PART 4
FREEZING, CONFISCATION AND FORFEITURE OF PROPERTY
Chapter 2
Freezing of Property
Freezing order relating to
evidence.

32. — (1) This section applies where criminal proceedings have been instituted, or a criminal investigation is taking place, in the State.

(2) Where this section applies, the Director of Public Prosecutions or a member of the Garda Síochána not below the rank of inspector may apply ex parte and otherwise than in public to a judge of the High Court for an order (a “freezing order”) prohibiting the destruction, transformation, moving, transfer, disposal or use by any person of specified property, whether in or outside the State, that could be evidence in those proceedings or, as the case may be, in any such proceedings that may be instituted.
(3) The judge may make the order applied for if satisfied—
(a) that criminal proceedings have been instituted or a criminal investigation is taking place,
(b) that evidence relating to the offence concerned—
(i) is on specified premises,
(ii) is likely to be of substantial value (whether by itself or together with other evidence) to the proceedings or investigation, and
(iii) is likely to be admissible at a trial for the offence, and
(c) in case the evidence is in a designated state, that a request has been or will be made for it to be transferred to the Commissioner of the Garda Síochána.

(4) An order under this section does not apply in relation to any documents subject to legal privilege.

(5) The High Court may vary or discharge an order under this section on application by—
(a) a member of the Garda Síochána not below the rank of inspector, or
(b) any person affected by it,
and shall discharge it if its continuance in force would not be in the interests of justice.
(6) If—
(a) an order under this section is transmitted for enforcement in a designated state pursuant to F19[section 33], and

(b) the order is later varied or discharged in relation to property in the designated state,



the Court shall cause the Central Authority to be informed as soon as practicable of the variation or discharge, and that Authority shall thereupon notify the appropriate authority in the designated state accordingly.



Transmission of
freezing order for enforcement
outside the State.

33.— (1) If—
(a) any property to which an application for a freezing order relates is in a member state, and
(b) the application is granted,
the applicant may request the judge concerned to cause a certificate to be completed.
(2) The certificate shall—
(a) bear a signature (which may be an electronic signature) by or on behalf of the court concerned, and
(b) include a statement as to the accuracy of the information in the certificate.
(3) If the freezing order is an order under section 32 for the protection of evidence, the court concerned may indicate to the judicial authority of the member state any formalities and procedures in enforcing the order that are necessary to ensure that the evidence is admissible in criminal proceedings.

(4) The freezing order and certificate shall be sent by a registrar of the Court to the applicant, who shall send them to the Central Authority for transmission to the appropriate authority in the member state concerned with a view to having the freezing order enforced.

(5) If a freezing order relates to property in a designated state (other than a member state), the Director of Public Prosecutions may send to the Central Authority, for transmission to the appropriate authority in the designated state with a view to having the freezing order enforced—
(a) a duly authenticated copy of the order, and
(b) such other information as may be required by the appropriate authority in accordance with the relevant international instrument.



Transmission of external freezing orders to State for enforcement.

34. — (1) An external freezing order from a member state and a certificate duly completed and certified as accurate by the issuing judicial authority together with a request or instruction relating to the subsequent treatment of the evidence or prop- erty concerned shall, unless otherwise provided by a declaration by the State under Article 4.2 of the F20[2003 Framework Decision], be transmitted to the Central Authority in connection with a request for enforcement of the order.

(2) A request from any other designated state for the enforcement of an external freezing order shall be accompanied by—
(a) a duly certified copy of the order,
(b) a statement of the grounds—



(i) for making the order, and
(ii) for believing that the evidence or property concerned will be subject to an order of confiscation,
and any other information required by the relevant international instrument.
(3) Transmission of the documents mentioned in subsection (1) or (2) shall be by any means capable of producing a written record under conditions which allow the Central Authority or the High Court to establish the documents’ authenticity.

(4) An issuing judicial authority is deemed to have complied with subsection (3) if facsimile copies of the external freezing order, the certificate (where appropriate) and any translation thereof are transmitted in compliance with any regulations that may be made under subsection (6).

(5) If the Central Authority or the High Court is not satisfied that a facsimile copy of a document transmitted in accordance with this section corresponds to the docu- ment of which it purports to be such a copy, the Central Authority or the Court shall—

(a) request the issuing judicial authority to cause the original or a copy of the document to be transmitted to the Central Authority, and

(b) agree with that judicial authority on the manner in which the original or copy is to be so transmitted.

(6) The Minister may, if he or she considers it necessary for the purposes of ensuring the accuracy of documents transmitted in accordance with this section, make regula- tions—

(a) prescribing procedures to be followed in connection with the transmission of documents in accordance with this section, and

(b) specifying features to be present in any equipment being used in that connection.



Recognition and enforcement of external freezing orders.

35. — (1) The Central Authority shall, on receipt of an external freezing order, certificate (where appropriate), any other supporting or related documents and any translation, forthwith cause an application to be made to the High Court for an order (in this Part referred to as a “freezing co-operation order”) recognising the external freezing order and prohibiting any person from dealing with the property specified in the external freezing order.

(2) The application may be made ex parte and otherwise than in public and shall be accompanied by the documents mentioned in subsection (1) or copies thereof and, in the case of a designated state (other than a member state), shall be made with the consent of the Minister.

(3) An application from a member state for the enforcement of an external freezing order shall be dealt with as soon as possible and, whenever practicable, within 24 hours of receipt of the order and a duly completed certificate.

(4) On an application under this section the Court may, subject to subsection (5), make a freezing co-operation order, subject to any conditions that may be specified in the order.



(5) The Court may—
(a) refuse to make a freezing co-operation order on a ground mentioned in section 3 or 46, or
(b) postpone its making on a ground mentioned in section 47.
(6) Where a request from a member state concerns an offence referred to in Article 3(2) of the F21[2003 Framework Decision] which is punishable in that state by a maximum term of imprisonment of not less than 3 years, the Court may not refuse to make a freezing co-operation order solely on the ground that the conduct consti- tuting the offence concerned does not constitute an offence under the law of the State.
(7) Where—
(a) an external freezing order is for the protection of evidence,
(b) it is necessary to ensure that the evidence is admissible in the proceedings concerned, and

(c) for that purpose certain formalities and procedures in the enforcement of the external freezing order are expressly indicated by the issuing judicial authority,

the freezing co-operation order shall make provision for observing those formalities and procedures, unless their observance would be contrary to the fundamental prin- ciples of the law of the State.

(8) The Court shall cause notice of the freezing co-operation order to be given to any person who appears to be or is affected by it, unless the Court is satisfied that it is not reasonably possible to ascertain the person’s whereabouts.



Application, etc., of freezing co-
operation orders.

36. — (1) A freezing co-operation order may apply—
(a) where particular property is specified in the external freezing order, to the property so specified, and
(b) in any other case—
(i) to realisable property held by a specified person, whether the property is described in the freezing co-operation order or not, and

(ii) to any realisable property held by a specified person, being property transferred to the person after the external freezing order was made.

(2) A freezing co-operation order may make such provision as the Court thinks fit for the living expenses and legal expenses of the person possessing the property concerned.
(3) The Court—
(a) may at any time appoint a receiver—



(i) to take possession of any realisable property to which a freezing co- operation order applies, and

(ii) in accordance with the Court’s directions, to manage or otherwise deal with the property, subject to such exceptions and conditions as it may specify,
and
(b) may require any person having possession or control of the property to give up possession of it to the receiver.

(4) Where the Court has made a freezing co-operation order, a member of the Garda Síochána or an officer of customs and excise may seize any realisable property for the purpose of preventing its removal from the State.

(5) Property taken possession of under subsection (4) shall be dealt with in accor- dance with the Court’s directions.


Registration of

37. — (1) Where a freezing co-operation order is made in relation to land, or an

freezing co-opera- order is made varying or discharging such an order, the registrar of the High Court

tion orders.

shall send to the Property Registration Authority a notice of the making of the order, together with a copy of the order.
(2) On receipt of those documents the Authority shall—
(a) if the land is registered land, cause an entry to be made in the register kept by it under the Registration of Deeds and Title Acts 1964 and 2006 inhibiting, until the order is discharged, any dealing with the land and any charge thereon, and

(b) if the order is subsequently varied or discharged, cause the entry to be varied accordingly or cancelled, as the case may be.

(3) If subsection (2)(a) does not apply, the Authority shall cause the notice of the making, variation or discharge of the freezing co-operation order to be registered in the register of deeds maintained by the Authority under section 35 of the Registration of Deeds and Title Act 2006.

(4) Where a freezing co-operation order is made which affects an interest in a company or its property, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Companies a notice of the making of the order, together with a copy of the order.

(5) On receipt of those documents the Registrar of Companies shall, if the company is a registered company, cause the notice to be entered in the Register of Companies and—

(a) if the company is an existing company within the meaning of the Companies Acts 1963 to 2006, send a copy of the notice to each director and the secretary of the company at the company’s registered office, or

(b) in any other case, send a copy of the notice by post to the person resident in the State who has been authorised to accept, on behalf of the company concerned, service of process and any notices required to be served on it.
(6) In this section—
“Register of Companies” means the Register of Companies maintained under the Companies Acts 1963 to 2006;
“registered company” means—
(a) a company formed and registered under those Acts,



(b) an existing company within the meaning of those Acts, or
(c) a company registered under Part XI of the Companies Act 1963 or the European Communities (Branch Disclosure) Regulations 1993 (S.I. No. 395 of 1993).


Exercise of
powers under
this Chapter by High Court or receiver.

38. — (1) The powers of the High Court under section 36 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to making available for recovery property which may become liable to be recovered under any confiscation co-operation order F22[or, in the case of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, that external confiscation order] that may be made in the defendant’s case.

(2) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of a gift, to retain or recover the value of any property held by the person.

(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

(4) In exercising the powers no account shall be taken of any obligations of the defendant or the recipient of any gift that conflict with the obligation to satisfy F23[any order referred to in subsection (1)] that may be made in the defendant’s case.

PART 4
FREEZING, CONFISCATION AND FORFEITURE OF PROPERTY
Chapter 2
Freezing of Property

Recognition and enforcement of external freezing orders.

35. — (1) The Central Authority shall, on receipt of an external freezing order, certificate (where appropriate), any other supporting or related documents and any translation, forthwith cause an application to be made to the High Court for an order (in this Part referred to as a “freezing co-operation order”) recognising the external freezing order and prohibiting any person from dealing with the property specified in the external freezing order.

(2) The application may be made ex parte and otherwise than in public and shall be accompanied by the documents mentioned in subsection (1) or copies thereof and, in the case of a designated state (other than a member state), shall be made with the consent of the Minister.

(3) An application from a member state for the enforcement of an external freezing order shall be dealt with as soon as possible and, whenever practicable, within 24 hours of receipt of the order and a duly completed certificate.

(4) On an application under this section the Court may, subject to subsection (5), make a freezing co-operation order, subject to any conditions that may be specified in the order.



(5) The Court may—
(a) refuse to make a freezing co-operation order on a ground mentioned in section 3 or 46, or
(b) postpone its making on a ground mentioned in section 47.
(6) Where a request from a member state concerns an offence referred to in Article 3(2) of the F21[2003 Framework Decision] which is punishable in that state by a maximum term of imprisonment of not less than 3 years, the Court may not refuse to make a freezing co-operation order solely on the ground that the conduct consti- tuting the offence concerned does not constitute an offence under the law of the State.
(7) Where—
(a) an external freezing order is for the protection of evidence,
(b) it is necessary to ensure that the evidence is admissible in the proceedings concerned, and

(c) for that purpose certain formalities and procedures in the enforcement of the external freezing order are expressly indicated by the issuing judicial authority,

the freezing co-operation order shall make provision for observing those formalities and procedures, unless their observance would be contrary to the fundamental prin- ciples of the law of the State.

(8) The Court shall cause notice of the freezing co-operation order to be given to any person who appears to be or is affected by it, unless the Court is satisfied that it is not reasonably possible to ascertain the person’s whereabouts.



Application, etc., of freezing co-
operation orders.

36. — (1) A freezing co-operation order may apply—
(a) where particular property is specified in the external freezing order, to the property so specified, and
(b) in any other case—
(i) to realisable property held by a specified person, whether the property is described in the freezing co-operation order or not, and

(ii) to any realisable property held by a specified person, being property transferred to the person after the external freezing order was made.

(2) A freezing co-operation order may make such provision as the Court thinks fit for the living expenses and legal expenses of the person possessing the property concerned.
(3) The Court—
(a) may at any time appoint a receiver—



(i) to take possession of any realisable property to which a freezing co- operation order applies, and

(ii) in accordance with the Court’s directions, to manage or otherwise deal with the property, subject to such exceptions and conditions as it may specify,
and
(b) may require any person having possession or control of the property to give up possession of it to the receiver.

(4) Where the Court has made a freezing co-operation order, a member of the Garda Síochána or an officer of customs and excise may seize any realisable property for the purpose of preventing its removal from the State.

(5) Property taken possession of under subsection (4) shall be dealt with in accor- dance with the Court’s directions.


Registration of

37. — (1) Where a freezing co-operation order is made in relation to land, or an

freezing co-opera- order is made varying or discharging such an order, the registrar of the High Court

tion orders.

shall send to the Property Registration Authority a notice of the making of the order, together with a copy of the order.
(2) On receipt of those documents the Authority shall—
(a) if the land is registered land, cause an entry to be made in the register kept by it under the Registration of Deeds and Title Acts 1964 and 2006 inhibiting, until the order is discharged, any dealing with the land and any charge thereon, and

(b) if the order is subsequently varied or discharged, cause the entry to be varied accordingly or cancelled, as the case may be.

(3) If subsection (2)(a) does not apply, the Authority shall cause the notice of the making, variation or discharge of the freezing co-operation order to be registered in the register of deeds maintained by the Authority under section 35 of the Registration of Deeds and Title Act 2006.

(4) Where a freezing co-operation order is made which affects an interest in a company or its property, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Companies a notice of the making of the order, together with a copy of the order.

(5) On receipt of those documents the Registrar of Companies shall, if the company is a registered company, cause the notice to be entered in the Register of Companies and—

(a) if the company is an existing company within the meaning of the Companies Acts 1963 to 2006, send a copy of the notice to each director and the secretary of the company at the company’s registered office, or

(b) in any other case, send a copy of the notice by post to the person resident in the State who has been authorised to accept, on behalf of the company concerned, service of process and any notices required to be served on it.
(6) In this section—
“Register of Companies” means the Register of Companies maintained under the Companies Acts 1963 to 2006;
“registered company” means—
(a) a company formed and registered under those Acts,



(b) an existing company within the meaning of those Acts, or
(c) a company registered under Part XI of the Companies Act 1963 or the European Communities (Branch Disclosure) Regulations 1993 (S.I. No. 395 of 1993).


Exercise of
powers under
this Chapter by High Court or receiver.

38. — (1) The powers of the High Court under section 36 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to making available for recovery property which may become liable to be recovered under any confiscation co-operation order F22[or, in the case of an external confiscation order transmitted by or on behalf of a court in a designated state that is a member state, that external confiscation order] that may be made in the defendant’s case.

(2) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of a gift, to retain or recover the value of any property held by the person.

(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

(4) In exercising the powers no account shall be taken of any obligations of the defendant or the recipient of any gift that conflict with the obligation to satisfy F23[any order referred to in subsection (1)] that may be made in the defendant’s case.