Fiches Belges

Under article 706-154, the judicial police officer can be authorised, by any means, by the investigating judge or the public prosecutor, to carry out the seizure of a sum of money in a bank account. No formality is required to give this authorisation, however it should be mentioned during the proceedings. N.B. after the seizure has taken place it is placed under the control of the liberty and custody judge referred by the public public prosecutor or the investigating judge who must decide, by making a reasoned order, whether the seizure is to be maintained (upheld) or cancelled within a period of ten days counting from the date on which the seizure took place. The seizure applies, without distinction, to all of the sums of money that are in credit in the bank account at the moment the seizure is carried out and is enforceable up to the the amount indicated in the seizure decision. Although it is generally referred to in practice as the "seizure of a bank account", in law it is not the account that is seized but the money that is within the account. Thus the sums seized are the sums that were in credit in the account of the day that the seizure was executed. The sums which are credited to the account after that point are not stopped (moreover the account is not frozen; it continues to function normally after the execution of the seizure). It is therefore absolutely essential,** before every seizure, to ask the investigators to identify the amount of the sums present in the account that are to be seized, even if this is purely to ensure that seizures are not carried out on bank accounts that are in debit. Article 706-154 CPP provides for "the seizure of a sum of money credited to an account that has been opened at an establishment authorised by the law to hold deposit accounts". It is thus possible to seize the sums of money that are in credit in a current account or in a deposit account which has been opened at a credit institution. The following accounts are also regarded in the same way, under the law, as ordinary bank accounts, in that the sums credited to them remain totally at the disposal of the account-holder. They are: the "livret A" ("bank account passbook A" - a tax-free savings account), the "livret bleu" ("blue passbook savings account" - a partially tax-exempt savings account aimed at the general public), the "livret de développement durable ex-CODEVI" ("the sustainable development passbook savings account: Codevi"), the "livret jeune" (the young person's savings account), the "livret d'épargne populaire" ("LEP" -the people's savings account), and the "livret bancaire" (standard savings account). A more complex question arises, however, in relation to savings products and securities accounts, which do not have to be subject to the regime concerning the seizure of money in a bank account. The investigators must arrange the transfer of the money to the "Agence de Gestion et de Recouvrement des Avoirs Saisis et Confisqués" (the "AGRASC" Agency, which is the French asset recovery agency), which will ensure the centralised management of the money. It is therefore important to ensure that the investigators have the bank account details of the AGRASC Agency and that they ensure that the AGRASC bank account details are included in the seizure demand or seizure report that is issued to the banking institution concerned in order to ensure the effective transfer of the funds. A copy of this seizure notice must be simultaneously transmitted to the AGRASC Agency for the purpose of the identification and follow-up management of the seized funds. In practice, the judicial police officer who carries out, on the authorisation of the magistrate, the seizure of the funds in a bank account, must require the credit institution to transfer the seized funds to the AGRASC Agency. If, within the period of 10 days, the investigating judge or the liberty and custody judge, by means of a reasoned order, upholds the seizure, the funds will remain in the account of the AGRASC Agency. However, if the magistrate decides to cancel the order in whole or in part, the funds concerned will be returned by the Agency as soon as it receives the order. It is therefore important to ensure that the judicial police officers require, in their seizure demands or seizure reports, that the funds be transferred to the AGRASC Agency and that they include the bank account details of the Agency in their seizure demands/reports. Equally, the magistrate who is ruling on the upholding or the cancellation of the seizure must, in his/her decision, require the bank to transfer the seized funds to the AGRASC, if that has not been done by the judicial police officer. Finally, it is absolutely essential to send to the AGRASC Agency, without delay, a copy of the order upholding the seizure or requiring the restitution of the funds, ensuring that the number of the letter of request is clearly stated.

EU-Member States: • Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence; • The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000; Non-EU countries: • 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 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.

For all requests, the investigating judge, on the application or following the advice of the public prosecutor of the place where either the assets or the evidence are located; in the absence of any further details or if the location is not known it will be the investigating judge of the regional court of Paris.

Only the certificate needs to be translated into French and not the seizure decision on the basis of the Framework Decision of 22 July 2003.

• Framework Decision of 22 July 2003: 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 exection 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 assets 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 the 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.

The presence, at the execution of this measure, of officers of the requesting State is only possible under the Convention of 29 May 2000 or, for countries which have not ratified that convention, under the 1959 Convention.