Internal Security Volume: 2 Issue: 1 Dated: 2010 Pages: 7-28
This article discusses implementation of the European Council Framework Decision from 2003 regarding Member States ability to freeze property or evidence in the course of ongoing criminal investigations.
The paper deals with issues related to implementation of the European Council Framework Decision of 23.07.2003 (2003/577/WSiSW) on the execution in the European Union of orders freezing property or evidence in the selected Member States. The Decision is an important instrument in judicial cooperation between the EU Member States, based on the principle of mutual recognition of court orders. To begin with, the author asserts that the European Union has yet to work out a system of the execution of legal assistance in the criminal proceedings, which is specific, uniform and used by all Member States. Major critical arguments are brought forward against the functionalities of the mutual recognition principle, quoting in particular the European Arrest Warrant, considering the right to defense. Critical assessment of implementation of the Decision of 23.07.2003 is supported by the Report of the Commission of the European Communities of 22.12.2008 (COM 2008 885) and by the Communication from the Commission to the European Parliament and the Council - Proceeds of organized crime: ensuring that "crime does not pay" of 20.11.2008 (COM 2008 766). In those documents European Commission has concluded that in several Member States implementation is delayed, incomplete or not in conformity with guidelines set by the Decision. Finally, the author examines regulations of the Polish Criminal Procedure Code, the regulations introduced in Germany on 06.06.2008, amending the Act on the international judicial cooperation (not referred to in the Report of the European Commission) and the regulations of the British system of common law, which only barely implemented the Framework Decision of 2003. (Published Abstract)