Seizing and freezing orders post 2024 amendments : a continuing legal conundrum

Abstract

This dissertation interrogates the legal framework governing Seizing and Freezing Orders in Malta in the wake of the amendments introduced by Act VI of 2024. Conceived as precautionary measures to preserve assets pending confiscation, Seizing and Freezing Orders serve a legitimate and necessary function in tackling profit-driven criminality. Yet, their operation has long sat uneasily with the protection of fundamental rights. Anchored in a doctrinal analysis of the Proceeds of Crime Act and informed by Maltese jurisprudence, European Court of Human Rights jurisprudence, and comparative insights from the United Kingdom, the study first exposes the structural flaws of the pre-reform regime. These include the blanket freezing of entire patrimonies, the absence of meaningful avenues of challenge, and a persistent disregard for proportionality. It then turns to the 2024 amendments, which ostensibly sought to recalibrate the balance through the introduction of quantification, contestation mechanisms, and financial safeguards. The analysis reveals that, despite these reforms, the framework continues to fall short in practice. The retention of the mandatory ‘shall’ requirement, the elusive nature of the ‘reasonable cause’ threshold, inconsistencies surrounding evidential engagement, and the opacity in prosecutorial quantification collectively dilute the safeguards introduced. What emerges is a system that, while restructured, remains predisposed towards preservation at the expense of scrutiny. It is concluded that the amendments have not resolved the underlying tensions but have, in several respects, merely displaced them. The study argues for more exacting judicial control and greater transparency to ensure that the pursuit of asset recovery does not eclipse the demands of fairness and proportionality.