EU Co-operation II

Freezing Order Outwards

Part 4 gives effect to the Council Framework Deci sion on the execution in the European Union of orders for freezing property and evidence.  It also contains provisions dealing with freezing and confiscation and co-operation orders previously dealt with under the regulations under the Criminal Justice Act 1994.

Where a criminal investigation or proceedings are underway in the State, an application may be made by the DPP, a member of An Garda Síochána at Inspector level or higher to the High Court for a freezing order preventing the destruction, disposal, or transfer of property that could be used as evidence.  The conditions under which the order may be made are set out.  Where an order requiring enforcement in a designated State is amended or terminated, the High Court shall so inform the central authority who shall notify the designated authority concerned.

There are provisions for transmission of a freezing order for enforcement outside the State.  When a freezing order is made concerning property in a Member State, a certificate may be completed by the court on application.

Where the order relates to protection of evidence, the Member State concerned may be informed of any procedures and formalities to be adhered to in order to ensure the evidence is admissible in criminal proceedings.  The freezing order and certificate must be sent by the court to the applicant, who shall transmit them to the central authority and transfer them to the relevant authority in the Member State for the purpose of enforcement.

Freezing Order Inwards

There is equivalent provision for transmission of external freezing orders to the State for enforcement. The freezing order and a completed certificate may be transmitted to the central authority for enforcement.

Requests from designated States must be accompanied by you are duly certified copy of the order, statement of the grounds for making an order and believing that the evidence or property will be the subject of an order for confiscation and such other information as may be required by the relevant international instruments.

The Minister may make regulations in relation to the modes of transmission of documents for ensuring accuracy.

The central authority, on receipt of an external freezing order request, must act promptly. The application from the other State is to be dealt with as soon as possible and where practicable within 24 hours of receipt of the freezing order and certificate.  The order may be refused on grounds set out in the legislation.  It may not be refused solely on the basis that offence is not at offences under Irish law.

There are provisions for the procedures laid down in freezing orders for the protection of evidence to ensure preservation and admissibility.  This will be done where indicated by the issuing authority unless it would be contrary to fundamental principles of law of the State.  Notice is to be given to a person who appears to be affected by freezing orders, unless the court is satisfied, it cannot ascertain the whereabouts.

Freezing Cooperation Orders

A freezing co-operation order may apply to particular property specified in the external freezing order.  A co-operation order may apply to realisable property held by a particular person, including that not described in the original external order as well as property which may be transferred to that person after the order was made.

The order may make provisions for the living and legal expenses of the person possessing the property subject to an order.  A court may appoint a receiver to take possession of the property and manage it in accordance with the court’s direction.  Garda Síochána or members of custom may seize property subject to a freezing order and prevent its removal from the State.  Property seized shall be dealt with in accordance with court directions.

There is provision for registration of freezing co-operation orders in the land registry or the Companies Registration Office.  Where the High Court has made an order in relation to land or altering previous terms, it is to be sent to the Land Registry.  There is also provision where an order relates to an interest in company for its registration in the CRO.  The registrar is to give notice to the officers of the company.

The High Court or an appointed receiver shall use powers to make the property available for recovery, which may become liable for recovery under the confiscation co-operation order.  Where assets are being gifted, they may be recovered up to the value of the gift.

A property which is subject to a freezing co-operation order is excluded from bankruptcy assets.  Powers of insolvency officers may not be used in relation to property, the subject of a freezing co-operation order without consent of court.

The provision sets out circumstances in which the order remains in force.  It is to remain in force until the confiscation co-operation order has been made or refused or the refusal is upheld on appeal.  There is provision for application to the High Court for amending or terminating a co-operation order

There is provision for postponement of the granting of an order by the High Court.  This is where it might prejudice an ongoing criminal investigation, where the property concerned is already subject to a freezing ordered in the State or subject to an order in relation to other proceedings in the State.  Where the grounds for postponement no longer apply, the freezing co-operation order will be made by the State.

A request to transfer asset subject to a freezing co-operation order to the issuing State is dealt with in the same manner as a request for particular evidence for use under the Act mentioned separately.

Refusal of Cooperation Order

A freezing co-operation order may be made refused were.

• the offence named if not the offence to which the relevant international instruments relate,
• where it was made in a member State and there was no certificate or the certificate’s complete address does not correspond to the freezing order
• where immunity or privilege makes it impossible to make the order
• where it is feared that compliance would infringe basic double jeopardy rules where there is no reasonable belief or sufficient grounds for the making of the order or that the property will become subject of a confiscation order.

Administration Under Order

Where a confiscation order is made related to property in a designated State, the court on request is to provide the DPP with an authenticated copy of the order and a certificate detailing the time frame for lodging appeal or that it has expired or will expire.

The DPP may send documents to the central authority for transmission to the relevant State along with a statement by the DPP that the order is in force and not satisfied, the defendant was represented or appeared, the date of the proceedings, brief description of the conduct leading to the making of the order of the required.

If the property is realised on foot of a request, and the amount is less than or equal to the amount ordered to be paid under the confiscation order, this is subtracted from the total and the order is to be deemed discharged, if appropriate.#

External Confiscation Order

There are corresponding provisions for an external confiscation order.  A certified copy of the order and statement by the court to the effect that the order is in force etc., and not subject to appeal must be received.  The central authority is to make application to the High Court for a confiscation co-operation order to effect confiscation of the property in the State.

The court is to make the confiscation co-operation order, if it is satisfied.

• that the application is made with the Minister’s consent
• that other requisite proofs are in order,
• that the conduct leading to the order constitutes criminal conduct,
• the making of the order is in accordance with the international instrument and
• the person who has an interest in the property has been given an opportunity to make representations on why the order should not be made.

The order may be varied or discharged on application.

Enforcement

Where the High Court makes a confiscation co-operation order, without prejudice to the powers of the receiver appointed under the Act, it may be enforced by the DPP for the purpose of payment.  It cannot result in the imprisonment of a person.

If the sum covered by the confiscation co-operation order remains unpaid, the court may on being notified by the DPP, order imprisonment for a period not exceeding that set out.  The defendant must have an opportunity to make representations.

Where a confiscation co-operation order has not been satisfied, the court may on application of the DPP appoint a receiver.  The receiver may take possession of any realisable property.  The court may empower the receiver to realise the property concerned.

An order that a person holding a realisable asset, or the recipient of any gift is to make payment to the receiver in respect of their interests. The court may also on payment being made, transfer, grant or extinguish any interest in the property.  The rights, powers are not to be exercised, unless a reasonable opportunity has been given to persons holding interest in the property to make representations to Court.

In the event of delays in payment of sums due under confiscation co-operation orders, persons concerned are liable to pay interest on outstanding sums.  Payments are to be expressed in euro.

The High Court or receiver has powers to recover property that is liable to be recovered.  They shall be exercised so that a person other than a defendant or recipient of a gift may be allowed to retain or recover value of property held in the assets by the person.

If an order relates to forfeiture of property in a designated State, the court on request shall supply the DPP with an authenticated copy of the order and certificate stating whether the time frame for lodgment has expired.

The DPP may send documents above to the central authority for the transmission to the relevant State along with certain statements to the effect that the order has not been satisfied.  Brief description of the conduct leading to the making of the order is required.  Any other information required by the particular international instrument should be included.

External Forfeiture Order

A forfeiture order made by another State may be transmitted to the central authority in Ireland for enforcement.  It must be accompanied by a duly certified copy of the order, a statement that it is in force and not subject to appeal and confirmation the person had notice of the proceedings and sufficient time to defend them and a brief description of the conduct which made the offence resulting in making of the order.  Any other information required by the relevant international instrument must also be included.

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 co-operation order be made to enable forfeiture to take place.

The making of the forfeiture co-operation order shall be made on receipt of an application subject to conditions being satisfied.  The court must be satisfied that.

• the application is made with the consent of the Minister,
• that the information provided by the issuing State complies with that required by statute,
• that the conduct resulting in the order constitutes criminal conduct,
• that the making of the order is in accordance with the international instrument,
• that any person claiming to own or have an interest in the order has been given the opportunity to make representation.

The 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 An Garda Síochána.

There is provision for the disposal of property for the benefit of exchequer unless on request made by or on behalf of the requesting State, in accordance with the international instrument, the court otherwise provides.