EU Confiscation & Enforcement

Request for confiscation of property in designated state

Where a confiscation order is made relating to property in a designated state, the court shall on request provide the Director of Public Prosecutions with an authenticated copy of the order and a certificate.

The certificate must detail whether the order is subject to appeal and if so when the time for lodging an appeal shall expire, that the defendant was represented or appeared, and if not the date of the proceedings and the date the defendant received notice of the proceedings. A brief description of the conduct leading to the making of the order is also required.

The Director of Public Prosecutions may send the documents referred to in the 2008 Act to the Central Authority for transmission to the relevant state, along with a statement signed by or on behalf of the Director that the order is in force and has not been satisfied and a request that the confiscation order be applied.

if property is realised on foot of a request and the amount received is less than or equal to the amount ordered to be paid under the confiscation order, then this amount is subtracted from the total due, or the order is considered to be discharged, if appropriate. It provides that a certificate from the relevant authority in the designated state stating that realisation has taken place, the date of realisation and the proceeds of realisation is admissible as evidence without further proof.

The Act provides for an exchange rate to be applied to the euro equivalent to proceeds of realisation if they are stated in the certificate in the Act other than in euro. The rate applicable will be that prevailing on the date of realisation of the order.

Enforcement of external confiscation

An external confiscation order may be transmitted to the Central Authority in the State for enforcement by or on behalf of the court that made it. The Act sets out what must accompany the order. A statement must be provided by or on behalf of the court to the effect that the order is in force and not subject to appeal.

A statement is also necessary to the effect that if the person did not appear in the proceedings, s/he received notice of them in person in sufficient time to enable his or her defence. A brief description of the conduct which constituted the offence resulting in the confiscation order must accompany the confiscation order.

Confiscation cooperation order

The Central Authority in the State may cause an application to be made to the High Court, on receipt of an external confiscation order, for a confiscation cooperation order in order to effect the confiscation.  The application must be accompanied by the external confiscation order and any related documentation.

The Act provides for the Court to make a confiscation cooperation order on receipt of an application. the confiscation cooperation order may not be made unless the Court is satisfied (i) that the application is made with the Minister’s consent, (ii) with the statements provided by the issuing state and (iii) that any person claiming to own or have an interest in the property concerned has been given an opportunity to make representations as to why the order should not be made.

Where a confiscation cooperation order provides for the confiscation of a sum of money it has effect as if the original confiscation order applied. The provisions in relation to the enforcement of confiscation orders as set out in the Criminal Justice Act, 1994 apply in relation to such orders.

The Act sets out the power of the Court where the confiscation cooperation order provides for the confiscation of property other than money. The  Court may appoint a receiver and empower him or her to take possession of the property, subject to conditions as appropriate. Any person having control or possession of the property may be ordered by the Court to give possession to the receiver who may be empowered to receive it.

The Court may also make a restraint order in relation to the property under 4 of the Criminal Justice Act, 1994 and may make any other provisions that the interests of justice require. The property is deemed to be realisable. The  Court may order any person holding an interest in the property to make payment to the receiver. Recipients of any gift may be ordered by the Court to transfer, grant or extinguish their interest in such property.

Sections 22 and 26 to 30 of the Criminal Justice Act, 1994, as modified in any respect, apply to the confiscation cooperation order as if it were a confiscation order. These provisions deal with the application of the proceeds of realisation, the exercise of powers conferred by the High Court or on the receiver and the winding up of a company holding realisable property.

Any person holding an interest in the property must be allowed to make representations to the Court before any of the powers conferred within the specified subparagraphs of the Act are exercised.

The Act provides for an exchange rate to be applied to the euro equivalent to a confiscation order not expressed in euro. The rate applicable will be that prevailing on the date of the making of the order. The Court may vary or discharge a confiscation cooperation order if such an application is received either from the person claiming to have an interest in the property or from anyone affected by the order. The court from whom the external confiscation order was received may be consulted in relation to such an application.

The  Court will vary the order in line with any similar variation made to the external confiscation order. The Court will discharge an order if it is satisfied that the external confiscation order has been revoked or has been discharged in accordance with the law of the state from which it was received.

Forfeiture of property in designated state

If an order made relates to the forfeiture of property in a designated state, the court shall on request supply the Director of Public Prosecutions with

• an authenticated copy of the order;
• a certificate stating whether the order is subject to appeal and if so when the time for lodging an appeal will expire;
• that the defendant was represented or appeared, and if not, the date of the proceedings and the date the defendant received notice of the proceedings; and (iv) a description of the conduct constituting the offence which resulted in the making of the order.

The  Director of Public Prosecutions may send the documents referred to in the 2008 Act and a request for the forfeiture of the property to the Central Authority for transmission to the state concerned.

Enforcement of external forfeiture orders

A forfeiture order made by another state may be transmitted to the Central Authority for enforcement. The Act specifies that the order must be accompanied by the following statements(i) the order is in force and not subject to appeal; (ii) if the person concerned did not appear in the proceedings, that s/he received notice of the proceedings in sufficient time to defend them and (iii) a description of the conduct constituting the offence which resulted in the making of the order.

Forfeiture cooperation order

On receipt of an external forfeiture order and supporting documents, the Central Authority may cause an application to be made to the High Court for a forfeiture cooperation order to be made in order to enable the forfeiture of the relevant property to take place. In accordance with the Act the application must be accompanied by the external forfeiture order and any supporting documentation. The Act provides for the making of a forfeiture cooperation order on receipt of an application, subject to the conditions in the Act being satisfied.

The order may not be made unless the Court is satisfied that the application is made with the consent of the Minister, with the information provided by the issuing state  and that any person claiming to own or have interest in the property has been given an opportunity to make representations as to why the order should not be made. a forfeiture cooperation order deprives the subject of the proceedings of any right or interest in the property concerned and vests the property in the Commissioner of the Garda Siochana. The Act provides for the disposal of the property for the benefit of the Exchequer.

The Act provides for the amendment or termination of the forfeiture cooperation order if such an application is made by any person claiming to own or have an interest in the property. The Police Property Act, 1897 does not apply to property, that the 2008 Act does apply to property in possession of the Garda Siochana of the Criminal Justice Act, 1994 and that it Act does not affect any enactment where property is forfeited as the result of a conviction.