Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 12 June 2025 (1)
Case C‑8/24
D. d.o.o.,
Županijsko državno odvjetništvo u Zagrebu
Criminal proceedings
(Request for a preliminary ruling from the Visoki kazneni sud (High Criminal Court, Croatia))
( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Regulation (EU) 2018/1805 – Article 1(1) and (4) – Article 2(2) and (3)(d) – Confiscation without a final conviction – Confiscation order issued in the context of criminal proceedings concluded with a judgment of acquittal, in relation to a criminal offence other than the offence of which the defendants were acquitted and in relation to which the defendants were not involved, but rather persons against whom no indictment was issued – Article 19(1)(h) – Grounds for non-recognition and non-execution of confiscation orders – Exceptional situations where there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of the confiscation order would, in the particular circumstances of the case, entail a manifest breach of a fundamental right as set out in the Charter of Fundamental Rights of the European Union – The rights of the defence and the right to an effective remedy )
I. Introduction
1. In the context of the interpretation of Article 1(3) of Framework Decision 2002/584/JHA, (2) according to which that framework decision ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the [TEU]’, the Court has developed in its case-law a ‘two-step examination’ in order to assess, during a procedure for the execution of a European arrest warrant, whether there is real risk of a breach of the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’). (3)
2. The present request for a preliminary ruling, which concerns the interpretation of several provisions of Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders, (4) and of Article 47 of the Charter, raises the question whether that case-law should be extended to that regulation.
3. The request has been made in criminal proceedings brought against the undertaking D. d.o.o., whose registered office is in Croatia, by the Županijsko državno odvjetništvo u Zagrebu (County Public Prosecutor’s Office, Zagreb, Croatia) (‘the Zagreb Public Prosecutor’s Office’) concerning the recognition and execution of a confiscation order issued by the Slovenian authorities to the Croatian authorities in respect of the shares in the undertaking L.Z. d.d. held by the undertaking D.
4. The present case asks, in essence, to what extent the executing authority of one Member State may refuse to recognise and execute a confiscation order issued in another Member State in the context of criminal proceedings which resulted in the acquittal of the defendants, on the ground that that order either falls outside the scope of Regulation 2018/1805 or infringes the fundamental rights of the person concerned by that order.
5. This case raises, more specifically, the question of the scope of the grounds for non-recognition and non-execution of confiscation orders, set out in Article 19(1)(h) of Regulation 2018/1805, where, in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of a confiscation order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence.
6. Within that context, in the present case, it is necessary inter alia, to determine the extent to which the two-step examination developed by the Court in the context of the interpretation of Article 1(3) of Framework Decision 2002/584, subsequently extended to Framework Decision 2008/909/JHA, (5) is relevant for the purposes of implementing a specific provision such as that laid down in Article 19(1)(h) of Regulation 2018/1805. More specifically, it will be necessary to decide whether the refusal to recognise and execute a confiscation order under that provision requires proof that there is a real risk of breach of a fundamental right guaranteed by the Charter on account of systemic or generalised deficiencies in the issuing Member State as regards respect for fundamental rights.
7. The Court must therefore clarify whether the framework for analysing exceptions to the mutual recognition and trust which form the basis of the area of freedom, security and justice is identical for all instruments of mutual recognition in criminal matters, or whether that framework may vary according to the specific features of each of those instruments.
II. The facts in the main proceedings and the questions referred for a preliminary ruling
8. On the basis of an indictment drawn up by the specializirano državno tožilstvo Republike Slovenije (Specialised Public Prosecutor’s Office of the Republic of Slovenia) on 29 May 2017, the Okrožno sodišče v Mariboru (District Court, Maribor, Slovenia) brought criminal proceedings against four persons (‘the four defendants’) suspected of having committed the criminal offence of abuse of position or of power. They were accused of having, between 11 and 25 July 2007, obtained an unlawful economic advantage for the undertaking I.J.S. d.d. when they purchased shares in L.Z.
9. That court established that all the statutory criteria of the criminal offence of acting to the detriment of creditors and money laundering had been fulfilled in respect of persons other than the four defendants, on account of I.J.S.’ sale, in June 2013, of, inter alia, shares in L.Z., for which no actual payment was made, to the undertaking V.K. d.o.o., followed by the conclusion, in July 2013, of an agreement whereby V.K. d.o.o. sold those shares to D. through one of its directors in order to conceal the origin of the shares.
10. The criminal offence of acting to the detriment of creditors was the subject of a preliminary investigation in the context of which the shares in L.Z. were subject to interim measures to secure a request for the confiscation of proceeds. (6) Despite those interim measures, on 13 October 2014, those shares were transferred to escrow accounts, making it impossible to identify their beneficial owners. However, no indictment was drawn up in respect of the two criminal offences of acting to the detriment of creditors and money laundering.
11. Through its representative Z. Z., the undertaking D. brought an action before the Županijski sud u Zagrebu (County Court, Zagreb, Croatia) challenging the recognition and execution of those interim measures in Croatia. That action was dismissed by that court.
12. On 27 January 2020, Z. Z. was heard by the Okrožno sodišče v Mariboru (District Court, Maribor). At that hearing, that court advised Z. Z., in accordance with Article 500 of the Zakon o kazenskem postopku (Slovenian Code of Criminal Procedure) (‘the ZKP’) that he had the opportunity to testify in the context of the possible confiscation of the proceeds of crime in respect of D., and that he had the right to submit evidence and ask questions. That court also informed him about the possible confiscation of the shares in L.Z. For his part, Z. Z. stated that he was aware of the temporary freeze, that he considered the temporary freeze to be unjustified, and that for that reason had already brought an appeal through his lawyer before the Županijski sud u Zagrebu (County Court, Zagreb). He also stated that he would appeal if those shares were confiscated.
13. On 22 May 2020, the Okrožno sodišče v Mariboru (District Court, Maribor) held the main hearing in the presence of the public prosecutor, the four defendants and their lawyers. In his closing speech, the public prosecutor requested that D. be subject to confiscation of the shares in L.Z. as the proceeds of a criminal offence.
14. By judgment of 27 May 2020, the Okrožno sodišče v Mariboru (District Court, Maribor) acquitted the four defendants, while issuing, on the basis of Article 498a(1)(1) of the ZKP, (7) a confiscation order relating to the shares in L.Z. held by D., in relation to the criminal offence of acting to the detriment of creditors and the criminal offence of money laundering (‘the confiscation order’). Since the appeal brought against that judgment by the public prosecutor was dismissed by the Višje sodišče v Mariboru (Court of Appeal, Maribor, Slovenia), by judgment of 24 November 2021, that confiscation order became final on 22 December 2021.
15. On 17 February 2022, the Okrožno sodišče v Mariboru (District Court, Maribor) issued a confiscation certificate, in accordance with Article 14 of Regulation 2018/1805, describing the shares in L.Z. as the proceeds of a criminal offence, within the meaning of Article 2(3)(a) of that regulation, and as being subject to confiscation without a final conviction following proceedings in relation to a criminal offence, in accordance with Article 2(3)(d) of that regulation.
16. That court transmitted that certificate to the Zagreb Public Prosecutor’s Office, together with a translation, first, of the introduction, operative part, part of the statement of reasons relating to the confiscation order and information on the legal remedies contained in the judgment of 27 May 2020 and, second, of the introduction and operative part of the judgment of the Višje sodišče v Mariboru (Court of Appeal, Maribor) of 24 November 2021 dismissing the appeal brought against the confiscation order, with a view to the recognition and execution of that order.
17. By judgment of 25 November 2022, the Županijski sud u Zagrebu (County Court, Zagreb), hearing the case brought by the Zagreb Public Prosecutor’s Office, recognised the confiscation order.
18. The Public Prosecutor and D. brought appeals against that judgment before the Visoki kazneni sud (High Criminal Court, Croatia), the referring court. That referring court has doubts as to whether the property subject to the confiscation order falls within the scope of Article 2(3) of Regulation 2018/1805. It also has doubts as to whether the fundamental rights which the person affected by that order derives from the Charter were respected in the proceedings which gave rise to that order, in circumstances where failure to respect those rights may, in exceptional situations, constitute grounds for non-recognition and non-execution of a confiscation order under Article 19(1)(h) of that regulation.
19. First of all, the referring court asks two questions concerning the interpretation of Article 2(3) of Regulation 2018/1805. It asks whether criminal proceedings which, on the one hand, are concluded with a judgment of acquittal and, on the other, result in a confiscation order based on findings relating to a criminal offence other than that in respect of which that judgment was delivered, committed by perpetrators other than the four defendants, may be regarded as ‘proceedings in relation to a criminal offence’ that may result in ‘confiscation [of property] without a final conviction’.
20. Next, the referring court, recalling that the principle of mutual recognition of judgments and judicial decisions constitutes the cornerstone of judicial cooperation in criminal matters, which means that non-recognition of such judgments is possible only in exceptional situations, in accordance with Article 19(1)(h) of Regulation 2018/1805, raises the question as to whether the fundamental rights of D. were respected in the context of the issuing of the confiscation order.
21. That court notes, first, that at the hearing on 27 January 2020, the person in charge at D. was questioned as a witness – a point which has yet to be established – and was advised of the possibility of the shares being confiscated and about his right to submit evidence and ask questions during the proceedings. However, he was not advised of the right of access to a lawyer throughout the confiscation proceedings, enshrined in Article 8 of Directive 2014/42/EU. (8)
22. Second, that court points out that, at that hearing, the request for confiscation of property had not yet been made, since the public prosecutor made such a request only in his closing speech in May 2020. The Okrožno sodišče v Mariboru (District Court, Maribor) therefore held a hearing on the basis of the indictment drawn up in 2017.
23. Third, D. was provided with the translation only of excerpts from the judgment delivered by that court, whereas, according to the referring court, the entire judgment is an essential document (9) and the standards of access to an impartial court require that the entire judgment be served.
24. The referring court notes that the Okrožno sodišče v Mariboru (District Court, Maribor) stated that excerpts from the judgment were served on D., which did not appeal against that judgment. By contrast, D. asserts that it did not receive those excerpts from the judgment and proposes that this can be proven by means of a report from a handwriting expert on the proof of service. Those claims give rise to questions on the part of the referring court as to the verifications and consultations with the issuing authority. In that regard, the referring court emphasises the importance of the principle of mutual recognition and of Article 33 of Regulation 2018/1805, which provides that the substantive reasons for issuing the confiscation order cannot be challenged before a court in the executing Member State.
25. In those circumstances, the Visoki kazneni sud (High Criminal Court) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does the term “proceedings in relation to a criminal offence that may result in confiscation of property, including confiscation without a conviction” within the meaning of Article 2(3) of Regulation 2018/1805 also include criminal proceedings concluded with an acquittal?
(2) Does the term “proceedings in relation to a criminal offence that may result in confiscation of property, including confiscation without a conviction” within the meaning of Article 2(3) of Regulation 2018/1805 also include criminal proceedings concluded with a judgment of acquittal that includes an order to confiscate property as undue proceeds derived from another criminal offence, which is not the criminal offence of which the defendants were acquitted, and in whose commission the defendants were not involved, but rather persons against whom no indictment was brought?
(3) Is it contrary to Regulation 2018/1805, Article 1(2) thereof, and Article 47 of the Charter of Fundamental Rights, to recognise a confiscation order issued in criminal proceedings in which an affected person, within the meaning of Article 2(10) of the regulation:
– was not summoned to participate in all stages of the criminal proceedings;
– was not advised of his or her right to a lawyer throughout the proceedings;
– did not receive the full text of the judgment containing the confiscation order in a language he or she understood, but only excerpts from that judgment, and did not appeal against the judgment thus served.’
26. The Zagreb Public Prosecutor’s Office, the Croatian and Slovenian Governments and the European Commission submitted written observations and, with the exception of the Zagreb Public Prosecutor’s Office, participated in the hearing held on 3 February 2025, in the course of which they responded to questions for an oral answer put by the Court.
III. Analysis
A. The first and second questions referred for a preliminary ruling
27. By those questions, which, in my view, should be examined together, the referring court asks, in essence, whether criminal proceedings concluded with an acquittal, in which a confiscation order is issued in relation to a criminal offence other than the offence of which the defendants were acquitted and involving a person other than the defendants, against whom no indictment was issued, fall within the scope of Regulation 2018/1805.
28. In my view, those questions should be answered in the affirmative.
29. As a preliminary point, it should be noted that Regulation 2018/1805 pursues the objective of maintaining and developing an area of security and justice, by strengthening judicial cooperation in criminal matters, which is based on the principle of mutual recognition of judgments and judicial decisions. (10)
30. In view of the fact that, first, the freezing and the confiscation of instrumentalities and proceeds of crime are among the most effective means of combating crime (11) and, second, the transnational nature of crime requires effective cross-border cooperation in that field, (12) the EU legislature has stressed the importance of facilitating the mutual recognition and execution of freezing orders and confiscation orders by establishing rules that oblige a Member State to recognise, without further formalities, such orders when they are issued by another Member State within the framework of proceedings in criminal matters and to execute those orders within its territory. (13)
31. Accordingly, Article 1(1) of Regulation 2018/1805 provides that that regulation lays down the rules under which a Member State recognises and executes in its territory freezing orders and confiscation orders issued by another Member State within the framework of proceedings in criminal matters.
32. By contrast, under Article 1(4) of that regulation, it does not apply to freezing orders and confiscation orders issued within the framework of proceedings in civil or administrative matters. (14) However, it is not disputed that the confiscation order at issue in the main proceedings was issued within the framework of proceedings in criminal matters.
33. In that regard, Article 2(2) of Regulation 2018/1805 states that the concept of ‘confiscation order’ refers to a final penalty or measure, imposed by a court following proceedings in relation to a criminal offence, resulting in the final deprivation of property of a natural or legal person. In addition, Article 2(3)(d) of that regulation defines the concept of ‘property’ as including, inter alia, any property which the issuing authority considers to be subject to confiscation, including without a final conviction, under the law of the issuing State, following proceedings in relation to a criminal offence.
34. Those various provisions must be read in the light of recital 13 of Regulation 2018/1805, from which it is apparent that the scope of that regulation must be regarded as very broad, since it is intended to apply to all types of freezing orders and confiscation orders issued following proceedings in relation to a criminal offence. Thus, that recital states that that regulation covers not only orders covered by Directive 2014/42, but also other types of order issued without a final conviction, including criminal investigations by the police and other law enforcement authorities. (15) From that point of view, while such orders might not exist in the legal system of a Member State, the Member State concerned should be able to recognise and execute such an order issued by another Member State. (16)
35. In the present case, the court which issued the confiscation order found that, within the framework of proceedings in criminal matters, the confiscated property constituted the proceeds of the criminal offence of acting to the detriment of creditors and the criminal offence of money laundering. Those factors make it possible to bring that order within the scope of Regulation 2018/1805. The fact that those offences were not set out in an indictment and that other defendants were acquitted in those proceedings in relation to another criminal offence is irrelevant in that regard.
36. It may, in my view, be inferred from the foregoing that, as all the participants in the present proceedings have argued, Article 1(1) and (4) and Article 2(2) and (3)(d) of Regulation 2018/1805, read in conjunction with recital 13 thereof, must be interpreted as meaning that that regulation applies to a confiscation order, such as that at issue in the main proceedings, issued within the framework of proceedings in criminal matters concluded with an acquittal, in relation to a criminal offence other than the offence of which the defendants were acquitted and involving a person other than the defendants, against whom no indictment was issued.
B. The third question referred for a preliminary ruling
37. By that question, the referring court asks the Court, in essence, whether the competent authority of the executing Member State may refuse to recognise, on account of the alleged infringement of certain fundamental rights in the issuing Member State, a confiscation order, on the grounds that the person subject to that order, first, was not summoned to participate in all stages of the criminal proceedings, second, was not informed of his or her right to a lawyer throughout those proceedings and, third, was not served the full text of the judgment containing the confiscation order in a language he or she understood, even though he or she did not bring an appeal against that judgment. (17)
38. In order to answer that question, it should be recalled that, like other instruments of mutual recognition in criminal matters concerning other types of decisions, Regulation 2018/1805 lays down the rule that a Member State is required to recognise and execute in its territory a confiscation order issued by another Member State within the framework of proceedings in criminal matters.
39. Thus, Article 18(1) of Regulation 2018/1805 provides that the executing authority is to recognise a confiscation order transmitted in accordance with Article 14 of that regulation and is to take the measures necessary for its execution in the same way as for a domestic confiscation order issued by an authority of the executing State, unless the executing authority invokes one of the grounds for non-recognition and non-execution provided for in Article 19 of that regulation or one of the grounds for postponement provided for in Article 21 of that regulation. As stated in recital 31 of Regulation 2018/1805, the recognition and execution of a confiscation order should not be refused on grounds other than those provided for in that regulation.
40. Furthermore, it must be stated that the obligation to comply with the Charter is binding on the Member States when they decide on an application for recognition and execution of a confiscation order, given that such a decision constitutes an implementation of Union law within the meaning of Article 51(1) of the Charter. The competent authorities of the executing Member State are therefore required, when adopting a decision on such an application, to ensure respect for the fundamental rights afforded by the Charter to the person subject to the confiscation order in respect of which recognition and execution are sought. (18)
41. Those rights include, in particular, the right to an effective remedy and to a fair trial laid down in Article 47 of the Charter, and the rights of the defence guaranteed by Article 48(2) thereof.
42. To that end, Article 1(2) of Regulation 2018/1805 provides that that regulation does not have the effect of modifying the obligation to respect the fundamental rights and legal principles enshrined in Article 6 TEU. (19)
43. In addition, Article 19(1)(h) of that regulation provides that the executing authority may decide not to recognise or execute a confiscation order only where, in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of that confiscation order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence. (20)
44. In the light of the concerns expressed by the referring court in its request for a preliminary ruling, it is the latter provision which should, in my view, be interpreted by the Court when examining the third question.
45. At the hearing, the participants were invited to express their views on whether the implementation by the executing authority of the ground for non-recognition and non-execution referred to in Article 19(1)(h) of Regulation 2018/1805 requires it to carry out the same two-step examination as that developed by the Court in the context of the interpretation of Article 1(3) of Framework Decision 2002/584.
46. That provision establishes, according to wording similar to that of Article 1(2) of Regulation 2018/1805, that that framework decision cannot have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU.
47. It is on the basis of Article 1(3) of Framework Decision 2002/584 that the Court has held that the existence of a risk of a breach of the fundamental rights recognised by the Charter is capable of permitting the executing judicial authority to refrain, exceptionally and following an appropriate examination, from giving effect to a European arrest warrant. (21)
48. As regards the manner in which such an examination is carried out, it is apparent from the Court’s case-law on Framework Decision 2002/584 that the assessment, during a procedure for the execution of a European arrest warrant, of whether there is real risk of a breach of the fundamental rights enshrined in Articles 4, 7, 24 and 47 of the Charter must, in principle, be carried out by means of an examination in two separate steps which cannot overlap with one another, in so far as they involve an analysis on the basis of different criteria, and which must therefore be carried out in turn. (22)
49. To that end, the executing judicial authority must, as a first step, determine whether there is objective, reliable, specific and properly updated information to demonstrate that there is a real risk of infringement, in the issuing Member State, of one of those fundamental rights on account of either systemic or generalised deficiencies, or deficiencies affecting more specifically an objectively identifiable group of persons. (23)
50. In the context of a second step, the executing judicial authority must determine, specifically and precisely, to what extent the deficiencies identified in the first step of the examination are liable to have an impact on the person who is the subject of a European arrest warrant and whether, having regard to his or her personal situation, there are substantial grounds for believing that that person will run a real risk of a breach of those fundamental rights if surrendered to the issuing Member State. (24)
51. In order to justify the requirement to carry out such a two-step examination, the Court has stated that the simplified and effective system for the surrender of convicted or suspected persons established by Framework Decision 2002/584 has as its basis the high level of trust which must exist between the Member States and on the principle of mutual recognition which, according to recital 6 of that framework decision, constitutes the ‘cornerstone’ of judicial cooperation between Member States in criminal matters. (25)
52. In that regard, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. (26)
53. Thus, when Member States implement EU law, they may, under that law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but also, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the European Union. (27)
54. In that context, the obligation to find that there are deficiencies such as those referred to in point 49 of this Opinion before being able to verify, specifically and precisely, whether the person who is the subject of a European arrest warrant runs a real risk of a breach of a fundamental right is precisely aimed at preventing such an investigation from being conducted outside exceptional cases and is thus the consequence of the presumption of respect for fundamental rights by the issuing Member State which stems from the principle of mutual trust. (28)
55. The Court has explained that compliance with that obligation makes it possible, in particular, to ensure the division of responsibilities between the issuing Member State and the executing Member State as regards safeguarding the requirements inherent in the fundamental rights arising from the full application of the principles of mutual trust and mutual recognition which underpin the operation of the European arrest warrant mechanism. (29)
56. On the basis of that case-law, it seems legitimate to consider whether it is appropriate, with regard to the mutual recognition of confiscation orders, to impose on the executing authority the obligation to establish the existence either of systemic or generalised deficiencies, or of deficiencies affecting more specifically an objectively identifiable group of persons before being able to verify, specifically and precisely, whether the person subject to a confiscation order runs a real risk of a breach of a fundamental right.
57. In reply to that question, the participants in the hearing put forward two opposing arguments. The Croatian and Slovenian Governments argued that a two-step examination should be applied with regard to the mutual recognition of confiscation orders. The Commission, on the other hand, was not in favour of the application of such an examination.
58. I share the Commission’s view.
59. I note that the two-step examination is the result of a body of case-law intended to ensure the effectiveness of the surrender mechanism established by Framework Decision 2002/584, taking into account the specific objective of that framework decision, (30) while ensuring that that mechanism is not implemented to the detriment of the protection of fundamental rights. That body of case-law was developed on the basis of a general fundamental rights clause, set out in Article 1(3) of that framework decision, even though that framework decision does not expressly mention any ground for non-execution of a European arrest warrant based on a risk of a breach of fundamental rights in the issuing Member State.
60. Given the lack of detail in the wording of Framework Decision 2002/584 as to the method and criteria to be applied in order to examine whether there is a risk of a breach of fundamental rights in the issuing Member State, the Court has had to clarify that method and those criteria itself, taking particular care not to bring the operation of the surrender mechanism, provided for by that framework decision, to a standstill. From that perspective, the Court was not starting from scratch, since it had already set out the essence of its case-law when it held, in paragraph 192 of Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, (31) that it is not possible for a Member State, save in exceptional cases, to check whether another Member State has actually, in a specific case, observed the fundamental rights guaranteed by the European Union.
61. That said, I would point out that the Court does not seem to me to have imposed a general rule, that is to say, in the context of the application of all instruments of mutual recognition in criminal matters, that the definition of exceptional cases in which a Member State is permitted to check whether fundamental rights have been observed in another Member State always requires a prior finding of systemic or generalised deficiencies, or deficiencies affecting more specifically an objectively identifiable group of persons, before it is possible to verify, specifically and precisely, whether the person subject to an order in respect of which recognition is sought runs a real risk of a breach of a fundamental right.
62. Admittedly, the Court has answered in the affirmative the question whether the two-step examination required under Framework Decision 2002/584 could be applied to a case involving a request seeking not the surrender to the issuing authorities of a person who is the subject of a European arrest warrant, on the basis of that framework decision, but the recognition of a judgment and the enforcement in the executing State, on the basis of Framework Decision 2008/909, of a criminal sentence handed down in another Member State, where there is evidence that the conditions prevailing in that latter Member State on the date of the adoption of the decision to be enforced or of related subsequent decisions are incompatible with the fundamental right to a fair trial laid down in the second paragraph of Article 47 of the Charter. (32)
63. However, in reaching that conclusion, which gave rise to certain questions in academic circles, (33) the Court relied on a number of provisions of Framework Decision 2008/909 relating to respect of fundamental rights which are also contained in Framework Decision 2002/584, (34) emphasising the close connection between those two framework decisions. (35) That applies, in particular, to Article 3(4) of Framework Decision 2008/909, which provides that that framework decision is not to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU. That general clause on respect for fundamental rights corresponds to the clause referred to in Article 1(3) of Framework Decision 2002/584. (36)
64. It is true that, as I stated above, such a general clause on respect for fundamental rights also appears in Article 1(2) of Regulation 2018/1805.
65. It might therefore be conceivable, in the context of the application of that regulation, to require the executing authority to carry out a two-step examination in the event of an alleged risk of breach of fundamental rights in the issuing Member State.
66. However, I consider that that requirement is not self-evident because of the existence in Regulation 2018/1805 of a specific ground for non-recognition and non-execution, such as that referred to in Article 19(1)(h) of that regulation.
67. I note that, unlike in Framework Decisions 2002/584 and 2008/909, the EU legislature did not merely lay down a general clause on respect for fundamental rights in Regulation 2018/1805, but also provided for a specific ground for non-recognition and non-execution, (37) specifying the method and criteria to be used by the executing authority in order to assess a risk of a breach of fundamental rights. Reference should therefore be made to that method and to those criteria, which are set out in what may be regarded as a lex specialis in relation to the general clause on respect for fundamental rights in Article 1(2) of Regulation 2018/1805. (38)
68. In that regard, it should be noted that, as regards a risk of a ‘manifest breach’ of a fundamental right ‘in the particular circumstances of the case’, Article 19(1)(h) of that regulation unequivocally requires an individual examination of the existence of such a risk. I note that neither that provision nor any other provision of that regulation requires that, before that individual examination can be carried out, there must be a finding of systemic or generalised deficiencies, or deficiencies affecting more specifically an objectively identifiable group of persons. (39) When adopting Regulation 2018/1805, the Court had already formulated the requirement for a two-step examination in relation to the European arrest warrant, (40) including in order to check whether there is a risk of a breach the fundamental right to a fair trial, as set out in the second paragraph of Article 47 of the Charter, (41) so it was, in my view, a conscious and deliberate choice on the part of the EU legislature not to impose such a two-step examination in the context of that regulation. Therefore, although a finding of such deficiencies may of course enable the finding of a breach of a fundamental right in the circumstances of the present case, it is not a mandatory step if the wording used by the EU legislature in Article 19(1)(h) of that regulation is taken into account.
69. A different approach cannot, in my view, be inferred from an application by analogy of Regulation (EU) 2023/1543 of the European Parliament and of the Council of 12 July 2023 on European Production Orders and European Preservation Orders for electronic evidence in criminal proceedings and for the execution of custodial sentences following criminal proceedings. (42) Article 12(1)(b) of that regulation contains a ground for refusal of which the wording is similar to that used in Article 19(1)(h) of Regulation 2018/1805. (43) However, recital 64 of Regulation 2023/1543, which clarifies the scope of that ground for refusal, may be interpreted as meaning that, in order to implement that ground for refusal, a two-step examination must be carried out. (44) Nonetheless, I believe that, by citing the specific example of a reasoned proposal adopted under Article 7(1) TEU, the EU legislature has merely emphasised the need for the enforcing authority to carry out an individual examination where systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary have been identified.
70. I note, moreover, that the examination of other instruments of mutual recognition in criminal matters does not support the view that a general obligation should be imposed on the executing authority to carry out a two-step examination in order to check whether there is a risk of infringement of fundamental rights.
71. Thus, Article 20(3) of Framework Decision 2005/214/JHA (45) provides that each Member State may, where the certificate referred to in Article 4 of that framework decision gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 of the Treaty may have been infringed, oppose the recognition and the execution of decisions. I note that the implementation of that ground for non-recognition and non-execution of a decision imposing a financial penalty is in no way subject to a two-step examination in the Court’s case-law, (46) it being specified that, in so far as it constitutes an exception to the principle of mutual recognition, that ground must be interpreted restrictively. (47)
72. Furthermore, when it was called upon to consider the ground for non-execution of a European Investigation Order, provided for in Article 11(1)(f) of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, (48) the Court did not mention the requirement for a two-step examination. (49)
73. I would also point out that it is necessary, in my view, to eliminate the possibility of a double standard in the review of respect for fundamental rights, under Regulation 2018/1805, depending on the nature of the fundamental right at issue and the applicable clause. Thus, the existence of the general clause in Article 1(2) of Regulation 2018/1805 does not, in itself, mean that a two-step examination should be carried out in order to determine whether the recognition and execution of a confiscation order must be refused on the ground of the alleged breach of fundamental rights in the issuing Member State.
74. Article 19(1)(h) of Regulation 2018/1805 provides for a specific ground for non-recognition and non-execution of a confiscation order where there is a risk of a manifest breach of fundamental rights, so that there is no need to rely on the general clause in Article 1(2) of that regulation in order to assess whether such a risk exists. The sole purpose of that general clause is, in that context, to recall the Member States’ obligation to respect the fundamental rights and legal principles enshrined in Article 6 TEU. I would also point out that the specific ground laid down in Article 19(1)(h) of that regulation cannot be limited to the fundamental rights to which it refers, namely the right to an effective remedy, the right to a fair trial or the right of defence. The fact that those fundamental rights are referred to ‘in particular’ indicates that that list is not exhaustive, with the result that the specific ground for non-recognition and non-execution set out in that provision is intended to apply to alleged infringements of other fundamental rights.
75. I also understand the argument that it might seem paradoxical to apply a test as strict as the two-step examination in relation to a European arrest warrant, where the right to liberty is directly affected, when there is no such test for confiscation, where such a right is not at stake.
76. That said, it must be stated that that paradox is the result of the choice made by the EU legislature to draft clauses relating to respect for fundamental rights differently according to the instrument of mutual recognition in criminal matters under consideration.
77. In that regard, I would point out that Framework Decision 2002/584 does not contain any specific ground for non-execution of a European arrest warrant worded in the same terms as Article 19(1)(h) of Regulation 2018/1805.
78. Having made those clarifications, the fact remains that, by limiting the executing authority’s power to invoke the ground for non-recognition and non-execution provided for in Article 19(1)(h) of Regulation 2018/1805 to ‘exceptional situations’ where there is a ‘manifest breach’ of a fundamental right protected by the Charter, the EU legislature intended to require the executing authority to exercise that power only where such a breach reaches a particularly high level of severity, in line with what the Court held in paragraph 192 of Opinion 2/13 (Accession of the European Union to the ECHR), of 18 December 2014. (50)
79. Although such an assessment is ultimately a matter for the referring court, I consider, in the light of the evidence submitted to the Court, that such a level does not appear to have been exceeded in the context of the present case.
80. I would point out, in that regard, that the referring court raises the question of whether the fundamental rights of a legal person subject to the confiscation order have been respected in the issuing Member State in view of a number of factors, namely first, that that person supposedly did not participate in all the stages of the criminal proceedings which led to the issuing of that order, second, that that person was supposedly not advised of the right of access to a lawyer and, third, that that person was supposedly not served the full text of the judgment containing the confiscation order in a language he or she understood, even though that person did not bring an appeal against the confiscation order. Thus, the rights at issue are the right to an effective remedy and the right of defence, which are expressly referred to in Article 19(1)(h) of Regulation 2018/1805.
81. As regards those fundamental rights, I note, in the first place, that Directive 2014/42 and Framework Decision 2005/214, which that directive partially replaced, oblige Member States to establish common minimum rules for confiscation of crime-related instrumentalities and proceeds, in order, inter alia, to facilitate the mutual recognition of judicial confiscation decisions adopted in criminal proceedings. (51)
82. Accordingly, Article 8(1) of Directive 2014/42 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. (52) In particular, under Article 8(6) of that directive, Member States are to take the necessary measures to ensure that reasons are given for any confiscation order and that the order is communicated to the person affected. They must also provide for the effective possibility for a person in respect of whom confiscation is ordered to challenge the order before a court. In addition, Article 8(7) of that directive provides that, without prejudice to Directive 2012/13/EU (53) and Directive 2013/48/EU, (54) persons whose property is affected by a confiscation order are to 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 that the persons concerned are to be informed of that right.
83. In so far as a confiscation order falls within the scope of Directive 2014/42, (55) the person subject to that order may therefore claim protection of the procedural rights conferred on him or her by that directive. (56)
84. In the second place, recital 18 of Regulation 2018/1805 states that the procedural rights set out in a number of directives (57) should apply, within the scope of those directives, to criminal proceedings covered by that regulation as regards the Member States bound by those directives.
85. It follows that, where a confiscation order falls within the scope of one or other of the directives referred to in recital 18 of that regulation, the person subject to that order may rely on the procedural rights conferred on him or her by those directives.
86. In the third place, recital 18 of Regulation 2018/1805 states that, in any event, the safeguards under the Charter should apply to all proceedings covered by that regulation. In particular, that recital states that 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 that regulation.
87. In that regard, it should be recalled that, under the first and second paragraphs of Article 47 of the Charter, everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article and, in particular, is entitled to a fair hearing. (58) Thus, the principle of effective judicial protection of the rights which individuals derive from EU law, which is reaffirmed by Article 47 of the Charter, comprises various elements; in particular, the rights of the defence, the principle of equality of arms, the right of access to a tribunal and the right to be advised, defended and represented. (59) It is also appropriate to cite Article 48(2) of the Charter, the aim of which is to guarantee respect for the rights of the defence of anyone who has been charged.
88. It follows from the foregoing that, at the very least and even if his or her situation does not fall within the scope of the various directives relating to procedural rights in the criminal proceedings to which I have referred above, a person who is subject, in one Member State, to a confiscation order the recognition and execution of which are sought in another Member State, on the basis of Regulation 2018/1805, must have been placed in a position to benefit in the issuing Member State from the essential safeguards for criminal proceedings set out in the Charter.
89. In particular, it is essential that the person in respect of whom confiscation has been ordered has been afforded an effective remedy enabling him or her to have a court review compliance with those essential safeguards.
90. I note, in that regard, that such safeguards appear to be provided for in the ZKP. First, Article 500 of the ZKP provides, in the case of confiscation, for the right of legal persons to be heard, through their representative, both during the preliminary proceedings and at the main hearing, (60) and for the right to submit evidence and ask questions. (61) Secondly, Article 498a(4) of the ZKP provides that the owner of confiscated property has a right of appeal against any confiscation measure. (62)
91. It is apparent from the request for a preliminary ruling that the person subject to the confiscation order the recognition and execution of which are sought did not bring an appeal before the courts against the judgment of 27 May 2020 which contains that order, even though an effective remedy was available to that person in the issuing Member State.
92. In those circumstances, that person cannot, at the stage of recognition and execution of the confiscation order at issue, claim before the court of the executing Member State which has jurisdiction to recognise and execute that order that its fundamental rights were infringed during the proceedings which led to the issuing of that order, relying on the ground for non-recognition and non-execution set out in Article 19(1)(h) of Regulation 2018/1805.
93. A situation in which the person affected by a confiscation order seeks a declaration by a court of the executing Member State that such rights have been infringed, even though he or she is afforded an effective remedy to that end in the issuing Member State, cannot, in my view, meet the particularly high level of severity required by that provision. In other words, I cannot identify any element capable of demonstrating the existence of an ‘exceptional situation’ characterised by the presence of ‘specific and objective evidence’ capable of constituting ‘substantial grounds’ to believe that the execution of the confiscation order at issue would, ‘in the particular circumstances of the case’, entail a ‘manifest breach’ of a fundamental right set out in the Charter, within the meaning of Article 19(1)(h) of Regulation 2018/185.
94. To hold otherwise would, in my view, run counter to the logic underlying the system of judicial cooperation in criminal matters between the Member States, which is based on the principles of mutual trust and mutual recognition, (63) which the Court has pointed out are of fundamental importance in allowing an area without internal borders to be created and maintained. (64)
95. Thus, the Court has held that the principle of mutual recognition of judgments and judicial decisions implies that there is mutual trust as to the fact that each Member State accepts the application of the criminal law in force in the other Member States, even though the implementation of its own national law might produce a different outcome. (65) That principle is implemented by various instruments falling within the scope of judicial cooperation in criminal matters between the Member States, such as Framework Decision 2002/584 and Directive 2014/41. The system of judicial cooperation provided for by those instruments is based on a division of competences between the issuing judicial authority and the executing judicial authority, in the context of which it is for the issuing judicial authority to review compliance with the conditions necessary for issuing the decision recognition of which is sought, and that assessment cannot, in accordance with the principle of mutual recognition, subsequently be reviewed by the executing judicial authority. (66)
96. Consequently, in the context of judicial cooperation in criminal matters between the Member States based on the principles of mutual trust and mutual recognition, the executing authority is not supposed to review compliance by the issuing authority with the conditions for issuing the judicial decision which it must execute. (67)
97. As is shown, in particular, by Article 18(1), (68) Article 23(1) (69) and Article 33(2) (70) of Regulation 2018/1805, the system of judicial cooperation established by that regulation is also based on a distinction between responsibilities relating to the justification and issuing of a confiscation order, which fall within the remit of the issuing authority, and those relating to the execution of that order, which fall within the remit of the executing authority. In that context, it is primarily the responsibility of the issuing Member State to ensure that a confiscation order observes the rights which the person affected by that order derives from EU law, which include the fundamental rights protected by the Charter. (71) It is therefore only exceptionally that the executing authority may refrain, under Article 19(1)(h) of that regulation, from recognising and executing a confiscation order transmitted to it. Only a division of responsibilities of that nature is capable of ensuring effective cross-border cooperation in order to freeze and confiscate the instrumentalities and proceeds of crime. (72)
98. In accordance with its primary responsibility to guarantee fundamental rights in the context of proceedings leading to the adoption of a confiscation order, the issuing Member State must guarantee effective judicial protection to the person subject to such an order, in particular by putting in place legal remedies so that respect for those rights may be reviewed. If it is common ground that there was a legal remedy available to that person in that Member State and he or she did not pursue it, although by pursuing that legal remedy, he or she could have had any infringement of his or her fundamental rights, such as those guaranteed by Article 47 of the Charter, established and, where appropriate, rectified or penalised, there is no reason for the executing authority to call into question the presumption that the confiscation order to which that person is subject was issued in accordance with those fundamental rights. (73) In accordance with the principle of mutual trust, that approach prohibits a court of the executing Member State, hearing claims such as those at issue in the main proceedings, from monitoring the application by a court of the issuing Member State of its rules of procedure in criminal matters in an individual case.
99. In short, it seems to me to be crucial that a person who fails to exercise his or her right to bring legal proceedings in the issuing Member State against the confiscation order to which he or she is subject be prevented from challenging, at the stage of the procedure for the recognition and execution of that order in the executing Member State, any infringements of his or her procedural rights allegedly committed in the issuing Member State.
100. On that point, even though the areas of judicial cooperation in criminal matters and of judicial cooperation in civil matters each have their own characteristics and objectives, it seems to me interesting to refer, for the purpose of feeding into the discussion in that regard, to the case-law of the Court relating to the infringement of the public policy of the Member State in which recognition is sought in the area of judicial cooperation in civil matters. The public policy clause provided for in Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (74) must be interpreted strictly and may be relied on only in exceptional cases. (75)
101. In that regard, according to that case-law, recourse to that public policy clause may be justified where there is a manifest and disproportionate breach of the defendant’s right to a fair trial referred to in the second paragraph of Article 47 of the Charter. (76) In particular, as regards the circumstances in which the fact that a judgment of a court of a Member State was delivered in breach of procedural safeguards may constitute a ground for refusal of recognition under Article 34(1) of Regulation No 44/2001, the Court has held that the public policy clause in that article would apply only where such a breach means that the recognition of the judgment concerned in the Member State in which recognition is sought would result in the manifest breach of an essential rule of law in the EU legal order and therefore in the legal order of that Member State. (77) I would also point out that, according to the Court, it is that trust which the Member States accord to one another’s legal systems and judicial institutions which permits the inference that, in the event of the misapplication of national law or EU law, the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals. (78) Thus, Regulation No 44/2001 must be interpreted as being based on the fundamental idea that individuals are required, in principle, to use all the legal remedies made available by the law of the Member State of origin. Save where specific circumstances make it too difficult or impossible to make use of the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing a breach of public policy before it occurs. (79) When determining whether there is a manifest breach of public policy in the Member State in which recognition is sought, the court of that Member State must take account of that fact. (80)
102. In the context of the present case, in order to determine whether there is a manifest breach of a fundamental right as set out in the Charter, pursuant to Article 19(1)(h) of Regulation 2018/1805, the competent court of the executing Member State should therefore take account of the fact that D. did not avail itself of the legal remedies available in the issuing Member State in order to prevent a breach of its fundamental rights, such as those guaranteed by Article 47 of the Charter, before it occurred. If D. has referred to particular circumstances which made it too difficult or impossible to make use of the legal remedies in that Member State, that court should take them into consideration.
103. In that regard, it should be borne in mind that respect for the right to effective judicial protection requires, inter alia, the guarantee of actual and effective receipt of decisions, that is to say, the notification of those decisions to the addressee thereof. (81)
104. I note that D. appears to be challenging the service of the confiscation order before the referring court. It asserts that it did not receive the excerpts from the judgment containing that order or information on the legal remedies available. That undertaking proposes that this can be proven by means of a report from a handwriting expert on the proof of service. I note, however, that it is apparent from the request for a preliminary ruling that the confiscation certificate states that the excerpts from the judgment of 27 May 2020 containing the confiscation order (namely the introduction, the operative part, part of the statement of reasons concerning the confiscated proceeds and the available remedies), together with a translation into Croatian, were served on D., which received those excerpts from the judgment on 13 October 2020 but did not bring an appeal against that judgment. In so far as such a certificate is intended to facilitate the mutual recognition of confiscation orders and taking into account the mutual trust which must exist between the judicial authorities of the Member States, (82) I consider that the executing authority should rely on the information contained in that certificate.
105. Thus, the executing authority should not be able to disregard the facts as stated by the competent Slovenian court, as the issuing authority, in a confiscation certificate unless there is sufficiently concrete and objective evidence capable of casting doubt on the credibility of those facts. If the claims made by D. lead that authority to doubt that the confiscation order was served, or that it was served lawfully, it will have to consult the issuing authority on that point. I would point out, in that regard, that, in accordance with Article 19(2) of Regulation 2018/1805, as regards the grounds for non-recognition and non-execution mentioned in Article 19(1) of that regulation, before deciding not to recognise or execute the confiscation order, whether wholly or partially, the executing authority must consult the issuing authority by any appropriate means and, where appropriate, must request the issuing authority to supply any necessary information without delay.
106. I would also point out that the checks which should, where appropriate, be carried out by the executing authority in the context of the implementation of Article 19(1)(h) of Regulation 2018/1805 are without prejudice to the possible application of another ground for non-recognition and non-execution provided for in paragraph 1 of that article.
107. Thus, Article 19(1)(c) of that regulation provides that the executing authority may decide not to recognise or execute a confiscation order where the confiscation certificate is incomplete or manifestly incorrect and has not been completed following the consultation referred to in Article 19(2) of that regulation.
108. At the hearing, the Commission stated that it found, after consulting the national file, that some parts of the judgment transmitted were illegible.
109. The first sentence of Article 14(1) of Regulation 2018/1805 provides that a confiscation order is to be transmitted by means of a confiscation certificate, the template of which is set out in Annex II to that regulation.
110. In accordance with Article 14(2) of that regulation, Member States may make a declaration stating that, when a confiscation certificate is transmitted to them with a view to the recognition and execution of a confiscation order, the issuing authority is to transmit the original confiscation order or a certified copy thereof together with the confiscation certificate. (83)
111. In that regard, I note that, on 8 December 2020, the Republic of Croatia made such a declaration. (84)
112. It is clear, in my view, that the transmission of the original confiscation order or a certified copy thereof presupposes that the document transmitted is legible.
113. If that is not the case, the executing authority might have to refuse to recognise and execute the confiscation order transmitted to it. I recall, in that regard, that Article 18(1) of Regulation 2018/1805 provides that the executing authority is to recognise a confiscation order transmitted in accordance with Article 14 of that regulation.
114. However, if it transpires that the confiscation order which was transmitted with the certificate is in fact illegible in whole or in part and that the executing authority is therefore relying, pursuant to Article 19(1)(c) of Regulation 2018/1805, on the incompleteness of that certificate, that authority should, pursuant to Article 19(2) of that regulation, consult the issuing authority so that the issuing authority can transmit to it a legible version of that order.
115. It is only in the absence of such transmission that the executing authority could, where appropriate, refuse to recognise and execute the confiscation order.
116. In the light of all the foregoing, I suggest that the Court’s answer to the third question referred for a preliminary ruling should be that Article 19(1)(h) of Regulation 2018/1805 must be interpreted as meaning that the recognition and execution of a confiscation order may not be refused by the executing authority under that provision in a situation where the person affected by that order, which was duly served on that person, did not avail him or herself of an effective remedy which was available in the issuing Member State, although by pursuing that remedy, that person could have had a court of that Member State review the observance of his or her fundamental rights, in particular those guaranteed by Article 47 of the Charter, by alleging before that court, first, that he or she did not participate in all the stages of the criminal proceedings which led to the issuing of that order, second, that he or she was not advised of the right of access to a lawyer and, third, that he or she was not served the full text of the judgment containing the confiscation order in a language he or she understood.
IV. Conclusion
117. Having regard to all the foregoing considerations, I propose that the Court answer the questions referred by the Visoki kazneni sud (High Criminal Court, Croatia) for a preliminary ruling as follows:
(1) Article 1(1) and (4) and Article 2(2) and (3)(d) of Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders, read in conjunction with recital 13 thereof,
must be interpreted as meaning that that regulation applies to a confiscation order issued within the framework of proceedings in criminal matters concluded with an acquittal, in relation to a criminal offence other than the offence of which the defendants were acquitted and involving a person other than the defendants, against whom no indictment was issued.
(2) Article 19(1)(h) of Regulation 2018/1805,
must be interpreted as meaning that the recognition and execution of a confiscation order may not be refused by the executing authority under that provision in a situation where the person affected by that order, which was duly served on that person, did not avail him or herself of an effective remedy which was available in the issuing Member State, although by pursuing that remedy, that person could have had a court of that Member State review the observance of his or her fundamental rights, in particular those guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, by alleging before that court, first, that he or she did not participate in all the stages of the criminal proceedings which led to the issuing of that order, second, that he or she was not advised of the right of access to a lawyer and, third, that he or she was not served the full text of the judgment containing the confiscation order in a language he or she understood.