Fiches Belges

The purpose of freezing is to make property legally unavailable in the context of preliminary enquiry, flagrante delicto or judicial information. • Regulation (EU) 2018/1805: The foreign authorities transmit the certificate to the French competent authority in accordance with the regulation. There is no need to include the freezing order to the certificate. Scope of objects subject to freezing: any movable or immovable property, whether tangible or intangible, and any judicial act or other document evidencing a title to or interest in such property. The freezing concerns exclusively the property that may be subject to a confiscation. The Agency for the management and recovery of seized and confiscated assets (AGRASC) is systematically informed by the French competent authorities of the reception of the freezing certificate. When the investigating judge decides to recognize a freezing order, he systematically transmits the certificate to the AGRASC. Conditions to recognize the freezing order: In accordance with article 3 of the Regulation, freezing orders are executed without control of dual criminality if the facts for which the order was issued: - Are punished by a maximum term of imprisonment of at least 3 years’ under the legislation of the issuing State; - And constitute one of the offenses listed at article 3 of the Regulation (the 32 categories of infraction for which the control of double jeopardy is not required within the framework of the EAW and EIO). Grounds for refusal: In accordance with the Regulation 2018/1805 the grounds for refusal are optional (article 8 of the Regulation 2018/1805). Before deciding not to recognise or execute the freezing order, whether wholly or partially, the investigating judge shall consult the issuing authority by any appropriate means and, where appropriate, shall request the issuing authority to supply any necessary information without delay. The decision not to recognise or execute the freezing order shall be taken without delay and notified immediately to the issuing authority by any means capable of producing a written record. Remedies: In accordance with article 33 of the Regulation 2018/1805, the right to a remedy shall be invoked before a court of the executing State in accordance with its law. Please see below (FD 2003/577/JHA) for the remedies under French law. • FD 2003/577/JHA on freezing orders: Scope of objects subject to freezing: any movable or immovable property, whether tangible or intangible, and any judicial act or document evidencing title to or interest in such property, which the judicial authority of the issuing State considers to be the proceeds of an offence or to correspond in whole or in part to the value of such proceeds, or to be the instrument or object of an offence In accordance with article 3 of the Framework Decision of 22 July 2003 as transposed into French law by the Act of 4 July 2005 freezing orders are executed without control of dual criminality if the facts for which the order was issued: - Are punishable by a custodial sentence of three years or more under the legislation of the issuing State; - And constitute one of the offenses listed at article 694-32 of the French criminal code of procedure (32 categories of infraction for which the control of double jeopardy is not required within the framework of the EAW and EIO). Grounds for refusal: - Optional refusal: article 695-9-16 of the Code of Criminal Procedure. Refusal is only optional when it is established by the magistrate that the certificate has not been produced, is incomplete or manifestly does not correspond to the freezing decision that has been produced or has not been translated into French. This refusal is at the discretion of the magistrate because he can choose to allow the person who drafted the decision a period of time to complete their request or to amend it and can even, if he considers that he has been provided with sufficient information, decide not to require the [issuing/requesting] judicial authority to provide any supplementary information. - Compulsory refusal : 695-9-17 (and on the basis article 694-4, see below 695-9-17 4°) of the Code of Criminal Procedure: The investigating magistrate can refuse to execute a decision to freeze in the following circumstances set out in article 695-9-17 of the Code of Criminal Procedure: 1) in cases of immunity or if it is not possible to seize the property or piece of evidence under French law; 2) on the basis of the principle of non bis in idem (double jeopardy); 3) if the purpose of the freezing decision is discriminatory; 4) on the basis of the dual criminality requirement in cases of seizure for the purpose of confiscation. It will also be necessary to check the provisions of article 694-4 of the Code of Criminal Procedure, which has general application in respect of international requests for mutual legal assistance, which provides that the execution of requests can be refused if the requests are likely to prejudice public order or the fundamental interests of the nation. The refusal is motivated and notified without delay to the issuing authority by any means that leave a written record. Remedies : article 695-22 and 695-24 of the French criminal code of procedure: To lodge an appeal it is necessary to file an application with the registry of the relevant investigation chamber (i.e. the investigation chamber of the court with jurisdiction over the place where the item was seized) within ten days of the implementation of the decision. The appeal does not have suspensive effect and must not be based on the substantive grounds of the freezing decision. A person affected by the freezing decision can also obtain information, from the registry of the investigation chamber, about judicial remedies (rights of appeal) available in the issuing State mentioned in the certificate. Relase of the freezing order: The total or partial release of the freezing measure can be requested by any interested person. The issuing authority is informed when the investigating judge considers, of his own motion or at the request of any interested party, to release the freezing order. • Requests based on International conventions (art. 694-10 to 694-13 of the French criminal code of procedure) Scope of objects subject to freezing: the request shall concern the freezing, with a view to their subsequent confiscation, of movable or immovable property, whatever its nature, which has served or was intended for the commission of the offence or which appears to be the direct or indirect product of the offence, as well as of any property the value of which corresponds to the proceeds of this offence. Grounds for refusal : under article 694-11, the request is rejected if one of the grounds for refusal mentionned in article 713-37 already exists (For the grounds for refusal under article 713-37 please see Fiche Belge on "confiscation").

EU-Member States: • Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders • Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of freezing orders (applicable with Ireland and Denmark) • The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000; Non-EU countires: • 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 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 694-10) shall apply in the alternative.

• Regulation (EU) 2018/1805: The investigating judge is the competent authority to receive de certificate and decide on the recognition and enforcement of freezing orders. The competent investigating judge is the judge of the place where the assets/objects are located. Failing that, the investigating judge of the legal court of Paris is competent. When the investigating judge that received the certificate is not competent, he forwards it to the competent authority and informs the issuing authorities of this forwarding. • FD 2003/577/JHA on freezing orders: The investigating judge, on the request or following the advice of the public prosecutor of the place where any asset/object that is the subject of the freezing order is located is competent to recognise and execute the freezing order. If those details are not known, or if the place is not known, it will be the investigating judge of the legal court of Paris. If the judicial authority to which the request for freezing has been forwarded is not competent to act on it, it shall forward it without delay to the competent judicial authority and inform the judicial authority of the issuing State accordingly. • International Conventions : investigating judge on request or after advice from the public prosecutor.

• Regulation (EU) 2018/1805 and FD 2003/577/JHA on freezing orders: Certificate produced in French or accompanied with a translation in French. • International conventions : French.

• Regulation (EU) 2018/1805: Upon receipt of the freezing certificate, the investigating judge shall recognize and execute the freezing order without delay and with the same speed and priority as in a similar case at the national level. The issuing authority may ask for a deadline to be observed that the investigating judge takes into account as far as possible. The regulation provides for an emergency proceeding for which the investigating judge must decide on the recognition of the freezing order within 48h hours after the receipt of the certificate and take the necessary concrete measures at least 48h after deciding on the recognition of the freezing order. • FD 2003/577/JHA on freezing orders: The investigating judge must make a ruling immediately and, if possible, within 24 hours of receiving the certificate. It is, however, possible to defer the execution of the seizure decision, for example when there is a risk that this decision could prejudice an ongoing criminal investigation or when one of the properties is already the object of a seizure decision in non-criminal proceedings in France. In that case the investigating judge must, without delay, inform the judicial authority of the issuing State by any means which creates a written record, setting out the grounds for postponement and the predicted length of the postponement. Once the cause of the postponement ceases to exist, the investigating judge must execute the seizure decision. • Requests for assistance based on the multilateral conventions listed above must be executed as soon as possible.

Regulation (EU) 2018/1805: Frozen property are handled in accordance with the executing State legislation. Under French law: article 706-43 of the code of criminal procedure provides that the properties are handled by the owner or the holder of the properties. Nevertheless, the competent magistrate can give a management mandate to the Agency for the management and recovery of seized and confiscated assets (AGRASC) under specific conditions: - In the event of unavailability or default of the owner or holder of the property - After concertation on the opportunity of such a mandate between the competent magistrate and the AGRASC The AGRSAC, by mandate of justice is in charge of: - the management of all the properties, whatever their nature, seized in the course of a criminal procedure, which are entrusted to it and which require acts of administration, as well as the alienation or destruction of these properties - the centralized management of seized sums - the disposal of property entrusted to it for sale before judgment