Freezing orders : a draconian measure?

Abstract

Freezing Orders are intended to ensure that proceeds allegedly derived from criminal activity are not dissipated during the pendency of investigations and criminal proceedings. In doing so, all the accused’s assets are frozen, regardless of their origin. This dissertation critically analyses this measure from a human rights perspective, paying particular attention to the applicability of the right to the free enjoyment of property and the right to an effective remedy, as enshrined in the European Convention on Human Rights (ECHR). This analysis was substantiated by case law of both the European Court of Human Rights and the Maltese Courts. Since many cases on the matter are currently sub judice, this dissertation makes reference to number of decrees. Moreover, these are utilised to highlight the ways in which these rights are applied in practice. Furthermore, freezing orders are also examined in light of the emerging principle of legal certainty, wherein reference is made to the varying outlooks of the Courts as it applies the aforementioned rights in practice. Whilst the aim of the dissertation is to attempt to answer the question posed in the title, the matter is not as simple. In attempting to answer this question, the dissertation identifies and proposes amendments in response to the discrepancies identified throughout the analysis. This dissertation represents information current as 19 April 2022.