Restitution is taken to mean the return, to their rightful owners, of all objects, sums, instruments and documents of any nature that were placed in the hands of the courts on the occasion of an actual or an alleged offence. A request for restitution can therefore be made by anyone who has the right to legitimately hold the requested item (owner, holder, holder of a right of use). The aim of restitution is not to give a ruling on a right of possession, but to return the situation to what it was prior to the seizure. In practice restitution will not take place if it could obstruct the truth from being revealed or threaten the protection of the rights of the parties (claiming a lawfully constituted right to the item) or if it presents a risk to the persons or goods. Restitution can also be refused if the confiscation of the object is required by law. The investigating judge can, without actually granting the restitution, appoint the requesting person custodian of the seized item, although he or she may have to present it to the judicial authority at any time. This measure is without prejudice to possible confiscation of the item).
• Regulation (EU) 2018/1805:
Regulation 2018/1805 provides the restitution of frozen property (article 29) and confiscated property (article 30) to the victim.
1/Restitution of frozen property: the investigating judge seized for the execution of a restitution order must verify:
- That the victim's title to the property is not contested;
- That the property is not required as evidence in criminal proceedings in France. The investigating judge may consult the AGRASC and seek the opinion of the public prosecutor to facilitate this verification;
- That the rights of the persons concerned are not prejudiced.
If, for one of the three reasons above, the investigating judge considers not to restitute the property to the victim he shall consult the issuing authority to find a solution.
The restitution is directly made from the executing authority to the victim (in such a case the investigating judge informs the issuing authority of the transfer) or through the intermediary of the issuing State. In accordance with the Regulation, the practicalities of the restitution are governed by the legislation of the executing State.
In practice the restitution falls under the competency of :
- The AGRASC in all cases where the property has been entrusted to it or for which it exercises exclusive competence ;
- Failing that, the director of registry as part of his prerogatives in terms of managing the seals kept in the court.
2/Restitution of confiscated property :
The regulation provides that the principles of restitution and compensation for victims prevail over the rule of for sharing confiscated property applicable between Member States.
The restitution is directly made from the executing authority to the victim (in such a case the investigating judge informs the issuing authority of the transfer) or through the intermediary of the issuing State. The judgment pronouncing the restitution must be communicated to the AGRASC with regards to the seized assets the Agency was managing.
If the restitution of the property is impossible but a sum of money has been obtained in execution of the confiscation order, the amount of the value of the property that was to be returned to the victim shall be transferred to him/her. If necessary, this may be done through the issuing state. If not, the issuing authority shall be informed of the transfer by the French authority.