On Friday 8 December during a Justice Council Session in Brussels, European Justice Ministers are expected to adopt their position on the draft regulation introducing a mutual recognition mechanism on decisions for freezing and confiscating criminal assets, adopted by the member states.
It should be recalled that during the ministerial meeting in Tallinn last July, the Estonian Minister for Justice, Urmas Reinsalu, expressed the wish of many member states to change the legal basis for transforming the proposed regulation into a directive (see EUROPE 11825).
According to an Estonian Presidency of the Council of the EU document dated 24 November and analysed by EUROPE only the Czech Republic, Germany, Greece, Hungary, the Netherlands, Portugal and Cyprus are still demonstrating reservations about the choice of regulation instead of a directive.
One European source explained that although not all the reservations had been removed during the presentation of the draft compromise to the Committee of Permanent Representatives to the EU (Coreper) on 29 November last, the Presidency remains, however, confident about the adoption of a general approach on Friday.
According to the logic of the Presidency compromise, by introducing greater flexibility for the member states into the proposal, particularly with regard to implementing decisions for freezing and confiscating assets, the concerns of the member states that would prefer a directive would largely be taken into account.
The changes introduced by member states with regard to the original text presented by the Commission in 2016 (see EUROPE 11694) include the preventive confiscation of criminal assets in the scope of application for the future regulation. European ministers effectively agreed during their October meeting, on the possibility of seizing criminal assets, even before a sentence has been made, on the condition, however, that guarantees are made in these preventive procedures (described as administrative in some national legal rules) of the essential characteristics in the criminal legal process (see EUROPE 11882).
The member states also clarified certain points on, for example, the transmission and recognition of certificates for freezing and confiscation. According to this document, the member states also want the possibility, when adopting the present regulation or at a later date, to present declarations indicating when an asset freezing certificate is transmitted to them in view of the recognition and implementation of a decision for freezing assets, the issuing authority is obliged to send, together with the asset freezing certificate, the original decision for the freezing or a certified copy of compliance.
Other clarifications are made to the text involving the implementation of the decision and, particularly, the restitution of the assets frozen or confiscated to the victim. The Member states also set out conditions for restitution that stipulate that the ownership by the victim is not contested, that the assets are not required as an element of proof in criminal proceedings in the state of implementation and that the rights of the people affected are not damaged. (Original version in French by Marion Fontana)