROUNDS FOR REFUSAL: Article 713-22 of the Code of Criminal Procedure sets out two grounds for refusal based on territoriality. These grounds are left to the discretion of the judge. THE CHECK IN THE EVENT THAT THE CONVICTED PERSON DOES NOT APPEAR IN COURT: Article 713-20 7 of the Code of Criminal Procedure requires, in order for the French judicial authority to recognise and execute the decision, that the certificate must indicate, when the convicted person did not appear in court personally, either that the person was informed of the proceedings personally or that the person was informed by their representative in accordance with the law of the issuing State, or that the person has indicated that he/she does not contest the confiscation decision. It is the responsibility of the public prosecutor, once the judgment recognising the confiscation decision and ordering its execution has been pronounced, to execute the confiscation decision under the same conditions as a confiscation ordered under domestic (national) proceedings. The public prosecutor is also responsible for informing the competent authority of the issuing State, as soon as possible and by any means which creates a written record, of the recognition and execution of the confiscation order. The rules relating to the destination and the possible sharing of assets confiscated under active requests are also applicable when France executes confiscations requested by a Third State. Thus, under article 713-32 of the Code of Criminal Procedure, if the sum of money being confiscated is more than 10 000 Euros, this is shared equally between the two States. If the sum is below that threshold the executing State retains the sum. If the confiscation relates to another asset which has not been sold, the executing State shall dispose of that asset as it deems fit. WITHIN THE EUROPEAN UNION THE IMPLEMENTATION OF AN ASSET SHARING AGREEMENT IS THE RESPONSIBILITY OF THE JUDICIAL AUTHORITY IN CHARGE OF THE EXECUTION OF THE CONFISCATION DECISION, NAMELY THE PUBLIC PROSECUTOR. THE DRAFTING OF AN ASSET SHARING AGREEMENT IS NOT NECESSARY IF THE ASSETS ARE TO BE SHARED EQUALLY (50-50). In any event, the AGRASC Agency can advise. ............................................................................................................................................................ JUDICIAL REMEDIES (APPEAL PROCEDURES) Under article 713-29 of the Code of Criminal Procedure, the decision giving recognition to and ordering the execution of a confiscation order on French territory can be appealed by: - the "convicted person" ; - the custodian (holder) of the asset which is the subject of the decision; or "any other person who claims to have a right over the asset". These provisions allow the judicial authority to refuse execution on the basis of article 713-20 6 of the Code of Criminal Procedure when "the rights of a third party in good faith render it impossible, under French law, to execute the confiscation decision". THE APPEAL HAS SUSPENSIVE EFFECT BUT IS RESTRICTED: the substantive grounds which led to the confiscation decision are not appealable. REQUESTS BASED ON INTERNATIONAL CONVENTIONS: The French judicial authority to which a foreign confiscation request has been referred will order the execution of the request as long as the conditions set out in the relevant international conventions or the provisions of the Code of Criminal Procedure are met/complied with. In this regard the French judicial authority is responsible for ensuring that the foreign confiscation decision complies with certain requirements and that it cannot be opposed by any ground for refusal. The check that the jurisdiction (to which the request has been referred) must carry out may require that particular judicial investigation measures be undertaken. Article 713-39 of the Code of Criminal Procedure provides, for this purpose, that the criminal court may, if it deems it to be useful, hear the owner of the asset, the convicted person, and any person who has rights over the assets which are the subject of the confiscation decision. Furthermore, this same provision provides that the court may ask the foreign authority which made the confiscation decision to provide supplementary information. It is important, however, to note that the French court to which the request for assistance has been referred is bound by the findings of fact of the foreign decision. Thus, the execution in France of the confiscation decision does not permit the French judicial authority to carry out a new examination of the evidence which enabled the foreign authority to order the confiscation of the asset. PREREQUISITE (PRECONDITION) -Under the provisions of article 713-38 of the Code of Criminal Procedure, a favourable outcome to a foreign confiscation decision cannot be guaranteed unless the decision is final and enforceable. Under these same provisions, the evaluation as to whether the decision is final and enforceable must be made with reference to the law of the requesting State. In order to facilitate the supervision of this prerequisite, certain conventions expressly provide that the request must be accompanied by a certificate from the competent authority of the requesting State certifying that the confiscation decision is enforceable and can no longer be the subject of any ordinary judicial remedies/appeals. GROUNDS FOR REFUSAL - International conventions and the Code of Criminal Procedure provide specific grounds for refusal in confiscation matters. Under domestic (national) law, these grounds, set out in article 713-37 of the Code of Criminal Procedure, complement those applicable to mutual legal assistance that are provided in article 694-4 of the Code of Criminal Procedure: • The absence of dual criminality. This ground for refusal is established in international conventions and also in article 713-37 1 of the Code of Criminal Procedure. The execution of a request for mutual legal assistance for the purpose of confiscation must be refused if the facts on which the confiscation decision is based would not be classified as a criminal matter under French law. It is important, however, to note that the requested authorities are not bound by the classification which the requesting State gives to the facts. In effect, it is a matter of ensuring that the facts, as they are described in the request for assistance, constitute a criminal offence under French law. • The asset cannot be the subject of confiscation under French law. This compulsory ground for refusal provided under article 713-37 2 of the Code of Criminal Procedure, prevents the execution of a request for mutual assistance which asks, for example, for the execution of an extended or general foreign confiscation decision. Although it is generally not expressly provided by the mutlitlateral conventions, this ground for refusal nevertheless results from the fact that the assistance provided for under these conventions in confiscation matters is limited solely to the instruments and products of an offence. • The foreign decision has been issued under conditions which do not provide sufficient guarantees (safeguards) with regard to the protection of individual freedoms and defence rights. This ground for refusal provided under article 713-37 3 of the Code of Criminal Procedure and arising from the requirements of a fair trial, can be used to prevent the execution of requests for mutual assistance which ask for the execution of a confiscation decision which was made in the absence of the person when the person had not been informed of the proceedings. • The foreign decision is based on discriminatory grounds. • The execution of the request would contravene the principle of ne bis in idem (the double jeopardy principle). • The confiscation decision relates to a political offence (article 713-37 6 of the Code of Criminal Procedure. • The preservation of the rights of third parties in good faith. Right of appeal under common law and not limited as in the European Union and right to appeal in the Court of Cassation to have the judgment set aside.

b. Other useful information

N/A

Last reviewed on 6 iulie 2016 by Secretariatul RJE

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