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

37.—
In this Part, unless the context otherwise requires—
“Act of 1988” means the Bankruptcy Act 1988;
“defendant” means a person in relation to whom the Minister has received a request from the International Criminal Court for the freezing of property or the enforcement of an ICC order;
“enforceable ICC order” means an ICC order in relation to which an enforcement order has been made;
“enforcement order” means an order under section 40(3) for the enforcement of an ICC order;
“freezing order” means an order under section 38(4); “gift caught by this Part” means a gift—
(a) which was made by the defendant in proceedings for an ICC offence at any time after the commission of the offence or, if there is more than one such offence, the earliest of the offences to which the proceedings for the time being relate, and
(b) which the court considers it appropriate in all the circumstances to take into account;
“ICC order” has the meaning given to it by section 40(1); “realisable property” means—
(a) any property held by a defendant, and
(b) any property held by a person to whom a defendant has directly or indirectly made a gift caught by this Part,
but does not include any property subject to—
(i) an order under section 4 or 4A of the Proceeds of Crime Act 1996,
(ii) forfeiture under an enforceable ICC order,
(iii) an order under section 30 (forfeiture orders) of the Misuse of Drugs Act 1977,
(iv) a confiscation order, or a forfeiture order, within the meaning of the Act of 1994, or
(v) a confiscation co-operation order or an external forfeiture order, as referred to in section 46 or 47 of that Act;
“registered land” means land whose owner is, or is deemed to be, registered under the Registration of Title Act 1964.

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).

40.—
(1) This section applies where the Minister has received a request from the International Criminal Court for the enforcement of an order of the Court (in this Part referred to as an “ICC order”) imposing a fine or forfeiture or providing for reparation to, or in respect of, victims.
(2) (a) Where this section applies, the Minister shall, subject to section 4, cause an application to be made to the High Court for enforcement of the ICC order.
(b) If the applicant—
(i) believes that the person against whom the order was made 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.
(3) (a) On such an application the High Court may, subject to subsection (4), make an order (in this Part referred to as an “enforcement order”) for the enforcement of the ICC order.
(b) If subsection (2) (b) applies, the enforcement order shall
include the statement referred to in that subsection.
(4) The High Court shall make an enforcement order only if—
(a) the ICC order, or
(b) the conviction in respect of which it was made, is in force and not subject to further appeal and if—
(i) a reasonable opportunity has been given for persons holding an interest in any property concerned to make representations to the High Court, and
(ii) where the ICC order imposes a fine, its enforcement will not prejudice the rights of bona fide third parties.
(5) If the ICC order has been partly complied with, the High Court shall make an enforcement order only in relation to the part not complied with.
(6) Where the enforceable ICC order relates to the payment of a fine or other sum, the order shall be enforced in accordance with its terms as if it were an order of the High Court for the payment to the State of the sum payable under the ICC order or of any lesser sum remaining due under it.
(7) Where the enforceable ICC order relates to the forfeiture of property—
(a) the order shall operate to deprive the person to whom it relates of his or her rights, if any, in the property, and
(b) the order shall be enforced in accordance with its terms as if it were an order of the High Court for the forfeiture of the property.
(8) Nothing in subsection (6) or (7) authorises a person to be imprisoned.
(9) Subject to subsection (10), if at any time after the making of the enforcement order it is reported to the High Court that any sum payable under the ICC order remains unpaid, the Court may, without prejudice to the validity of anything previously done under the order or to its future enforcement, order that the person to whom the ICC order relates be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite the amount outstanding under the ICC order.
(10) An order under subsection (9) of this section shall not be made unless the person to whom the ICC order relates has been given a reasonable opportunity to make representations to the Court.
(11) Section 60 (voidance of dispositions designed to frustrate confiscation, etc.) of the Act of 1994 shall have effect as if the reference to forfeiture included a reference to an enforceable ICC order.
(12) Money or other property received under an enforceable ICC order shall, without prejudice to section 49(1), be dealt with in accordance with the directions of the International Criminal Court.
(13) Section 39 shall apply in relation to the registration of enforcement orders as it does in relation to the registration of freezing orders and shall have effect accordingly, with any necessary modifications.

See Table

41.—
(1) Where an enforcement order which is not subject to appeal has not been satisfied, the High Court may exercise the powers conferred by this section.
(2) Where subsection (1) applies, the Court may, in relation to any realisable property—
(a) appoint a person to be a receiver in respect of it,
(b) empower the receiver to take possession of it, subject to such conditions or exceptions as the Court may specify,
(c) order any person having possession or control of it to deliver it to the receiver,
(d) empower the receiver to realise it in such manner as the Court may direct,
(e) order any person holding an interest in it to make to the receiver such payment as the Court may direct in respect of any beneficial interest held in it by the defendant or, as the case may be, by the recipient of any gift caught by this Act, and
(J) on the payment being made, by order transfer, grant or extinguish any such beneficial interest.
(3) The Court shall not exercise the powers conferred by this section unless a reasonable opportunity has been given to persons holding any interest in the property concerned to make representations to it in relation to such exercise.

42.—
(1) In this section “powers” means the powers conferred on the High Court by section 38(11) or 41(2) or on a receiver appointed under either of those provisions.
(2) Subject to subsection (3), the powers shall be exercised with a view to—
(a) securing that the property covered by an order under either of those provisions is available to satisfy any order of the International Criminal Court imposing a fine or forfeiture or providing for reparation to, or in respect of, victims,
(b) in the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part, realising no more than the value for the time being of the gift,
(c) allowing any person, other than the defendant or the recipient of any such gift, to retain or recover the value of any property held by him or her.
(3) In exercising the powers no account shall be taken of any obligations of the defendant or of the recipient of any such gift that conflict with the obligation to satisfy the freezing order or ICC order concerned.

43.—
A receiver who—
(a) takes any action in relation to property which is not realisable property, being an action which a receiver would be entitled to take if it were realisable property, and
(b) believes, and has reasonable grounds for believing, that he or she is entitled to take that action in relation to that property,
is not liable to any person in respect of any loss or damage resulting from the action except in so far as the loss or damage is caused by his or her negligence.

44.—
(1) Where a person who holds realisable property is adjudicated bankrupt, the following property is excluded from the property of the bankrupt for the purposes of the Act of 1988:
(a) any property for the time being subject to—
(i) a freezing order made before the order of adjudication, or
(ii) an ICC order which is the subject of an enforcement order made before the order of adjudication;
(b) any property realised by virtue of section 38(11) or 41(2) and for the time being in the hands of a receiver.
(2) Where a person was adjudicated bankrupt before the passing of this Act, the powers of the High Court or a receiver under either of those sections shall not be exercised in relation to property of the bankrupt for the purposes of the Act of 1988.
(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift caught by this Part—
(a) any decision as to whether the gift is void shall not be made under section 57, 58 or 59 of the Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a freezing order or an enforceable ICC order, and
(b) any such decision made after the discharge of the freezing order or enforceable ICC order shall take into account any realisation under this Part of property held by the person to whom the gift was made.
(4) Where a petition in bankruptcy was presented, or an adjudication in bankruptcy made, before 1 January 1989, this section shall have effect with the modification that for references to the property of the bankrupt for the purposes of the Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy in force before that date.

45.—
(1) Without prejudice to the generality of any provision of any other enactment, where—
(a) the Official Assignee or a trustee appointed under Part V of the Act of 1988 seizes or disposes of any property in relation to which his or her functions are not exercisable because it is for the time being subject to a freezing order or an enforceable ICC order, and
(b) at the time of the seizure or disposal he or she believes, and has reasonable grounds for believing, that he or she is entitled (whether in pursuance of an order of a court or otherwise) to seize or dispose of the property,
he or she—
(i) is not liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his or her negligence, and
(ii) has a lien on the property, or the proceeds of its sale, for such of his or her expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his or her remuneration as may reasonably be assigned for his or her acting in connection with those proceedings.
(2) Where the Official Assignee or a trustee appointed as aforesaid—
(a) incurs expenses in respect of such property, and
(b) does not know, and does not have reasonable grounds for believing, that the property is for the time being subject to a freezing order or an enforceable ICC order,
he or she is entitled (whether or not he or she has seized or disposed of the property so as to have a lien) to payment of those expenses under section 49.

46.—
(1) In this section—
“company” means any company which may be wound up under the Companies Acts 1963 to 2005;
“relevant time” means—
(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for its voluntary winding up,
(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and
(c) in any other case where such an order has been made, the time of the making of the order.
(2) Where realisable property is held by a company and an order for its winding up has been made or a resolution for its voluntary winding up has been passed by it, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—
(a) property for the time being subject to—
(i) a freezing order which was made before the relevant time, or
(ii) an ICC order which is the subject of an enforcement order made before that time,
(b) any property realised by virtue of such an order for the time being in the hands of a receiver appointed under this Part.
(3) Where an order for the winding up of a company has been made or such a resolution passed, the powers of the High Court or of such a receiver shall not be exercised in relation to any realisable property held by the company concerned—
(a) so as to inhibit the exercise of those powers for the purpose of distributing any property held by the company to the company’s creditors, or
(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

47.—
(1) If any sum required to be paid by a person under an enforceable ICC order is not paid when it is required to be paid (whether forthwith on the making of the enforcement order concerned or at a time specified in the ICC order), the person shall be liable to pay interest on the sum for the period for which it remains unpaid.
(2) The amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from the person under the enforceable ICC order.
(3) The rate of interest shall be that for the time being applicable to a High Court civil judgment debt.

48.—
(1) An amount payable in the State under an enforceable ICC order shall be paid in euro.
(2) If the amount payable is expressed in the enforceable ICC order in a currency other than the euro, the payment shall be made on the basis of the exchange rate prevailing, on the date the enforcement order is made, between the euro and that currency.
(3) For the purposes of this section a certificate purporting to be signed by an officer of an authorised institution and to state the exchange rate prevailing on a specified date between a specified currency and the euro shall be admissible in any proceedings, without further proof, as evidence of the facts stated in the certificate.
(4) In this section, “authorised institution” means—
(a) a person who holds or has held a licence from the Central Bank and Financial Services Authority of Ireland under section 9 of the Central Bank Act 1971,
(b) a person referred to in section 7(4) of that Act, or
(c) a credit institution (within the meaning of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992)) which has been authorised by that Authority to carry on the business of a credit institution in accordance with the supervisory enactments within the meaning of those Regulations.

49.—
(1) Money paid or recovered in respect of an enforceable ICC order (including any variation of such an order) may, to any extent necessary, be applied to meet expenses incurred in exercising any powers under this Act and the remuneration of any person employed for that purpose.
(2) Any such money shall, after payment of any such expenses or remuneration, be transferred, in accordance with the directions of the Minister, to the International Criminal Court or, if so ordered by that Court, directly to the Trust Fund provided for in Article 79 for the benefit of victims of crimes within its jurisdiction and of families of those victims.