Fiches Belges

Definition according to national law. Enforcement of final criminal judgments imposing as a sanction the definitive deprivation of property. The penalty of confiscation may affect any type of property, tangible or intangible, movable or immovable, as well as legally enforceable documents or other documents evidencing a title or right to such property. MUTUAL RECOGNITION The confiscation order may affect to any kind of properties, material or immaterial, movable and immovable properties as well as documents with legal force or another documentary proof of identity of a title or right over those properties respect of which the legal body of the issuing State has decided that they constitute the product of a criminal offence or are partial or totally equal to the value of that product or that they constitute the instruments of the aforementioned offence. A confiscation order shall be transmitted by means of a confiscation certificate. The issuing authority shall transmit the confiscation certificate provided for in Article 17(Regulation 2018/1805) directly to the executing authority or, where applicable, to the central authority , by any means capable of producing a written record under conditions that allow the executing authority to establish the authenticity of the confiscation certificate. In order to transmit a confiscation order, the issuing authority shall complete the confiscation certificate set out in Annex II, shall sign it and shall certify its content as being accurate and correct. The issuing authority shall transmit the original confiscation order or a certified copy thereof together with the confiscation certificate. The certificate must be signed by the judge and translated into Spanish. The decision, however, does not have to be translated. In accordance with Spanish law the Judge or Court of Law may order the confiscation outlined in the preceding Articles even if no sentence has been handed down, when the unlawful financial position has been demonstrated in adversarial proceedings and in any of the following cases: a) That the subject is deceased or suffers from a chronic illness impeding his trial and that there is a risk that the criminal offences may prescribe; b) He is in a situation of default, preventing a trial within a reasonable period of time; or c) No sentence is handed down as the individual is exempt from criminal responsibility or said responsibility has been finalised. The confiscation referred to in this Article may only be adopted against individuals who have been formally accused or against defendants for whom there is circumstantial evidence of criminality when the situations outlined in the preceding Section have prevented criminal proceedings from continuing (Art. 127 ter Spanish Criminal Code in conjunction with section 803 The Criminal Procedure Act). According to regulation 2018/1805 In the case of a decision to return frozen property to the victim, the issuing authority should inform the executing authority. The executing authority must then take the necessary measures to ensure that the seized property is returned to the victim as soon as possible, in accordance with the procedural rules of the executing State. State of enforcement. However, this obligation is subject to three conditions: (1) that the victim's title to the property is not contested; (2) that the property does not constitute evidence in a criminal case in the executing State; and (3) that the rights of the persons concerned are not prejudiced. The Regulation provides for a higher level of protection for the persons concerned and a definition of "affected person".15 The Regulation provides for a higher level of protection for the "person concerned". Cooperation between Member States presupposes the protection of the rights of persons affected by a freezing order or confiscation order. The persons concerned, who may be natural or legal persons, shall be persons against whom a freezing order or a confiscation order has been issued. The persons concerned, who may be natural or legal persons, are the persons against whom a freezing order or a confiscation order is issued. a freezing or confiscation order is issued or the persons who are the owners of the property to which the freezing or confiscation order relates, as well as the judgment, as well as any third party whose rights in respect of such property are directly prejudiced by the judgment. directly prejudiced by the judgment, including bona fide third parties, by virtue of the law of the state of execution. of the state of enforcement It must be decided under the law of the state of enforcement whether those third parties are directly prejudiced by a freezing order or a confiscation order In accordance with Spanish law Judges and Courts of Law may also order the confiscation of the goods, assets and gains referred to in the preceding Articles that have been transferred to third parties, or others of an equal value, in the following cases: a) In the case of assets and gains, when they were acquired with full knowledge that they were obtained from a criminal activity or when a diligent individual would have had reasons to suspect their unlawful origin, given the circumstances of the case; b) In the case of other goods, when they were acquired with full knowledge that such an acquisition would hinder their confiscation or when a diligent individual would have had reasons to suspect that such an acquisition would hinder their confiscation, given the circumstances of the case. 2. It shall be assumed, unless evidence to the contrary is produced, that the third party knew or had reasons to suspect that the goods in question were obtained from a criminal activity or that they were transferred to avoid confiscation, when the goods or assets were transferred for free or for a price below real market value (Art. 127 quater Spanish Criminal Code). • agency in Spain that has the rights to accumulate frozen/restituted property: ORGA - ASSET RECOVERY OFFICE AT THE MINISTRY OF JUSTICE https://www.mjusticia.gob.es/es/areas-tematicas/oficina-recuperacion-gestion

Legal Basis:FD 2006/783/JHA on confiscation orders (Art. 7); Regulation 2018/1805 as of 19 Dec 2020; (CoE Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005) (Art. 23, Art. 24) MUTUAL RECOGNITION 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. Denmark and Ireland: • FD 2006/783/JHA on confiscation orders MUTUAL LEGAL ASSISTANCE: Council of Europe conventions: 2005 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism and 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime -The Criminal Procedure Act, approved by Royal Decree of 14 September 1882 -Spanish Penal Code (art. 127 et seq.)

+Receive the request/decision for judicial cooperation the Criminal Judge in the place where any of the property to be confiscated is located. If the issuing authority does not know where the item to be confiscated is located but the certificate does indicate the place of residence or registered office of the person in respect of whom the order has been issued, the Criminal Judge for that place will be competent, even if it is later found that the property is located in a different district or that the person has moved. If the issuing authority does not know the location of the property to be confiscated or the place of residence or registered office of the person in respect of whom the order has been issued, the confiscation certificate shall be sent, for the sole purpose of determining the location of the property, to the International Cooperation Unit of the State Prosecutor’s Office, which shall forward it to the Criminal Judge in the locality where the property is located for enforcement of the confiscation order. +Execute/recognise the measure (if other than the receiving authority) Art. 2.9 Regulation 2018/1805. With regard to a confiscation order: under Article 158(2) of Law 23/2014 of 20 November 2014:  the Criminal Judge in the place where any of the property to be confiscated is located.  If the issuing authority does not know where the item to be confiscated is located but the certificate does indicate the place of residence or registered office of the person in respect of whom the order has been issued, the Criminal Judge for that place will be competent, even if it is later found that the property is located in a different district or that the person has moved. If the issuing authority does not know the location of the property to be confiscated or the place of residence or registered office of the person in respect of whom the order has been issued, the confiscation certificate shall be sent, for the sole purpose of determining the location of the property, to the International Cooperation Unit of the State Prosecutor’s Office, which shall forward it to the Criminal Judge in the locality where the property is located for enforcement of the confiscation order.

The only accepted language is Spanish.

-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: The executing authority shall take the decision on the recognition and execution of the confiscation order without delay and, without prejudice to paragraph 4, no later than 45 days after the executing authority has received the confiscation certificate. (Art. 20.Time limits for recognition and execution of confiscation orders). -Act 23/2014. Article 167.2 maximum period of ten days since its reception (Ireland and Denmark). -MUTUAL LEGAL ASSISTANCE: There is not a deadline.

-Article 14(2) 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: Spain also makes the declaration under that, when a confiscation certificate is transmitted with a view to the recognition and execution of a confiscation order, the issuing authority is to transmit the original confiscation order or a certified copy thereof together with the confiscation certificate.