Measure Implementation

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

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.

Legal Framework

International legal framework applicable for this measure in your Member State

• 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 (Articles 29 and 30) • The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (article 8). • Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (article 12)

Competent Authority

* receive the request/decision for judicial cooperation

• Regulation (EU) 2018/1805: Restitution of frozen assets: the investigating judge that has recognized and executed the freezing order. Restitution of confiscated assets: the "tribunal correctionnel" upon request of the public prosecutor. • Convention of 29 May 2000 and Second Additionnal Protocol to the Convention of 20 April 1959: The competent authority to receive and execute the request is: - The public prosecutor (as part of a preliminary investigation), - The investigating judge following the advice of the public prosecutor (as part of a judicial inquiry). This decision is subject to appeal before the Investigating Chamber of the court, - The police court, criminal court (tribunal correctionnel), assize court (higher criminal court) to which the merits of the case are referred. Their decisions are subject to appeal before the court of appeal or the assize court of appeal.

Accepted languages

Accepted languages for the request/decision

• Regulation (EU) 2018/1805: Certifacte translated in French • Convention of 29 May 2000 and Second Additionnal Protocol to the Convention of 20 April 1959: A translation in French is not required but it is nonetheless recommended that a translation be provided in order to facilitate and expedite the execution of the request for assistance.

Execution deadline

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

• Regulation (EU) 2018/1805: as soon as possible. • Convention of 29 May 2000 and Second Additionnal Protocol to the Convention of 20 April 1959:There is no deadline for the execution of requests for assistance in French criminal law. However, it is possible, in the body of the request, to ask for a deadline to be observed; such a deadline will, however, only be regarded as a general guide.

Concise legal practical information

Special requirements

N/A

Last reviewed on 31 May 2022 by EJN Secretariat

NEXT MEASURE

  • Assets - Freezing, Confiscation and Restitution (E.1 – E.4)
  • E.4 Confiscation
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