The "confiscation order" is a penalty or a final measure ordered by a court following proceedings in connection with a criminal offence, resulting in the definitive deprivation of property of a natural or legal person.
Scope of property that maybe subject to confiscation: property of any kind, whether tangible or intangible, movable or immovable, as well as legal acts or documents evidencing title or right to such property.
• Regulation 2018/1805:
The confiscation may relate to property (predefined above), which the issuing authority considers:
- that it constitutes the proceeds of a criminal offense or its equivalent in value, whether the full amount of the value of such proceeds or only part of such value;
- it constitutes the instrumentalities of a criminal offence or the value of such instrumentalities ("instrumentalities" is defined by the Regulation as any property used or intended to be used in any way, in whole or in part, to commit a criminal offence);
- it is liable to confiscation through the application, in the issuing State, of any of the powers of confiscation provided for in Directive 2014/42/EU; or;
- that it is liable to confiscation under any other provision on powers of confiscation, including confiscation without a final conviction under the law of the issuing State following proceedings in relation to a criminal offence.
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 offences listed at article 3 of the Regulation as definied under the legislation of the issuing State it must be executed without the need for dual criminality. Thus the French magistrat must only proceed with this control with regards to the legislation of the issuing authority. To this end, the issuing authority must complete SECTION F by indicating the category or catégories of offences for which the confiscation of property is required. The summary of the facts allows the magistrate to ensure that they correspond to the categories of offence checked off. Nevertheless, where the offence does not fall into the categories of offences listed at article 3 of the Regulation, the executing State may subordinate the recognition and enforcement of the confiscation order to the condition that the facts for which the order was issued constitute an offence under French criminal law. In a such a case, the absence of incrimination under French law may be a ground for refusing recognition and enforcement of the confiscation order.
Grounds for refusal: In accordance with the Regulation 2018/1805 the grounds for refusal are optional (article 19 of the Regulation 2018/1805). Before deciding not to recognise or execute the confiscation order, whether wholly or partially, the 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 confiscation order shall be taken without delay and notified immediately to the issuing authority by any means capable of producing a written record.
Remedies: 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 2006/783/JHA) for the remedies under French law (article 713-29).
• FD 2007/783/JHA on confiscation orders:
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 694-32 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 694-32 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 (see above);
- 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.
The execution of a confiscation order is also refused, if necessary partially, if the confiscation order is based on the ground referred to in 3° of article 713-1. In this case, the fifth paragraph of Article 713-24 shall apply.
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.
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.
Judicial remedies: 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.
• International conventions / absence of international conventions:
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";
- 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.
Conditions: 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 (tribunal correctionnel) 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 (article 713-37 4 of the Code of Criminal Procedure).
- The execution of the request would contravene the principle of ne bis in idem (the double jeopardy principle :article 713-37 5 of the Code of Criminal Procedure).
- 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.