Legal issues relating to attachment orders and freezing of assets in Malta

Abstract

In the recent years, the law regulating attachment and freezing orders has been scrutinised extensively by Maltese Courts, and prior to recent amendments, have been declared to have severe implications on fundamental rights. This dissertation examines the systematic shortcomings of the past regime through an analysis of local and foreign jurisprudence, which have shed a light on the lack of procedural safeguards put in place to protect the right of the individuals to enjoy and make use of their possessions the right to property. This dissertation also sought to analyse the legislative response to these deficiencies, which came in the form of the Proceeds of Crime Act of 2021 and The Various Laws relating to the Proceeds of Crime (Amendment) Act of 2024. The former introduced the Asset Recovery Bureau and extended certain safeguards, while the latter aimed to harmonize freezing of assets laws with Constitutional and European Court of Human Rights principles. Key improvements included shortening the durations of attachment orders and refining the freezing order process to ensure proportionality and fairness. However, this dissertation proposes further developments in asset freezing law, including extending the application of the newly revamped provisions to drug trafficking offences to prevent discrimination, harmonizing safeguards across all relevant legislation, clarifying ambiguous provisions to prevent any possible abuse, and revising the criteria for third-party involvement in freezing order variations. These proposals underscore an ongoing need to improve asset freezing measures in order to strike a fair balance between the general interest of the community and the protection of the individual’s fundamental human rights.