Part 1
Requests by International Criminal Court

Section 4.—(1) In relation to any request by the International Criminal Court for the arrest and surrender, or the provisional arrest, of a person or for assistance under Article 93 (other forms of cooperation) the Minister may presume, unless he or she has any information to the contrary, that the request— Requests by International Criminal Court.

(a) has been duly made and transmitted in accordance with the relevant provisions of the Statute, and
(b) is being made in connection with the investigation or prosecution of offences within the jurisdiction of the Court.

(2) (a) Where a request by the Court involves the disclosure of information and such a disclosure would in the Minister’s opinion be prejudicial to the interests of the security of the State, he or she shall—

(i) in accordance with Article 93.5, consider whether the information can be provided subject to specified conditions or whether the assistance concerned can be provided at a later date or in an alternative manner, and
(ii) if of opinion that the information cannot be so provided, act in conjunction with the Prosecutor, the defendant’s legal advisers or the Pre-Trial Chamber or Trial Chamber of the Court to seek to resolve the issue in accordance with paragraph 5 of Article 72.

(b) Where the Minister becomes aware that such information is, or is likely to be, disclosed in an investigation or proceedings instituted by the Court, he or she shall, in accordance with paragraph 4 of that Article, intervene in order to obtain a resolution of the issue.

(c) If—

(i) the issue remains unresolved, and
(ii) the Minister is of opinion that there are no means by which, or conditions under which, the information could be disclosed without prejudicing the interests of the security of the State,
the Minister shall—

(I) notify the Prosecutor or the Court of that opinion and of the specific reasons for it unless to do so would itself necessarily result in prejudicing those interests, and
(II) participate in any consultations requested by the Court under Article 72.7(a)(i) in relation to the issue.

(d) For the purposes of this subsection Article 72 and paragraphs 4 and 5 of Article 93 shall have effect with any necessary modifications.

(e) In any proceedings a document purporting to be signed by the Minister and to certify that in his or her opinion—

(i) disclosure of information in compliance with a request from the Court, or
(ii) as the case may be, any further such disclosure,

would be prejudicial to the interests of the security of the State shall be admissible in evidence, without further proof, of that opinion.

(f) In this subsection references to the disclosure of information include references to the provision of documents, and cognate words shall be construed accordingly.

(3) Where compliance with a request by the Court is prohibited under the law of the State on the basis of a fundamental legal principle of general application, the Minister shall, in accordance with Article 93.3, consult with the Court to try to resolve the matter.

(4) If a request for assistance is refused, the Minister shall inform the Court or the Prosecutor of the reasons for the refusal.

(5) In accordance with Article 93.8 the Minister—

(a) may, when necessary, transmit information or documents to the Prosecutor on a confidential basis for use by him or her solely for the purpose of generating new evidence, and
(b) may subsequently consent to their disclosure.

(6) Any request mentioned in subsection (1) and any supporting or related documents shall constitute official information within the meaning of the Official Secrets Act 1963.

(7) Competing requests for assistance from the Court and from another state pursuant to an international obligation of the State, other than requests for surrender or extradition, shall be dealt with by the Minister in accordance with Article 93.9.

PART 4
Requests to Freeze Assets and Enforce Orders Of International Criminal Court

38.—
(1) This section applies where the Minister receives a request from the International Criminal Court under Article 93.1(k) to freeze the property of a person, including any articles used in the commission of an ICC offence, for the purpose of its eventual forfeiture.

(2) Where this section applies, the Minister shall, subject to section 4, send a copy of the request and any accompanying documents to the Commissioner of the Garda Síochána.

(3) (a) The Commissioner shall thereupon cause a member of the Garda Síochána not below the rank of inspector to apply to the High Court for an order under subsection (4).

(b) If the applicant—

(i) believes that the person to whom the request relates owns any land (whether or not the applicant believes that the person owns other land), and
(ii) is aware of its location,

the applicant shall state in the application that he or she so believes and specify the location of the land.

(4) (a) On such an application the High Court may make an order (in this Part referred to as a “freezing order”) prohibiting any person from dealing with the property of the person to whom the request relates if the Court is satisfied—

(i) that this section applies in relation to the property, and
(ii) either—

(I) that the International Criminal Court has imposed a fine, or made a reparation or forfeiture order, in the proceedings concerned, or
(II) that there are reasonable grounds for believing that that Court may impose a fine, or make such an order, in those proceedings.

(b) For the purposes of paragraph (a) dealing with property held by any person includes—

(i) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt, or
(ii) removing the property from the State.

(c) A freezing order may be subject to such conditions and exceptions as may be specified in it, including the making of such provision as the Court may think fit for the living expenses and legal expenses of any person.

(d) In paragraph (a) (ii) (I) “proceedings” includes an investigation by the International Criminal Court of an ICC offence.

(e) If subsection (3) (b) applies, the freezing order shall include the statement mentioned in that subsection.

(5) In exercising its powers under this section the High Court shall pay due regard to the rights of any third parties.

(6) A freezing order may apply—

(a) to all realisable property held by a specified person, whether the property is described in the order or not, and
(b) to realisable property held by a specified person, being property transferred to him or her after the making of the order.

(7) A freezing order—

(a) may be made ex parte and otherwise than in public,
(b) may provide for service on, or the provision of notice to, persons affected by the order in such manner as the High Court may direct,
(c) may be discharged or varied in relation to any property, and
(d) shall be discharged on the application of the International Criminal Court or on the conclusion of the proceedings before that Court in relation to which the order was made.

(8) For the purposes of subsection (7) (d), proceedings before the International Criminal Court have concluded—

(a) where the Court determines not to make an ICC order, on the date of the determination,
(b) where the Court makes such an order—

(i) on the date of the final determination of an application under section 40 for its enforcement, or
(ii) on the issue by the Minister of a certificate that a request is unlikely to be received from the International Criminal Court for the enforcement of the order.

(9) An application to discharge or vary a freezing order may be made by any person affected by it.

(10) Where the High Court has made a freezing order arising from a request related to the investigation of an ICC offence, it may discharge the order if the investigation is not completed within such time as it considers reasonable.

(11) Where the High Court has made a freezing order, the Court may at any time appoint a receiver—

(a) to take possession of any realisable property, and
(b) in accordance with the Court’s directions, to manage or otherwise deal with it,

subject to such exceptions and conditions as may be specified by the Court and to provision being made for the expenses and remuneration of the receiver, and may require any person having possession or control of such property to deliver it to the receiver.

(12) Where the High Court has made a freezing order, a member of the Garda Síochána or an officer of customs and excise may, for the purpose of preventing any realisable property being removed from the State, seize the property.

(13) Property seized under subsection (12) shall be dealt with in accordance with the High Court’s directions.

(14) Section 60 (voidance of dispositions designed to frustrate confiscation, etc.) of the Act of 1994 shall have effect as if the references to confiscation included references to a freezing order.


39.—
(1) (a) Where a freezing order is made in relation to land, or an order is made varying or discharging such an order, the registrar of the High Court shall send to the Registrar of Titles and Deeds a notice of the making of the order, together with a copy of the order.

(b) If it appears from the freezing order, or the Registrar is otherwise aware, that the land is registered land, the Registrar shall thereupon—

(i) cause an entry to be made in the register kept under the Registration of Title Act 1964 inhibiting, until the order is discharged, any dealing with any registered land or charge which appears to be affected by it, and
(ii) if the order is subsequently varied or discharged, cause the entry to be varied accordingly or cancelled, as the case may be.

(c) Where paragraph (b) does not apply, the Registrar shall thereupon cause the notice of the making, variation or discharge of the freezing order to be registered in the Registry of Deeds pursuant to the Registration of Deeds Act 1707.

(d) If and for as long as the offices of Registrar of Titles and the Registrar of Deeds are not held by the same person—

(i) the reference in paragraph (a) to the Registrar of Titles and Deeds shall be construed as a reference to the Registrar of Titles and the Registrar of Deeds,
(ii) the reference in paragraph (b) to the Registrar shall be construed as a reference to the Registrar of Titles, and
(iii) the reference in paragraph (c) to the Registrar shall be construed as a reference to the Registrar of Deeds.

(2) (a) Where a freezing 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.

(b) 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—

(i) if the company is an existing company, as defined in section 2(1) of the Companies Act 1963, send a copy of the notice to each director and the secretary of the company at the company’s registered office,
(ii) 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.

(c) In this subsection—
“Register of Companies” means the Register of Companies maintained under the Companies Acts 1963 to 2005;

“registered company” means—
(i) a company formed and registered under those Acts,
(ii) an existing company, as defined in section 2(1) of the Companies Act 1963, or
(iii) a company registered under Part XI of that Act or the European Communities (Branch Disclosure) Regulations 1993 (S.I. No. 395 of 1993).