A holistic analysis of the provisions of freezing and confiscation orders and the effectiveness of interim remedies available to the parties in the case

Abstract

Freezing and confiscation orders have been set to deprive criminals of the proceeds of crime. These tools are crucial in combatting serious crime, which aim to recover assets originating from illegal sources. The scope of this study is to analyse from a holistic point of view the provisions of preventive measures, focusing on the execution of freezing of assets, which in principle, aims to pave the way to a successful confiscation.

An in-depth analysis on the effectiveness of these measures, identifies a number of legal difficulties which arise when the measures are applied in practice. Its application does not reflect the quantum aspect, nor reasonableness. This creates problematic issues that not only affect the right of enjoyment to one’s property, but also the right to an effective remedy. An examination of the proportionality test as well as a comparative study follows, with an aim to establish the missing gaps which need to be addressed. Assessing a fair balance between the means and ends is necessary to ensure the protection of fundamental rights of an individual on one hand, while protecting the general interest on the other.

The main roles of national and international key players are also highlighted later in the thesis, to understand their relationship and the various critics that Malta has faced lately. In conclusion, this thesis pinpoints the main shortfalls that need urgent attention, to establish an effective and fair mechanism in the freezing regime, while it secures successful confiscations. Finally, it proposes legal reform in the Maltese law on freezing and confiscation orders.