Chapter 11 - International Cooperation in Order to Execute Final Confiscation Orders

Summary

THE LEGAL FRAMEWORK

REQUESTS FOR MLA

An international basis to request judicial assistance from other States in order to recognise and enforce the execution of a final confiscation order can be found in several treaties, for example Article 13 of the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990), Article 13 of the United Nations Convention against Transnational Organized Crime (2000), Article 5 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) and Article 23 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005). In general, the provisions on cooperation on the basis of MLA obligate a requested State either to enforce a confiscation order made by a court of a requesting State or to submit the request to its own competent authorities for the purpose of obtaining a domestic order of confiscation and, if such order is granted, enforce it. The traditional procedure for MLA applies, and common grounds for refusal of such assistance are, for example, a lack of double criminality, violations of ordre public or concern for the principle of ne bis in idem.

THE FD ON CONFISCATION ORDERS

General Provisions

Within the EU more advanced cooperation based on mutual recognition has been introduced within the area of final confiscation orders by the FD on Confiscation Orders. The purpose of this instrument is to establish the rules under which a Member State must recognise and execute in its territory a confiscation order issued by a court competent in criminal matters of another Member State. In this way, the FD on Freezing Orders has been complemented with an instrument which regulates also the handling of transnational final confiscation orders in accordance with the criteria of mutual recognition. The instrument should have been implemented by 24 November 2008. In 2010, the European Commission concluded in a mutual evaluation report that the degree of implementation was not satisfactory, as only 13 Member States had implemented the instrument. Since then the situation has improved, although the instrument has not yet been implemented by Greece, Slovakia, Ireland and Luxembourg (as of February 2017).