Provisional text
OPINION OF ADVOCATE GENERAL
PIKAMÄE
delivered on 11 July 2024 (1)
Cases C‑767/22, C‑49/23 and C‑161/23
1Dream OÜ,
DS,
DL,
VS,
JG (C‑767/22)
AZ,
1Dream OÜ,
Produktech Engineering AG,
BBP,
Polaris Consulting Ltd (C‑49/23)
VL,
ZS,
Lireva Investments Limited,
VI,
FORTRESS FINANCE Inc. (C‑161/23)
other party:
Latvijas Republikas Saeima
(Request for a preliminary ruling from the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia))
(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2014/42/EU – Freezing and confiscation of instrumentalities and proceeds of crime in the European Union – Scope – Confiscation of illegally obtained assets – National criminal proceedings for the confiscation of illegally obtained assets not based on a conviction – Article 4 – Access to the file by persons connected to the assets – Regime for proving the source of the assets – Effective remedy – Article 8 – Directive 2012/13/EU – Directive (EU) 2016/343 – Articles 17, 47 and 48 of the Charter of Fundamental Rights of the European Union)
1. In a report dated 2 June 2020 on the confiscation of criminal assets and based on data provided by Europol, the European Commission stated that the proceeds of organised crime within the European Union are estimated at about EUR 110 billion per year and that only about 2% of criminal proceeds are frozen and 1% confiscated. (2) It is in that context, which is worrying to say the least, that the present requests for a preliminary ruling have been brought, which give the Court the opportunity to rule for the first time on the applicability of Directive 2014/42/EU (3) to national legislation providing for criminal proceedings for the confiscation of illegally obtained assets which are not based on a conviction and initiated in parallel with proceedings to establish the guilt of the alleged offender. A positive answer from the Court as to its jurisdiction would mean that it will have to examine the compatibility of the national rules on access to the case file of the confiscation proceedings by persons connected to the assets, the rules on proving the source of the assets and the judicial review of the confiscation order.
I. Legal framework
A. EU law
2. Articles 2 to 4 and 8 of Directive 2014/42 and Articles 17, 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’) are relevant to the present cases.
B. Latvian law
3. Article 626(1) of the Kriminālprocesa likums (Law on Criminal Procedure) of 21 April 2005 (Latvijas Vēstnesis, 2005, No 74), in the version in force from 1 September 2018 to 2 November 2022, provided:
‘1. The investigator, with the agreement of the public prosecutor leading the investigation, or the public prosecutor may, in the interests of the timely resolution of property issues raised during the preliminary stage of the criminal proceedings and in the interests of procedural economy, remove from the criminal file the materials relating to illegally obtained assets and institute proceedings if the following conditions are met:
(1) all of the evidence suggests that the assets removed or seized were illegally obtained or are linked to a criminal offence;
(2) bringing the criminal case before the courts in the foreseeable future (within a reasonable period) is, for objective reasons, impossible or may give rise to substantial unjustified costs.
2. With the consent of the public prosecutor leading the investigation, the investigator may, when terminating criminal proceedings for reasons other than the exoneration of a person, remove from the criminal file the materials relating to illegally obtained assets and institute proceedings if all of the evidence suggests that the assets removed or seized are illegally obtained assets. (4)
3. The public prosecutor may, when terminating criminal proceedings for reasons other than the exoneration of a person, remove from the criminal file the materials relating to the classification of an asset as an illegally obtained asset, the rights to which are entered in the public register and have been amended as a result of the criminal offence, and institute proceedings.’
4. Article 627(1) to (5) of the Law on Criminal Procedure, in the version in force from 1 September 2018 to 2 November 2022, provided:
‘1. In the circumstances referred to in Article 626 of this law, the person directing the proceedings shall take a decision to institute proceedings for the illegal acquisition of assets and send to the court the materials concerning the illegally obtained assets.
2. In his/her decision, the person directing the proceedings shall state:
(1) information on facts capable of establishing the link between the assets and the criminal offence or the illicit source of the assets, and on the materials which have been removed from the file in a criminal case under investigation relating to illegally obtained assets;
(2) persons connected to the assets;
(3) the measures he/she proposes with regard to the illegally obtained assets;
(4) the victim, where applicable.
3. The decision and the attachments shall be sent to the rajona (pilsētas) tiesa (District (City) Court).
4. Materials in the case file for proceedings relating to illegally obtained assets shall be covered by the confidentiality of investigations and may be consulted by the person directing the proceedings, the public prosecutor and the court seised of the case. The persons to whom Article 628 of the present law refers may access the materials in the case file with the authorisation of the person directing the proceedings and to the extent that that person stipulates.
5. A decision of the person directing the proceedings refusing a request for access to the materials in the case file may be the subject of an appeal to the rajona (pilsētas) tiesa (District (City) Court) hearing the proceedings relating to illegally obtained assets. The court shall adopt a decision allowing or dismissing the action in whole or in part. No appeal may be brought against that decision. In order that the court may decide whether access to the materials in the case file jeopardises the fundamental rights of other persons or the public interest or impedes the attainment of the objective of the criminal proceedings, that court may request the materials in the criminal case file and examine those materials.’
II. The disputes in the main proceedings and the questions referred for a preliminary ruling
5. Between 2012 and 2020, criminal proceedings were brought in Latvia against various companies registered in third States and, in respect of one of them, in Estonia, as well as several natural persons who were third-country nationals for large-scale laundering of the proceeds of a crime committed using their Latvian bank accounts. In the context of those criminal proceedings, which are still at the investigation stage, the funds deposited in those accounts and immovable property were seized.
6. Subsequent to the seizure measures and in parallel with the abovementioned proceedings, the prosecuting authority decided to institute proceedings, under Articles 626 and 627 of the Law on Criminal Procedure, for the illegal acquisition of assets and, to that end, to refer the matter before the court of first instance which has jurisdiction. While some of those proceedings are currently suspended, others have given rise to decisions either to confiscate for the benefit of the State the seized assets, regarded as being illegally obtained, or to discontinue the proceedings, without confiscation, in respect of assets the illegal origin of which had not been established. Following appeals brought by the prosecuting authority, the decisions at first instance which terminated the proceedings were annulled by the court of second instance, which, following a fresh examination of the evidence adduced, ordered the confiscation of the assets concerned on the ground that they had been illegally obtained.
7. Proceedings have been brought before the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia), the referring court, by persons connected to the assets which are the subject of the abovementioned proceedings and measures concerning the conformity with the National Constitution of several provisions of the Law on Criminal Procedure governing the procedure for the confiscation of illegally obtained assets.
8. In the context of the assessment which it must make and, to that end, of the consideration given to EU law, the referring court asks, in the first place, whether the national legislation at issue falls within the scope of Directive 2014/42 and Framework Decision 2005/212/JHA (5) (Cases C‑767/22, C‑49/23 and C‑161/23). It observes, in that regard, that the procedure implemented for the confiscation of assets is specific in that it is criminal in nature and the confiscation ordered does not follow a conviction of the person previously found guilty of a criminal offence, a situation which has not yet been examined by the Court in the cases concerning the interpretation of the abovementioned provisions.
9. In the event that any of those provisions were to be regarded as applicable in the present case, the referring court considers that the question arises, in the second place, as to the compatibility of the national rules on access to the case file by persons connected to the assets with the right to an effective remedy and a fair trial to which such persons are entitled under Article 8(1) of Directive 2014/42, read in the light of Article 47 of the Charter (Case C‑767/22). It points out that those persons may access the materials in the case file, which come from the main criminal proceedings seeking to establish individual liability, only with the authorisation of the prosecuting authority and to the extent stipulated by that authority, and the latter’s decision may be subject to judicial review.
10. The referring court also asks, in the third place, whether the national rules setting out the system for proving the source of the assets is compatible with the right to a fair trial and the presumption of innocence guaranteed by Article 8(1) of Directive 2014/42, read in the light of Articles 47 and 48 of the Charter (Case C‑161/23). It states that, under that system of proof, the prosecuting authority in the proceedings is not required to prove beyond reasonable doubt that the assets have a criminal source and it is for the person connected to the assets to prove that the origin of those assets is legal.
11. In the fourth place, the Latvijas Republikas Satversmes tiesa (Constitutional Court) asks whether a right of appeal must be granted against the decision ordering the confiscation of assets which is adopted, for the first time, at the stage of the appeal judgment in respect of a decision at first instance which discontinued the proceedings without ordering such a measure, which is not provided for by the national legislation. It points out that the decision adopted at the end of the confiscation proceedings settles definitively the property issue. The referring court considers that the answer to that question involves an interpretation of the second sentence of Article 8(6) of Directive 2014/42, read in the light of Article 47 of the Charter (Case C‑49/23).
12. In the fifth place, and in the event that the national provisions at issue are regarded as incompatible with the Latvian Constitution and EU law following the judgment of the Court, the referring court states that they should be declared null and void, which would have negative repercussions on the stability of the State budget and legal certainty in the event of that nullity having retroactive effect. It therefore asks whether it is possible for it itself to determine, in its forthcoming judgment, the date on which those provisions will cease to have effect, a date which could correspond to the date on which their validity expires when those provisions are no longer in force.
13. In those circumstances, the Latvijas Republikas Satversmes tiesa (Constitutional Court) decided to stay the proceedings in each of the three cases concerned and to refer the following questions to the Court of Justice for a preliminary ruling in Case C‑767/22:
‘(1) Does national legislation pursuant to which a national court rules on the confiscation of the proceeds of crime in separate proceedings relating to the illegally obtained assets, which are separated from the main criminal proceedings before it is established that a criminal offence has been committed and before anyone has been found guilty of that offence, and which also provides for confiscation based on materials taken from the criminal case file, fall within the scope of Directive 2014/42, in particular Article 4 thereof, and Framework Decision 2005/212, in particular Article 2 thereof?
(2) If the first question is answered in the affirmative, is the legislation on access to materials in the case file in proceedings relating to illegally obtained assets to be considered compatible with the right to a fair trial enshrined in Article 47 of the Charter and in Article 8(1) of Directive 2014/42?
(3) Is the principle of the primacy of European Union law to be interpreted as precluding the constitutional court of a Member State, which is seised of an action for a declaration of unconstitutionality brought against national legislation which has been held to be incompatible with European Union law, from ruling that the principle of legal certainty is applicable and that the legal effects of that legislation are to be maintained in relation to the period during which it was in force?’
14. In addition to the first and third questions already referred for a preliminary ruling in Case C‑767/22, the Latvijas Republikas Satversmes tiesa (Constitutional Court) referred the following question to the Court of Justice in Case C‑161/23:
‘(2) If the first question is answered in the affirmative, may national legislation concerning proof of the criminal source of assets in proceedings concerning illegally obtained assets, such as that established in the provisions at issue, be considered compatible with the right to a fair trial enshrined in Articles 47 and 48 of the Charter and in Article 8(1) of Directive 2014/42?’
15. In addition to the first and third questions already referred for a preliminary ruling in Case C‑767/22, the Latvijas Republikas Satversmes tiesa (Constitutional Court) referred the following questions to the Court of Justice in Case C‑49/23:
‘(2) If the first question is answered in the affirmative, must the concept of “confiscation order” within the meaning of Directive 2014/42, and in particular the second sentence of Article 8(6) thereof, be found to include not only the judicial decisions declaring that assets have been obtained illegally and ordering their confiscation but also judicial decisions discontinuing proceedings relating to the illegally obtained assets?
(3) If the second question is answered in the negative, is legislation compatible with Article 47 of the Charter and with the second sentence of Article 8(6) of Directive 2014/42 in so far as it provides no right for persons connected to the assets to challenge confiscation orders?’
III. The procedure before the Court
16. Written observations have been submitted by some of the applicants in the main proceedings, the Latvian and Czech Governments and the Commission. The applicants in the main proceedings, the Latvian Government and the Commission presented oral argument at the hearing on 15 April 2024.
IV. Analysis
17. As is apparent from the requests for a preliminary ruling, the referring court considers that it must obtain from the Court an interpretation of Directive 2014/42 and Framework Decision 2005/212, in addition to Articles 47 and 48 of the Charter, since it has doubts as to the compatibility of provisions of national legislation on the confiscation of illegally obtained assets concerning access to the file, the rules for proving the source of the assets, and the bringing of an appeal against the confiscation order. Before the substantive debate, the referring court questions the applicability of those rules in the present case, and therefore I must examine whether the Court has jurisdiction.
A. The jurisdiction of the Court
18. According to settled case-law, the Court does not have jurisdiction to reply to a question referred for a preliminary ruling where it is obvious that the provision of EU law referred to the Court for interpretation is incapable of applying. (6) Where a legal situation does not come within the scope of EU law, the Court has no jurisdiction to rule on it, and any Charter provisions relied upon cannot, of themselves, form the basis for such jurisdiction. (7) The Commission and the Czech Government consider that, in the light of the Court’s case-law on the scope of Directive 2014/42 and Framework Decision 2005/212, those provisions cannot apply to the national legislation at issue.
1. The applicability of Directive 2014/42 and Framework Decision 2005/212
(a) The criminal nature of the confiscation procedure implemented in the main proceedings
19. Given the objectives and the wording of the provisions of Directive 2014/42 and the context in which it was adopted, it must be considered that that directive, like Framework Decision 2005/212 whose provisions, in accordance with recital 9 thereof, it aims to expand, is an act aimed at obliging Member States to establish common minimum rules for confiscation of crime-related instrumentalities and proceeds, in order to facilitate the mutual recognition of judicial confiscation decisions adopted in criminal proceedings. (8)
20. As regards the material scope of Directive 2014/42 and of Framework Decision 2005/212, the Court has held that those acts do not apply to legislation of a Member State which provides that confiscation of illegally obtained assets is to be ordered by a national court ‘in the context of’ or following proceedings which do not relate to a finding of one or more criminal offences. (9) It should, in that regard, be recalled that, under Article 2(4) of Directive 2014/42, (10) confiscation means a final deprivation of property ordered by a court ‘in relation to a criminal offence’. The Court thus held that confiscation proceedings of an administrative (11) or civil nature did not fall within the material scope of Directive 2014/42 and Framework Decision 2005/212. In support of that conclusion, the Court held that such proceedings coexisted, in national law, with the regime for confiscation under criminal law, concerned only assets alleged to have been illegally obtained and were conducted independently of any criminal proceedings brought against the person accused of committing the offences at issue, and of the outcome of such proceedings, and, in particular, of the possible conviction of that person. (12)
21. The fact remains that the Latvian legislation is clearly distinct from the national legislation referred to in the abovementioned case-law in that the procedure for the confiscation of illegally obtained assets at issue is neither administrative nor civil but criminal. The rules governing that procedure are all set out in the Law on Criminal Procedure, principally in Articles 626 to 631. It follows that the special confiscation procedure must be initiated during the preliminary stage of a criminal investigation aimed at establishing individual criminal liability, by decision of the investigator in charge, with the consent of the public prosecutor leading the investigation, or the public prosecutor him or herself. That decision to ‘institute proceedings for the illegal acquisition of assets’ concerns the assets removed or seized in respect of which all of the evidence suggests that they were illegally obtained or are linked to a criminal offence, (13) since that evidence comes from the file relating to the ‘main’ criminal proceedings aimed at establishing the guilt of the person concerned. That evidence is covered by the confidentiality of investigations and persons connected to the assets concerned may access those materials only with the authorisation of the person responsible and to the extent determined by him or her, since a refusal is open to challenge before the courts, the assessment of the merits of which requires that account be taken of the attainment of the objective of the main criminal proceedings, initiated at the same time as and in parallel with the confiscation proceedings. Moreover, the rules on proving the source of the assets are set out in several provisions of the Law on Criminal Procedure. Lastly, the confiscation order is taken by the criminal court which will then rule on the merits of the case by determining criminal liability. (14) That decision may be appealed before a criminal court of second instance with the same jurisdiction as the court of first instance. (15)
22. Although the special procedure for the confiscation of assets in question is formally separate from the main criminal proceedings seeking to determine the guilt of the accused person, it is unquestionably and closely linked, by several factors, to those proceedings, and is an addition to those proceedings. The same acts are at the origin of that procedure and it is the same person who is the subject of criminal proceedings related to a given offence and whose assets are seized before ‘proceedings’ are brought against him for the illegal acquisition of assets. As the Latvian Government points out, the former can be brought only in the context of the latter, and is therefore not entirely independent of ‘any’ criminal proceedings brought against the person accused of committing the offences.
23. Lastly, it should be noted that the offence alleged against the persons whose criminal liability is under investigation and who are, at the same time, the subject of special procedures for the confiscation of assets, in the present case money laundering, corresponds to one of the offences covered by the legal instruments listed exhaustively in Article 3 of Directive 2014/42, and more specifically Article 3(d), and therefore the subject matter of the national confiscation proceedings falls, on that basis, within the material scope of that directive.
24. However, it is common ground that the competent criminal court, seised by the investigator or public prosecutor on the basis of Article 626 et seq. of the Law on Criminal Procedure, rules only on the origin of the assets before a decision is made on the guilt of the person concerned and therefore independently of any decision to convict that person in the main proceedings conducted in parallel. That situation excludes the application of Article 4(1) of Directive 2014/42, but raises the question of the application of Article 4(2) of that directive, read together with Article 2(4) thereof. This is an unprecedented legal issue to which the case-law of the Court, recalled above, does not provide a clear answer, since Article 4(2) of that act has never been mentioned and has therefore never been incorporated into reasoning concerning the interpretation of the concept of ‘confiscation’. (16)
(b) The interpretation of Article 4(2) of Directive 2014/42
25. The Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. The origins of a provision of EU law may also provide information relevant to its interpretation. (17)
(1) Literal interpretation
26. Article 4(2) of Directive 2014/42 provides that, where confiscation on the basis of paragraph 1 of that article is not possible, at least where such impossibility is the result of illness or absconding of the suspected or accused person, Member States are to take the necessary measures to enable the confiscation of instrumentalities and proceeds in cases where criminal proceedings have been initiated regarding a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, and those proceedings could have led to a criminal conviction if the suspected or accused person had been able to stand trial.
27. As regards, first, the literal interpretation, Article 4(2) of Directive 2014/42 defines in the negative one of the two types of confiscation provided for in that article, since it refers, by contrast, to confiscation that is not possible ‘on the basis of paragraph 1’ of that article, which concerns confiscation which is subject to a final conviction of the person accused of committing a criminal offence. The Member States must therefore provide for a regime for the confiscation of illegally obtained assets which does not involve such a conviction.
28. Must that regime be understood as necessarily limited to situations where the person concerned is ill or has absconded, since the expression ‘at least’ reflects the minimal nature of the harmonisation rules? Or, to the contrary, is it not more appropriate to interpret that expression as merely indicating an example of impossibility which is by no means exhaustive, since the minimum harmonisation introduced by Article 4(2) of Directive 2014/42 results in the requirement for a national regime for the confiscation of assets without conviction based on the finding that it is impossible to enforce such a conviction under normal conditions? (18) The wording of the provision at issue is therefore not entirely unambiguous, which makes it difficult to understand its scope and the relationship between the two paragraphs of Article 4 of Directive 2014/42. (19)
29. That said, I note that the special confiscation procedure at issue coexists under Latvian law with the more traditional procedure linked to the conviction of the offender, and that the initiation of that procedure presupposes, inter alia, that ‘bringing the criminal case before the courts in the foreseeable future (within a reasonable period) is, for objective reasons, impossible or may give rise to substantial unjustified costs’ (20). That wording reflects the idea of the impossibility in practice of implementing the traditional confiscation procedure envisaged from the same temporal perspective as that adopted by Article 4(2) of Directive 2014/42. (21)
30. Such a situation may be caused by the illness or absconding of the suspect or accused person, but also very complex criminal proceedings involving a large number of persons concerned, companies and individuals, their residence in a State other than that of the authorities in charge of the proceedings, the international and organised nature of the criminal activities and the subsequent difficulties of mutual police and judicial assistance, the inherently complicated nature of the alleged offence(s), all of which must be set against the size of the national law enforcement system and its capacity to manage such proceedings in compliance with the strict rules on limitation while dealing with ordinary law offences. That set of circumstances appears to me to correspond to that described by the referring court in national criminal proceedings relating to large-scale laundering of the proceeds of crime using accounts opened with various Latvian banking institutions by companies registered in Estonia, Switzerland and Belize and by nationals of the Republic of Ukraine, Uzbekistan, the People’s Republic of China and the Russian Federation. The confiscation procedure in question is triggered by a situation in which those persons are the subject of criminal proceedings concerning an offence, in the present case money laundering, which is liable to give rise, directly or indirectly, to economic benefit and in which those proceedings would have been likely to result in a criminal conviction if those persons had been able to appear before the trial court under normal conditions.
31. It should be noted that the proposal for a directive (22) contained a specific provision entitled ‘Non-conviction based confiscation’ setting out explicitly and exhaustively the cases in which such a measure could be taken. It is common ground that the co-legislators expressed different views on that provision, with the European Parliament’s desire for a general provision on non-conviction based confiscation running up against the Council’s opposition, resulting in the formulation of a compromise, which was less precise, in Article 4(2) of Directive 2014/42 and the use of the expression ‘at least’ before the reference to cases of impossibility linked to illness and to the person’s absconding. (23)
(2) Contextual interpretation
32. The contextual interpretation involves, in the first place, linking the confiscation order provided for in Article 4(2) of Directive 2014/42 with the asset freezing measure, the possibility of confiscating the assets of third parties and the effective procedural safeguards afforded by that directive to persons affected by those freezing and confiscation measures.
33. It is important to point out that the fundamental rights referred to in Article 47 of the Charter are reaffirmed by Directive 2014/42 itself, Article 8(1) of which provides that Member States are to take the necessary measures to ensure that the persons affected by the measures provided for under that directive have the right to an effective remedy and to a fair trial in order to uphold their rights. (24) The Court has repeatedly emphasised the general nature of the wording of that provision, which does not refer to suspects or accused persons, or to those convicted of an offence. It was in the light of that wording of Article 8(1) of Directive 2014/42 and that of recital 33 thereof that the Court held that the persons for whom the Member States must guarantee effective remedies and a fair trial are not only those convicted of an offence but also third parties whose property is affected by the freezing or confiscation order. (25)
34. That all-encompassing interpretation, based on the effective judicial protection of everyone whose rights are substantially affected by the implementation of a freezing or confiscation measure, is fully compatible with the scope ratione materiae of Directive 2014/42 incorporating the criminal proceedings for the confiscation of assets at issue in the main proceedings. The abovementioned case-law of the Court may and even, in my view, must be able to benefit the persons who are the subject of those proceedings, since any result to the contrary would lead to situations which are, to say the least, paradoxical and undesirable.
35. In the present case, it is apparent from the order for reference that funds in Latvian bank accounts and immovable property owned by legal and natural persons who are alleged perpetrators of the money laundering offence were seized in the context of the criminal proceedings brought against them on that charge, prior to the initiation of the procedure for the confiscation of assets. Since the sums and immovable property seized have become unavailable as they are under the control of the public authorities, it must be considered that the seizures at issue in the main proceedings are ‘freezing’ measures within the meaning of Article 2(5) of Directive 2014/42. Moreover, to the extent that the property belonging to those persons was, at the time it was frozen, subject to possible subsequent confiscation under Latvian law, the situation of those persons falls within the scope of Article 7 of that directive. Accordingly, they are affected by a measure provided for under that directive, within the meaning of Article 8(1) thereof, which requires Member States to ensure that the persons affected have the right to an effective remedy and a fair trial in order to uphold their rights. (26)
36. An interpretation of Article 4(2) of Directive 2014/42 which excludes from its scope the confiscation procedure at issue in the main proceedings would lead to a situation where the judicial protection provided for by that directive is applied distributively, in that that protection would benefit the persons affected by a freezing measure who would subsequently be deprived of that protection when the abovementioned procedure was initiated. Such a situation is all the more incoherent given that freezing and confiscation measures are closely linked, as stated in recital 27 of Directive 2014/42, since they contribute to the same mechanism aimed at neutralising the proceeds of crime.
37. It is also interesting to note that, given the particularly broad formulation of Article 626 of the Law on Criminal Procedure regarding the scope of the procedure for the confiscation of assets, (27) the person concerned by the latter is not only someone accused of committing the criminal offence prosecuted in separate proceedings, but may also be someone falling within the category of third parties, within the meaning of Directive 2014/42, whose assets may be subject to confiscation under the conditions laid down in Article 6 of Directive 2014/42, (28) both of whom may be concerned by the same proceedings. Here again, a restrictive interpretation of Article 4(2) of Directive 2014/42 would lead to a striking dichotomy, in the same proceedings, between third parties who should benefit from effective judicial protection as persons affected by the confiscation measure provided for under that directive, within the meaning of Article 8(1) thereof, and the alleged offenders who would not benefit from that protection, even though those two categories of individuals are placed on the same footing by Directive 2014/42 as regards the infringement of their rights, as a result of the implementation of that measure.
38. I consider it relevant, in the second place, to place Article 4(2) of Directive 2014/42 in a broader legislative context which includes the United Nations Convention against Corruption, Article 54(1)(c) of which encourages the States Parties, in order to facilitate international cooperation in confiscation, to consider taking such measures as may be necessary to allow the confiscation of the proceeds of corruption without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or ‘in other appropriate cases’. (29) I note that Article 1(d) of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism states that ‘confiscation’ means a penalty or a measure, ordered by a court following proceedings ‘in relation to a criminal offence or criminal offences resulting in the final deprivation of property’. Article 23(5) of that convention also calls on the parties to assist in the enforcement of confiscation orders that are not based on a criminal conviction, provided, in particular, that they were ordered ‘in relation to a criminal offence’.
39. Reference should also be had to Regulation 2018/1805, Article 2(2) of which, which defines a ‘confiscation order’, (30) must be read in the light of recital 13 thereof, in accordance with which that regulation must apply to all types of freezing orders and confiscation orders in relation to a criminal offence, thus excluding those issued within the framework of proceedings in civil or administrative matters. Therefore, that regulation covers confiscation, whether or not based on a conviction, provided that the conviction orders are issued within the framework of proceedings in criminal matters. (31) Lastly, I would point out that Directive 2024/1260 was adopted on 24 April 2024, replacing Directive 2014/42, in which, in essence, the shortcomings that hamper the ability of the Member States to freeze and confiscate illicit assets inter alia are highlighted. It is interesting to note that that new legislation provides for two types of non-conviction based confiscation orders, one responding to a list of well-defined situations, (32) and the other occurring where confiscation is not possible under other provisions of that directive and where the national court is satisfied that the frozen property is derived from criminal offences committed within the framework of a criminal organisation, taking into account all the circumstances of the case, such as the fact that the value of the property is substantially disproportionate to the legal income of the owner of the property. (33)
(3) Teleological interpretation
40. Given the objectives and the wording of the provisions of Directive 2014/42 and the context in which it was adopted, it must be held that that directive, like Framework Decision 2005/212 the provisions of which, in accordance with recital 9 thereof, it aims to expand, is an act aimed at requiring Member States to establish common minimum rules for confiscation of crime-related instrumentalities and proceeds, in order to facilitate the mutual recognition of judicial confiscation decisions adopted in criminal proceedings. (34) As explained, Regulation 2018/2015 covers all confiscation orders, whether or not based on a conviction, provided that they are adopted within the framework of proceedings in criminal matters, (35) which is the case, in my opinion, in respect of the orders made at the end of the national proceedings at issue. Consequently, those orders fall within the scope of that regulation, even if it were to be held that Article 4(2) of Directive 2014/42 is not applicable in the present case. (36)
41. That said, the teleological interpretation of Article 4(2) of Directive 2014/42 must take into account another objective mentioned in recital 41 thereof, which clearly states that the purpose of that directive is ‘facilitating’ confiscation of property in criminal matters. That measure, together with the freezing measure, is rightly presented as one of the most effective means of combating organised crime, in that it removes the financial incentives which drive crime. (37) That more than legitimate concern for effectiveness calls, in my view, for a dynamic interpretation of Article 4(2) of Directive 2014/42 encompassing within its scope criminal confiscation proceedings of the type implemented in the cases in the main proceedings, bearing in mind that, according to the Court’s settled case-law, where a provision of EU law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness. (38)
42. As the Commission essentially points out in a working document, (39) in the field of organised crime, law enforcement services are often faced with complex financial flows aimed at hiding the illicit origin of assets as well as structures (shell companies, straw managers …) that distance the offender from the crime. Even if illicit funds are discovered, connecting them to a criminal act and an offender can pose considerable obstacles. The non-conviction based procedure for the confiscation of assets is the appropriate response to that phenomenon.
43. Such a procedure makes it possible to resolve the property issue quickly, which also corresponds to an objective of Directive 2014/42, Article 8(3) of which provides that the freezing order is to remain in force only as long as it is necessary to preserve the property with a view to possible subsequent confiscation. That need for speed stems from the infringement of the rights of the person concerned (40) and the objective difficulty for the Member States arising from the obligation to manage frozen assets in order to preserve their economic value. It is clear that preserving and securing assets such as villas, yachts, planes or works of art represent a significant cost and the monetisation of those assets by selling them (41) to third parties is not a legally simple and risk-free solution. A regime for the confiscation of assets which is independent of the determination of individual criminal liability appears to be fully capable of satisfying the abovementioned objective.
44. Moreover, as has been stated, Directive 2014/42 seeks to protect the rights of persons affected by the freezing and confiscation measures, which is of particular importance in the event of proceedings for the confiscation of assets without any assessment of that liability. It seems to me desirable, in order to standardise the conduct of those procedures, that they should be covered by Article 8 of Directive 2014/42 which establishes the right of persons affected by the freezing and confiscation measures to an effective remedy and a fair trial in order to uphold their rights. (42)
45. In that context, in order to ensure the overall coherence of the EU legal order in the fundamental area of combating organised crime and to ensure that it is consistent with the relevant international legal instruments, it seems relevant to conclude that Article 4(2) of Directive 2014/42 is applicable to criminal confiscation proceedings concerning illegal assets seized in the course of an investigation into a criminal offence and based on the impossibility of bringing to trial and, where appropriate, convicting, within a reasonable period, the alleged perpetrators of that offence, in separate proceedings conducted in parallel.
46. If, on the other hand, Article 4(2) of Directive 2014/42 were to be interpreted in such a way as to exclude confiscation provided for by the national legislation at issue from the minimum rules established by that directive, in accordance with Article 1(1) thereof, that legislation would fall within the scope of the power of the Member States, referred to in recital 22 of that directive, to provide more extensive powers in their national law. (43) That conclusion does not, however, put an end to the discussion as to whether the Court has jurisdiction to respond to the present requests for a preliminary ruling. The Advocate General’s task of assisting the Court means that other approaches must be considered in this regard.
2. The implementation of Directive 2014/42 by the national legislation at issue
47. The Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations where the facts in the main proceedings were outside the scope of that law, but where those provisions, without amending their purpose or scope, had been rendered applicable by national law due to a direct and unconditional reference made by national law to the content of those provisions. The Court has, moreover, consistently held that it is, in such situations, in the manifest interest of the legal order of the Union, in order to forestall future differences of interpretation, that provisions taken from EU law should be interpreted uniformly. (44)
48. In the present case, it is apparent from the documents submitted to the Court that a non-conviction based procedure for the confiscation of illegally obtained assets was introduced in Latvian legislation in 2005. In its written observations and at the hearing, the Latvian Government stated that Directive 2014/42 has been transposed by means of, inter alia, legislative provisions amending the Criminal Code and the Code of Criminal Procedure. The explanatory memorandum to the draft law amending the criminal law drawn up by the Ministry of Justice of the Republic of Latvia (45) contains a table summarising the various articles of that directive and all the national provisions implementing them, which applies to Article 8 of that directive, which has been fully transposed into the Code of Criminal Procedure. It is therefore common ground that the harmonised provision which is the subject of a number of questions referred for a preliminary ruling is applicable to the non-conviction based procedure for the confiscation of illegally obtained assets, which is considered, on that premiss, not to fall within the material scope of Directive 2014/42. (46) The fact that that unequivocal reference appears in a document relating to preparatory legislative work and not in the actual text of the national law is irrelevant (47) and it is clear from the order for reference that any interpretation by the Court of the provisions of that directive is binding on the resolution of the main proceedings by the national court, which makes it possible to establish the ‘unconditional’ nature of that reference. (48)
49. In those circumstances, the Court should, after finding that Article 4 of Directive 2014/42 is inapplicable, nevertheless declare that it has jurisdiction to answer the questions referred in Cases C‑767/22, C‑161/23 and C‑49/23 regarding access to the file, the system for proving the source of the assets and remedies, which are all issues relating to the interpretation of Article 8 of that directive, read in the light of Articles 47 and 48 of the Charter. Given that the subject matter of the national rules at issue is closely linked to that of the provisions of EU law to which they refer, there is a clear interest in treating very similar situations, one governed by national law, the other by EU law, in the same way.
3. The applicability of Directives 2012/13/EU and (EU) 2016/343
50. In its written observations, the Commission proposed that the second questions in Cases C‑767/22 and C‑161/23 be examined in the light of Directives 2012/13/EU (49) and (EU) 2016/343, (50) no provision of which is mentioned in the questions referred to the Court for a preliminary ruling. The fact remains that, according to the settled case-law of the Court, the questions referred for a preliminary ruling must be resolved in the light of all the provisions of the Treaty and of secondary legislation which may be relevant to the problem. (51) Under the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. Consequently, even if, formally, the referring court has referred only to Framework Decision 2005/212 and Directive 2014/42, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. (52) It is, in that regard, for the Court to extract from all the information provided by the national court, and in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute. (53)
51. While the question to be considered at this stage is whether Directives 2012/13 and 2016/343 apply exclusively to the procedures in the main proceedings, which are, by definition, excluded from the scope of Directive 2014/42, I would note that recital 40 and Article 8(7) of Directive 2014/42 state, respectively, that it must be implemented taking account of the provisions of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1), of Directive 2012/13 and Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1) and that, without prejudice to Directives 2012/13 and 2013/48, persons whose property is affected by a confiscation order must have the right of access to a lawyer throughout the confiscation proceedings relating to the determination of the proceeds and instrumentalities in order to uphold their rights and those persons are to be informed of that right. It must therefore be held that the EU legislature has clearly established a link between the conduct of proceedings for the confiscation of property in criminal matters, whether or not they are based on a conviction, and respect for the procedural rights of suspects and accused persons in criminal proceedings. As stated above, the procedure for the confiscation of assets at issue is undeniably criminal in nature.
52. The purpose of both Directive 2012/13 and Directive 2016/343 is to establish minimum rules on certain rights of suspects and accused persons in criminal proceedings. Directive 2012/13 concerns more specifically the right to information about rights and Directive 2016/343 relates, in respect of the same persons, to the presumption of innocence and the right to be present at the trial. It is clear from the order for reference that the decision to institute proceedings in respect of illegally obtained assets was, in accordance with Article 628 of the Law on Criminal Procedure, sent to the ‘suspect or accused person and to the person whose assets have been removed or seized, if those persons are the subject of the criminal proceedings concerned, or another person who has a right of ownership over the assets in question’. (54)
53. The respective scopes of Directives 2012/13 and 2016/343 are defined in almost identical terms in Article 2 of each of those directives. It follows, in essence, from those provisions that those directives apply from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings. The additional clarification in Article 2 of the most recent of those directives, namely Directive 2016/343, according to which it applies at ‘all stages of the criminal proceedings’, must be regarded as applicable to Directive 2012/13. In the present case, it should be recalled that all of the natural and legal persons referred to in Cases C‑767/22, C‑49/22 and C‑161/23 are the subject of criminal proceedings for the offence of money laundering and have had the funds placed in their Latvian bank accounts and, in some cases, their immovable property, seized by the prosecuting authorities, those acts establishing that those persons are suspected by a competent authority and informed, at least implicitly but necessarily, of that suspicion. (55)
54. While those persons therefore fall within the scope of Directives 2012/13 and 2016/343, should they ultimately be excluded from the scope of those directives on account of the fact that proceedings have been brought against them which are connected, if not intertwined, with the proceedings to determine criminal liability, the possible outcome of which is the confiscation of assets? An affirmative answer to that question could conflict with the Court’s case-law and its dynamic interpretation of the provisions relating to that scope, justified by the fact that those directives are based on the rights set out in, inter alia, Articles 47 and 48 of the Charter and seek to promote those rights with regard to suspects or accused persons in criminal proceedings. (56) The Court has held that the concept of ‘criminal proceedings’, within the meaning of those directives, is to be regarded as also covering proceedings for the committal to a psychiatric hospital of a person who, at the conclusion of earlier criminal proceedings, was found to be the perpetrator of acts constituting a criminal offence, even though neither Directive 2012/13 nor Directive 2016/343 contain express provisions to the effect that the criminal proceedings they govern also include a procedure that may result in a measure of committal to a psychiatric hospital. That absence of express provisions does not mean that such a procedure for the committal to a psychiatric hospital is excluded from the scope of those directives on the ground that it does not lead to the imposition of a ‘sentence’. (57)
55. The Court could apply that solution by analogy in the present case to ensure the consistency of the EU legal order. In that regard, it is important to recall that Regulation 2018/1805 applies to freezing orders or confiscation orders issued within the framework of ‘proceedings in criminal matters’, an autonomous concept of EU law which covers all types of freezing orders and confiscation orders issued following proceedings in relation to a criminal offence, which is the case in the proceedings at issue in the main proceedings. Recital 18 of that regulation adds that the procedural rights set out in Directives 2010/64, 2012/13, 2013/48, 2016/343, and in Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ 2016 L 132, p. 1) and in Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ 2016 L 297, p. 1) apply, within the scope of those directives, to criminal proceedings covered by that regulation as regards the Member States bound by those directives. It states as follows: ‘In any case, the safeguards under the Charter should apply to all proceedings covered by this Regulation. In particular, the essential safeguards for criminal proceedings set out in the Charter should apply to proceedings in criminal matters that are not criminal proceedings but which are covered by this Regulation’. As for Directive 2024/1260, recital 51 thereof states that that directive is to be implemented without prejudice to all the abovementioned directives relating to procedural rights. Recognition of the applicability of those rules, and in particular Directives 2012/13 and 2016/343, to the Latvian non-conviction based confiscation procedure implies that the Court has jurisdiction to interpret the provisions, which are at least relevant, in the light of the Charter.
B. Substance
1. Preliminary observations
56. The following arguments, relating to the substance of the questions referred to the Court for a preliminary ruling, are based on the premiss that the national legislation at issue in the main proceedings falls within the scope of Directive 2014/42, which dictates the applicability of the Charter. In the present case, the referring court seeks an interpretation of Article 8(1) and (6) thereof, read in the light of Articles 47 and 48 of the Charter, in the light of its doubts as to the compatibility of that legislation governing the procedure for the confiscation of illegally obtained assets, as regards, more specifically, the rules on access to the file, the system for proving the source of the assets and the bringing of an appeal against the confiscation order.
57. I consider it necessary, in the first place, to assess the legal nature of the measure confiscating the assets. As has been stated, under Article 70.10 of the Law on Criminal Procedure, the special confiscation of assets, which is the forced disposal for the benefit of the State, without compensation, of an illegally obtained asset or an object of a criminal offence, or property acquired in connection with a criminal offence, does not constitute a penalty. The content of the file submitted to the Court does not make it possible to rule out or uphold the classification, under Latvian law, as a security measure. In any event, the application of the relevant provisions of the Charter, in particular Article 48, is not limited to proceedings and penalties which are classified as ‘criminal’ by national law, but extends regardless of such a classification under national law to proceedings and penalties which must be considered to have a criminal character on account of the intrinsic nature of the offence and the degree of severity of the penalty that the person concerned is liable to incur. As regards the criterion relating to the intrinsic nature of the offence, it must be ascertained whether the measure at issue has a punitive purpose and the mere fact that it also pursues a deterrent purpose does not mean that it cannot be characterised as a criminal penalty. (58)
58. While it is ultimately for the referring court to assess whether the confiscation measures at issue in the main proceedings may be classified as ‘criminal penalties’, it could be observed that those measures are taken against the assets and not the person, and are aimed at removing ‘dirty money’ or illegally acquired immovable and movable property, the objective being to prevent criminal activities by depriving them of funds and to ensure the soundness and integrity of the economic and financial system. Those factors do not, however, make it possible to clearly rule out the abovementioned classification.
59. I would point out that the confiscation measures were ordered following proceedings brought, under Article 627(1) of the Law on Criminal Procedure, before a criminal court for the ‘illegal acquisition of assets’ against legal and natural persons who were, at the same time, the subject of separate proceedings seeking to establish their criminal liability for the offence of money laundering. The procedures associated with the adoption of the measure in question are undeniably relevant for the purposes of its classification. (59) Moreover, the very wording of the abovementioned provision refers unequivocally to individual conduct that it appears necessary to punish, which reflects the punitive nature of the confiscation order in respect of persons in possession of assets in addition to the preventive aim. However, the confiscation of illegally obtained assets, which results in their transfer to State, does not appear to cover the specific pursuit of an objective of compensatory function, which is characteristic of a measure that is civil in nature. In any event, the aims of prevention and reparation are consistent with a punitive purpose and may be seen as constituent elements of the very notion of punishment. Lastly, it must be noted that the Latvian legislation provides, under certain conditions, for a presumption that the source of the assets is illegal and gives the criminal courts broad powers of confiscation based on a degree of certainty that merely reflects a weighing up of probabilities. (60) The severity of the confiscation penalty is capable of supporting the view that that order is criminal in nature, since it involves the total and final deprivation of those assets for the benefit of the State, without compensation. (61) The confiscation order must, in those circumstances, be regarded as a criminal sanction.
60. In the second place, it is important to point out that, in accordance with recital 33 of Directive 2014/42, that directive substantially affects the rights of persons, not only of suspected or accused persons, but also of third parties who are not being prosecuted and it is therefore necessary to provide for specific safeguards and judicial remedies in order to guarantee the preservation of their fundamental rights in the implementation of that directive. Recital 38 of that directive states that it respects the fundamental rights and observes the principles recognised by the Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as interpreted in the case-law of the ECtHR, and therefore the directive must be implemented in accordance with those rights and principles.
61. As regards the fundamental rights relevant to the present cases, account must be taken of Article 17(1) of the Charter, which provides, inter alia, that everyone has the right to own, use and dispose of his or her lawfully acquired possessions. Moreover, it follows from Article 8(1) of Directive 2014/42 that the EU legislature conferred on the persons, like the parties in the main proceedings, affected by the measures provided for in particular in Article 2(4) of that directive, a protective procedural status, the first provision laying down a general obligation on each Member State to take the necessary measures to ensure that those persons have the right to an effective remedy and a fair trial in order to uphold their rights. In addition to Article 47 of the Charter therefore, Article 48(1) and (2) thereof, which enshrines the presumption of innocence and the principle of respect for the rights of the defence, also appears relevant for the purpose of providing a useful answer to the referring court.
62. In addition to the general obligation referred to above, it should be noted that Article 8 of Directive 2014/42 contains specific provisions intended to ensure that the adoption of a confiscation order is accompanied by safeguards specific to the adoption of judicial decisions, in particular those relating to respect for the fundamental rights of the person concerned and, in particular, the right to effective judicial protection. Thus, under Article 8(6) and (7) of that directive, reasons must be given for any confiscation order and the order must be communicated to the person affected, who is informed of his or her right of access to a lawyer throughout the confiscation proceedings relating to the determination of the proceeds and instrumentalities and has the right to bring a legal action against that decision. The fact remains that that directive does not lay down any rules determining the system for proving the source of assets which are the subject of non-conviction based confiscation proceedings, or access to the file in those proceedings by persons connected to those assets, thus leaving the Member States a margin of discretion to determine the specific procedures which will be applicable in that regard.
63. Although Article 8 of Directive 2014/42 gives Member States discretion in adopting the necessary measures for the purposes of that provision, the fact remains that, in accordance with Article 51(1) of the Charter and as is evident from recital 38 of that directive, the level of protection offered by Member States should never be below the standards set out in the Charter and the ECHR. (62) The procedure for the confiscation of illegally obtained assets without a conviction must be organised in such a way that the persons connected to those assets have been able to assert their fundamental rights during that procedure, which is all the more important in a system where, as in the present case, the decision adopted by the competent court at the end of the procedure, to confiscate assets where appropriate, settles definitively the property issue.
64. In that regard, it should be recalled that, as is clear from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), the first and second paragraphs of Article 47 of the Charter, which enshrine the right to an effective remedy and to a fair trial, correspond to the right to a fair trial as derived, inter alia, from Article 6(1) ECHR, while Article 48(1) of the Charter, relating to the presumption of innocence, corresponds to Article 6(2) and (3) ECHR. It follows, in accordance with Article 52(3) of the Charter, that it is necessary to take account of Article 6 ECHR for the purposes of interpreting Articles 47 and 48 of the Charter, as a minimum threshold of protection. (63) Moreover, any limitation on the exercise of those rights, and of the right to property, (64) by a measure ordered in accordance with Directive 2014/42, must meet the requirements laid down in Article 52(1) of the Charter, which presupposes, in particular, that the limitation in question genuinely corresponds to objectives of public interest pursued by the European Union and does not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed. (65)
2. Access to materials in the case file
65. In the context of Case C‑767/22 and by its second question, the referring court expresses doubts as to the compatibility of national legislation under which the right of a person connected to the assets which are the subject of the confiscation proceedings to access the materials in the case file may be limited if such disclosure would constitute a threat to the fundamental rights of other persons, the public interest or the possibility of achieving the aim of the criminal proceedings.
66. It should be borne in mind that the national procedure for the confiscation of assets at issue cannot be initiated in the absence of a criminal prosecution seeking to establish the guilt of the alleged offender. Proceedings relating to individual criminal liability must therefore always be initiated, and these proceedings will usually continue, as is the case in the proceedings which led to the matter being brought before the referring court, after the proceedings relating to the assets have been closed, including where those assets have been confiscated.
67. Under Article 627(4) of the Law on Criminal Procedure, materials in the case file for proceedings relating to illegally obtained assets are covered by the confidentiality of investigations and may be consulted by the person directing the proceedings, the prosecutor and the court seised of the case, while persons connected to the assets concerned may access those materials only with the authorisation of the person responsible and to the extent determined by him or her. Article 627(5) thereof provides that the decision by the person directing the proceedings refusing a request for access to the materials in the case file may be the subject of judicial review, the competent court being able to request the materials in the criminal case file and examine those materials in order to decide whether access to the materials in the case file jeopardises the fundamental rights of other persons or the public interest or impedes the attainment of the objective of the criminal proceedings.
68. In that regard, it should be recalled that, in cases concerning administrative court proceedings, the Court has held that the principle of equality of arms, which is an integral part of the principle of effective judicial protection of the rights that individuals derive from EU law, enshrined in Article 47 of the Charter, in that it is a corollary, like, in particular, the principle audi alteram partem, of the very concept of a fair trial, implies an obligation to offer each party a reasonable opportunity to present its case in conditions that do not place it in a clearly less advantageous position by comparison with its opponent. The aim of that principle is to ensure a procedural balance between the parties to judicial proceedings, guaranteeing the equality of rights and obligations of those parties as regards, inter alia, the rules that govern the taking of evidence and the adversarial hearing before the court and also those parties’ rights to bring an action. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law that will determine the outcome of the proceedings. (66) The Court has held that, whether there is an infringement of the rights of the defence, including the right of access to the file, must be examined in relation to the specific circumstances of each case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question. (67)
69. The principle of equality of arms has also been considered by the Court when interpreting the provisions of Directive 2012/13 that must be taken into account when implementing Directive 2014/42, in accordance with recital 40 thereof. It stated that it is precisely the objective of Articles 6 and 7 of that directive to allow for an effective exercise of the rights of the defence and to ensure the fairness of the proceedings. That objective dictates that the person accused must receive detailed information on the charges and have the opportunity to acquaint him or herself with the case materials in due time, at a point in time that enables him or her to prepare his or her defence effectively. By means of that disclosure and that access, an accused person, or his or her lawyer, is informed in detail of what he or she is alleged to have done and the legal classification of the acts committed, and of the evidence in support of those acts. The opportunity to become acquainted with that information and that evidence no later than the commencement of the hearing of argument is essential if that person, or his or her lawyer, is to be able to participate properly in that argument with due regard for the adversarial principle and equality of arms, so that he or she is able to state his or her position effectively. (68)
70. It is important, however, to emphasise that Article 7(4) of Directive 2012/13 provides for a derogation from the access granted to suspects or accused persons, or their lawyers, to material evidence, whether for or against them, subject to compliance with the fairness of the proceedings and the rights of the defence, as defined in paragraphs 2 and 3 of that provision. Thus, and provided that that does not prejudice the right to a fair trial, access to certain materials may be refused if such access may lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where that access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings are instituted. In addition, Member States must ensure that, in accordance with procedures in national law, a decision to refuse access to certain materials in accordance with this paragraph is taken by a judicial authority or is at least subject to judicial review.
71. I note, in that regard, that Article 8(2) of Directive 2014/42 reflects the same concern for the protection of the public interest linked to the proper conduct of an ongoing investigation. The freezing order must be communicated to the affected person as soon as possible after its execution, stating the reasons for it, however those reasons may be brief and the communication postponed where it is necessary to avoid jeopardising a criminal investigation. (69)
72. In the present case, and with regard to the confiscation order, it must be observed, in the first place, that a copy of the decision to institute proceedings for the illegal acquisition of assets is notified immediately to the persons connected to those assets, and that decision must state information on facts capable of establishing the link between the assets and the criminal offence or the illicit source of the assets, and on the materials which have been removed from the file in a criminal case under investigation relating to illegally obtained assets. (70) Those persons thus have a clear right to information on the content of the case file, enabling them to ascertain the factual and specific basis of the proceedings concerning the assets in their possession.
73. That information must, second, be linked to the prerogatives granted to those persons, namely the right to participate in the proceedings concerning the illegally obtained assets, (71) to express before the court, orally or in writing, their position with regard to the decision taken and to submit requests to the court. (72) Interested parties therefore have the means to question the content of the information provided, its completeness and its reliability, and to ask the court to take cognisance of materials in the file relating to illegally obtained assets covered by the secrecy of the investigation.
74. Third, the assessment of the prosecuting authorities with regard to access to the file is subject to judicial review under Article 627(5) of the Law on Criminal Procedure in the version applicable to the main proceedings, according to the orders for reference. The Latvian Government has stated that, when implementing Article 627(4) and (5) of the Law on Criminal Procedure, the person directing the proceedings and the competent court are required to balance the interests of the parties against those of the criminal proceedings and of public security when deciding on a person’s right to consult the file.
75. In those circumstances, it is possible, in my view, to consider that Article 8 of Directive 2014/42, read together with Article 7(4) of Directive 2012/13, must be interpreted as not precluding national legislation which does not impose on the authorities initiating proceedings for the illegal acquisition of assets a general obligation to provide full access to the case file to persons affected by the proposed confiscation measure but which makes that access subject to a request from those persons and the assessment of those authorities. Such persons must have the opportunity to be sent, at their request, the information and documents contained in the case file of the confiscation proceedings and taken into consideration by the public authorities with a view to the possible adoption by the competent court of the confiscation order, unless objectives relating in particular to the protection of the life or fundamental rights of a third party or to the preservation of the proper conduct of an ongoing criminal investigation justify restricting access to that information and those documents.
76. In the context of judicial review of a total or partial refusal of access, it is for the court to achieve a fair balance between, on the one hand, respect for the rights of the defence and a fair trial and, on the other, the need to protect the fundamental rights of the persons mentioned in the evidence and to guarantee the effectiveness of ongoing criminal investigations and the punishment of offences. That weighing up cannot, however, lead, in the light of the importance of the rights enshrined in Articles 47 and 48 of the Charter, to depriving the judicial protection of the person concerned of all effectiveness and to rendering meaningless the right to a remedy provided for in Article 8(6) of Directive 2014/42 in the event of the adoption of a confiscation order, in particular by not informing that person, or, as the case may be, his or her adviser, at the very least of the essence of the file, including information from the ongoing criminal case, indicating a link between the assets held by that person and the criminal offence in question. (73)
77. That approach seems to me to correspond to the minimum threshold of protection adopted in the case-law of the ECtHR. That court considers that all criminal proceedings, including the elements of such proceedings that relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. However, the entitlement to disclosure of relevant evidence is not, according to the ECtHR, an absolute right and, in some criminal cases, it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest and the accused may be expected to give specific reasons for his request for access. Nevertheless, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1) ECHR. (74) As regards safeguarding an important public interest, the ECtHR recognises the need to conduct criminal investigations efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with the evidence and undermining the course of justice. (75)
3. Evidentiary rules regarding the source of assets
78. In Case C‑161/23 and by its second question, the referring court expresses doubts as to the compatibility of national legislation (76) providing for a presumption as to the criminal source of the assets and placing the burden of proving that the source of those assets is legal on the person connected to those assets with Article 8(1) of Directive 2014/42, read in the light of Articles 47 and 48 of the Charter, the latter provision enshrining the principle of the presumption of innocence.
79. It is apparent from the file submitted to the Court that the legislation at issue in the main proceedings does in fact provide for a presumption that the source of the assets concerned is illegal where the person in possession of them is unable to demonstrate the lawfulness of that source in the light of the evidence adduced by the prosecuting authority showing that those assets are, in all probability, of criminal origin, which corresponds to a lower standard of proof than that required in order to establish an individual’s guilt, that is to say ‘beyond reasonable doubt’.
80. As regards the question of the proof of the criminal source of assets, in the light of the principle of the presumption of innocence, Directive 2016/343 should be taken into account in the same way as Directive 2012/13 when implementing Directive 2014/42. (77) Article 6(1) of Directive 2016/343 provides that Member States must ensure that the burden of proof for establishing the guilt of suspects and accused persons is on the prosecution in accordance with the principle of the presumption of innocence set out in Article 3 of that directive, which requires those States to ensure ‘that suspects and accused persons are presumed innocent until proved guilty according to law’. The Court has held that the reference to establishing ‘guilt’ in Article 6 of that directive, must be construed as meaning that the aim of that provision is to govern the allocation of the burden of proof only in the adoption of judicial decisions on guilt. (78) It is common ground that the purpose of a procedure such as that at issue in the main proceedings is not to determine the guilt of the person concerned, but to decide whether or not to confiscate assets in the light of whether or not the origin of those assets is unlawful, and therefore Article 6(1) of Directive 2016/343 does not appear to apply to the national legislation at issue. (79)
81. That said, the Court considers that the principle of the presumption of innocence enshrined in Article 48 of the Charter applies where determinations are made as to objective elements constituting an offence that may lead to the imposition of administrative sanctions of a criminal nature. The same applies to the right to silence, a guarantee deriving from the second paragraph of Article 47 and Article 48 of the Charter. (80) Subject to final determination, by the referring court, of whether the confiscation order without conviction is criminal in nature, an application of that case-law by analogy should lead to the conclusion that the presumption of innocence and the right to remain silent are applicable in the cases which led to proceedings being brought before that court.
82. Incorporating the case-law of the ECtHR relating to Article 6(2) ECHR, which corresponds to Article 48 of the Charter, the Court considers that a person’s right in a criminal case to be presumed innocent and to require the prosecution to bear the onus of proving the allegations against him or her is not absolute, since presumptions of fact or of law operate in every criminal law system. While it is true that Article 48 of the Charter does not preclude a Member State from penalising a simple or objective fact as such and establishing presumptions of fact or of law, it obliges Member States not to exceed a certain threshold in criminal matters. More specifically, the presumption of innocence, which is enshrined in that provision, requires the Member States to confine presumptions provided for in the criminal law within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence, otherwise that principle would be disproportionately impaired. Those limits will be overstepped where a presumption has the effect of making it impossible for an individual to exonerate himself or herself from the accusations against him or her, thus depriving that person of the benefit of that principle. (81)
83. Relying on the same case-law, the Court stated that the right to silence is a generally recognised international standard which lies at the heart of the notion of a fair trial. By providing the accused with protection against improper coercion by the authorities, that right contributes to avoiding miscarriages of justice and to securing the outcome of such a trial. Since protection of the right to silence is intended to ensure that, in criminal proceedings, the prosecution establishes its case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused, this right is infringed, inter alia, where a suspect is obliged to testify under threat of sanctions and either testifies in consequence or is sanctioned for refusing to testify. The right to silence cannot reasonably be confined to statements of admission of wrongdoing or to remarks that directly incriminate the person questioned, but rather also covers information on questions of fact that may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person. That said, the right to silence cannot justify every failure to cooperate with the competent authorities and therefore does not constitute an unfettered prerogative. (82)
84. It is in the light of the foregoing considerations that the conformity of the national legislation must be assessed, bearing in mind that the Court may provide guidance as to the factors to be taken into consideration when assessing the proportionality of the breach of the principle of the presumption of innocence and of the right to remain silent, which is a matter for the referring court to determine. In that regard, it is important to point out, in the first place, that the competent national court must be satisfied that the source of the assets is illegal and that it is for the prosecuting authority to provide the court, initially, with evidence in that respect. (83) Those elements are deemed to be established if there are reasons to consider that those assets are, in all probability, of criminal origin. (84)
85. In the second place, it is common ground that the person in possession of the assets has the opportunity to rebut the abovementioned presumption. Under the Latvian rules, if that person claims that the assets cannot be regarded as having been obtained illegally, it is for that person to demonstrate that they come from a legal source by providing a credible explanation in that regard. (85) That rebuttal is offered to that person even before the confiscation proceedings are initiated on the basis of Article 626 of the Law on Criminal Procedure. Where the property is seized during the preliminary investigation because the prosecuting authority is satisfied that it is of criminal origin, that authority is obliged, in accordance with Article 356(5) of the Law on Criminal Procedure, to notify the person affected of ‘the possibility’ of submitting information on the lawfulness of that origin within 45 days of notification and to inform that person of the consequences of failing to submit such information. Moreover, as has been stated, the person affected has the right to participate in the confiscation proceedings, which include a hearing that must be held within 10 days of receipt of the decision to institute those proceedings and during which the persons involved in the proceedings have the same right to make objections or requests, to adduce evidence and to submit written observations to the court. (86)
86. In my view, the Latvian legislation does not create a situation of probatio diabolica such as to cause a manifestly disproportionate breach of the principle of the presumption of innocence and of the rights of the defence. It is perfectly logical and reasonable to ask the person in possession of the assets concerned to provide evidence of a positive fact and that the prosecuting authority’s findings are incorrect. In the words of recital 34 of Directive 2024/1260, when determining whether or not property should be confiscated, national courts must take into account inter alia the absence of a plausible licit source of the property, ‘as the provenance of lawfully acquired property can normally be accounted for’. Is the abovementioned person not best placed to provide explanations enabling, for example, the legal and financial arrangements surrounding the property to be understood and its economic rationale to be justified?
87. In the third place, it should be noted that the court called upon to issue a confiscation order must satisfy itself that the assets in question have been obtained illegally and, to that end, must examine all the relevant facts in accordance with Article 630(1) of the Law on Criminal Procedure. Paragraph 2 of that provision provides that ‘if the court finds that the link between the assets and the criminal offence has not been established or that those assets are not of illegal origin, it shall take a decision terminating the proceedings’. That wording expressly refers to the establishment of the illegal origin of the assets and confirms the information provided by the Latvian Government (87) on the irreducible burden of proof borne by the prosecuting authority, even though that burden may be considered to be lightened. The evidentiary rules at issue do not therefore appear, as such, to be capable of resulting in a genuine reversal of the burden of proof, since those rules thus leave to the prosecuting authority the burden of establishing the various items of evidence, the combination of which will, where appropriate, enable the court seised to satisfy itself that the source of the assets is illegal. (88) That finding reveals that silence on the part of the person connected to the assets in response to the notification from the prosecuting authority as to the possibility of submitting information on the lawfulness of the origin of those assets cannot, in itself, lead to a confiscation order. (89) It may, however, be regarded as proof as to the credibility of other evidence adduced by the prosecuting authority. (90)
88. The competent national court’s assessment of the origin of the assets is question is carried out on the basis of a weighing up of probabilities, which corresponds to the degree of certainty provided for in Article 5 of Directive 2014/42, read in the light of recital 21 thereof, with regard to the extended confiscation of property belonging to a person convicted of an offence. That measure may be ordered by a court where it is satisfied that those assets are derived from criminal conduct on the basis of the circumstances of the case, which does not mean that it must be established that those assets are derived from criminal conduct but that the court considers on the balance of probabilities or reasonably presumes that it is substantially more probable that the assets in question have been obtained from criminal conduct than from other activities.
89. In the fourth place, the referring court points out that the assessment of whether assets may have a criminal source is closely linked to whether those assets have been the subject of money laundering and could lead to a finding that the constituent elements of such an offence are present, requiring the person connected to those assets to rebut a presumption of guilt of the offence of money laundering. In addition to the fact that the orders for reference do not contain the definition of the offence of money laundering in Latvian law, I would point out that it is not the task of the Court, in the context of the system of judicial cooperation established by Article 267 TFEU, to interpret national legislation or regulations. (91) The fact remains that, generally speaking, money laundering refers to a process intended to reintroduce into the legal economy the proceeds of criminal activity and thus to make funds, immovable or movable property generated by such activities look like they come from a legal source. In so far as money laundering as an offence cannot exist if the assets concerned are not of illegal origin, it is easy to understand the link made by the referring court with the confiscation procedure such as that at issue in the main proceedings.
90. In that context, it may be made clear, in order to provide a useful answer to the referring court, that, under the first sentence of Article 4(1) of Directive 2016/343, it is for the Member States to take the necessary measures to ensure that, inter alia, judicial decisions, other than those on guilt, do not refer to a suspect or an accused person as being guilty. It follows from recital 16 of Directive 2016/343 that that provision seeks to guarantee that the presumption of innocence is observed. Therefore, such judicial decisions should not, according to that recital, reflect the opinion that that person is guilty. (92) The judicial decisions referred to may, in my view, include those ordering, at the end of the procedure at issue in the main proceedings, the confiscation of assets in the possession of a person who is, at the same time, the subject of proceedings to establish that he or she is responsible for committing an offence.
91. For the purposes of interpreting Article 4(1) of Directive 2016/343, the Court expressly referred to the case-law of the ECtHR, which has held that the principle of the presumption of innocence will be breached if a judicial decision or a statement by a public official concerning a person charged with a criminal offence contains a clear declaration, in the absence of a final conviction, that the person concerned has committed the crime in question. In that context, that court underlined the importance of the choice of words by the judicial authorities and of the particular circumstances in which they were made and of the nature and context of the proceedings at issue. Consequently, it must be considered that, although the competent national court must state the reasons in the confiscation order for its belief that, in all probability, the assets in question have a criminal origin, that reasoning must be worded in such a way as to avoid a potential pre-judgment about the guilt of the persons in possession of those assets, capable of jeopardising the fair examination of the charges brought against them in the separate proceedings concerning the prior offence which generated the assets or the offence of money laundering. (93)
92. Having regard to the foregoing considerations and to the fundamental nature of what is at stake in the fight against organised crime, (94) it must be considered that the evidentiary rules regarding the source of the assets, which are the subject of the confiscation proceedings, are not such as to cause a manifestly disproportionate breach of the principle of the presumption of innocence and of the right to silence, and the rights of the defence, which are guaranteed to the person in possession of those assets under Article 8(1) of Directive 2014/42, read together with Article 4(1) of Directive 2016/343 and in the light of Articles 47 and 48 of the Charter.
4. Effective remedy
93. By its second and third questions in Case C‑49/23, which it is appropriate to examine together, the referring court asks, in essence, whether Article 8(6) of Directive 2014/42, read in the light of Articles 17 and 47 of the Charter, must be interpreted as precluding national legislation which does not provide for a right of appeal against an order for the confiscation of assets made by a court of second instance, after the court has decided, at first instance, to discontinue the proceedings relating to illegally obtained assets by finding that there is insufficient evidence of a link between those assets and the criminal offence or that they have an illicit source. (95)
94. Under Articles 630 and 631 of the Law on Criminal Procedure, the court hearing the proceedings for the illegal acquisition of assets may, depending on its assessment of the evidence before it, order the confiscation of assets considered to be illegally obtained and, otherwise, terminate the proceedings without adopting restrictive measures. That decision of the court may be appealed by the person connected with the assets or the prosecuting authority before a regional court, which will give a new ruling on the proceedings in view of the devolutive effect of the appeal and, if it sets aside the decision referred, take a new decision with the same powers as the court of first instance. The latter decision is not open to challenge.
95. The second sentence of Article 8(6) of Directive 2014/42 provides, for its part, that the Member States must provide for the effective possibility for a person in respect of whom confiscation is ordered to challenge the order before a court. Focusing on and adopting a strict literal interpretation of that provision, the parties to the main proceedings consider, in essence, that it requires the Member States to establish a procedure that necessarily includes a judicial body for the review of the lawfulness of a confiscation order, irrespective of the stage at which it was adopted.
96. In my view, that interpretation cannot be accepted. The scope of that provision must be determined by placing it in its context, namely that it forms part of the general obligation, set out in Article 8(1) of Directive 2014/42, of the Member States to ensure that the persons affected by the measures provided for under that directive have the right to an effective remedy and to a fair trial. It is in no way apparent from the recitals or other provisions of that directive that it seeks to oblige the Member States to introduce a second level of jurisdiction, that is to say the possibility of appealing the decision on the appeal brought against the decision adopted by the court of first instance. In that regard, I note that, as regards a freezing order, Article 8(4) of Directive 2014/42 provides only for the possibility of challenging that order before a court, in accordance with the procedures provided for in national law, without requiring there to be two levels of jurisdiction. Such a requirement would, moreover, be contrary to the directive’s objectives of efficiency and speed.
97. That conclusion seems to me to be supported by the case-law of the Court in respect of other provisions of secondary law requiring an effective remedy, such as, inter alia, Article 46(1) of Directive 2013/32/EU, (96) Article 13(1) of Directive 2008/115/EC (97) and Article 29(1) and (2) of Regulation (EU) No 604/2013. (98) Those provisions are worded in similar terms to the second sentence of Article 8(6) of Directive 2014/42 in that they require the establishment of an effective remedy against acts adversely affecting the interests and for the benefit of specifically named persons. Interpreting those provisions in the light of Article 47 of the Charter, the Court has held that the protection conferred by them is confined to the existence of a single judicial remedy and does not require the establishment of several levels of jurisdiction. It thus appears that the only requirement is that there must be a remedy before a judicial body, in this case guaranteed by the second sentence of Article 8(6) of Directive 2014/42, since the principle of effective judicial protection gives an individual a right of access to a court and not to several levels of jurisdiction. (99) Consequently, the fact that the decision of the appeal court by means of which the assets were found to have been illegally acquired and confiscated, following a fresh substantive examination of the evidence as to the source of those assets, is not open to challenge, in accordance with Article 631 of the Law on Criminal Procedure, does not affect the right of the persons in possession of those assets to a fair trial. As the Latvian Government points out, the national legislation has been designed in such a way that the question whether assets have been obtained illegally and are liable to confiscation may be examined by two courts, each of which examines independently the source of those assets.
98. That interpretation does not appear to me to conflict with the case-law of the ECtHR. It follows from that case-law that neither Article 6(1) nor Article 13 ECHR guarantee the right to appeal or to a second level of jurisdiction, the latter being recognised under Article 2 of Protocol No 7 only in respect of persons convicted of a criminal offence, nor do they require that there should be several levels of jurisdiction. (100) Moreover, the ECtHR has held that, as a general rule, Article 13 ECHR is not applicable where the alleged violation of the ECHR took place in the context of judicial proceedings, except where the complaints based on that article concern a failure to comply with the ‘reasonable time’ requirement. (101)
99. In view of the criminal nature of the procedure for the confiscation of illegally obtained assets and the penalty constituted by that confiscation, it is necessary to recall the wording of Article 2 of Protocol No 7 to the ECHR, it being stipulated that that protocol has been ratified by all the Member States, with reservations and declarations in respect of some of them. Paragraph 1 of that article provides that ‘everyone convicted of a criminal offence by a tribunal must have the right to have his conviction or sentence reviewed by a higher tribunal’. Assuming that that provision is applicable in the case of the abovementioned proceedings, and this seems to me to be the case given that the confiscation order is a criminal penalty, it must be pointed out that, under Article 2(2) of that protocol, that right may be subject to exceptions. These include the situation in which the person concerned was convicted and sentenced following an appeal against his or her acquittal, a situation which is exactly the same as that referred to by the national court in its second and third questions in Case C‑49/23.
100. I therefore consider that Article 8(6) of Directive 2014/42, read in the light of Articles 17 and 47 of the Charter, must be interpreted as not precluding national legislation which does not provide for a right of appeal against an order for the confiscation of assets classified as illegally obtained made by a court of second instance hearing an appeal against a decision of a court of first instance rejecting the application by the prosecuting authority for a declaration that the source of those assets was illegal.
101. Having regard to all the foregoing considerations, there is no need to answer the third question referred for a preliminary ruling in Cases C‑767/22 and C‑161/23 and the fourth question referred for a preliminary ruling in Case C‑49/23 concerning the interpretation of the principle of primacy.
V. Conclusion
102. In the light of the foregoing considerations, I propose that the Court should answer the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia) as follows:
Article 8(1) and (6) of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, read together with Article 7(4) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings and Article 4(1) of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, and in the light of Articles 17, 47 and 48 of the Charter of Fundamental Rights of the European Union,
must be interpreted as not precluding national legislation which establishes a procedure for the confiscation of illegally obtained assets or assets linked to a criminal offence without a prior conviction, initiated in the course of proceedings seeking to establish the guilt of the person accused of committing a criminal offence whose assets have been frozen and conducted in parallel with those proceedings, and providing for:
– the possibility of refusing the person in possession of the assets access to the file, on the ground of the protection of the life or fundamental rights of a third party or the preservation of the proper conduct of an ongoing criminal investigation, provided that such refusal is subject to judicial review in the context of which the court ensures that the non-disclosure by the competent national authority of precise and complete evidence is limited to what is strictly necessary in order to ensure respect for the rights of the defence and the fairness of the proceedings;
– the adoption of an order for the confiscation of assets based on a legal presumption of unlawful origin on the basis of a body of evidence adduced by the prosecuting authority rendering such origin likely, provided that, first, the persons in possession of those assets have had the effective opportunity to demonstrate their plausible lawful origin and, second, that order does not present those persons as being guilty of an offence which is the subject of separate criminal proceedings conducted in parallel with the proceedings for the confiscation of those assets;
– a judicial remedy against the order for the confiscation of assets, without such an order, when made by the court of second instance, after the court has decided at first instance to reject the application for confiscation, being open to judicial challenge.