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European Freezing And Confiscation Orders Regulations 2014


Published: 2014-12-01

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I ASSENT Mutual Legal Assistance (European Union) EUROPEAN FREEZING AND CONFISCATION ORDERS
REGULATIONS 2014

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2004-03 Subsidiary 2014/224

Subsidiary Legislation made under s. 49 of Mutual Legal Assistance
(European Union) Act 2005 as read with section 23(g)(i) of the
Interpretation and General Clauses Act.


EUROPEAN FREEZING AND CONFISCATION ORDERS
REGULATIONS 2014

(LN. 2014/224)
Commencement 1.12.2014
Amending
enactments
Relevant current
provisions
Commencement
date



Transposing:
Council Framework Decision 2003/577/JHA
Council Framework Decision 2006/783/JHA
Council Framework Decision 2009/299/JHA

EU Legislation/International Agreements involved:

_______________________

ARRANGEMENT OF REGULATIONS.


Regulation
1. Title and commencement.
2. Scope and Interpretation.

Chapter I - Freezing of Evidence

3. Domestic freezing orders - Evidence
4. Sending freezing orders - Evidence
5. Variation or revocation of freezing orders - Evidence

Overseas Orders for the Freezing of Evidence

6. Overseas freezing orders – Evidence.
7. Considering the order.
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8. Giving effect to the order.
9. Postponed effect.
10. Evidence seized under the order.
11. Release of evidence held under the order.
12. Powers under warrants.
13. Interpretation of Chapter I.

CHAPTER II
PROCEEDS OF CRIME (FOREIGN PROPERTY AND FOREIGN
ORDERS)

14. Interpretation of Chapter II.

Restraint Orders

15. Domestic restraint orders: certification.
16. Sending domestic restraint orders and certificates overseas.

Overseas Restraint Orders

17. Sending overseas restraint orders to the court.
18. Giving effect to overseas restraint orders.
19. Registration and enforcement of overseas restraint orders.

Confiscation Orders

20. Domestic confiscation orders: certification.
21. Sending domestic confiscation orders and certificates overseas.
22. Sending overseas confiscation orders to the court.
23. Giving effect to overseas confiscation orders.
24. Registration and enforcement of overseas confiscation orders.

Notification, Communication etc.

25. Notification, communication etc.


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In exercise of the powers conferred upon him by section 49 of Mutual Legal
Assistance (European Union) Act 2005 as read with section 23(g)(i) of the
Interpretation and General Clauses Act and all other enabling powers, and
in order to transpose Council Framework Decision 2003/577/JHA of 22
July 2003 on the execution in the European Union of Orders freezing
property or evidence, Council Framework Decision 2006/783/JHA of 6
October 2006 on the application of the principle of mutual recognition to
confiscation orders, the Minister has made the following Regulations–

Title and commencement.

1. These Regulations may be cited as the European Freezing and
Confiscation Orders Regulations 2014 and come into operation on 1
December 2014.

Scope and Interpretation.

2.(1) These Regulations apply with respect to freezing orders, restraint
orders and confiscation orders transmitted–

(a) to Gibraltar from a Member State;

(b) from Gibraltar to a Member State;

in accordance with Framework Decision 2003/577/JHA or Framework
Decision 2006/783/JHA (as amended from time to time).

(2) In these Regulations–

“evidence” has the meaning given to it in article 2(e) of Framework
Decision 2003/577/JHA; and

“Member State” means a State participating in Framework Decision
2003/577/JHA or Framework Decision 2006/783/JHA (as the case
may be).

(3) The Central Authority in Gibraltar for the purposes of Framework
Decision 2003/577/JHA and Framework Decision 2006/783/JHA shall be
the Minister with responsibility for justice.

(4) Other expressions used in these Regulations which are defined in
Framework Decision 2003/577/JHA or Framework Decision 2006/783/JHA
shall be construed in accordance with the relevant Decision.

Chapter I - Freezing of Evidence

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Domestic freezing orders - Evidence

3.(1) If it appears to a judicial authority in Gibraltar, on an application
made by a person mentioned in subregulation (4)—

(a) that proceedings in respect of a listed offence have been
instituted or such an offence is being investigated,

(b) that there are reasonable grounds to believe that there is
evidence in a Member State which satisfies the requirements of
subregulation (3), and

(c) that a request has been made, or will be made, under the
Mutual Legal Assistance (European Union) Act 2005 or any
other Act for the evidence to be sent to the authority making
such request,

the judicial authority may make a domestic freezing order in respect of the
evidence.

(2) A domestic freezing order is an order for protecting evidence which
is in a Member State pending its transfer to Gibraltar. A domestic freezing
order may include any measure in order to provisionally prevent the
destruction, transformation, moving, transfer or disposal of property that
could be evidence.

(3) The requirements are that the evidence–

(a) is on premises specified in the application in the Member State,

(b) is likely to be of substantial value (whether by itself or together
with other evidence) to the proceedings or investigation,

(c) is likely to be admissible in evidence at a trial for the offence,
and

(d) does not consist of or include items subject to legal privilege.

(4) The application may be made by or on behalf of the Attorney
General.

(5) In this Chapter the judicial authorities are any judge of the Supreme
Court or a Stipendiary Magistrate.

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(6) This regulation is without prejudice to the right of a Member State to
make a request for assistance under the Mutual Legal Assistance (European
Union) Act 2005 or any other Act.

Sending freezing orders - Evidence

4.(1) A domestic freezing order made in Gibraltar is to be sent to the
Minister with responsibility for justice for forwarding to—

(a) a court exercising jurisdiction in the Member State where the
evidence is situated, or

(b) any authority recognised by the government of the country in
question as the appropriate authority for receiving orders of
that kind.

(2) The judicial authority is to send the order to the Minister with
responsibility for justice as soon as is reasonably practicable and in any
event before the end of the period of 14 days beginning with its being made.

(3) The order must be accompanied by a certificate giving the specified
information and, unless the certificate indicates when the judicial authority
expects such a request to be made, by a request under the Mutual Legal
Assistance (European Union) Act 2005 or any other Act for the evidence to
be sent to the authority making such request.

(4) The certificate must include a translation of it into an appropriate
language of the Member State (if that language is not English).

(5) The certificate must be signed by or on behalf of the judicial
authority who made the order and must include a statement as to the
accuracy of the information given in it. The signature may be an electronic
signature.

(6) If the authority competent to execute the order is not known to the
Minister with responsibility for justice, the latter shall make all necessary
enquiries, including via the contact points of the European judicial network,
in order to obtain information from the executing State.

Variation or revocation of freezing orders - Evidence

5.(1) The judicial authority that made a domestic freezing order may vary
or revoke it on an application by a person mentioned below.

(2) The persons are–

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(a) the Attorney General,

(b) any other person affected by the order.

Overseas Orders for the Freezing of Evidence

Overseas freezing orders – Evidence.

6.(1) Regulation 7 applies where an overseas freezing order made by a
court or authority in a Member State is received in Gibraltar, transmitted in
accordance with article 4 of the 2003 Framework Decision, from the court
or authority which made or confirmed the order, by the Minister with
responsibility for justice.

(2) An overseas freezing order is an order–

(a) to provisionally prevent the destruction, transformation,
moving, transfer or disposal, pending its transfer to the
Member State, evidence which is in Gibraltar and may be used
in any proceedings or investigation in that Member State, and

(b) in respect of which the following requirements of this
regulation are met.

(3) The order must have been made by–

(a) a court exercising criminal jurisdiction in the Member State;

(b) a prosecuting authority in the Member State; or

(c) any other authority in the Member State which appears to the
Minister with responsibility for justice to have the function of
making such orders.

(4) The order must relate to–

(a) criminal proceedings instituted in the Member State in respect
of a listed offence, or

(b) a criminal investigation being carried on there into such an
offence.

(5) The order must be accompanied by a certificate which gives the
specified information; but a certificate may be treated as giving any
specified information which is not given in it if the Minister with
responsibility for justice has the information in question.
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(6) The certificate must–

(a) be signed by or on behalf of the court or authority which made
or confirmed the order,

(b) include a statement as to the accuracy of the information given
in it,

(c) if it is not in English, include a translation of it into English.

The signature may be an electronic signature.

(7) The order must be accompanied by a request for the evidence to be
sent to a court or authority in the Member State, unless the certificate
indicates when such a request is expected to be made. Such a request shall
be submitted and processed in accordance with the Law in Gibraltar relating
to mutual legal assistance in criminal matters.

(8) References below in this Chapter to an overseas freezing order
include its accompanying certificate.

Considering the order.

7.(1) Where this section applies the Minister with responsibility for justice
must forthwith–

(a) by notice nominate a court in Gibraltar to give effect to the
overseas freezing order,

(b) send a copy of the overseas freezing order to the nominated
court, to the Attorney General and to the Commissioner of
Police for the area in which the evidence is situated,

(c) tell the Commissioner of Police and to the Attorney General
which court has been nominated.

(2) The nominated court is to consider the overseas freezing order on its
own initiative as soon as practicable and whenever possible within 24 hours
of receipt of the freezing order and communicate its decision to the Minister
with responsibility for justice, the Attorney General and the authority
making such request.

(3) Before giving effect to the overseas freezing order, the nominated
court must give the Attorney General an opportunity to be heard.

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(4) The court may decide not to give effect to the overseas freezing
order only if, in its opinion, one of the following conditions is met–

(a) the certificate provided for in article 9 of the 2003 Framework
Decision–

(i) is not produced, is incomplete, or manifestly does not
correspond to the order, or

(ii) is not in English or accompanied by a translation into
English;

(b) there is an immunity or privilege under the law of Gibraltar
which makes it impossible to execute the freezing order;

(c) the execution of the freezing order would be contrary to the
principle of ne bis in idem;

(d) the criminal conduct is not–

(i) a listed 2003 Framework Decision offence; or

(ii) or conduct which–

(A) constitutes an offence in Gibraltar; or

(B) would constitute an offence in Gibraltar if it
occurred in Gibraltar,

which could give rise to a domestic confiscation order under
the law of Gibraltar, provided that in relation to taxes, duties,
customs duties and exchange activities, execution of a
confiscation order may not be refused on the ground that the
law of the Gibraltar does not impose the same kind of tax or
duty or does not contain the same types of rules concerning
taxes, duties, customs duties and exchange activities as the law
of the issuing State.

(5) In case of a proposed refusal under subregulation (4)(a), the judicial
authority may–

(a) specify a deadline for its presentation, completion or
correction; or

(b) accept an equivalent document; or

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(c) exempt the issuing judicial authority from the requirement if it
considers that the information provided is sufficient.

(6) Any decision to refuse recognition or execution shall be taken and
notified forthwith to the competent judicial authorities of the issuing State
by any means capable of producing a written record.

(7) In case it is in practice impossible to execute the freezing order for
the reason that the evidence has disappeared, been destroyed, cannot be
found in the location indicated in the certificate or the location of the
evidence has not been indicated in a sufficiently precise manner, even after
consultation with the issuing State, the judicial authorities of the issuing
State shall likewise be notified forthwith.

Giving effect to the order.

8.(1) The nominated court is to give effect to the overseas freezing order
by issuing a warrant authorising a police officer–

(a) to enter the premises to which the overseas freezing order
relates and search the premises to the extent reasonably
required for the purpose of discovering any evidence to which
the order relates, and

(b) to seize and retain any evidence for which he is authorised to
search.

(2) But so far as the overseas freezing order relates to excluded material
or special procedure material the court is to give effect to the order by
making a production order.

(3) A production order is an order for the person who appears to the
court to be in possession of the material to produce it to a police officer
before the end of the period of seven days beginning with the date of the
production order or such longer period as the production order may specify.

(4) The police officer may take away any material produced to him
under a production order; and the material is to be treated for the purposes
of section 27 of the Criminal Procedure and Evidence Act 2011 (access and
copying) as if it had been seized by the police officer.

(5) If a person fails to comply with a production order, the court may
(whether or not it deals with the matter as a contempt of court) issue a
warrant under subregulation (1) in respect of the material to which the
production order relates.

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(6) A report on the execution of the overseas freezing order shall be
made forthwith to the competent authority in the issuing State by any means
capable of producing a written record.

Postponed effect.

9.(1) The nominated court may postpone giving effect to an overseas
freezing order in respect of any evidence–

(a) in order to avoid prejudicing a criminal investigation which is
taking place in Gibraltar, or

(b) if, under an order made by a court in criminal proceedings in
Gibraltar, the evidence may not be removed from Gibraltar.

(2) A report on the postponement of the execution of the freezing order,
including the grounds for the postponement and, if possible, the expected
duration of the postponement, shall be made forthwith to the competent
authority in the issuing State by any means capable of producing a written
record.

(3) As soon as the ground for postponement has ceased to exist, the
judicial authority shall forthwith take the necessary measures for the
execution of the freezing order and inform the competent authority in the
issuing State thereof by any means capable of producing a written record.

(4) The judicial authority shall inform the competent authority of the
issuing State about any other restraint measure to which the property
concerned may be subjected.

Evidence seized under the order.

10.(1) Any evidence seized by a police officer or produced under
regulation 8 shall be retained until a notice under subregulation (2) is issued
or there is an authorisation made under regulation 11 to release it.

(2) If–

(a) the overseas freezing order was accompanied by a request for
the evidence to be sent to a court or authority in accordance
with the Mutual Legal Assistance (European Union) Act 2005
or any other Act, or

(b) the Minister with responsibility for justice subsequently
receives such a request,

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the Minister with responsibility for justice may by notice require the police
officer to send the evidence to the court or authority that made the request in
accordance with the procedures contained in such Act.

Release of evidence held under the order.

11.(1) On an application made by a person mentioned below, the
nominated court may authorise the release of any evidence retained under
regulation 10 if, in its opinion–

(a) a condition in regulation 7(4)(b) or (c) is met, or

(b) the overseas freezing order has ceased to have effect in the
issuing State.

(2) The persons are–

(a) the Attorney General,

(b) the police officer or other person in possession of the seized
evidence,

(c) any other person affected by the order.

(3) If the Minister with responsibility for justice decides not to give a
notice under regulation 10(2) in respect of any evidence retained under that
regulation, he must give the person in possession of the seized evidence a
notice authorising him to release the evidence.

Powers under warrants.

12.(1) A court may not issue a warrant under regulation 8 in respect of any
evidence unless the court has reasonable grounds for believing that it does
not consist of or include items subject to legal privilege, excluded material
or special procedure material.

(2) Subregulation (1) does not prevent a warrant being issued by virtue
of regulation 8(5) in respect of excluded material or special procedure
material.

Interpretation of Chapter I.

13.(1) In this Chapter–

“domestic freezing order” has the meaning given by regulation 3(2),

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“notice” means a notice in writing,

“overseas freezing order” has the meaning given by regulation 6,

“premises” has the same meaning as in the Criminal Procedure and
Evidence Act 2011,

“the 2003 Framework Decision” means the Framework Decision on the
execution in the European Union of orders freezing property or
evidence adopted by the Council of the European Union on 22nd
July 2003.

(2) The following subregulations have effect for the purposes of this
Chapter.

(3) “Items subject to legal privilege”, “excluded material” and “special
procedure material” have the same meaning as in the Criminal Procedure
and Evidence Act 2011.

(4) A listed offence means–

(a) an offence described in article 3(2) of the 2003 Framework
Decision, or

(b) an offence prescribed or of a description prescribed by an order
made by the Minister with responsibility for justice.

(5) An order prescribing an offence or a description of offences under
subregulation (4)(b) may require, in the case of an overseas freezing order,
that the conduct which constitutes the offence or offences would, if it
occurred in Gibraltar, constitute an offence in Gibraltar.

(6) Specified information, in relation to a certificate required by
regulation 4(3) or 6(5), means–

(a) any information required to be given by the form of certificate
annexed to the 2003 Framework Decision, or

(b) any information prescribed by an order made by the Minister
with responsibility for justice.


CHAPTER II

PROCEEDS OF CRIME (FOREIGN PROPERTY AND FOREIGN
ORDERS)
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Interpretation of Chapter II.

14. In this Chapter–

“the 2003 Framework Decision” means the Framework Decision on the
execution in the European Union of orders freezing property or
evidence adopted by the Council of the European Union on 22nd
July 2003;

“the 2006 Framework Decision” means Council Framework Decision
2006/783/JHA of 6 October 2006 on the application of the
principle of mutual recognition to confiscation orders;

“domestic confiscation order” means a confiscation order under section
23 of the Crime (Money Laundering and Proceeds) Act 1995 or
section 3 of the Drug Trafficking Offences Act 1995 or such other
provision as the Minister with responsibility for justice may
prescribe;

“domestic restraint order” means a restraint order under section 30 of the
Crime (Money Laundering and Proceeds) Act 1995 or section 27 of
the Drug Trafficking Offences Act 1995 or such other provision as
the Minister with responsibility for justice may prescribe;

“property” and “instrumentalities” have the meanings given in article
2(d) and (f) of the 2006 Framework Decision;

“relevant prosecutor” means the Attorney General;

“specified information” means–

(a) in relation to a certificate under regulation 15, any information
required to be given by the form of certificate annexed to the
2003 Framework Decision;

(b) in relation to a certificate under regulation 20, any information
required to be given by the form of certificate annexed to the
2006 Framework Decision.

Restraint Orders

Domestic restraint orders: certification.

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15.(1) If any of the property to which an application for a domestic restraint
order relates is property in a Member State, the relevant prosecutor may ask
the Supreme Court to make a certificate under this regulation.

(2) The Supreme Court may make a certificate under this regulation if–

(a) it makes a domestic restraint order in relation to property in a
Member State, and

(b) it is satisfied that there are reasonable grounds for believing
that the property–

(i) is the instrumentalities of an offence, or

(ii) is the proceeds of an offence.

(3) A certificate under this regulation is a certificate which—

(a) is made for the purposes of the 2003 Framework Decision, and

(b) gives the specified information.

(4) If the Supreme Court makes a certificate under this regulation, the
domestic restraint order must provide for notice of the certificate to be given
to the person affected by it.

(5) A court which has relevant powers in respect of a domestic restraint
order is to have the same relevant powers in respect of a certificate under
this regulation.

(6) For that purpose “relevant powers” means the powers–

(a) to consider an appeal,

(b) to consider an application for reconsideration, variation or
discharge, and

(c) to make an order on any such appeal or application.

Sending domestic restraint orders and certificates overseas.

16.(1) If a certificate is made under regulation 15, the domestic restraint
order and the certificate are to be forwarded by the relevant prosecutor, in
accordance with article 4 of the 2003 Framework Decision, to—

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(a) a court exercising jurisdiction in the Member State where the
property is situated, or

(b) any authority recognised by the government of that Member
State as the appropriate authority for receiving orders of that
kind.

(2) The domestic restraint order and the certificate must be accompanied
by a domestic confiscation order, unless the certificate indicates when the
Court expects a domestic confiscation order to be sent.

(3) The certificate must include a translation of it into an appropriate
language of the other Member State (if that language is not English).

(4) The certificate must be signed by or on behalf of the Court and must
include a statement as to the accuracy of the information given in it.

(5) The signature may be an electronic signature.

(6) If the domestic restraint order and the certificate are not
accompanied by a domestic confiscation order, but a domestic confiscation
order is subsequently made, it is to be sent to the prosecutor for forwarding
as mentioned in paragraph (1).

Overseas Restraint Orders

Sending overseas restraint orders to the court.

17.(1) In a case where–

(a) the Minister with responsibility for justice receives an overseas
restraint order from the court or authority which made or
confirmed the order, and

(b) none of the conditions in subregulation (3) apply, and

(c) the condition in subregulation (4) applies.

the Minister with responsibility for justice must send a copy of the order to
the Supreme Court and to the Attorney General.

(2) An overseas restraint order is an order made by an appropriate court
or authority in a Member State which–

(a) relates to–

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(i) criminal proceedings instituted in the Member State, or

(ii) a criminal investigation being carried on there; and

(b) prohibits dealing with property which is in Gibraltar and which
the appropriate court or authority considers to be property that–

(i) has been or is likely to be the instrumentalities of
criminal conduct, or

(ii) is the proceeds of criminal conduct.

(3) The Minister may decide not to give effect to the overseas freezing
order only if, in his opinion, one of the following conditions is met–

(a) the certificate provided for in article 9 of the 2003 Framework
Decision–

(i) is not produced, is incomplete, or manifestly does not
correspond to the order, or

(ii) is not in English or accompanied by a translation into
English;

(b) there is an immunity or privilege under the law of Gibraltar
which makes it impossible to execute the freezing order;

(c) the execution of the freezing order would be contrary to the
principle of ne bis in idem;

(d) the criminal conduct is not–

(i) a listed 2003 Framework Decision offence; or

(ii) or conduct which–

(A) constitutes an offence in Gibraltar; or

(B) would constitute an offence in Gibraltar if it
occurred in Gibraltar,

which could give rise to a domestic confiscation order
under the law of Gibraltar, provided that in relation to
taxes, duties, customs duties and exchange activities,
execution of a confiscation order may not be refused on
the ground that the law of the Gibraltar does not impose
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the same kind of tax or duty or does not contain the same
types of rules concerning taxes, duties, customs duties
and exchange activities as the law of the issuing State.

(4) The condition is that–

(a) the order is accompanied by another order made by a court
exercising criminal jurisdiction in the issuing State for the
confiscation of the property; or

(b) such an order for the confiscation of the property may be made
and the certificate indicates when that order is expected to be
sent.

(5) An appropriate court or authority in a Member State in relation to an
overseas restraint order is–

(a) a court exercising criminal jurisdiction in the country,

(b) a prosecuting authority in the country, or

(c) any other authority in the country which appears to the relevant
prosecutor to have the function of making such orders.

(6) References in this Chapter to an overseas restraint order include its
accompanying certificate.

Giving effect to overseas restraint orders.

18.(1) Subject to paragraph (2), where the Supreme Court receives a copy
of an overseas restraint order sent by Minister with responsibility for justice
in accordance with regulation 17, the Court must consider giving effect to
the order no later than the end of the next working day after the relevant
day.

(2) In exceptional circumstances, the Supreme Court may delay its
consideration of the overseas restraint order, provided that it does consider
giving effect to the order no later than the end of the fifth working day after
the relevant day.

(3) Subject to paragraph (4), the Supreme Court may consider giving
effect to the overseas restraint order–

(a) at a hearing, which must be in private unless the Court directs
otherwise; or

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(b) without a hearing.

(4) The Supreme Court must not consider giving effect to the overseas
restraint order unless the Attorney General–

(a) is present; or

(b) has had a reasonable opportunity to make representations.

(5) The Supreme Court may decide not to give effect to the overseas
restraint order only if, in its opinion, a condition in regulation 17 (3) or (4)
applies.

(6) The Supreme Court may postpone giving effect to an overseas
restraint order in respect of any property–

(a) in order to avoid prejudicing a criminal investigation which is
taking place in Gibraltar, or

(b) if, under an order made by a court in criminal proceedings in
Gibraltar, the property may not be dealt with.

(7) A report on the postponement of the execution of the overseas
restraint order, including the grounds for the postponement and, if possible,
the expected duration of the postponement, shall be made forthwith to the
competent authority in the issuing State by any means capable of producing
a written record.

(8) As soon as the ground for postponement has ceased to exist, the
Supreme Court shall forthwith take the necessary measures for the
execution of the overseas restraint order and inform the competent authority
in the issuing State thereof by any means capable of producing a written
record.

(9) The Supreme Court shall inform the competent authority of the
issuing State about any other restraint measure to which the property
concerned may be subjected.

(10) In this regulation, “relevant day” means the day on which a copy of
an overseas restraint order sent by the Minister with responsibility for
justice in accordance with regulation 17 is received by the court.

Registration and enforcement of overseas restraint orders.

19.(1) Where the Supreme Court decides to give effect to an overseas
restraint order, it must–

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(a) direct its registration as an order in that court, and

(b) give directions for notice of the order to be given to any person
affected by it.

(2) For the purpose of enforcing an overseas restraint order registered in
the Supreme Court, the order is to have effect as if it were an order made by
that court.

(3) Subject to paragraph (4), the Supreme Court may cancel the
registration of the order, or vary the property to which the order applies, on
an application by a relevant prosecutor, or any other person affected by it, if
or to the extent that–

(a) the Supreme Court is of the opinion mentioned in regulation
18(5), or

(b) the Supreme Court is of the opinion that the order has ceased to
have effect in the Member State.

(4) To make an application to cancel the registration of the order, or
vary the property to which the order applies, the relevant prosecutor or
person affected by the order must–

(a) apply in writing as soon as practicable after becoming aware of
the grounds for doing so;

(b) serve the application on–

(i) the Supreme Court;

(ii) the Attorney General (if the applicant is not the Attorney
General); and

(iii) any person who will or may be affected by the
application;

(c) explain why it is appropriate for the registration of the order to
be cancelled or varied;

(d) set out the proposed terms of any variation; and

(e) if a hearing is requested in relation to the application, explain
why a hearing is necessary.

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(5) Subject to paragraph (6), the provisions of the domestic law of
Gibraltar apply (with the appropriate modifications and subject to the
preceding provisions of this Chapter) in relation to an overseas restraint
order registered in the Supreme Court as they apply in relation to an
equivalent domestic restraint order.

(6) No challenge to the substantive reasons in relation to which an
overseas restraint order has been made by an appropriate court or authority
in the issuing State may be considered by the Supreme Court.


Confiscation Orders

Domestic confiscation orders: certification.

20.(1) If any of the property to which an application for a domestic
confiscation order relates is property in a Member State, the relevant
prosecutor may ask the Supreme Court to make a certificate under this
regulation.

(2) The Supreme Court may make a certificate under this regulation if–

(a) it makes a domestic confiscation order in relation to property in
a Member State, and

(b) it is satisfied that there are reasonable grounds for believing
that the property–

(i) was or was intended to be the instrumentalities of an
offence, or

(ii) is the proceeds of an offence.

(3) A certificate under this regulation is a certificate which–

(a) is made for the purposes of the 2006 Framework Decision, and

(b) gives the specified information.

(4) If the Supreme Court makes a certificate under this regulation, the
domestic confiscation order must provide for notice of the certificate to be
given to the person affected by it.

(5) A court which has relevant powers in respect of a domestic
confiscation order is to have the same relevant powers in respect of a
certificate under this regulation.
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(6) For that purpose “relevant powers” means the powers–

(a) to consider an appeal,

(b) to consider an application for reconsideration, variation or
discharge, and

(c) to make an order on any such appeal or application.

Sending domestic confiscation orders and certificates overseas.

21.(1) If a certificate is made under regulation 20, the domestic
confiscation order and the certificate are to be forwarded by the competent
authority to–

(a) a court exercising jurisdiction in the executing Member State
where-

(i) the property is situated, or

(ii) the natural or legal person against whom the domestic
confiscation order has been issued is normally resident or has
its registered seat;

in accordance with article 4 of the 2006 Framework Decision; or

(b) any authority recognised by the government of such Member
State as the appropriate authority for receiving orders of that
kind.

(2) The certificate must include a translation of it into an appropriate
language of the Member State (if that language is not English).

(3) The certificate must be signed by or on behalf of the Supreme Court
and must include a statement as to the accuracy of the information given in
it.

(4) The signature may be an electronic signature.

(5) If the authority competent to execute the confiscation order is not
known to the competent authority, the latter shall make all necessary
enquiries, including via the contact points of the European judicial network,
in order to obtain information from the executing State.

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(6) Subject to the conditions set out in paragraphs 2 and 3 of article 5 of
the 2006 Framework Decision, a domestic confiscation may only be
transmitted pursuant to this regulation to one executing State at any one
time.

Sending overseas confiscation orders to the court.

22.(1) In a case where–

(a) the Central Authority receives an overseas confiscation order
from the court or authority which made or confirmed the order,
and

(b) conditions A to C are met,

the Central Authority must send a copy of the order to the Supreme Court.

(2) An overseas confiscation order is an order made by an appropriate
court or authority in a Member State for the confiscation of property which
is in Gibraltar, or is the property of a resident of Gibraltar, and which the
appropriate court or authority considers–

(a) was used or intended to be used for the purposes of criminal
conduct, or

(b) is the proceeds of criminal conduct.

(3) Condition A is that a person has been convicted of that criminal
conduct in that Member State.

(4) Condition B is that the overseas confiscation order was made at the
conclusion of the proceedings that gave rise to the conviction.

(5) Condition C is that the order is accompanied by a certificate which–

(a) gives the specified information;

(b) is signed by or on behalf of the court or authority which made
or confirmed the order,

(c) includes a statement as to the accuracy of the information
given in it, and

(d) if it is not in English, includes a translation of it into English.

(6) For the purposes of Condition C–
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(a) the certificate may be treated as giving any specified
information which is not given in it if the relevant prosecutor
has the information in question;

(b) the signature may be an electronic signature.

(7) An appropriate court or authority in an issuing Member State in
relation to an overseas confiscation order is–

(a) a court exercising criminal jurisdiction in the Member State,

(b) a prosecuting authority in the Member State, or

(c) any other authority in the Member State which appears to the
relevant prosecutor to have the function of making such orders.

(8) References in this Chapter to an overseas confiscation order include
its accompanying certificate.

(9) In this regulation–

“resident of Gibraltar” means–

(a) an individual who is normally resident in Gibraltar, or

(b) a body of persons (whether corporate or not) established in
Gibraltar (including a company registered in Gibraltar);

“criminal conduct” means–

(a) a listed 2006 Framework Decision offence; or

(b) conduct which–

(i) constitutes an offence in Gibraltar; or

(ii) would constitute an offence in Gibraltar if it occurred in
Gibraltar,

which could give rise to a domestic confiscation order under
the law of Gibraltar.

Giving effect to overseas confiscation orders.

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23.(1) Where the Supreme Court receives a copy of an overseas
confiscation order sent by the Central Authority (which has been transmitted
to it in accordance with articles 4 and 5 of the 2006 Framework Decision) in
accordance with regulation 22, the Supreme Court must consider giving
effect to the order.

(2) Subject to paragraph (3), the Supreme Court may consider giving
effect to the overseas confiscation order–

(a) at a hearing, which must be in private unless the Supreme
Court directs otherwise; or

(b) without a hearing.

(3) The Supreme Court must not consider giving effect to the overseas
confiscation order unless the relevant prosecutor–

(a) is present; or

(b) has had a reasonable opportunity to make representations.

(4) The Supreme Court may decide not to give effect to the overseas
confiscation order only if–

(a) the certificate provided for in article 4 of the 2006 Framework
Decision is not produced, is incomplete, or manifestly does not
correspond to the order;

(b) the certificate is not in English or accompanied by a translation
into English;

(c) the execution of the order would be contrary to the principle of
ne bis in idem;

(d) the criminal conduct is not–

(i) a listed 2006 Framework Decision offence; or

(ii) or conduct which–

(A) constitutes an offence in Gibraltar; or

(B) would constitute an offence in Gibraltar if it
occurred in Gibraltar, which could give rise to
a domestic confiscation order under the law of
Gibraltar, provided that in relation to taxes,
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duties, customs duties and exchange activities,
execution of a confiscation order may not be
refused on the ground that the law of the
Gibraltar does not impose the same kind of tax
or duty or does not contain the same types of
rules concerning taxes, duties, customs duties
and exchange activities as the law of the
issuing State;

(e) there is immunity or privilege under the law of Gibraltar which
would prevent the execution of a domestic confiscation order
on the property concerned;

(f) the rights of any interested party, including bona fide third
parties, under the law of Gibraltar make it impossible to
execute the confiscation order;

(g) according to the certificate provided, the person did not appear
in person at the trial resulting in the confiscation order, unless
the certificate states that one of the criteria contained in article
8.2.(e) of the 2006 Framework Decision has been fulfilled;

(h) the confiscation order is based on criminal proceedings in
respect of criminal offences which–

(i) under the law of Gibraltar, are regarded as having been
committed wholly or partly within its Gibraltar, or

(ii) were committed outside the territory of the issuing State,
and the law of Gibraltar does not permit legal
proceedings to be taken in respect of such offences
where they are committed outside that State's territory;

(i) the confiscation order, in the view of the Supreme Court, was
issued in circumstances where confiscation of the property was
ordered under the extended powers of confiscation referred to
in article 2(d)(iv) of the 2006 Framework Decision;

(j) the execution of a confiscation order is barred by statutory time
limitations in Gibraltar, provided that the acts fall within the
jurisdiction of Gibraltar the criminal law of Gibraltar.

Provided that the Supreme Court shall, before deciding not to recognise and
execute a confiscation order pursuant to this subregulation, or to limit the
execution thereof pursuant to article 8.3 of the 2006 Framework Decision,
give specific consideration to consulting, by any appropriate means, the
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competent authorities of the issuing State. Consultation is obligatory where
the decision is likely to be based on–

(i) paragraph (a), (c), (g), (h) or (i),

(iii) paragraph (f) and information is not being provided under
article 9(3) of the 2006 Framework Decision, or

(iv) limiting the execution of the confiscation order under article
8.3 of the 2006 Framework Decision.

(5) The Supreme Court may, acting in accordance with article 10 of the
2006 Framework Decision, postpone giving effect to an overseas
confiscation order in respect of any property–

(a) in order to avoid prejudicing a criminal investigation which is
taking place in Gibraltar;

(b) where it considers that there is a risk that the amount recovered
through the execution of the order in Gibraltar may exceed the
amount specified in the order because of simultaneous
execution of the order in more than one Member State;

(c) if, under an order made by a court in criminal proceedings in
Gibraltar, the property may not be dealt with, or the property is
subject to proceedings for such an order; or

(d) if a person affected by the order has applied to cancel the
registration of the order, or vary the property to which the
order applies, in accordance with regulation 24.

(6) Where it is impossible to execute the confiscation order for the
reason that the property to be confiscated has already been confiscated, has
disappeared, has been destroyed, cannot be found in the location indicated
in the certificate or the location of the property has not been indicated in a
sufficiently precise manner, even after consultation with the issuing State,
the competent authority of the issuing State shall be notified forthwith.

(7) The Supreme Court may, acting in accordance with article 12.2 of
the 2006 Framework Decision, deduct from the amount to be confiscated
such amount as it is proven has been confiscated in any Member State
pursuant to the confiscation order.

Registration and enforcement of overseas confiscation orders.

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24. (1) Where the Supreme Court decides to give effect to an overseas
confiscation order, it must–

(a) direct its registration as an order in that court, and

(b) give directions for notice of the order to be given to any person
affected by it.

(2) For the purpose of enforcing an overseas confiscation order
registered in the Supreme Court, the order is, subject to article 12.4 of the
2006 Framework Decision (whereby the executing state may not impose
measures as an alternative to the confiscation order including custodial
sanctions etc. without the consent of the issuing state) to have effect as if it
were an order made by that court.

(3) Subject to subregulation (4), the Supreme Court may cancel the
registration of the order, or vary the property to which the order applies, on
an application by a relevant prosecutor, or any other person affected by it, if
or to the extent that—

(a) the Supreme Court is of the opinion mentioned in regulation
23(4), or

(b) the Supreme Court is of the opinion that the order has ceased to
have effect in the Member State.

(4) To make an application to cancel the registration of the order, or
vary the property to which the order applies, the relevant prosecutor or
person affected by the order must–

(a) apply in writing as soon as practicable after becoming aware of
the grounds for doing so;

(b) serve the application on–

(i) the Supreme Court;

(ii) the relevant prosecutor (if the applicant is not the
relevant prosecutor); and

(iii) any person who will or may be affected by the
application;

(c) explain why it is appropriate for the registration of the order to
be cancelled or varied;

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(d) set out the proposed terms of any variation; and

(e) if a hearing is requested in relation to the application, explain
why a hearing is necessary.


(5) No challenge to the substantive reasons in relation to which an
overseas confiscation order has been made by an appropriate court or
authority in a Member State may be considered by the court.

(6) If an action is brought before the Supreme Court under this
regulation, the competent authority of the issuing State shall be informed
thereof.

Notification, Communication etc.

Notification, communication etc.

25.(1) Where proceedings are started in relation to an overseas restraint
order or an overseas confiscation order–

(a) the Supreme Court must notify the Central Authority; and

(b) the Central Authority must notify the court or authority which
made or confirmed the overseas restraint order or the overseas
confiscation order (as the case may be).

(2) Where the Supreme Court makes a relevant decision, the Central
Authority must communicate that decision with reasons to the court or
authority which made or confirmed the overseas restraint order or the
overseas confiscation order to which the decision relates as soon as
reasonably practicable.

(3) Where an overseas confiscation order provides for the confiscation
of one or more specified items of property from the subject of the order, the
Supreme Court must seek the consent of the court or authority which made
or confirmed the overseas confiscation order to replace such provision with
a requirement that the subject of the order pay a sum of money equivalent to
the value of any such specified items of property.

(4) Where an overseas confiscation order provides for the confiscation
of a sum of money, the Supreme Court must–

(a) seek the consent of the court or authority which made or
confirmed the overseas confiscation order to convert the
amount provided into the currency of that Member State; and
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(b) where consent is granted, arrange for such conversion at a rate
of exchange that was available on the date that the overseas
confiscation order was issued.

(5) The amount obtained in relation to an overseas confiscation order
shall be disposed of in accordance with article 16 of the 2006 Framework
Decision. Where the amount obtained in relation to an overseas confiscation
order is greater than or equal to an amount equivalent to 10,000 Euros, the
Supreme Court must transfer to the court or authority which made or
confirmed the order 50% of the amount obtained, unless otherwise agreed
between the Central Authority in Gibraltar and that court or authority.

(6) Where a domestic confiscation order certified in accordance with
regulation 20 ceases to have effect or has been part satisfied, the Supreme
Court must notify any court or authority to whom the order has been sent as
soon as reasonably practicable.

(7) Where, in the opinion of the Supreme Court, giving effect to a
domestic confiscation order certified in accordance with regulation 20 may
lead to more than the amount specified in that order being confiscated, the
Supreme Court must notify any court or authority to whom the order has
been sent as soon as reasonably practicable.

(8) In this regulation–

“overseas restraint order” and “overseas confiscation order” have the
meanings given in regulations 17 and 22 (as the case may be);

“relevant decision” means–

(a) a decision to give effect to, or to not give effect to, an overseas
restraint order,

(b) a decision to postpone giving effect to an overseas restraint
order, or to end any such postponement,

(c) a decision to discharge an overseas restraint order,

(d) a decision to consider an appeal against, or an application to
discharge or vary an overseas restraint order,

(e) a decision not to recognise or give effect to, or to give limited
effect to, an overseas confiscation order,

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(f) a decision to postpone giving effect to an overseas confiscation
order, or to end any such postponement, or

(g) a decision to consider an appeal against, or an application to
discharge or vary an overseas confiscation order.