Brussels, 03/10/2003 (Agence Europe) - The Justice and Home Affairs Council made little progress on Friday on two draft framework decision on the execution of confiscation orders and the principle of double jeopardy.
Recognition of confiscation orders issued by another Member State: Council reached an agreement in principle on one point, that of the disposal of goods confiscated by a Member State in application of an order issued by another Member State. As for the confiscation of sums of money below 10,000 EUR, the State executing would keep the entire sum seized. For larger amounts, this State would have to give half of the sum seized to the State that decided upon the confiscation. Goods can be sold, in which case the 10,000 EUR rule applies. The good could also be sent to the requesting State. If neither of these solutions is possible, the executing State will dispose of the good according to national law.
On the other hand, ministers spoke at length without coming to an agreement on a far more sensitive issue, that of the German request to introduce a new article allowing a judge to refuse execution of a confiscation order by another Member State if the confiscation decision is considered contrary to fundamental rights. The Commission is greatly opposed to this, as are Belgium, Spain, the United Kingdom, Finland and France. They consider that this provision, as worded by Germany, would mean that the judge would verify each case again and therefore remain at the heavy exequatur procedure instead of rapidly implementing decisions. These countries consider it would be a very bad precedent that would bring into question the construction of mutual recognition in Europe. Germany invokes its Constitution and the jurisprudence of its Supreme Court. Ireland, the Netherlands, Austria, Greece, Sweden and Italy support it. In Council, the Member States have not made headway on this point but it is considered, European sources say, that they should be able to reach an agreement by the end of the year.
The framework decision on recognition of confiscation orders had been proposed by Denmark a little over a year ago (EUROPE of 25 July 2002).
Double jeopardy: Member States are unable to agree on the exceptions which could be made to the principle of non bis in idem. Greece had presented a proposal of framework decision last March to harmonise application of this principle whereby no-one can be prosecuted or judged twice for the same offence (EUROPE of 21 March). The European Commission does not agree with the exceptions envisaged, European Commissioner Antonio Vitorino said. Member States are above all divided over the issue of knowing whether there can be an exception to this principle, and therefore judge the person for the same offence in another Member State if the decision taken by the court of a first Member State has not yet been carried out. The Commission, the Italian Presidency, Greece, Spain, the Netherlands, Sweden and Portugal are opposed to this, considering it would be incompatible with the Charter of Fundamental Rights. On the contrary, Denmark, France, Austria, Belgium, Finland, Germany and Iceland hope to include this exception in the text. Furthermore, the Commission considers that the issue of conflict of jurisdiction must be treated separately, Commissioner Vitorino said. Mr Vigtorino is willing to present a specific proposal.