Criminal Justice (Mutual Assistance) Act 2008

Declaration by the Contracting Parties to the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union and the 2001 Protocol thereto

The Contracting Parties agree to consult, as appropriate, when the Republic of Iceland or the Kingdom of Norway or one of the Member States of the European Union considers that there is occasion to do so, to enable the most effective use to be made of this Agreement, including with a view to preventing any dispute regarding the practical implementation and interpretation of this Agreement. This consultation shall be organised in the most convenient way, taking into account the existing structures of cooperation.

Declaration by the Republic of Iceland and the Kingdom of Norway

The Republic of Iceland and the Kingdom of Norway declare, in view of the provisions of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters enabling direct contact between judicial authorities, that their competent judicial authorities wish, where appropriate, to make requisite enquiries through the contact points of the European Judicial Network, in order to establish which judicial authority of a Member State of the European Union has the territorial competence for initiating and executing requests for mutual assistance.

F177[SCHEDULE 3A Text of Agreement Between the European Union and Japan on Mutual Legal Assistance in Criminal Matters

AGREEMENT

between the European Union and Japan on mutual legal assistance in criminal matters

THE EUROPEAN UNION,

and

JAPAN

DESIRING to establish more effective cooperation between the European Union Member States and Japan in the area of mutual legal assistance in criminal matters,

DESIRING that such cooperation will contribute to combating crime,

REAFFIRMING their commitment to respect for justice, principles of the rule of law and democracy, and judicial independence,

HAVE AGREED AS FOLLOWS:

Article 1

Object and purpose

Article 2

Definitions

For the purpose of this Agreement:

• (a) the term "Contracting Parties" means the European Union and Japan;

• (b) the term "Member State" means a Member State of the European Union;

• (c) the term "State" means a Member State or Japan;

• (d) the term "items" means documents, records and other articles of evidence;

• (e) the term "property" means assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to or interest in such assets;

• (f) the term "instrumentalities" means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence;

• (g) the term "proceeds" means any property derived from or obtained, directly or indirectly, through the commission of a criminal offence;

• (h) the term "freezing or seizure" means temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority; and

• (i) the term "confiscation", which includes forfeiture where applicable, means a penalty or a measure, ordered by a court or other judicial authority following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property.

Article 3

Scope of assistance

Assistance shall include the following:

• (a) taking testimony or statements;

• (b) enabling the hearing by videoconference;

• (c) obtaining items, including through the execution of search and seizure;

• (d) obtaining records, documents or reports of bank accounts;

• (e) examining persons, items or places;

• (f) locating or identifying persons, items or places;

• (g) providing items in the possession of the legislative, administrative or judicial authorities of the requested State as well as the local authorities thereof;

• (h) serving documents and informing a person of an invitation to appear in the requesting State;

• (i) temporary transfer of a person in custody for testimony or other evidentiary purposes;

• (j) assisting in proceedings related to freezing or seizure and confiscation of proceeds or instrumentalities; and

• (k) any other assistance permitted under the laws of the requested State and agreed upon between a Member State and Japan.

Article 4

Designation and responsibilities of Central Authorities

Each State shall designate the Central Authority that is the authority responsible for sending, receiving and responding to requests for assistance, the execution of such requests or their transmission to the authorities having jurisdiction to execute such requests under the laws of the State. The Central Authorities shall be the authorities listed in Annex I to this Agreement.

Article 5

Communication between Central Authorities

Article 6

Authorities competent to originate requests

The authorities which are competent under the laws of the States to originate requests for assistance pursuant to this Agreement are set out in Annex II to this Agreement.

Article 7

Authentication

Documents transmitted by a State pursuant to this Agreement which are attested by the signature or seal of a competent authority or the Central Authority of the State need not be authenticated.

Article 8

Requests for assistance

• (a) the name of the competent authority conducting the investigation, prosecution or other proceeding, including judicial proceeding;

• (b) the facts pertaining to the subject of the investigation, prosecution or other proceeding, including judicial proceeding;

• (c) the nature and stage of the investigation, prosecution or other proceeding, including judicial proceeding;

• (d) the text or a statement of the relevant laws, including applicable penalties, of the requesting State;

• (e) a description of the assistance requested; and

• (f) a description of the purpose of the assistance requested.

• (a) information on the identity and location of any person from whom testimony, statements or items are sought;

• (b) a list of questions to be asked to the person from whom testimony or statements are sought;

• (c) a precise description of persons or places to be searched and of items to be sought;

• (d) a description of why the requesting State considers that the requested records, documents or reports of bank accounts are relevant and necessary for the purpose of the investigation into the offence, and other information that may facilitate the execution of the request;

• (e) information regarding persons, items or places to be examined;

• (f) information regarding persons, items or places to be located or identified;

• (g) information on the identity and location of a person to be served with a document or informed of an invitation, that person’s relationship to the proceeding, and the manner in which service is to be made;

• (h) information on the allowances and expenses to which a person whose appearance is sought before the competent authority of the requesting State will be entitled; and

• (i) a precise description of proceeds or instrumentalities, the location thereof, and the identity of the owner thereof.

• (a) a description of any particular manner or procedure to be followed in executing the request;

• (b) a description of the reasons for confidentiality concerning the request; and

• (c) any other information that should be brought to the attention of the requested State to facilitate the execution of the request.

Article 9

Language

A request and any documents attached thereto shall be accompanied by a translation into an official language of the requested State or, in all or, in urgent cases, into a language specified in Annex III to this Agreement.

Article 10

Execution of requests

Article 11

Grounds for refusal of assistance

• (a) a request concerns a political offence or an offence connected with a political offence;

• (b) the execution of a request is likely to prejudice its sovereignty, security, ordre public or other essential interests. For the purpose of this subparagraph, the requested State may consider that the execution of a request concerning an offence punishable by death under the laws of the requesting State or, in the relations between one Member State, set out in Annex IV to this Agreement, and Japan, an offence punishable by life imprisonment under the laws of the requesting State, could prejudice essential interests of the requested State, unless the requested State and the requesting State agree on the conditions under which the request can be executed;

• (c) there are well-founded reasons to suppose that the request for assistance has been made with a view to prosecuting or punishing a person by reason of race, religion, nationality, ethnic origin, political opinions or sex, or that such person’s position may be prejudiced for any of those reasons;

• (d) the person, who is subject to criminal investigations, prosecutions or other proceedings, including judicial proceedings, for which the assistance is requested, in the requesting State, has already been finally convicted or acquitted for the same facts in a Member State or Japan; or

• (e) a request does not conform to the requirements of this Agreement.

Article 12

Costs

• (a) the fees of an expert witness;

• (b) the costs of translation, interpretation and transcription;

• (c) the allowances and expenses related to travel of persons pursuant to Articles 22 and 24;

• (d) the costs of establishing a video link and costs related to the servicing of a video link in the requested State; and

• (e) the costs of an extraordinary nature;

unless otherwise agreed between the requesting State and the requested State.

Article 13

Limitations on use of testimony, statements, items or information

Article 14

Transport, maintenance and return of items

Article 15

Taking of testimony or statements

Article 16

Hearing by videoconference

• (a) the authority of the requested State will identify the person to be heard specified in the request, and invite the person to facilitate his or her appearance;

• (b) the hearing will be conducted directly by, or under the direction of, the competent authority of the requesting State in accordance with its own laws and the fundamental principles of the law of the requested State;

• (c) the authority of the requested State will be present during the hearing, where necessary assisted by an interpreter, and will observe the hearing. If the authority of the requested State is of the view that during the hearing the fundamental principles of the law of the requested State are being infringed, it will immediately take the necessary measures to ensure that the hearing continues in accordance with the said principles;

• (d) at the request of the requesting State or the person to be heard, the requested State will ensure, if necessary, that the person is assisted by an interpreter; and

• (e) the person to be heard may claim the right not to testify which would accrue to him or her under the laws of either the requesting or the requested State. Other measures necessary for the protection of the person as agreed upon between the authorities of the requesting and the requested States will also be taken.

Article 17

Obtaining of items

Article 18

Bank accounts

Article 19

Examination of persons, items or places

Article 20

Locating or identifying persons, items or places

The requested State shall make its best efforts to locate or identify persons, items or places.

Article 21

Providing items in possession of the legislative, administrative, judicial or local authorities

Article 22

Service of documents and informing a person of an invitation

Article 23

Safe conduct

• (a) be subject to detention or any restriction of personal liberty in that State by reason of any conduct or conviction that precedes the departure of the person from the requested State; or

• (b) be obliged to give evidence or to assist in any investigation, prosecution or other proceeding, including judicial proceeding, other than the proceeding specified in the request.

• (a) the person, having had, for a period of 15 consecutive days from the date when his or her presence is no longer required by the competent authority or from the day when he or she failed to appear before that authority on the scheduled appearance date, an opportunity of leaving, has nevertheless remained voluntarily in the requesting State; or

• (b) the person, having left the requesting State, voluntarily returns to it.

Article 24

Temporary transfer of persons in custody

Article 25

Freezing or seizure and confiscation of proceeds or instrumentalities

Article 26

Spontaneous exchange of information

Article 27

Relation to other instruments

Article 28

Consultations

Article 29

Territorial application

• (a) the territories of the Member States; and

• (b) territories for whose external relations a Member State has responsibility, or countries that are not Member States for whom a Member State has other duties with respect to external relations, where agreed upon by an exchange of diplomatic notes between the Contracting Parties, duly confirmed by the relevant Member State.

Article 30

Status of annexes

Annexes to this Agreement form an integral part of this Agreement. Annexes I, II and III may be modified by mutual consent in writing of the Contracting Parties without amendment of this Agreement.

Article 31

Entry into force and termination

IN WITNESS WHEREOF, the undersigned Plenipotentiaries have signed this Agreement.

DONE in duplicate, in the English and Japanese languages, both texts being equally authentic, and signed at Brussels on the thirtieth day of November 2009, and at Tokyo on the fifteenth day of December 2009. This Agreement shall also be drawn up in the Bulgarian, Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, and the Contracting Parties shall authenticate those language versions by an exchange of diplomatic notes.

ANNEX I

THE CENTRAL AUTHORITIES

The Central Authorities of the Contracting Parties are the following authorities:

the Kingdom of Belgium: the Federal Public Service Justice, International Criminal Cooperation Department;

the Republic of Bulgaria: the Ministry of Justice;

the Czech Republic:

• before the case is brought before a court (i.e. in pre-trial proceedings): the Supreme Public Prosecutor’s Office of the Czech Republic, and

• after the case has been brought before a court (i.e. in trial stage of criminal proceedings): the Ministry of Justice of the Czech Republic;

the Kingdom of Denmark: the Ministry of Justice;

the Federal Republic of Germany: the Federal Office of Justice;

the Republic of Estonia: the Ministry of Justice;

Ireland: the Minister for Justice, Equality and Law Reform or a person designated by the Minister;

the Hellenic Republic: the Ministry of Justice, Transparency and Human Rights;

the Kingdom of Spain: the Ministry of Justice, the Subdirectorate General for international legal cooperation;

the French Republic: the Ministry of Justice, the Office for International Mutual Assistance in Criminal Matters, Directorate for Criminal Matters and Pardons;

the Italian Republic: the Ministry of Justice, Department of Judicial Affairs - Directorate General of Criminal Matters;

the Republic of Cyprus: the Ministry of Justice and Public Order;

the Republic of Latvia:

• during pre-trial investigation until prosecution: State Police,

• during pre-trial investigation until submitting the case to the court: the General Prosecutor’s Office, and

• during the trial: the Ministry of Justice;

the Republic of Lithuania:

• the Ministry of Justice of the Republic of Lithuania, and

• the General Prosecutor’s Office of the Republic of Lithuania;

the Grand Duchy of Luxembourg: the Prosecutor General;

the Republic of Hungary:

• the Ministry of Justice and Law Enforcement, and

• the Office of the Prosecutor General;

the Republic of Malta: the Office of the Attorney General;

the Kingdom of the Netherlands: the Ministry of Justice in The Hague;

the Republic of Austria: the Ministry of Justice;

the Republic of Poland:

• during pre-trial stage: the National Public Prosecutor’s Office,

• during the trial: the Ministry of Justice,

the Portuguese Republic: the Prosecutor General’s Office;

Romania: the Ministry of Justice and Civil Liberties, the General Directorate for Cooperation, Directorate for International Law and Treaties, Division for International Judicial Cooperation in Criminal Matters;

the Republic of Slovenia: the Ministry of Justice, the Directorate for international cooperation and international legal assistance;

the Slovak Republic:

• in pre-trial proceedings: the General Prosecutor’s Office,

• in trial stage: the Ministry of Justice, and,

• for receiving: the Ministry of Justice,

the Republic of Finland: the Ministry of Justice;

the Kingdom of Sweden: the Ministry of Justice;

the United Kingdom of Great Britain and Northern Ireland:the Home Office (United Kingdom Central Authority), Her Majesty’s Revenue and Customs, Crown Office and Procurator Fiscal Service;

Japan: the Minister of Justice and the National Public Safety Commission or persons designated by them.

ANNEX II

With regard to Article 6 of this Agreement, the authorities which are competent under the laws of the States to originate requests for assistance pursuant to this Agreement are set out below:

the Kingdom of Belgium: the judicial authorities: to be understood as meaning members of the judiciary responsible for administering the law, examining magistrates and members of the Department of Public Prosecution;

the Republic of Bulgaria: the Supreme Cassation Prosecutor’s Office of the Republic of Bulgaria for pre-trial cases of criminal proceedings and the courts of the Republic of Bulgaria for pending cases in trial phase of criminal proceedings;

the Czech Republic: public prosecutors and courts of the Czech Republic;

the Kingdom of Denmark:

• the District Courts, the High Courts and the Supreme Court,

• the Department of Public Prosecutions, which includes:

• the Ministry of Justice,

• the director of Public Prosecutions,

• the Prosecutor, and

• the Police Commissioners;

the Federal Republic of Germany:

• the Federal Ministry of Justice;

• Federal Court of Justice, Karlsruhe;

• the Public Prosecutor General of the Federal Court of Justice, Karlsruhe;

• the Federal Office of Justice;

• the Ministry of Justice of Baden-Württemberg, Stuttgart;

• the Bavarian State Ministry of Justice and Consumer Protection, Munich;

• the Senate Department for Justice, Berlin;

• the Ministry of Justice of Land Brandenburg, Potsdam;

• the Senator for Justice and Constitution of the Free Hanseatic City of Bremen, Bremen;

• the Justice Authority of the Free and Hanseatic City of Hamburg, Hamburg;

• the Hessian Ministry of Justice, Integration and Europe, Wiesbaden;

• the Ministry of Justice of Mecklenburg-Vorpommern, Schwerin;

• the Ministry of Justice of Lower-Saxony, Hanover;

• the Ministry of Justice of Land North-Rhine/Westphalia, Düsseldorf;

• the Ministry of Justice of Land Rhineland-Palatinate, Mainz;

• the Ministry of Justice of the Saarland, Saarbrücken;

• the Saxonian State Ministry of Justice, Dresden;

• the Ministry of Justice of Land Saxony-Anhalt, Magdeburg;

• the Ministry of Justice, Equality and Integration of Schleswig-Holstein, Kiel;

• the Thuringian Ministry of Justice, Erfurt;

• the Higher Regional Courts;

• the Regional Courts;

• the Local Courts;

• the Chief Public Prosecutor at the Higher Regional Courts;

• the Directors of Public Prosecutions at the Regional Courts;

• the Central Office of the Land Judicial Administrations for the Investigation of National Socialist Crimes, Ludwigsburg;

• the Federal Criminal Police Office;

• the Central Office of the German Customs Investigations Service;

the Republic of Estonia: judges and prosecutors;

Ireland: the Director for Public Prosecutions;

the Hellenic Republic: the Public Prosecutor’s Office at the Court of Appeal;

the Kingdom of Spain: criminal court magistrates and judges, and public prosecutors;

the French Republic:

• first presidents, presidents, judges and magistrates at criminal courts,

• examining magistrates at such courts,

• members of the public prosecution service at such courts, namely:

• principal public prosecutors,

• deputy principal public prosecutors,

• assistant principal public prosecutors,

• public prosecutors and assistant public prosecutors,

• representatives of police court public prosecutors, and

• military court public prosecutors;

the Italian Republic

Prosecutors:

• Director of Public Prosecution

• Assistant Public Prosecutor

• Director of Military Public Prosecution

• Assistant Military Public Prosecutor

• General Public Prosecutor

• Assistant General Public Prosecutor

• General Military Public Prosecutor

• Assistant General Military Public Prosecutor

Judges:

• Judge of Peace

• Investigation Judge

• Preliminary hearing Judge

• Ordinary Court

• Military Court

• Court of Assizes

• Court of Appeal

• Court of Assizes of Appeal

• Military Court of Appeal

• Court of Cassation;

the Republic of Cyprus:

• the Attorney General of the Republic,

• the Chief of Police,

• the Director of Customs & Excise,

• members of the Unit for Combating Money Laundering (MOKAS), and,

• any other authority or person who is entitled to make inquiries and prosecutions in the Republic of Cyprus,

the Republic of Latvia: investigators, prosecutors and judges;

the Republic of Lithuania: judges and prosecutors;

the Grand Duchy of Luxembourg: the judicial authorities: to be understood as meaning members of the judiciary responsible for administering the law, examining magistrates and members of the Department of Public Prosecution;

the Republic of Hungary: prosecutor’s offices and courts;

the Republic of Malta:

• the Magistrates Court,

• the Juvenile Court,

• the Criminal Court and the Court of Criminal Appeal,

• the Attorney General,

• the Deputy Attorney General,

• the Legal Officers within the Attorney General’s office; and

• the Magistrates;

the Kingdom of the Netherlands: members of the judiciary responsible for administering the law, examining magistrates and members of the Department of Public Prosecutions;

the Republic of Austria: courts and prosecutors;

the Republic of Poland: prosecutors and courts;

the Portuguese Republic: prosecution services in the investigation phase, investigation judges and trial judges;

Romania: courts and the prosecutor’s offices of the courts;

the Republic of Slovenia:

• local court judges,

• investigative judges,

• district court judges,

• higher court judges,

• supreme court judges,

• constitutional court judges,

• district state prosecutors,

• higher state prosecutors,

• supreme state prosecutors;

the Slovak Republic: judges and prosecutors;

the Republic of Finland:

• the Ministry of Justice,

• the Courts of First Instance, the Courts of Appeal, and the Supreme Court,

• the public prosecutors,

• the police authorities, the custom authorities, and the frontier guard officers in their capacity of preliminary criminal investigations authorities in criminal proceedings under the Preliminary Criminal Investigations Act,

the Kingdom of Sweden: courts and prosecutors;

the United Kingdom of Great Britain and Northern Ireland: courts and prosecutors;

Japan: Courts, Presiding Judges, Judges, Public Prosecutors, Public Prosecutor’s Assistant Officers, and Judicial Police Officials.

ANNEX III

With regard to Article 9 of this Agreement, the Member States and Japan accept the following languages:

the Kingdom of Belgium: Dutch, French and German in all cases and English in urgent cases;

the Republic of Bulgaria: Bulgarian in all cases and English in urgent cases;

the Czech Republic: Czech in all cases and English in urgent cases;

the Kingdom of Denmark: Danish in all cases and English in urgent cases;

the Federal Republic of Germany: German in all cases and English in urgent cases;

the Republic of Estonia: Estonian and English in all cases;

Ireland: English and Irish in all cases;

the Hellenic Republic: Greek in all cases and English in urgent cases;

the Kingdom of Spain: Spanish in all cases;

the French Republic: French in all cases;

the Italian Republic: Italian in all cases and English in urgent cases;

the Republic of Cyprus: Greek and English in all cases;

the Republic of Latvia: Latvian in all cases and English in urgent cases;

the Republic of Lithuania: Lithuanian in all cases and English in urgent cases;

the Grand Duchy of Luxembourg: French and German in all cases and English in urgent cases;

the Republic of Hungary: Hungarian in all cases and English in urgent cases;

the Republic of Malta: Maltese in all cases;

the Kingdom of the Netherlands: Dutch in all cases and English in urgent cases;

the Republic of Austria: German in all cases and English in urgent cases;

the Republic of Poland: Polish in all cases;

the Portuguese Republic: Portuguese in all cases and English or French in urgent cases;

Romania: Romanian, English or French in all cases. With regard to longer documents, Romania reserves the right, in any specific case, to require a Romanian translation or to have one made at the expense of the requesting State;

the Republic of Slovenia: Slovenian and English in all cases;

the Slovak Republic: Slovak in all cases;

the Republic of Finland: Finnish, Swedish and English in all cases;

the Kingdom of Sweden: Swedish, Danish or Norwegian in all cases, unless the authority dealing with the application otherwise allows in the individual case;

the United Kingdom of Great Britain and Northern Ireland: English in all cases;

Japan: Japanese in all cases and English in urgent cases. However, Japan reserves the right, in any specific urgent case, to require translation into Japanese with regard to the request from the requesting State which does not accept translation into English under this Annex.

ANNEX IV

With regard to paragraph 1(b) of Article 11 of this Agreement, "one Member State" referred to in this paragraph is the Portuguese Republic.

With regard to paragraph 2 of Article 11 of this Agreement, "two Member States" referred to in this paragraph are the Republic of Austria and the Republic of Hungary.]

SCHEDULE 4 Text of Articles 49 and 51 of Schengen Convention

Article 49

Mutual assistance shall also be afforded:

• (a) in proceedings brought by the administrative authorities in respect of acts which are punishable under the national law of one of the two Contracting Parties, or of both, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters;

• (b) in proceedings for claims for damages arising from wrongful prosecution or conviction;

• (c) in clemency proceedings;

• (d) in civil actions joined to criminal proceedings, as long as the criminal court has not yet taken a final decision in the criminal proceedings;

• (e) in the service of judicial documents relating to the enforcement of a sentence or a preventive measure, the imposition of a fine or the payment of costs for proceedings;

• (f) in respect of measures relating to the deferral of delivery or suspension of enforcement of a sentence or a preventive measure, to conditional release or to a stay or interruption of enforcement of a sentence or a preventive measure.

Article 51

The Contracting Parties may not make the admissibility of letters rogatory for search or seizure dependent on conditions other than the following:

• (a) the act giving rise to the letters rogatory is punishable under the law of both Contracting Parties by a penalty involving deprivation of liberty or a detention order of a maximum period of at least six months, or is punishable under the law of one of the two Contracting Parties by an equivalent penalty and under the law of the other Contracting Party by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters;

• (b) execution of the letters rogatory is consistent with the law of the requested Contracting Party.

SCHEDULE 5 Text of Framework Decision

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 31(a) and Article 34(2)(b) thereof,

Having regard to the initiative by the Republic of France, the Kingdom of Sweden and the Kingdom of Belgium,

Having regard to the opinion of the European Parliament,

Whereas:

• (1) The European Council, meeting in Tampere on 15 and 16 October 1999, endorsed the principle of mutual recognition, which should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union.

• (2) The principle of mutual recognition should also apply to pre-trial orders, in particular to those which would enable competent judicial authorities quickly to secure evidence and to seize property which are easily movable.

• (3) On 29 November 2000 the Council, in accordance with the Tampere conclusions, adopted a programme of measures to implement the principle of mutual recognition in criminal matters, giving first priority (measures 6 and 7) to the adoption of an instrument applying the principle of mutual recognition to the freezing of evidence and property.

• (4) Cooperation between Member States, based on the principle of mutual recognition and immediate execution of judicial decisions, presupposes confidence that the decisions to be recognised and enforced will always be taken in compliance with the principles of legality, subsidiarity and proportionality.

• (5) Rights granted to the parties or bona fide interested third parties should be preserved.

• (6) This Framework Decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty and reflected by the Charter of Fundamental Rights of the European Union, notably Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to freeze property for which a freezing order has been issued when there are reasons to believe, on the basis of objective elements, that the freezing order is issued for the purpose of prosecuting or punishing a person on account of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.

This Framework Decision does not prevent any Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media,

HAS ADOPTED THIS FRAMEWORK DECISION:

TITLE I

SCOPE

Article 1

Objective

The purpose of the Framework Decision is to establish the rules under which a Member State shall recognise and execute in its territory a freezing order issued by a judicial authority of another Member State in the framework of criminal proceedings. It shall not have the effect of amending the obligation to respect the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty.

Article 2

Definitions

For the purposes of this Framework Decision:

• (a) "issuing State" shall mean the Member State in which a judicial authority, as defined in the national law of the issuing State, has made, validated or in any way confirmed a freezing order in the framework of criminal proceedings;

• (b) "executing State" shall mean the Member State in whose territory the property or evidence is located;

• (c) "freezing order" property that could be subject to confiscation or evidence;

• (d) "property" includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents and instruments evidencing title to or interest in such property, which the competent judicial authority in the issuing State considers:

— is the proceeds of an offence referred to in Article 3, or equivalent to either the full value or part of the value of such proceeds, or

— constitutes the instrumentalities or the objects of such an offence;

• (e) "evidence" shall mean objects, documents or data which could be produced as evidence in criminal proceedings concerning an offence referred to in Article 3.

Article 3

Offences

• (a) securing evidence, or

• (b) subsequent confiscation of property.

— participation in a criminal organisation,

— terrorism,

— trafficking in human beings,

— sexual exploitation of children and child pornography,

—illicit trafficking in narcotic drugs and psychotropic substances,

— illicit trafficking in weapons, munitions and explosives,

— corruption,

— fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the Protection of the European Communities' Financial Interests,

— laundering of the proceeds of crime,

— counterfeiting currency, including of the euro,

— computer-related crime,

—environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,

— facilitation of unauthorised entry and residence,

— murder, grievous bodily injury,

— illicit trade in human organs and tissue,

— kidnapping, illegal restraint and hostage-taking,

— racism and xenophobia,

— organised or armed robbery,

— illicit trafficking in cultural goods, including antiques and works of art,

— swindling,

— racketeering and extortion,

— counterfeiting and piracy of products,

— forgery of administrative documents and trafficking therein,

— forgery of means of payment,

— illicit trafficking in hormonal substances and other growth promoters,

— illicit trafficking in nuclear or radioactive materials,

— trafficking in stolen vehicles,

— rape,

— arson,

— crimes within the jurisdiction of the International Criminal Tribunal,

— unlawful seizure of aircraft/ships,

— sabotage.

For cases not covered by paragraph 2, the executing State may subject the recognition and enforcement of a freezing order made for purposes referred to in paragraph 1(b) to the condition that the acts for which the order was issued constitute an offence which, under the laws of that State, allows for such freezing, whatever the constituent elements or however described under the law of the issuing State.

TITLE II

PROCEDURE FOR EXECUTING FREEZING ORDERS

Article 4

Transmission of freezing orders

Article 5

Recognition and immediate execution

Whenever it is necessary to ensure that the evidence taken is valid and provided that such formalities and procedures are not contrary to the fundamental principles of law in the executing State, the judicial authority of the executing State shall also observe the formalities and procedures expressly indicated by the competent judicial authority of the issuing State in the execution of the freezing order.

A report on the execution of the freezing order shall be made forthwith to the competent authority in the issuing State by any means capable of producing a written record.

Article 6

Duration of the freezing

Article 7

Grounds for non-recognition or non-execution

• (a) the certificate provided for in Article 9 is not produced, is incomplete or manifestly does not correspond to the freezing order;

• (b) there is an immunity or privilege under the law of the executing State which makes it impossible to execute the freezing order;

• (c) it is instantly clear from the information provided in the certificate that rendering judicial assistance pursuant to Article 10 for the offence in respect of which the freezing order has been made, would infringe the ne bis in idem principle;

• (d) if, in one of the cases referred to in Article 3(4), the act on which the freezing order is based does not constitute an offence under the law of the executing State; however, in relation to taxes or duties, customs and exchange, execution of the freezing order may not be refused on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing State.

• (a) specify a deadline for its presentation, completion or correction; or

• (b) accept an equivalent document; or

• (c) exempt the issuing judicial authority from the requirement if it considers that the information provided is sufficient.

Article 8

Grounds for postponement of execution

• (a) where its execution might damage an ongoing criminal investigation, until such time as it deems reasonable;

• (b) where the property or evidence concerned have already been subjected to a freezing order in criminal proceedings, and until that freezing order is lifted;

• (c) where, in the case of an order freezing property in criminal proceedings with a view to its subsequent confiscation, that property is already subject to an order made in the course of other proceedings in the executing State and until that order is lifted. However, this point shall only apply where such an order would have priority over subsequent national freezing orders in criminal proceedings under national law.

Article 9

Certificate

Article 10

Subsequent treatment of the frozen property

• (a) shall be accompanied by a request for the evidence to be transferred to the issuing State; or

• (b) shall be accompanied by a request for confiscation requiring either enforcement of a confiscation order that has been issued in the issuing State or confiscation in the executing State and subsequent enforcement of any such order; or

• (c) shall contain an instruction in the certificate that the property shall remain in the executing State pending a request referred to in (a) or (b). The issuing State shall indicate in the certificate the (estimated) date for submission of this request. Article 6(2) shall apply.

Article 11

Legal remedies

Article 12

Reimbursement

TITLE III

FINAL PROVISIONS

Article 13

Territorial application

This Framework Decision shall apply to Gibraltar.

Article 14

Implementation

Article 15

Entry into force

This Framework Decision shall enter into force on the day of its publication in the Official Journal of the European Union.

Done at Brussels, 22 July 2003.

For the Council

The President

G. ALEMANNO

ANNEX - CERTIFICATE PROVIDED FOR IN ARTICLE 9