EU Freezing Orders

Freezing order relating to evidence

Introductory

Part 4 of the Act gives effect to the Council Framework Decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.

This provision applies where a criminal investigation or criminal proceedings are underway in the State. It allows for an application to be made by the Director of Public Prosecutions or a member of the Garda Siochana not below the rank of inspector to the High Court ex parte for a freezing order preventing, inter alia, the destruction, disposal or transfer of property that could be evidence.

The Act lays down the conditions under which the judge may make the order. An order has the effect of an order of the High Court. The Act provides for the High Court to amend or terminate a freezing order on application by a member of the Garda Siochana not below the rank of inspector or by any person affected by the order. Where an order requiring enforcement in a member state is amended or terminated, the High Court shall inform the Central Authority who shall notify the member state concerned.

Transmission of freezing order

The purpose  is to give effect to Articles 4 and 9 of the Framework Decision in the context of freezing orders to be enforced outside the State.

Where a freezing order is made concerning property in a member state, a certificate may be completed by the court on application. The Act provides for translation of the freezing order and certificate where appropriate.

The certificate must be signed on behalf of the court and include a statement regarding the accuracy of the information therein. Where the order relates to the protection of evidence, the member state concerned may be informed of any procedures or formalities to be adhered to in order to ensure that the evidence is admissible in criminal proceedings. the freezing order and certificate must be sent by the court to the Central Authority, who will transmit them to the relevant authority in the member state concerned for the purpose of enforcement.

Transmission of external freezing orders

A freezing order and a completed certificate certified as accurate, together with a request and any instruction regarding the treatment of the evidence or property concerned, shall be transmitted to the Central Authority for enforcement. In accordance with Article 4.2 of the Framework Decision, Ireland may modify or withdraw any declaration made to the Secretariat General of the Council in relation to transmission via its Central Authority.

The Act specifies that the freezing order and certificate must be translated into English or Irish, if they are not already in either of those languages. The Act  provides that the documents referred to must be transmitted in a format capable of producing a written record and allowing for their authentication, including in facsimile.

The Act provides for the original documents or a true copy to be transmitted in an agreed manner should the Central Authority or the court not be satisfied with a facsimile copy. It provides for the Minister to make regulations regarding procedures to be followed and the features to be present in equipment being used to transmit documents.

Recognition and enforcement

The 2008 Act provides for the Central Authority, on receipt of an external freezing order and related documents, to cause an application to be made to the High Court for a freezing cooperation order. Such an order would recognise the freezing order made by the member state and provide for a prohibition on the destruction, transfer, disposal etc. of property specified in the order.

The Act provides for the application to be made ex parte and for it to be accompanied by the original freezing order and any related documents. The application will be dealt with as soon as possible and where practicable within 24 hours of receipt of the freezing order and certificate. The Act provides for the making of a freezing cooperation order which has the same effect as an order made under 4 of the Criminal Justice Act, 1994, as amended by 4(a) of this Act.

An order may be refused if any of the grounds in  (which set out when assistance may be refused) or  (which deal with the circumstances in which such orders may be refused) apply. A freezing order may not be refused solely on the basis that the offences encompassed by Article 3.2 of the Framework Decision are not offences under Irish law. The Act provides for formalities and procedures to be laid down in freezing orders for the protection of evidence in order to ensure the preservation and admissibility of such evidence.

This will be done where indicated by the issuing authority, unless doing so would be contrary to the fundamental principles of the law of the State. The Act provides for notice to be given to any person who appears to be affected by the freezing order unless the court is satisfied that it cannot ascertain the person’s whereabouts.

The 2008 Act sets out the circumstances in which the freezing cooperation order remains in force. The order will remain in force until the relevant evidence is obtained and transferred or until such a request is refused. It  provides that the order will remain in force, where it is related to confiscation, until a confiscation cooperation order has been made or refused and the refusal upheld on appeal. The order also remains in force until it has been varied or discharged.

Variation or discharge

The Act allows the High Court, on application, which is without suspensive effect, to amend or terminate a freezing cooperation order. Termination will arise where proceedings for the offence or an application to transfer the evidence or a confiscation order are not made within what the Court considers a reasonable time. The order will also be terminated if the Court considers it would not be in the interests of justice to continue it.

The substantive grounds for the making of the freezing order may only be reviewed by a judicial authority in the issuing member state. the Court must inform the issuing authority in the member state of an application by a person affected by an order and the grounds for the making of the application in order that the issuing authority may submit arguments at the hearing. The member state concerned must be informed of the outcome of the application.

Refusal to make

The purpose of the 2008 Act is to give effect to Article 7 of the Framework Decision.

The grounds on which the High Court may refuse to make a freezing cooperation order are set out. They are where the offence named in the freezing order is not an offence under this Part of the Act; where there is no certificate or the certificate is incomplete or does not correspond to the freezing order; where immunity or privilege makes it impossible to make the order and where it is clear that compliance with the order would infringe the ne bis in idem principle.

Where a certificate is absent, incomplete or clearly does not correspond to the freezing order, the Court may specify a deadline for a completed or corrected version to be submitted, or, at its discretion, accept an alternative or choose not to require a certificate. where the freezing cooperation order is refused by the High Court or it is not possible to make the order because the evidence or property has disappeared or been destroyed or cannot be located, the Central Authority will inform the issuing judicial authority accordingly, on instructions from the Court and by means of a written record.

Postponement of freezing cooperation order

The 2008 Act provides for grounds on which the making of a freezing cooperation order may be postponed by the High Court. They are (a) where its making might damage an ongoing criminal investigation; (b) where the property or evidence is already subject to a freezing order in the State or (c) where the order freezing property, with a view to its confiscation at a later stage, is subject to an order in relation to other proceedings in the State.  Postponement may only apply where the order made has priority over a subsequent freezing order in criminal proceedings.

Where the ground for postponement no longer applies that the freezing cooperation order will be made by the Court. The Act provides for the High Court to direct the Central Authority to inform the issuing member state of any postponement and the details of that postponement, of the making of a freezing cooperation order and of any other measure which may apply to the property concerned.

Subsequent treatment of frozen property

A request to transfer evidence subject to a freezing cooperation order to the issuing member state will be dealt with in the same manner as a request for particular evidence for use outside the State. It specifies that a request to make a property confiscation cooperation order under the Act will be dealt with under Part 5 of the Act.

A request for the transfer of evidence cannot be refused on the basis of the absence of dual criminality if the request is in relation to one of the listed offences in Article 3(2) of the Framework Decision and is punishable in the issuing member state by a prison sentence of at least three years.