Cap. 621 Art. 36Seizing and Freezing Orders. 

(1) Where a person is charged with a relevant offence,  the Court shall, at the request of the prosecution, issue an Order, hereinafter referred to as a "Seizing and Freezing Order", attaching any property in the hands of third parties for which there is reasonable cause to believe that the property is subject to confiscation, and restraining and prohibiting the accused from transferring, pledging, hypothecating, or otherwise changing or disposing of any such property and of such other property owned by him or being in his possession.

(2) In the case that property which is subject to confiscation referred to in sub-article (1) cannot be attached or restrained because it cannot be located, has been mixed with other property, has been transferred to a third party, is located outside Malta, or cannot for any other reason be attached or restrained, the Court shall, subject to the limitations in sub-article (3), include in the Seizing and Freezing Order a provision attaching and restraining property of equivalent value.

(3)(a) The request for a Seizing and Freezing Order shall be made by the prosecution either by means of an application indicating the assets or sum of money or both subject to confiscation in the case of a conviction, or in the document whereby the charges are made.

(b) The right of the person charged to contest a Seizing and Freezing Order shall be as provided in paragraph

(ii) of sub-article (8).

(c) A third party who establishes that a Seizing and Freezing Order is causing him immediate and irreparable prejudice may request the Court to vary the Order to mitigate such harm to the extent that it is practicable to do so without adjudicating the issues that the third party would be entitled to raise at the appropriate time in accordance with article 39.

(d) The prosecution may request the Court, at any time during the proceedings, to amend the Seizing and Freezing Order as provided in paragraph (a), to add or remove property which is subject to such Order.

(4)(a) If the charge against the person charged or the request made by the prosecution in terms of sub-article (3)(a) lists the assets that shall be subject to confiscation in the case of a conviction, or if it alleges a specific sum of money or both as the property subject to confiscation, the Seizing and Freezing Order shall be limited to such specific assets or to property having a value not greater than that sum of money.

(b)(i) If the charge or the request for the issuing of a Seizing and Freezing Order against the person charged provides in general terms that the property of the person charged shall be subject to confiscation, but does not limit the property subject to confiscation to specific assets or to a specific sum of money or both, the Court shall issue a Seizing and Freezing Order sufficient to preserve such property as may be required to satisfy a confiscation order, up to and including all assets of the accused, but in any case the Court shall require the prosecution to establish within ninety (90) days that there is a reasonable basis to believe that the property shall be subject to confiscation:

Provided that the time limit for the prosecution to establish the property that shall be subject to the Seizing and Freezing Order may be extended by the Court for another ninety (90) days if the Court is satisfied that such extension is justified;

(ii) if the prosecution within the time limits provided in paragraph (i) limits the property subject to the Seizing and Freezing Order to specific assets or a specific sum of money or both, the Court shall, if it deems it appropriate, amend the Seizing and Freezing Order and the provisions of paragraph (ii) of sub-article (8) shall apply;

(iii) if the prosecution does not within the time limits provided in paragraph (i) limit the property subject to the Seizing and Freezing Order to specific assets or to a specific sum of money or both, the Seizing and Freezing Order shall cease to have effect upon the lapse of the said time limits and the provisions of sub-article (5B) of article 35 shall apply in respect of the accused; mutatis mutandis

(iv) when a Seizing and Freezing Order ceases to have effect in accordance with sub-paragraph (iii) the Court shall upon a demand by application of the person charged or accused issue a decree confirming that the Seizing and Freezing Order is no longer in force and shall order service of the said decree upon all persons who were served with the Seizing and Freezing Order.

(5)(a) The Court may vary a Seizing and Freezing Order upon an application of the person charged or accused. The said application shall be served upon the prosecution and upon the Director. Upon such application the Court shall determine what monies may be paid to or received by the person charged or accused during the validity of such Order, to allow him and his family a decent living in a yearly amount not exceeding the amount established by the Minister by order in the Gazette and any other amount which the Court considers justified to meet necessary expenses.

(b) On a court application of the person charged or accused served upon the prosecution and the Director, the Court shall also, subject to such conditions as it deems fit:

(i) determine what moneys may be paid or received by the person charged or accused during the validity of a Seizing and Freezing Order to allow him to carry on any trade, business, profession or occupation;

(ii) authorise the payment of debts which are due by the person charged or accused to bona fide creditors and which were contracted before the Seizing and Freezing Order was made;

(iii) on good ground, authorise the person charged or accused to transfer movable or immovable property.

(c) In the case that during the proceedings a request is made for the variation of the Order in terms of paragraph (a) or (b) which relates to expenses which are recurrent, the Order allowing the payment of such recurrent expenses shall be considered as covering such expenses whenever they arise without the need to file an application every time such expenses arise.

(6) Any decision taken by the Court in accordance with this article shall constitute a provisional measure and shall not prejudice the merits of the case.

(7) A Seizing and Freezing Order shall be immediately served upon the Director and shall:

(a) become operative and binding on all third parties immediately when it is issued and the Director shall cause a notice thereof to be published without delay in the Gazette and also cause a copy thereof to be registered in the Public Registry, the Land Registry and any other registry established by law for the registration of property of any kind. A copy of such Order shall also be served on any person who the prosecution or the Director may indicate; and

(b) without prejudice to the other provisions of this article, remain in force until the final determination of the proceedings and in the case of a conviction until the sentence has been executed.

(8)(i) Where the Court of Magistrates does not issue an Order in accordance with sub-article (1) when requested by the prosecution, the Court shall instead issue a temporary freezing order having the same effect. The Attorney General may, within seven (7) working days from the date of the Court’s decision, file an application before the Criminal Court to make the required order. The Criminal Court shall grant the accused seven (7) working days to reply to the application of the Attorney General. The temporary Freezing Order shall remain in force until the Criminal Court determines the application.

(ii) When an order in accordance with sub-article (1) is issued by the Court of Magistrates, the person charged may within seven (7) working days from the date of the Court’s decision, file an application before the Criminal Court requesting the total or partial revocation of the order, provided that the order shall remain in force until a decision is given by the Criminal Court. The Criminal Court shall grant the prosecution and the Director seven (7) working days to reply to the request of the person charged. The decision of the Criminal Court on the application shall be delivered within seven (7) working days from the filing of the replies or from when the time limit for their filing lapsed.

(9)(a) On the application of the Bureau, the Civil Court (Asset Recovery Section) shall order the sale during the proceedings and without awaiting a final judgment of any property which has been seized or frozen in terms of this article if that Court finds that:

(i) the property is perishable or at risk of deterioration, decay, damage or depreciation in value;

(ii) the expense of keeping the property is excessive or disproportionate to its fair market value when one also takes into consideration the time likely to determine whether the property shall be subject to forfeiture or to a confiscation order;

(iii) the property is subject to a loan or other right over property or to taxes on which the owner is in default of his obligations; or

(iv) there is any other valid reason for the sale: Provided that the Court may in its discretion, deny a request to order the sale if it finds that the property possesses such unique characteristics that its sale would constitute an irreplaceable loss to the property owner should the property ultimately be found not to be subject to confiscation.

(b) The proceeds of any sale pursuant to this sub-article shall be held in an account maintained by the Bureau and shall serve as a substitute res in any ensuing criminal or non-conviction based confiscation proceeding.

(c) The Court shall decide on the request of the Bureau in accordance with this sub-article within thirty (30) days from the date when the request is made. The decree shall be subject to a right of appeal by the aggrieved party on points of law and such appeal shall be filed in the Court of Appeal within seven (7) working days from the date of the decree. The party against whom the appeal is filed may file a reply within seven (7) working days from the service of the appeal. The Court of Appeal shall decide the appeal within thirty

(30) days from the conclusion of the written pleadings.

(10) The provisions of sub-articles (7) to (13) of article 35 shall apply in the case of a Seizing and Freezing Order mutatis mutandis issued in accordance with this article and to any order to which the provisions of this article apply.

(11) Where a Seizing and Freezing Order, as issued or as varied, is limited to specific property, the other property of the defendant shall not be considered as being subject to such Order.