Chapter 3

Confiscation of Property

49 .— (1) If a confiscation order relates to property in a designated state, the registrar or clerk of the court concerned shall, on request and subject to any conditions that may be specified by rules of court, give to the Director of Public Prosecutions—

(a) a duly authenticated copy of the order, and

(b) a certificate signed by the registrar or clerk and stating that the prescribed time for lodging an appeal has expired or, as the case may be, will expire on a specified date.

(2) If such a confiscation order has not been satisfied, the Director of Public Prosecutions may send to the Central Authority, for transmission to the competent authority in the designated state concerned—

(a) the documents mentioned in subsection (1),

(b) a document signed by or on behalf of the Director stating—

(i) that the order is in force and has not been satisfied, and

(ii) that the defendant appeared or was represented at the proceedings in which the order was made or, if not, the date on which the court proceedings began and the date on which the defendant received notice of them,

(c) a brief description of the conduct which resulted in the making of the order, and

(d) a request that the property concerned be realised and the proceeds applied in accordance with the law of that state.

(3) If—

(a) property is realised in pursuance of such a request, and

(b) the amount realised is less than, or equal to, the amount ordered to be paid under the confiscation order,

the amount so ordered is deemed to be reduced by an amount equal to the proceeds of realisation or, as the case may be, the confiscation order is deemed to be discharged.

(4) In any proceedings a certificate purporting to be issued by a competent authority in the designated state and stating—

(a) that property has been realised pursuant to the request,

(b) the date of realisation, and

(c) the proceeds of realisation,

is admissible, without further proof, as evidence of those matters.

(5) If the proceeds of realisation are stated in the certificate otherwise than in euro, they are to be taken as their euro equivalent calculated at the baseline rate of exchange prevailing on the date of realisation.

50 .— (1) An external confiscation order may be transmitted by or on behalf of the court that made it to the Central Authority with a request for its enforcement.

(2) The external confiscation order shall be accompanied by—

(a) a duly certified copy of the order,

(b) a statement by or on behalf of the court that made the order—

(i) that it is in force and not subject to appeal, and

(ii) that, if the person against whom it was made did not appear in the proceedings concerned, notice thereof was received by the person in good time to defend the proceedings,

(c) a brief description of the conduct constituting the offence which resulted in the making of the order, and

(d) any required translations,

and shall include any further information required by the relevant international instrument.

51 .— (1) The Central Authority, on receipt of an external confiscation order and accompanying documents, may cause an application to be made to the High Court for an order (a “ confiscation co-operation order”) for the confiscation of the property in the State to which the external confiscation order relates.

(2) The application shall be accompanied by the request, the accompanying documents and any other related documents or by copies thereof.

(3) On the application the Court may, subject to subsection (4), make a confiscation co-operation order.

(4) The Court may not make a confiscation co-operation order unless—

(a) it is satisfied—

(i) that the application is made with the consent of the Minister,

(ii) as to the matters mentioned in section 50 (2)(b),

(iii) that the conduct which resulted in the making of the external confiscation order constitutes criminal conduct, and

(iv) that the making of the order is otherwise in accordance with the relevant international instrument,

and

(b) an opportunity has been given to any person claiming to own, or have an interest in, the property subject to the external confiscation order to show cause why the order should not be made.

(5) The Court—

(a) may vary or discharge a confiscation co-operation order on the application of any person claiming to have an interest in the property concerned or to be otherwise affected by the order and may in that connection consult the court which made the external confiscation order, and

(b) shall—

(i) vary a confiscation co-operation order in accordance with any variation made in the external confiscation order, and

(ii) if satisfied that the external confiscation order has been revoked or has been satisfied in accordance with the law of the designated state concerned, discharge it.

52 .— (1) Where the High Court makes a confiscation co-operation order for the payment of a sum of money, the order may, without prejudice to section 38 enabling property of the defendant in the hands of a receiver appointed under this Act to be applied in satisfaction of the order, be enforced by the Director of Public Prosecutions at any time after it is made (or, if the order provides for payment at a later time, then at any time after the later time) as if it were a judgment of the Court for the payment to the State of the sum specified in the order or of any lesser sum remaining due under it.

(2) Nothing in subsection (1) enables a person to be imprisoned.

(3) Subject to subsections (4) and (5), if, at any time after payment of a sum due under a confiscation co-operation order has become enforceable in the manner provided for by subsection (1), it is reported to the Court by the Director of Public Prosecutions that any such sum or any part of it remains unpaid, the Court may, without prejudice to the validity of anything previously done under the order or to the power to enforce the order subsequently in accordance with subsection (1), order that the defendant be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite to the amount remaining unpaid under the confiscation co-operation order as set out in the first column thereof.

(4) An order under subsection (3) shall not be made unless—

(a) the defendant has been given a reasonable opportunity to make any representations to the Court, and

(b) the Court has taken into account those representations and any representations made by the Director of Public Prosecutions in reply.

(5) A defendant shall not be imprisoned for non-compliance with a confiscation co-operation order if the request for the enforcement of the external confiscation order so specifies and the relevant international instrument so provides.

(6) Any term of imprisonment imposed under subsection (3) of this section shall be reduced in proportion to any sum or sums paid or recovered from time to time under the confiscation co-operation order.

TABLE

53 .— (1) Where—

(a) a confiscation co-operation order for the payment of a sum of money has not been satisfied, or

(b) such an order is for the confiscation of property other than such a sum,

the High Court may, on application by the Director of Public Prosecutions, appoint a person to be a receiver in respect of realisable property.

(2) The Court may empower the receiver to take possession of any realisable property subject to such conditions or exceptions as may be specified by the Court.

(3) The Court may order any person having possession or control of any realisable property to give possession of it to the receiver.

(4) The Court may empower the receiver to realise any realisable property in such manner as the Court may direct.

(5) The Court may order any person holding an interest in realisable property to make such payment to the receiver as the Court may direct in respect of any beneficial interest held by the defendant or the recipient of any gift caught by this Act and the Court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

(6) The Court shall not, in respect of any property, exercise the powers conferred by this section unless a reasonable opportunity has been given to persons holding any interest in the property to make representations to it.

54 .— (1) Subject to subsection (2), if any sum required to be paid by a person under a confiscation co-operation order is not paid when it is required to be paid (whether on the making of the order or at a later time specified by the Court), the person shall be liable to pay interest on the sum for the period for which it remains unpaid and 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 order.

(2) The amount of interest payable under subsection (1) shall be disregarded when calculating the term of imprisonment to be imposed under section 52 .

(3) The rate of interest payable under subsection (1) is that for the time being applying in relation to a High Court civil judgment debt.

55 .— (1) Where a sum of money payable or remaining to be paid under an external confiscation order is expressed in a currency other than the euro, the confiscation co-operation order shall require payment of an equivalent euro amount, calculated at the baseline rate of exchange prevailing between that currency and the euro on the date of the making of the confiscation co-operation order.

(2) For the purposes of subsection (1), a certificate—

(a) purporting to be signed by an officer of a financial institution (within the meaning of Part 2 ) in the State, and

(b) stating the baseline rate of exchange prevailing on a specified date between a specified currency and the euro,

is admissible, without further proof, as evidence of the exchange rate so prevailing on that date.

56 .— (1) The powers of the High Court under section 53 or of a receiver appointed under that section shall be exercised, subject to this section, with a view to recovering property which is liable to be recovered under the confiscation co-operation order concerned.

(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 the confiscation co-operation order.

57 .— Sections 39 , 40 , 41 , 42 and 43 apply in relation to confiscation co-operation orders as they apply in relation to freezing co-operation orders, and accordingly—

(a) references to section 36 in sections 39 , 40 and 43 shall be construed as references to section 53 , and

(b) references in sections 40 , 41 , 42 and 43 to a freezing co-operation order shall be construed as references to a confiscation co-operation order.