Areas of Practice
4th Mar 2016
The Law on the Prevention and Suppression of Money Laundering, 188 of 2007, was amended for the purpose of harmonisation with “EU Directive 2014/42, on the freezing and confiscation of instrumentalities and proceeds of crime”. The amendment is also in line with the obligations deriving from the Financial Action Task Force recommendations, as well as the recommendations of the “Egmont Group” international organisation related to the competences of the Unit for Combating Money Laundering (MOKAS).
The Law establishes minimum rules on the freezing of property, with a view to possible subsequent confiscation and on the confiscation of property in criminal matters. It allows the confiscation, either in whole or in part, of instrumentalities and proceeds or property, the value of which corresponds to such instrumentalities or proceeds, subject to a final conviction for a criminal offence, which may also result from proceedings in absentia. Where confiscation on the said basis is not possible, at least where such impossibility is the result of illness or absconding of the suspected or accused person, the law allows the confiscation of instrumentalities and proceeds in cases where criminal proceedings have been initiated regarding a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, and such proceedings could have led to a criminal conviction if the suspected or accused person had been able to stand trial.
The new provisions also allow the confiscation of proceeds or other property, the value of which corresponds to proceeds, which, directly or indirectly, were transferred by a suspected or accused person to third parties or which were acquired by third parties from a suspected or accused person, at least if those third parties knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation, on the basis of concrete facts and circumstances, including that the transfer or acquisition was carried out free of charge or in exchange for an amount significantly lower than the market value.
The above shall apply without prejudice of the rights of bona fide third parties.
Under the Law, the MOKAS Unit may, in the framework of an interrogation being carried out, provide the Tax Department and/or the Customs Excise Department with any information which creates a reasonable suspicion that a person may be charged with the commission of a laundering or a terrorism financing offence.
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